Tag Archives: Rugby

Taking Another Look: Rugby’s Video Refereeing Problem

December 9, 2015


By Christopher Gall – Thompson Rivers University JD Student

Rugby is a sport on the rise. It has benefited immensely from rejoining the Olympic Games after a 92-year absence. This has provided the sport additional funding from the International Olympic Committee (IOC) and improved its credibility with government agencies. Further, Rugby is reaching out to build its fan base beyond its core markets. An excellent example is that the 2019 Rugby World Cup will be hosted by Japan.

One serious problem the sport faces currently, centers around video refereeing. Back in 2013 the administrative body World Rugby expanded the domain of the Television Match Officials (the fancy title given to instant replay staff) to include defensive infringements and serious fouls which is a significant move beyond disputable tries. While the policy has had the positive outcome of bringing more accurate calls on to the field, it comes at a steep cost—further inhibiting the sluggish pace of the game.

To break down the actual numbers, reviews used to average 85 seconds with 0.75 plays reviewed per match. So far this year that figure has more than tripled to 2.41. No other team sport outside of the competing rugby league (known as rugby league) comes anywhere close. The opening match of the World Cup on 18 September 2015 utilized six referrals and paused play for close to ten minutes while decisions were contemplated. As a result, the league faced significant criticism and issued an official statement on September 21st defending the replay policy.

Rugby 1Fast forward a little over a month, and the discussion is heating up again—this time with a push in the opposite direction. Senior officials are in an uproar, crying for increased video review.

To set the stage: During a quarterfinal match where Australia knocked Scotland out with a provocative penalty kick. The official, Craig Joubert, awarded the penalty after witnessing a Scottish player fumble the ball forwards into the open arms of a teammate. Unfortunately, what he missed in that fraction of a second was a deflection off an opposing player—which should have resulted in a scrum. The ref was prohibited from consulting with Television Match Officials as no foul play was involved. Unfortunately, the 80,000 fans in attendance and Mr. Joubert had to watch his mistake in slow motion as it was broadcast on the jumbotron.

Employing human referees always will result in a margin of error with the officiating. Rugby would do well to take note of other governing bodies who have banned the showing of replays on contentious calls inside the stadium—especially if the official has not had the benefit of viewing the footage themselves. There is an important balance to be struck between transparency and maintaining fair play. Officials can often feel pressure to provide a makeup call to the team who was slighted by the initial bad call thereby only compounding the issue.

Rugby 2

Rugby could benefit from a single replay center as is found in many North American sport leagues and has been adopted by Australasia’s National Rugby League (which has been able to halve its review time). Maintaining the flow of play is critically important. One way to do this that has been successfully utilized elsewhere is to employ challenges where a captain can request a second opinion until the decision is upheld upon review, whereby the right to further challenges is then forfeited.

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IRB New Scrum Rules a Response to Other Leagues Liabilities?

October 2, 2013


By James Rees – Thompson Rivers University 2L JD Student

The sport of rugby is somewhat unique amongst the major sports played throughout the world in the sense that the rules are constantly being readjusted. This summer the International Rugby Boards (IRB) continued its mandate to readjust the rules and one of the game’s most notorious features was subject to these changes. The scrum is one of the most unique aspects of the game, consisting of a battle of raw strength and refined technique. It is also one of the game’s most dangerous components as scrums have left many participants with debilitating injuries and have even resulted in the deaths of some players.

In a study titled Contact Events in Rugby Union and Their Propensity to Cause Injury from 2007, 13 English Premiership teams were analyzed over two seasons too see what aspects in the sport caused the most injuries. The study found that whilst tackling led to the most injuries, scrums were less common than tackles but carried a 60% greater risk of injury than tackles. Furthermore, there was an increased risk of catastrophic injury associated with the scrum, as one in six scrums would collapse leading to greater potential for these injuries (most commonly serious head and neck injuries).

In an effort to reduce the number of injuries and long-term effects, the IRB has instituted a new protocol for players to engage with each other when coming together at the scrum. Rather than continuing with the former crouch, touch, set cadence that resulted in a massive hit when the opposing teams came together, players are now required to start in a position where they are effectively bound together before they may even begin pushing. According to the IRB, studies from the University of Bath’s Scrum Forces Project showed that the new scrum technique would produce a 25% reduction in the amount of force applied in the scrum.

