Rugby, the law and strict liability

One of the things many students find difficult when first studying law is the need to apply the principles to the facts of a situation, regardless of personal feeling. The need for certainty and consistency is emphasised, and it is generally acknowledged that justice would be seriously undermined if every judge made a personal decision in the instant case based simply on the fact that he/she thought it fair, popular or convenient. The same should be true for a rugby referee.

Alain Rolland has been taking an outrageous amount of flak and vitriol as a result of his decision to send off Wales’ captain before 20 minutes were up in yesterday’s quarter final against France. Commentators and pundits have been united on the fact that it was an awful decision, Rolland was wrong and the evil ref single-handedly wrecked a game and stole away Welsh chances.

Yes, the decision probably ruined the game. Yes, everyone seems to be united in the feeling that Warburton is a great guy, a fantastic player and would never have acted with malice or evil intent. Fine, let’s not blame him for something that was unfortunate, and perhaps changed the course of the game. That being the case, of course, it’s easy to blame the good old ref….but is it fair? I don’t think so. Let’s look at it from a legal reasoning point of view…what does the law say?

The law, it seems, is concerned with strict liability. Intention is not the issue here; the question is whether the tackle was dangerous. The current law is based on the facts, not the intention. Actus reus not mens rea – in other words, strict liability. The rule is designed to ensure player safety (in much the same way as many strict liability rules are designed with public safety in mind) and it is quite simple:

if a player is tackled and his legs go above the horizontal it is the responsibility of the tackler to bring him down to the ground safely and to ensure that he does not land dangerously on his head and neck. If the player is not brought down safely the offence is punishable with a red card.

Don’t take my word for it – take the word of a fine Welsh referee, Clive Norling, writing for Wales Online (http://bit.ly/oUolHW):

It can’t have been easy to commit that view to print as a Welsh rugby man, but Norling, like Rolland, is a man of integrity and will enforce the rules clearly and without bias.

It’s a great shame that our TV pundits could not do the same. I can accept that a commentator, in the heat of the moment, might be moved to describe an action that was clearly disappointing as ‘unbelievable’ but what of the studio experts, who had time to check their facts and to deliver a measured response? Not a bit of it. They raged about injustice, a terrible decision and the fact that it shouldn’t be a red card because there was no malice. Morally we may or may not agree, but this is the law… and shouldn’t they have checked the law before publicly slagging off a referee on television to millions? Yes, the passionate Welsh fan in the stands wearing a red shirt, a Toby Faletau wig and brandishing a giant daffodil probably will be outraged and think the ref is a fool. That’s fair enough, but I expect more from the supposedly unbiased experts in the studio. They have a responsibility, and they ought to check their facts very carefully before broadcasting derogatory opinions about a referee and stirring up more anger and hatred in the fans who, understandably, feel bitterly disappointed.

What really upsets me is Francois Pienaar. I’ve always had a huge respect for the man and, for me, he was one of the reasons for avidly watching every moment of ITV’s World cup coverage. The man is a legend, but yesterday I think he and his colleagues got it very, very wrong.

Firstly, the studio panel should have had access to the rules – either a rule book, or access to a person who knew the rules – so that their comments could be factually and legally correct. If the law does not require malicious intent for a red card, then it is nonsense to say that a red card should not have been issued because there was no ill intent and the player was not a dirty player. It may be felt that the rule is harsh but, if so, that is a fault of the rules and not the person who applies the rule accurately, clearly and consistently (Rolland has sent players off before for this same offence – see Clive Norling’s article mentioned above). Don’t shoot the messenger.

Next argument against the unfortunate Rolland was that he should have consulted the TMO. I may be wrong here but, to my knowledge, the TMO can only be accessed for things that happen in the act of scoring. If so, the option was not open to Mr Rolland, however much he might have appreciated it. I agree entirely that the TMO ought to be able to be used in this circumstance and that is something that should be looked at – for the referee’s protection as much as anything else – but yesterday it was not an option. Is that Rolland’s fault? No. At this point I feel the need to digress and mention a time in an earlier game when the referee was unable to access the TMO to check the validity of a decision. Wales v Ireland in this year’s Six Nations. A Welsh player took a quick lineout with a ball that was not the one that had gone out of play. This was against the law (the BBC, to their credit, did actually check the law before their pundits spoke out)  but the ref and his touch judge missed it and were unable to go to the TMO, despite the lengthy protestations and requests from the Irish. Very unjust. The Welsh coach Warren Gatland admitted as much, but is quoted as saying: ” That said, I don’t care because we won the game and that’s all that matters.”  (http://bit.ly/hbp5id). Consistency please, Warren.

Finally (I’ll have to end soon or I’ll go on all day about this…) what I consider to be the most stupid argument of all. This is the argument that says that the referee should have exercised more discretion and should not have sent off such an important player, the Welsh captain, so early in the game because it ruined the game. Let’s follow the logic here…

What is the purpose of this rule? Player safety. The aim is to prevent tackles which pose a risk of serious danger, whether danger is intended or not. How is that aim best achieved? By punishing any such tackle in the appropriate way and discouraging players from doing something similar in future. The deterrent effect has always been a key issue when it comes to strict liability.

So, would our aim of deterring dangerous play be achieved if we had a situation where tacklers knew that it was OK to put in a dangerous tackle in the first 40 minutes, because the ref wouldn’t be so strict, but you’d better watch it in the last 20 minutes because it might be red? Would it be right if you get away with risking critical injury in a World Cup semi-final, but you can’t get away with it in an LV Cup game because it’s not that vital and a sending off won’t ruin the game? Safety is safety – there’s no way it should be dependent upon circumstances like the importance of the game and the importance of the player. What shall we say? If the offending player is a third stringer it’s OK to send him off, but if it’s a big star who is vital to the game then he gets away with it? Wasn’t that the great injustice that we all moaned about when Umaga and Mealamu got away with that tackle that started the whole thing off?

So, I reckon we should applaud Alain Rolland. We might think the rule is harsh when the player affected is one like Warburton. We might feel that the TMO should have a greater role to play. These are things for the IRB to decide, not for the man with the whistle in the middle of the pitch with the eyes of the world upon him. The law is the law and Rolland has applied it, cleanly, clearly and bravely. He deserves massive credit for that. It was a great shame that it happened when it did, but it’s not Rolland’s fault. We should admire the consistency and nerve of a man who dared to apply the law fairly in front of a hostile audience. Isn’t that what we say we want? Consistency? Consistency from the first minute to the final minute. Consistency in applying the law to the greats and to the also-rans. However much you might hate Rolland for his decision yesterday, especially if you are a Welshman, just ask yourself – if Wales had got to the World Cup final and played the All Blacks would Alain Rolland have wimped out of sending off Richie McCaw in the third minute if he had done the same thing?

You know he wouldn’t… and everyone who has moaned on for years about ‘McCaw getting away with it because refs don’t deal with him’ would have lauded him as the best ref ever.

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