Minimum Bans - Dead Again?

Last year, the IRB announced changes to the disciplinary regulation, Regulation 17. You can read the press release HERE, and the new Regulation it linked to HERE. It announced, amongst other things, that minimum bans would mean minimum (and that all parts of Regulation 17.19 were core principles of the system); the relevant portion was Regulation 17.19.6 which said:

Subject to Regulations 17.19.7 and 17.19.8, for acts of Foul Play the Disciplinary Committee or Judicial Officer cannot apply a greater reduction than 50% of the relevant entry point suspension and nor can it/he apply a reduction that would mean the suspension imposed is less than the relevant lower end entry point suspension. In assessing the percentage reduction applicable for mitigating factors, the Disciplinary Committee or Judicial Officer shall start at 0% reduction and apply the amount, if any, to be allowed as mitigation up to the maximum 50% reduction. [Emphasis added]

I wrote several blogposts on this. In November last, Adam Thomson's one-week suspension was appealed by the IRB on the basis that it was less than the minimum ban, and that appeal was successful. That was discussed HERE.

Yet, looking at the latest IRB Handbook, which you can read HERE, and which is dated July 31st, and the Regulation 17.19.6, in that, it makes no reference to the minimum-means-minimum bit. It now says:

Subject to Regulations 17.19.7 and 17.19.8, for acts of Foul Play the Disciplinary Committee or Judicial Officer cannot apply a greater reduction than 50% of the relevant entry point suspension. In assessing the percentage reduction applicable for mitigating factors, the Disciplinary Committee or Judicial Officer shall start at 0% reduction and apply the amount, if any, to be allowed as mitigation up to the maximum 50% reduction.

As you will see, the reference, bolded in the first quote, to not going below the entry level has disappeared entirely.

Looking at decisions from the IRB Junior Rugby World Championship, those seem to be working on the basis that one can go below the minimum, entry-level ban. So, in the Luan de Bruin case, which I mentioned in THIS post and which you can read HERE, it talks about a reduction not below the entry level where it was wholly disproportionate, but below 50% of the minimum.

13. In respect of sanction, I accept Mr. Swart's submission this is an appropriate case whereby the Judicial Officer could have invoked Clause 11.10.7 of the Tournament Disciplinary Programme which permits the imposition of a sanction less than 50% of the lower end entry point sanction where there are both off-field mitigating factors and the sanction would be wholly disproportionate to the level and type of offending involved. 

And that was Tim Gresson, Chief Judicial Officer of the IRB, who pretty much by definition knows the regulations. Similarly, in the Hadleigh May case, which you can read HERE, the sentence was less than the minimum. Those cases were in June. In August, Leonardo Senatore of Argentina just got nine weeks for biting Eben Etzebeth of South Africa when the entry-level - what would have been the minimum - is 12 weeks.

If the minimum ban provision was in place in November, but not in June, then if it was changed it must, logically, have been changed between November and June. Back in February, in the Webb  and O'Gara cases, which I discussed HERE, the minimum ban provision was discussed in depth by His Honour Judge Jeff Blackett, so it must have been in force then. There may well have been an announcement which I missed; but I have looked through the media section of the IRB website back to last November when Adam Thomson's decision was appealed, and have seen no announcement that a core principle of the disciplinary system was being changed under a year after it was introduced.

So, one has to ask: first, has it been officially changed? Second, if so, why? Third, why so soon after the IRB took the unprecedented step of appealing a citing decision on the basis of the core principle? And fourth, if it was changed, why on earth was so important a change not announced the way that the change to that system was announced?

It is, to say the least, odd. If I find out any more on it, I will certainly update this.

Update: Brett Gosper, whose willingness to engage and respond to queries is, as always, exemplary, has confirmed that the minimum-means-minimum change was made at the IRB Council meeting on the 28th November 2012. It would seem that the reference to wholly disproportionate in the O'Gara case in February was in this light. The only seeming reference of any kind to this at the time, one week after the IRB had appealed a citing decision for the first time to enforce this minimum ban rule, was one paragraph tucked away in THIS:

The IRB Council also approved minor revisions to Regulation 17 governing illegal and foul play. The revisions address interpretation matters following the introduction of the restructured Regulation in June of this year.  