To give some reference, an average elite men’s scrum would produce 16,500 Newtons of force under the previous cadence. This amount of force equates to 1682 kilograms of force created each time teams would scrum. The leader of the Bath project, Dr. Grant Trewartha, estimates that as much as 15% of an eighty minute game can be spent scrumming. This equates to nearly twelve minutes per game of subjecting forwards to these forces.

Upon reviewing this information, it can be reasonably assumed that the IRB’s decision to change the scrum is consistent with the mandate of safeguarding player health and welfare. A reduction in the amount of force applied in the scrum will not only ensure that less stress is placed on a player’s body, but will also help to create a stable platform and prevent the collapses that were associated with catastrophic scrumming injuries. However, there may be more to the change in rules than just player safety.

In August 2013, the National Football League reached a settlement with 4,500 players for $765 million over head trauma they suffered whilst playing gridiron football. Whilst there was no admission of wrong doing by the NFL as a part of the settlement, this still represented a massive payout to the players in order to keep the case out of the courtroom. The National Hockey League is also facing a lawsuit as the family of former player Derek Boogard filed against the league in May for negligence in causing the death of the former enforcer. Both these legal actions exemplify that professional leagues are facing an increasing risk of lawsuits as former players seek recognition of the punishment their bodies suffer for their sports (although there is no formal connection at this stage).

My assertion is that whilst the IRB can clearly rely upon player welfare as the basis for the change in the rules, they are also pre-emptively looking to protect themselves from possible lawsuits related to the long-term effects of the sport on players bodies. One question that remains is whether the rule change is enough to protect the IRB from potential legal action. In the Canadian civil law case of Anderson v. Maple Ridge (District) a stop sign had been moved following multiple accidents at an intersection. The plaintiff had been injured at the intersection and asserted that by moving the sign, the district was admitting liability. The court held that action after the fact is not an admission of liability, but can be used as evidence to establish negligence.

According to this principle one could infer that the change in the rules of the scrum could be cited as evidence in a case against the IRB to establish negligence. A player who suffered long-term damage from the previous scrum cadence may be able to cite the rule change, asserting the IRB was aware of the dangers of the scrum, but continued to allow players to subject themselves to this increased risk before changing the rule.

The IRB does benefit from a history of rule changes associated with ensuring player welfare in other areas of the game. Furthermore, there is a major difference between the IRB and other sports governing bodies in that rugby is so new professionally and they have actively sought to make the game safer for the players. Yet the question still remains whether this change is enough to prevent long-term damage to players and whether the IRB may one day be held accountable for players who subjected their bodies to the punishments of the previous rules.

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Exercising a public function: Spelman v. Express Newspapers [2012] EWHC 355 (QB)

April 18, 2012


Redacted (public version) of the transcript: http://www.bailii.org/ew/cases/EWHC/QB/2012/355.html

Guardian newspaper report: http://www.guardian.co.uk/sport/2012/apr/16/rfu-environment-secretary-drug-taking

A lot has been recently written about Jonathan Spelman, a 17year old boy and son of a Cabinet Minister (Caroline Spelman is Member of Parliament and Secretary of State for the Environment, Food and Rural Affairs) and on the 16th April he was formally suspended from Rugby by the RFU for 21months for an anti-doping violation: http://www.rfu.com/News/2012/April/NewsArticles/160412_Spelman_judgment.aspx .

While the details of this anti-doping violation are now public knowledge, as is his unsuccessful fight to seek a privacy injunction barring reporting of this, what is perhaps more interesting is the Court’s view about sport.


The Background to the case

Jonathan Spelman played rugby for England U16 and for Harlequins RFC however he suffered a serious cruciate ligament injury in September 2011 which prevented him from playing. According to newspaper reports, he then ordered a series of steroids over the internet in an attempt to speed his recovery. The RFU name these substances as: testosterone, drostanolone (both anabolic steroids), growth hormone (GHRP6), human chorionic gonadotropin (HCG), clomid (clomiphene) and nolvadex (tamoxifen).

The Privacy injunction was an attempt to prevent the Daily Star Sunday (a tabloid newspaper) from revealing these allegations, an effort that subsequently failed. The resulting publicity in the media ultimately led to his voluntary appearance before the RFU’s independent disciplinary tribunal last month. Earlier this week, the tribunal reduced his anti-doping violation by three months to take into account his youth, immaturity and admission of guilt.


The Privacy Injunction attempt

Although the Daily Star Sunday did not yet have a fully written article, they were making enquiries of various parties to try to corroborate their information about Jonathan. After they approached these sources, they were contacted by the Claimant’s solicitors who instructed them to effectively cease and desist what they felt was an invasion of privacy and a political assault against Mrs Spelman.

