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The case for and against Erasmus, and the men charged with protecting rugby’s reputation

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18th October, 2021
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World Rugby has appointed Rassie Erasmus to a committee dedicated to rugby’s growth in developing regions. Relax. The appointment was back in 2020.

Then, Erasmus was viewed by World Rugby as the best coach on the planet at building grassroots support in emerging nations.

Erasmus responded to the appointment by saying: “It is a privilege, really, to be involved at such a level with key rugby influencers. The committee performs a very important strategic function, with an influential impact on key functions such as shaping the laws of the game, player welfare, and the global competition matters. I am looking forward to working with the committee members as they continue to influence and improve the competitiveness of international rugby.”

One year later, at the end of this month, World Rugby convenes a private hearing on the Erasmus’ leaked video detailing his views — and by implication his union’s – on errors in officiating made by the referees in the first British and Irish Lions Test win over South Africa.

Rassie Erasmus smiles for the Springboks

(AP Photo/John Cowpland)

As in most cases, there is a camp which wants exoneration no matter what, because of tribal loyalty. Erasmus is a charismatic leader who took the Springboks to the promised land in two seasons and set up structures which still have the Boks on top, with a chance to repeat.

There is also the view, held by more, that Erasmus and his home union must be severely punished regardless of whether his 62-minute presentation is proved to have been leaked to the public by the “defendants,” and that the “crime” merits multiple years of ban or a forfeiture of the Lions series victory or a massive monetary fine (or all three).

Then perhaps there is the largest group of all: those who know an important line was crossed, including many Bok fans, but are not sure how best to punish the conduct in a way that renders a smart precedent, and are not particularly keen to max out the penalty.

As a reminder, World Rugby regulations outlaw “misconduct,” defined at Regulation 18.3 in classically dense and labyrinthine manner as “any conduct, behaviour, statements and/or practices … that is unsporting and/or cheating and/or insulting and/or unruly and/or ill-disciplined and/or that brings or has the potential to bring the Game and/or any of its constituent bodies, World Rugby and/or its appointed personnel or commercial partners and/or Match Officials and/or judicial personnel into disrepute.”

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The key word is the last one. “Disrepute” connotes shame, dishonour, and stigma.

In 2020, very few people would have associated Erasmus with dishonouring rugby. In fact, World Rugby itself viewed Erasmus as doing exactly the opposite, in his continent.

After his 2021 video, World Rugby felt it — and by extension, rugby — as well as a referee had been brought into disrepute. Importantly, as the three World Rugby-appointed lawyers will no doubt clarify, the fact of releasing the video to the public is crucial to this charge.

Pointing out perceived officiating errors by referees to the head of referees (and the referee in question) is standard post-Test and top club practice. Each team only points out errors it believes hurt their chances, not the opponent’s.

To be taken seriously by the Head of Match Officials, it is obviously best if the arguments and clips are well chosen and are found true.

But nobody would submit a post-match critique asking for their own lucky or erroneous calls to be undone. Coaching staffs are not professors of ethics; they are hired or fired or promoted or demoted based on wins and losses.

Just as in court, each side advocates for their position, and relies on their foe to do the same.

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Joel Jutge will have hundreds of video or written submissions in his email inbox by the time he retires. As Head of Match Officials, he reports to the Director of Rugby and High Performance Joe Schmidt. He is supported by Craig Joubert (Referee Talent Development Coach) and Alhambra Nievas (Referee Talent Development Manager).

Joubert was famously faulted by World Rugby for one tough, key decision in the 2015 Rugby World Cup quarter-final match between Australia and Scotland, won by the Wallabies 35-34, leading to Joubert fleeing the pitch immediately after blowing the final whistle, and a petition in Scotland to ban Joubert from their country for life.

But after any match, the top teams break down every part they think the refs got wrong and submit a packet that details the failings of the officials.