In terms of clarity, it's a long, long way from the clear announcement of five months earlier. In fact, it actually says nothing about deleting the product of the IRB Morality Conference that had, in Thomson case, been making headlines all that week, and which had attracted a fair degree of praise in turn when the IRB stood over making its regulations against foul play meaningful. Why this coyness, so soon after standing over the change, one cannot say. So, on the list of questions above, the answers would seem to be: yes to the first, and even more head-scratching as to the rest.

Cite Them All, Let God Sort It Out.

A paraphrase of a paraphrase for a title. The origin of which title comes from the heartland of French rugby.

The Albigensian Crusade is called after the town of Albi, in the heat of l'Ovalie, the south west of France where rugby is played. It was aimed after the Albigensians, heretics from Albi (not, strictly, that being from Albi is a heresy in and of itself, despite what Castres Olympique fans think).

When the town of Beziers - where Munster played Castres in the 2002 HEC semi final, of happy memory - was attacked, Arnald Amary, a leader of the crusade was supposed to have been asked what should be done with the prisoners and to have replied, "Kill them all. God will know his own" (in fairness, there's no direct record of this, and it was only ever that he was reported to have said it).

On which note, I would like to look at a case from the Junior Rugby World Cup in France, the appeal of Luan de Bruin, tighthead prop of the Baby Boks, against his suspension for a tip-tackle. You can read the Decision HERE; significantly, it was Tim Gresson hearing it. As head of the IRB Judicial Panel, Gresson's opinions carry very considerable weight indeed as a pointer of how the IRB see things developing.

The tackle in question, as with so many tip-tackles, involved two players lifting plus the tackled player, but de Bruin was the only one cited. In the appeal, it largely turned on whether the tip was largely down to the other player. That line was rejected, and the appeal failed on that grounds. Interestingly, the case of Toby Flood, a controversial decision which, in my opinion, was out of line with the ERC and IRB approach to this, was relied upon by Counsel for de Bruin, Adv. Swart, and was implicitly if not openly distinguished by the hearing which held that the approach of leaving off the cited player who played a lesser role was not the approach to be followed.

Adv. Swart, correctly accepted in argument that it was open to hold that the tip-tackle was the fault of both players, or indeed largely of the other player, and that if this was found to be the case, then the sentence of four weeks was wholly disproportionate in the circumstances; this was accepted.

The real significance is in paragraph 12 of the judgement, which, while it is strictly a comment instead of a finding, is worth reproducing in full:

A final comment. This is yet another case which gives rise to the issue as to whether it is appropriate for Citing Commissioners to cite more than one player in respect of incidents similar to that which has occurred in this case. In my view where more than one player has contributed to a dangerous lifting situation (whether in a tackle or otherwise) Citing Commissioners could give serious consideration to reviewing the totality of the actions of all the participants in relation to the incident and then decide whether the cumulative effect of their actions warranted the awarding of a red card to any and/or all of those players involved. If the Citing Commission considers that a participant's actions in such an incident do not meet the red card threshold but another participant's actions do and such player(s) is cited than that determination should be particularised in the citing report. It follows, if there are multiple citings of players involved in the incident and they are upheld then it would be the responsibility of the Judicial Officer to assess the extent to which each of the players involved contributed to the incident of Foul Play and sanction accordingly. What is paramount is that acts of Foul Play which meet the red card threshold are cited and subject to the rigours of judicial scrutiny. [Emphasis added]

So, in other words: if there are more than one player involved in a red card incident, look at what the actions added up to and cite that if it meets the threshold - and make it clear why you're not citing all of them if you only cite one, because red card offences should be cited.

So, to give recent examples: Toby Flood would on this basis almost certainly have been done for the tackle along with his team-mate, as both contributed to an unquestionably dangerous tackle. Joint lifting tackles are now even more risky, because a coach who trains his players to do this could lose more than one player to citing. Bringing the tackled player down safely - which, somewhat paradoxically, is tricker with two players, because there are two people who can misread a situation or get it wrong - is now even more important. At a time when Dan Lydiate's remorselessly-efficient ankle-chopping style contributed in no small part to the Lions series, it would make one wonder whether, when it comes to the lifting tackle, that game is worth the candle anymore.

Be that as it may; whether coaches make that decision, it looks like we may well be in for a continued crackdown on tip-tackles at IRB level. Whether this lasts into the upcoming Rugby Championship will be interesting to watch.