By contrast, Express Newspapers argue that by giving full and prior notification of a potential story, they acted properly and responsibly, a principle that Max Mosley has previously campaigned on: http://www.guardian.co.uk/media/2011/jun/02/max-mosley-media-warn-subjects-expose . They also argued that Mrs Spelman was only an incidental aspect to the story [25] and that the key fact is that Jonathan is an elite sportsman who aspires to play at national and international level [66].

The initial hearing was on Saturday 11th February 2012, see here for a redacted judgment:http://www.bailii.org/ew/cases/EWHC/QB/2012/239.html and http://www.bailii.org/ew/cases/EWHC/QB/2012/392.html

As with many privacy cases, the crux of the case turned on the interpretation of the Human Rights Act 1998 and the balancing exercise that needed to be undertaken between the diametrically opposite rights enshrined by Article 8 (Right to respect for private and family life) and Article 10 (Right to freedom of expression). At [30], the Court confirmed that neither of the Articles took precedence over the other, instead, the importance of each right, the justifications for any interference, and the proportionality of any action should be carefully reviewed. The Court also re-stated the importance of maintaining open justice and the public accountability of the Courts [19].

See: http://www.headoflegal.com/2012/02/24/spelman-injunction-lifted/ for an interesting analysis of this balancing exercise.

As an aside, at [24], there is also an interesting discussion of the mechanics of how Sunday papers work and the exclusivity they prize over the daily titles that could effectively scoop them to reporting ‘their’ story if the injunction was discharged during the week .


Unfettered Watchdogs

While the paper expressed the view that it would be cheaper to not contest the injunction, they felt that this would place serious constraints on their freedom of expression and their function as a ‘unfettered Watchdog in a democratic society’. Perhaps surprisingly, the Court broadly agreed and cited what it saw as two key paragraphs specifically applying and underpinning this principle in sport.

6. The Assembly is aware that personal privacy is often invaded, even in countries with specific legislation to protect it, as people’s private lives have become a highly lucrative commodity for certain sectors of the media. The victims are essentially public figures, since details of their private lives serve as a stimulus to sales. At the same time, public figures must recognise that the position they occupy in society — in many cases by choice — automatically entails increased pressure on their privacy.

7. Public figures are persons holding public office and/or using public resources and, more broadly speaking, all those who play a role in public life, whether in politics, the economy, the arts, the social sphere, sport or in any other domain.

Resolution 1165 (1998) of the Parliamentary assembly of the Council of Europe on the Right to Privacy

And from the recent Grand Chamber case of Axel Springer AG v. Germany [2012] ECHR 227 (7 February 2012) [90]:

An initial essential criterion is the contribution made by photos or articles in the press to a debate of general interest (see Von Hannover, cited above, § 60; Leempoel & S.A. ED. Ciné Revue v. Belgium, no. 64772/01, § 68, 9 November 2006; and Standard Verlags GmbH v. Austria (no. 2), no. 21277/05 § 46, 4 June 2009). The definition of what constitutes a subject of general interest will depend on the circumstances of the case. The Court nevertheless considers it useful to point out that it has recognised the existence of such an interest not only where the publication concerned political issues or crimes….. but also where it concerned sporting issues or performing artists (see Nikowitz and Verlagsgruppe News GmbH v. Austria, no. 5266/03, § 25, 22 February 2007; Colaço Mestre and SIC – Sociedade Independente de Comunicação, S.A. v. Portugal, nos. 11182/03 and 11319/03, § 28, 26 April 2007; and Sapan v. Turkey, no.44102/04, § 34, 8 June 2010).

The Court held that given this, and the fact that at least one of the facts was true (and thereby could act as a complete defence to any potential defamation action [60]), it would be in the public interest for the newspaper to publish. The Court did however recognise that such an article could be intrusive or offensive depending on how it was written [102] and reserved the right to award damages (including aggravated damages) for the disclosure of private information if the publisher could not justify its use [120].


Child Athletes

The rest of the judgment is comparatively unreported; however I would argue that it is actually the most interesting and far-reaching part! Essentially, the Court moved from the basic proposition that children enjoy no general rights to privacy simply because of their age [53], to suggesting that the fact that Jonathan was nearly 18 was irrelevant as the principles of the case and the public nature of his role would equally have applied by virtue of his status as an international U16 player [72].