The difference here is not that Jutge received a video detailing a purely South African coaching view of Nic Berry’s mistakes in Test one of the Lions series. Every single packet he receives after a match has a similar viewpoint: clarify why these calls were made against us and not against them, under the polite guise of being interested in fairness, instead of what they are — one more piece of the puzzle of gaining an edge on the competition.

If the very same 62-minute Erasmus video had been delivered to Jutge and only Jutge, there would be no hearing about Erasmus bringing rugby or referees into disrepute. How else is Jutge to assess referee performance ahead of the 2023 Rugby World Cup than to focus on error rates, blind spots, and steps to improvement? The internal review by World Rugby, if thorough, would surely include the dozens of errors each side believe were made to discern how many were just split-second judgement errors and how many were trends.

A fine or ban of Erasmus, if examined by an English court of law, will be on perilously shaky ground if it does not rest on the fact of an Erasmus-directed or facilitated leak, proved clearly and convincingly. Thus, the provenance of the video leak is vital in the hearing.

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Howls may erupt at this as a technicality, but Christopher Quinlan QC, Nigel Hampton QC, and Judge Mike Mika will not start writing an opinion about sanctions before carefully walking through legal culpability, step by step.

They will decide, first, who is alleged to have been defamed (or brought into disrepute): rugby or Berry or both. They will determine if either actually suffered a loss in reputation. They will look into the truth or falsity of Erasmus’ claims, not as a final issue, but as part of the context of reputation and justifiable critique. But they must, and will, examine the leak.

Long-bearded Hampton has been a barrister in Christchurch since 1965 (at the tender age of 21). He holds an OBE, graduated first at the University of Canterbury, and sat on the International Criminal Court in 2007. He has served as Chief Justice of the Kingdom of Tonga. His cases have included the most delicate of matters (prison suicides, for example).

Otago man and Lower Hutt district judge Mika debuted as a loosehead prop for Samoa in the 1995 Rugby World Cup against South Africa in the quarterfinals. The Boks won 42-14. Erasmus had already retired, to be clear.

Meanwhile, Quinlan is a sport law superstar and will chair the tribunal.

He was introduced to the RFU by a mentor and colleague in Guildhall Chambers in 2003, to sit as “wingman” on RFU disciplinary panels in the South West heartland of English rugby and then graduated to chairing panels for the RFU and European cups, 6 Nations and the then-International Rugby Board.

He is known for having a particular eye for detail, and takes the rights of the accused seriously, even if effectively internal administrative hearings are not truly courts. As he notes for Chambers, the man in the dock is “facing a potentially career-ending decision; … a loss of livelihood, irreparable damage to a hard-won reputation.”

Quinlan dealt with four of the five tip tackle cases in the 2015 Rugby World Cup, including the Sam Warburton matter. In 2019, he presided over the dispute over Scotland Rugby’s threat to sue World Rugby over the potential cancellation of the final pool match against Japan due to Typhoon Hagibis.

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Gregor Townsend

(Photo by Warren Little/Getty Images)

The message is World Rugby trusts Quinlan to take on the most difficult decisions.

He is World Rugby’s Judicial Panel Chairman, the most senior judicial role within the sport. He is viewed by World Rugby as being primarily responsible for safeguarding the reputation of World Rugby through clear, consistent, and fair decision making.

Quinlan, having practiced law in Wales and England for decades, will most likely lead the framing of issues in English substantive and administrative procedural law. It may not be widely known, but World Rugby’s Handbook leans on English law for interpretation of concepts. At Bye-Law 15(b) it is stated the Regulations shall “in all respects be governed by and construed in accordance with English Law.”

Rugby has laws of the game, but when it tries to fine, ban, or strip an individual or entity of property or right, the actual law becomes relevant. In this case, and all cases, the law of England, where rugby was founded, is literally the final law of rugby.

Therefore, each word, phrase, and example debated or challenged will ultimately depend on the precedent of English law.

World Rugby publishes examples of “disreputable” misconduct at Regulation 18.4.

