Rugby Disciplinary Case Review
The Rugby World Cup 2023 is in full swing and, in fact, became a spicy event even before the competition began. The recent case of Owen Farrell’s suspension created a lot of controversy. Therefore, now seems to be the right moment to spotlight the peculiarities of rugby in light of sports law.
Just before the start of the World Cup in Paris, leader of the England squad, Owen Farrell, was sanctioned a four-game ban in accordance with the decision of the appeal committee. The decision was made following a peculiar set of events in which the referee initially showed a yellow card (meaning no suspension), but soon upgraded it to a red card after consulting with the Foul Play Review Officer (FPRO). The Disciplinary Committee then announced that Farrell’s tackle deserved yellow rather than red. This was further upgraded to red after World Rugby successfully appealed against the decision of the Disciplinary Committee. So, this high-profile case contains both procedural and material aspects which are of interest.
The Disciplinary decision published after the England-Wales match on 12 August 2023 contains the FPRO’s reasoning: “the Player effected a dangerous upright tackle on the ball carrier (W20) resulting in direct contact with the head whilst making no attempt to wrap with the arm that comes into contact with W20’s head”. 
Athletes always push themselves towards the limits, striving to achieve peak performance and victory. Players must also be conscious of the regulation surrounding tackling in the game of rugby – as you are not allowed to tackle someone’s head (head contact includes the neck and throat area).
Head tackles present the greatest threat to the players, since they radically increase the risk of an early onset of dementia. In 2022 a group of former players issued formal legal proceedings against World Rugby and the governing bodies of England (RFU) and Wales (WRU) over claims of the failure to protect them from that risk. 
Application of the rules of the game
A year before, in 2021, World Rugby introduced the Head Contact Process (HCP), revised in March 2023 . HCP has the status of a Law Application Guideline, so it cannot introduce any new rules, but still has much of a practical impact and is directly referred to in the decision, including Farrell's one . The regulatory basis for the case is Breach of Law 9.13: “A player must not tackle an opponent early, late or dangerously. Dangerous tackling includes but is not limited to tackling or attempting to tackle an opponent above the line of the shoulders even if the tackle starts below the line of the shoulders.” 
When considering the case, the following questions should be studied:
(a) Whether or not the head contact occurred.
(b) Was there any foul play?
(c) What was the degree of danger?
(d) Is there any mitigation? Exception: mitigation is not applied for intentional or highly reckless acts of foul play.
The questions (a) and (b) were an area of agreement, since Owen Farrell admitted his foul play and the head contact. Moreover, the player even showed no intent to argue on the point (c), accepting the degree of danger was high and likewise warranting a red card.
Still, Farrell initially managed to downgrade the sanction to a yellow card. So, what was his mitigation? HCP guidelines contain the following options: line of sight; sudden and significant drop or movement; clear attempt to change height; level of control; upright - passive vs dynamic.
A late change in the dynamics – which had a significant impact on the incident, according to the player - was presumably considered as an example of “sudden and significant drop or movement” in terms of the list suggested by HCP. The Judicial committee considered the player’s reasoning to be valid and applied the mitigation, deciding a yellow card as fair.
Why did the appeal committee take the opposite view? Now, it makes sense to scrutinise the FPRO’s decision indicated above. It points out three factors: (1) head tackle; (2) high degree of danger; (3) no attempt to wrap. The third point was not considered in the Judicial Committee decision at all, which is crucial.
Finally, an attempt to wrap was a key to deciding the case. As Farrell did not attempt, he was not trying to conduct a legal move, instead allowing himself intentional or highly reckless acts of foul play. This means that the Judicial Committee should not apply the mitigation, because the foul was “always illegal”. 
The referee is the one who makes the initial on-field decision, but they are also able to address the matter to the FPRO. Upon conducting the video-review the FPRO advised the referee to show a red card. Afterwards, there was a decision of the judicial panel which was later overturned by the appeal committee.
While the chronology of the facts is quite clear already, below are the interesting procedural points to be highlighted:
(a) Do we need the Judicial Officer/Panel to consider each case of a red card?
Yes, because the Regulation 17, Appendix 5 requires the Judicial Officer/Panel to conduct the hearing . Such a hearing is an obligatory stage, while the Appeal, obviously, should be filed by one of the parties – World Rugby in this case.
(b) What is the burden of proof and which standard of proof is to be applied?
According to Article 17.15.1  the standard of proof for all matters under this Regulation 17 shall be on the balance of probabilities. Well established in practice, this concept suggests deciding the occurrence of the event was more likely than not and may be opposed to such concepts as ‘comfortable satisfaction’ and ‘beyond reasonable doubt’ concept.
The burden of proof rests on the player to show that the referee/citing commissioner was wrong, as provided in the Article 17.15.3.
(c) What shall be the next stage for appeal and whether rugby disputes are arbitrable?
World Rugby sets up the following formula : “Bye-law 15. Interpretation (b) These Bye-Laws and any Regulations or Laws of the Game made pursuant thereto shall in all respects be governed by and construed in accordance with English Law, and any dispute arising thereunder shall be subject to the exclusive jurisdiction of the English Courts.”
So, World Rugby neither allows the disputes to be considered by the outside arbitration such as Court of Arbitration for Sports (CAS), nor name its own Judicial Officer/Panel or Appeal committee as arbitral institutions. Instead, all further disputes are to be addressed to the English Courts.
By contrast, Regulations of the RFU (England) contains an even stricter approach, which, however, realised through the different legal mechanisms: “The procedures in Regulation 19 relating to RFU Disciplinary Panel hearings and appeals before an Appeal Panel shall be governed by the Arbitration Act 1996 (‘the Act’) and amount to a binding arbitration agreement for the purposes of section 6 of that Act. Subject to the provisions of sections 67 to 71 of the Act, the decision of the Appeal Panel shall be final and binding on the parties and there shall be no right of appeal. The parties are deemed to have agreed that there shall be no right of appeal on a point of law under section 69 of the Act .” So, according to RFU, the disciplinary proceedings are named as arbitral themselves and, when accepting it, the parties concerned waive the right to transfer the case to the litigation.
The case of Owen Farrell has brought to light rugby law in both procedural aspects and rules of the game. The latter is largely concentrated on the importance of safety of the game and head injuries, in particular. It is suggested that global and local regulatory bodies take a proactive approach to tackle the head tackles, because the recent trends of the last 10 years are that any serious injury precedent can put the whole game in danger if attention is attracted to the injuries, but not the game.
The procedural aspects are of even more interest as World Rugby regulations are not crystal clear when it comes to appeal proceedings. The key question here is whether one can argue with the appeal decision and what status the appeal (and also the first instance) has – is it arbitration or not? Whether the appeal decision is final or English litigation is available – both these options seem to put the interested parties in unequal procedural positions by giving the non-English parties a less affordable right to defend. Therefore, international independent arbitration, like CAS, could be a potential step for further progress.