While I would not recommend using Mr Justice Tugendhat’s comments at [68] to meet the Government’s legacy sport targets for youth sports participation:

The material benefits to those few children who succeed at the highest level can be fabulous. But these benefits may come at a high price. It is a matter of common knowledge that the effort to achieve the highest honours in sport can damage a person’s health and family life, and lead to an early death, or even to a life of misery when careers end early and in disappointment. But the price in terms of health and happiness may be paid even by the less successful performers (being the overwhelming majority, of course) without their ever obtaining the material or other significant benefits.

It is his subsequent comments that are potentially the most significant. At [69], Tugendhat J suggests that:

69….those engaged in sport at the national and international level are subject to many requirements which are not imposed on other members of the public. Matters relating to their health have to be disclosed and monitored, and they may have little if any control over the extent to which such information is disseminated. It is a condition of participating in high level sport that the participant gives up control over many aspects of private life. There is no, or at best a low, expectation of privacy if an issue of health relates to the ability of the person to participate in the very public activity of national and international sport.

He then proceeds to extend this principle even further beyond professional athletes to journeyman athletes who merely ‘aim for’ rather than necessarily achieve the highest levels of sport [70].  Strictly speaking this area of the judgment is obiter, however it does make me wonder how many current child athletes (and their parents) understand the responsibilities that this extension of the principle entails. Not only are national and international child athletes role models and can legitimately be subjected to public scrutiny, but so now are lower level younger athletes. How far does this diminution of reasonable expectation of privacy extend? County level? What about pupils competing in the National School Games? It will be interesting to see how this area develops.

One last paragraph that sports governing bodies may wish to address is the potential ethical and welfare concerns raised by the Court in [107] that:

…..the demands made on children for the benefit of sport have increased very greatly over that period. Whereas in the past there was relatively little money to be made out of sport by anyone, sport has in recent years generated huge revenues, mostly from broadcasting and other intellectual property rights. So there is a risk that those responsible for organising national and international sporting activities may have interests that conflict with the welfare of the children who participate, or aspire to participate, in these activities.

Is this Tugendhat J’s response to the furore over Tom Daley’s media commitments, or is he suggesting that greater work should be undertaken to ensure that young athletes in professional and elite sport are not just protected from abusive relationships, but from the pressures and responsibilities of playing sport itself?

Ironically, this judgment has only increased these pressures.

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Should pitch inspections be kicked into the long grass?: Sutton v. Syston Rugby Football Club Ltd [2011] EWCA Civ 1182

October 31, 2011

1 Comment

The case concerned a 16yr old rugby player injured during a touch rugby game at his local club in Leicester, UK. Perhaps surprisingly for a rugby negligence judgment, the case did not concern injuries from any collapsing scrums, but rather concerned a knee injury from a collision with a semi-buried obstacle.

Read the BBC news report or the full case transcript.



On 2nd July 2007, midway through the training session at Syston RFC Ltd, the three rugby coaches changed the session from Age Groups practice to a mixed-age “tag” rugby match involving U16 & U17 players on each team.

About 30mins into the match, the claimant received the ball and dived for the touch-line to score. Unfortunately for the claimant, hidden in the grass at the time was part of a plastic cricket boundary marker which gashed him, causing severe and permanent knee injuries. He claims £54,000 for the club’s negligence in failing to inspect the pitch and to discover this stub [3].

The Club admitted a duty of care to the Claimant under the Occupiers Liability Act 1957 to “take such care, as was reasonable in the circumstances of the case, to see that Mr Sutton (and their other visitors) would be reasonably safe in using the Club’s premises.” [5]

They also admitted that no general inspection of the pitch had taken place before the match and that in this respect they had failed. The issues between the parties can be distilled into two main questions:

1)    What was the appropriate standard to judge the quality of the inspection

2)    Whether this inspection would have revealed the stub (causation)



The starting point is do clubs have a duty to conduct an inspection of their facilities? The simply answer is yes. Even if the rugby club had hired its pitch out and the obstacle in question had been placed there by an unknown cricketing third party who may have owed an obligation to “remove all traces of their presence… that does not of itself delegate or discharge the rugby club’s duty as occupiers of the Club premises and towards players using the pitch for the different purpose of a later rugby match. [§33]”

So what is the nature of this non-delegable duty? Effectively, Lord Justice Longmore expressly approved the guidelines from the National Governing Body for the sport – the Rugby Football Union (RFU). These guidelines provided a safety check-list to check the ground for foreign objects “such as glass, concrete, large stones and dog waste”.

Nothing controversial so far. The crux of the case comes in the decision how this inspection is to be consulted. This finally arrived in:

Before a game or training session, a pitch should be walked over “at a reasonable walking pace” by a coach, match organiser, someone on their behalf, or by multiple persons inspecting pre-agreed areas [13].

In laying down this standard, Longmore LJ was at pains to note that the standard of the inspection should be the same whether the activity was a training session or match and that all areas of the pitch should be treated by the same standard, particularly given that the danger to be avoided (falling into foreign objects) could happen during any part of the pitch. No doubt in reaching this latter decision, the learned judge was particularly influenced by the recent World Cup match where the English players were never in any risk should any foreign objects have been buried in the French touchline!

This test therefore rejects the earlier first instance decision [11]:

“While not required to investigate below every blade of grass it seems to me a slightly more careful degree of attention needed to be paid [to] the touch-down ends of the pitch where players are to be expected to dive or fall onto the ground. [§34]”



Sadly for the claimant, this is where his case tripped up. Once Longmore LJ had applied the balance of probabilities test from Fairchild v. Glenhaven Funderal Service [2003] 1 AC 32, the Court of Appeal was unsure that the stub could have been discovered [17]. In particular, the Court noted that the grass was ‘lush’, ‘below the level of the grass’, only one witness actually saw the stub, and it was not immediately visible on a casual inspection. Given these comments, the Court concluded that a reasonable walk-over inspection of the pitch would not have revealed the stub, and therefore the claim fails [17].



An interesting footnote to the case is that at times the Court of Appeal was very keen to limit the implications of its decision for sports. In particular, at [13] Sutton becomes the latest in a string of the reported sports cases to evoke s.1 of the Compensation Act, and the first to be applied to a regular ‘club’ environment as opposed to ‘casual or one-off’ sessions (Reynolds, Uren, Harris, Poppleton).

1 Deterrent effect of potential liability

A court considering a claim in negligence or breach of statutory duty may, in determining whether the defendant should have taken particular steps to meet a standard of care (whether by taking precautions against a risk or otherwise), have regard to whether a requirement to take those steps might–

(a) prevent a desirable activity from being undertaken at all, to a particular extent or in a particular way, or

(b) discourage persons from undertaking functions in connection with a desirable activity.

 Longmore LJ in concluding was also at pains to highlight that the Court “must not be too astute to impose duties of care which would make rugby playing as a whole more subject to interference from courts than it should be” [18]

I suppose this begs the obvious question, when should courts interfere?

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Police recommend assault charges in lacrosse head stomping incident

October 20, 2011


The Canary reported in June 2011 that the Royal Canadian Mounted Police (RCMP) were investigating an incident in which 15 year old Blake Rose was felled by two cross-checks (which if properly administered are permissible) but then had his head stomped on in the waning minutes of a lacrosse game between the Kamloops Rattlers and Kelowna Kodiaks. The RCMP has just recommended to the Crown that a charge of simple assault be laid (click here for Kamloops Daily News article).

At the time of the incident, RCMP spokesman Staff Sgt. Grant Learned correctly noted that the investigation will hinge on whether ‘the nature of that contact [the cross-check and stomp] was so outside the boundaries of acceptable contact that the nature of misconduct was egregious and bordering into that realm of criminality?’

The courts in BC are not unique in their inconsistent approach to adjudicating sports violence. At its core, the courts struggle with how to accommodate the role of violence in sport and the extent to which participants consent to injurious force which is prohibited by the rules but may be permitted within the culture of the game. For example, in the rugby case of R v. TNB (BCPC 0117) in 2009, Honourable Judge S.D. Frame ruled that players consent to violent contact within and certain violent conduct outwith the rules of the game. Cognizant of the playing culture of the game, Frame J. stated that the ‘amalgam of rules includes the legitimate strategy of intimidation of the opposite team by head-butting, eye gouging, elbowing, raking and punching’ and noted that ‘none of these infractions is permitted by the written rules but it is accepted by the unwritten code of conduct at this level of play in the game of rugby.’ The defendant was found not guilty on the grounds that the punch was randomly thrown and not intended to target and hit the injured plaintiff and, as such, fit within rugby’s unwritten but accepted code of conduct.

With respect to J. Frame’s judgment in R v. TNB, if the lacrosse head stomping allegations are proven true, it is hoped that the court will make a bright line distinction that such conduct is criminal – period – irrespective of any fantasies relating to the ‘unwritten code’ or playing culture of the game, and that the proper means of penalizing such behaviour is not by a referee but through the courts.

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If only he had known that the Truth shall set you free!: R v. (Paul Brian) Brown [2011] EWCA Crim 786

August 31, 2011



The case concerns Paul Brown’s unsuccessful appeal against his GBH conviction (12months) from the 21st October 2010. Although the case was heard several months before the riots and the new, ‘tougher’ sentencing regime, it is interesting to note the lack of any softening because the punch happened on the playing fields rather than on the streets.

The assault itself occurred during a game of rugby in 2008 between two amateur Yorkshire clubs (West Park Leeds Lions & Ilkley). The victim (Mr David Tidman) had just got to his feet after being tackled and being at the base of a subsequent ruck and maul, when the defendant (Brown) ran a considerable distance and delivered a single punch to the Tidman’s right eye, knocking him out and causing grave injuries. The game was later abandoned.

One month later, Brown voluntarily attended a police station, where although he was arrested and charged, he denied the offence. This ultimately proved crucial to his sentencing, as although he was only 18 and of previously excellent character, the punch was a one-off incident, and there was a low risk of reconviction, the Judge (Hoffman J) was scathing of his defence.

Despite witness testimony to the contrary, Brown had tried unsuccessfully to argue that not only did he deny the offence, but that the blame for the incident should be placed on a smaller Canadian player, who was not called as a witness and was therefore unable to defend himself (to a certain extent, I can see his point – you know what these Canadians are like with all those Ice Hockey genes coursing through their veins!). On this occasion though, the Judge held that his defence was dishonest and absurd and while it did not increase the sentence, it did rob him of any sympathy the Court might have had, particularly since there was no evidence that Brown had accepted any responsibility for the injury.

While the Court of Appeal was at pains to include the ubiquitous confirmation that: “rugby was a contact sport and injuries quite frequently happen through perfectly normal and unintentional normal play….”

It did lay down a marker that: “….Nevertheless, unprovoked assault of the kind of which Paul Brown was convicted, is not only unacceptable, but must be dealt with in the way that such assaults have to be in these courts.”

Maybe there isn’t such a difference between criminal law and sports law after all? Or maybe the best advice for any athlete is simply to plead guilty at the earliest opportunity and blame the heat of the game rather than the Canadians!

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Police investigate lacrosse head stomping incident

June 30, 2011


I live in the same city in which the court two years ago acquitted of assault a high-school player whose punch broke an opponent rugby player’s nose and cheekbone and has just had another violent incident in which during a lacrosse game it is alleged a 15 year old boy was head stomped by an opponent (click here for the article in The Vancouver Sun).

But first, in R v. TNB (BCPC 0117), Honourable Judge S.D. Frame ruled that players consent to violent contact within and certain violent conduct outwith the rules of the game. Cognizant of the playing culture of the game, Frame J. stated that the ‘amalgam of rules includes the legitimate strategy of intimidation of the opposite team by head-butting, eye gouging, elbowing, raking and punching’ and noted that ‘none of these infractions is permitted by the written rules but it is accepted by the unwritten code of conduct at this level of play in the game of rugby.’ The defendant was exonerated on the grounds that the punch was randomly thrown and not intended to target and hit the injured plaintiff and, as such, fit within rugby’s unwritten but accepted code of conduct.

Now the Royal Canadian Mounted Police (RCMP) are investigating the incident in which Blake Rose was felled by two cross-checks (which if properly administered are permissible) but then had his head stomped on in the waning minutes of a lacrosse game between the Kamloops Rattlers and Kelowna Kodiaks. The league has suspended the offending player. RCMP spokesman Staff Sgt. Grant Learned correctly noted that the investigation will hinge on whether ‘the nature of that contact [the cross-check and stomp] was so outside the boundaries of acceptable contact that the nature of misconduct was egregious and bordering into that realm of criminality?”

With respect to J. Frame’s judgment in R v. TNB, if the head stomping allegations are proven true, it is hoped that the court will not take such an accommodating view of the role of violence in sport and the extent to which participants consent to injurious force which are prohibited by the rules but are incredulously permitted within the culture of the game.

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I wasn’t THAT bad was I? (Brennan v. Health Professions Council [2011] EWHC 41 (Admin))

February 9, 2011


See also: http://blogs.bmj.com/bjsm/2011/01/23/bloodgate-reversal-of-fortune-ethicist-lynley-anderson-comments/; http://www.guardian.co.uk/sport/2011/jan/21/harlequins-physio-brennan-overturns-bloodgate-decision

Read the Full transcript of the case at: http://www.bailii.org/ew/cases/EWHC/Admin/2011/41.html

The case concerns the appeal by Stephen Brennan, the former head physiotherapist at Harlequins Rugby Football Club (RFC), against the punishment imposed by the Health Professions Council (HPC) for his part in the ‘Bloodgate’ scandal.

‘Bloodgate’ concerned a European Rugby Cup (ERC) match between Harlequins RFC and Leinster on the 12th April 2009. Harlequins were losing the match, and their head coach, Dean Richards, wanted to bring their principal fly half (Nick Evans) back onto the pitch. The problem was, as Evans had been substituted for another player (Tom Williams), the only way this would be possible is for Williams to go off himself due to a ‘blood injury’. Brennan, as Harlequins head physiotherapist, went onto the pitch to talk to Williams during a stoppage in play. During this time, he gave Williams a fake blood capsule he conveniently had in his bag. A couple of minutes later, Williams bit down on the capsule and following Brennan’s inspection of him was substituted by the referee. Evans came back onto the pitch, but subsequently (or justly, depending on your viewpoint) missed a crucial kick.

To cover their tracks against the suspicions of the ERC match director, the Leinster team doctor and the 5th official, Dr Chapman (the Harlequins team doctor) deliberately cut William’s lip. Brennan then photographed this cut to support his actions.

At an ERC investigation into what they suspected was a fake blood injury, Brennan lodged a false account of what had happened and prepared false witness testimony for both Nick Evans and Tom Williams. However, this testimony fell apart as Tom Williams later confessed to the ERC what had happened. All parties involved Williams, Brennan, Richards, Chapman etc were all punished by the ERC (Brennan being banned from participation in all rugby activities for 2 years). Stephen Brennan and Dr Chapman were also brought in front of the disciplinary panels of their professional bodies.

On the 14th September, the Competence and Conduct Committee of the Health Professions Council (HPC) struck Brennan from its register for misconduct, it did however note that Mr Brennan’s clinical skill was not in issue [10]

Effectively while Brennan does not dispute that he was at fault, the case is his appeal against the severity of the HPC sanction. In effect, while the HPC had the power to make one of four sanctions:

  • Caution Brennan for a period of 1-5 years – appropriate if the lapse is isolated, low risk of recurrence or the registrant has taken remedial action [17].
  • Impose conditions of practice for upto 3 years – appropriate where the failure or deficiency is capable of being remedied, there is no risk of future harm, and there has been no breaches of trust or evidence of dishonesty [18-20].
  • Suspend his registration for upto 1 year
  • Strike him off the HPC register – appropriate if there is a finding of deliberate dishonesty, rather than ignorance of the appropriate standards:
    • “last resort for serious, deliberate or reckless acts involving abuse of trust such as sexual abuse, dishonesty or persistent failure. Striking off should be used where there is no other way to protect the public, for example, where there is a lack of insight, continuing problems or denial. An inability or unwillingness to resolves matters will suggest that a lower sanction may not be appropriate.” [22]

 While Brennan freely admits at [8] that he:

  • Purchased a number of fake blood capsules and kept one in his bag during the match
  • provided a capsule to Tom Williams and encouraged him to cheat
  • actively attempted to conceal the fabricated injury to deceive match officials and Leinster RFC
  • prepared false and/or inaccurate statements for two players to use at the ERC enquiry
  • lied during his own testimony to the ERC enquiry
  • had fabricated blood injuries to players on at least four other occasions between 2006-09

He argues that the HPC sanction (striking off) was unduly punitive, as the primary objective of an HPC sanction (the future protection of the public) was not at issue in this case [45] and that Dean Richards was accepted to have instigated the incident [11].

Brennan further argues that any sanction awarded should be a balancing exercise between his rights, the deterrent effect to other registrants, the reputation of the profession, and the public confidence in the regulatory process [13].

 The High Court nearly agreed with him at [45], when it suggested that the HPC Committee had not adequately dealt with the case for why Mr Brennan should be struck off. In particular, Mr Justice Ouseley stated that the HPC’s reasoning was not legally adequate; in that it does not enable the informed reader to know what view it took of the important planks in Mr Brennan’s case. Instead, Ouseley J required the Panel to:

  • Consider how the individual had responded
  • The sincerity and effectiveness of that response
  • The reality of repetition in view of his insight into how the practice of the profession related to his obligations to his employer in professional sport
  • Any punishment inflicted by the sport’s regulatory body
  • The effect which various sanctions would have on the legitimate objectives of sanction for unfitness to practice

That is not to say the High Court is saying that the HPC Panel were wrong in making the decision they did, rather the decision to remit the case back to the Panel is saying that the HPC didn’t give enough reasons to underpin and support this decision and they would need to review and more fully reason their decision. Interestingly, the Court also explicitly accepted two instances where striking off would not be disproportionate:

  1. If Mr Brennan was insincere in his evidence to the committee and had not grasped the need to stand up to an employer applying pressure to abuse his professional qualifications [61]
  2. Where the sanction was for important for deterrent reasons or to prevent damage to the reputation of the profession.  Such an argument would however depend on other factors such as any sporting sanction imposed, and punishments to other parties.

What made this case unusual was the tension between traditional ‘unfitness to practice’ and sporting sanctions:

“Mr Brennan’s dishonesty occurred in unusual circumstances since patients were not harmed, and what was done at the behest of a dishonest coach on behalf of their joint employer. Cheating a professional sport, abusing one’s position as a physiotherapist to cheat and then lying to the sport’s disciplinary body is serious misconduct, but the sanction here required a bespoke consideration of how the general words of the sanctions policy, which cover all situations, should be applied to this particular and unusual case.” [52]


“The punishment for cheating in sport and lying about it was for the sport’s regulatory body. What was for the HPC was the relationship between cheating in sport and lying about it, and his position as a physiotherapist, notably his abuse of that position to enable the cheating to take place, and his reliance on his professional position to assure the first ERC hearing that as a physiotherapist he would not lie. This relationship required careful attention if sanction was not just to become a further punishment; and the Committee did not address this issue in its expressed reasoning.” [54]

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Restricted access to rugby ground

July 24, 2009


Sources: full case report – http://www.bailii.org/ie/cases/IEHC/2009/H191.html; see also an interesting Irish blog report on the case: http://www.cearta.ie/2009/05/rugby-property-and-the-interpretation-of-contracts/

Hannon & Others v. BQ Investments [2009] IEHC 191

The four claimants (Brendan Hannon, Martin Ryan, Declan Cusack & John Meaney) are all trustees of Thomond FC and sued the defendants over an agreement for sale of some land for a student apartment development. As part of the sale, the purchaser also agreed four special conditions (8-11) :

  1. The provision of “two suitable rugby playing pitches, levelled, top soiled and ready for seeding” on the remaining lands
  2. The relocation of the existing floodlights and electricity sub-station to one of these new pitches
  3. The club would have a right of way over the roadway and footpath for use of the pitches and clubhouse
  4. (Uncontested at trial) that the club could connect into the services installed by the purchaser.

While an earlier Circuit Court case (concerning clauses 8 & 9) was settled for an additional sum, effectively buying out the defendants obligations under the two clauses, nothing was raised about clause 10 until a year later when the claimant’s solicitors sent a letter reminding the defendants about their obligation to construct and light a right of way to the pitches.

The dispute in this case therefore relates to the meaning of the words in clause 10 and in particular when the obligation to build this roadway and footpath became due. The problem is that while the location of the right of way was agreed by both sides, no formal clubhouse actually existed (simply a temporary portakabin). The defendants therefore argued that they did not need to build a new right of way to this land as other pre-conditions had not been fulfilled. By contrast, the claimants argued that their actual use of the land was irrelevant but that any plans they did have for the land was compromised without the right of way, but even if it were not, clause 10 is a stand-alone clause.

Ultimately the court decided that the phrase ‘for use of the’ related to the purpose of the land, rather than any condition precedent  and that as a result the defendants were in breach of contract. The court however reserved any decision on awarding damages or specific performance until after further evidence had been heard about the future plans for the land.

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Canadian judge acquits rugby player of assault

April 11, 2009

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Kamloops, BC


A Canadian judge acquitted of assault a high-school player whose punch broke an opponent rugby player’s nose and cheekbone.  In a bedeviling display of logic, the British Columbia provincial court judge ruled that players consent to violent contact within and certain violent conduct outwith the rules of the game.  Frame J stated that there are certain aggressive actions that are taken in the course of a scrum which appear to be acknowledged by most players including eye gouging, head butting, raking, kneeing, elbowing, kicking and punching and that there is implied consent to a range of injuries from bruises and broken noses to broken necks.  The defendant was exonerated on the grounds that the punch was randomly thrown and not intended to target and hit the injured plaintiff and, as such, fit within rugby’s unwritten but accepted code of conduct.  Whilst there is no suggestion that a civil suit will be launched, a strong case could be argued that the defendant player was guilty in negligence.  Stay tuned ….

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