The instances most relevant are at paragraph (b) which prohibits acting in an abusive, insulting, intimidating or offensive manner towards referees …” and (i) which forbid someone like Erasmus from “making any comments (including to the media) that attack, disparage or denigrate the Game … , World Rugby and/or its associated entities and its or their appointed personnel or commercial partners and/or Match Officials …”

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World Rugby grants itself a wide range of sanctions if a Judicial Committee determines misconduct under Regulation 18 has been committed:

(a) a caution, warning as to future conduct, reprimand;
(b) a fine and/or compensation orders;
(c) a suspension for a specified number of matches or period of time;
(d) expulsion from the remainder of a tournament and/or series of matches;
(e) exclusion orders from unions or grounds within unions;
(f) suspension from involvement;
(g) the withdrawal of other benefits of World Rugby such as the right to host matches;
(h) the deduction or cancellation of points;
(i) the cancellation of a match result;
(j) the replaying of a match;
(k) the forfeiture of a match; and/or
(m) any combination of the above or such other sanction as may be appropriate.

A decision by the Judicial Committee is deemed binding immediately on both Erasmus and SARU, even if either or both lodge an appeal. The penalties would be effective pending the final appeal. All other member unions of the World Rugby must obey the initial decision.
The Judicial Committee will not comment on their decision to any media.

If Erasmus and SARU wish to appeal the finding, or if World Rugby has that desire, their appellate rights are described in Regulation 18.11.
There is a seven-day deadline after notice of the written decision within which to file an appeal. An Appeal Officer or Committee is appointed (by World Rugby) and decides (pursuant to Regulation 18.11.7) the standard to use on review, as well as the procedure for the appeal. A majority vote of Committee rules.

So, what can we make of this process? Is the appeal process real? Must it follow common law, or is there a regulatory framework?
But was this really an appeal? Or just a review?

World Rugby has a system which mixed the two concepts.

English law rarely allows a full rehearing (a de novo hearing). Instead, on appeal, an appeal court must answer whether it believes the lower court’s decision (and sanction) wrong, using just the factual record from that court. Wrong in this context means reversible error.
Thus, an appeal concerns itself with the merits of the case.

An appeal, in contrast, focuses more on the process by which the lower court made a decision: procedural fairness is the focus. Deference is paid to the original court, and the standard for overturning the judgement is whether no reasonable person could have made this decision. In other words, the lower court is given a “margin of appreciation” for the decision. You can only overturn it if the sanction, for example, was “manifestly excessive.”

World Rugby does not clearly observe this line in English law, and labels it all an appeal.

The short answer is there is not a true appeal process within–inside–World Rugby.

An aggrieved party will need to turn to the courts (World Rugby has not bound itself to arbitration).

Disciplinary issues in rugby requiring review, on-field or off-field, are dealt with by an disciplinary process which operates in a similar way to arbitration, but is not arbitration. Like arbitration, the process does not involve the courts, but is a bespoke judicial system that deals with issues privately, with the decisions being made public.

All parties involved in the Rugby World Cup are bound by this process.

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If an appeal is that hard to make, it is not an appeal, within English jurisprudence. An appellant does not have to prove the lower court was manifestly excessive (as in a review).

Most major sporting events, including the Olympics and Commonwealth Games, have a system of arbitration in place for dealing with urgent disputes, with the role frequently played by the Court of Arbitration for Sport (CAS). The system in place for World Rugby is unique to the sport.

Is World Rugby’s system for dealing with both on-field and off-field issues effective?

It is effective at protecting World Rugby, but that is not necessarily the same as protecting rugby, as much as World Rugby tries to conflate the two.

Still, the privacy, speed, and inexpensiveness of the system does shield a relatively young professional sport from the nightmares some other codes go through. The open questions are whether the tribunals are truly independent enough to be called fair, and if the quality of decision-making would survive real appellate scrutiny.

Most of the time, the penalties are not severe enough for an individual to bother suing in English courts over, where the loser may end up paying the winner’s legal fees.

Even in the infamous Spain v Belgium affair from 2018, the loser (Spain) did not go to court.

As a reminder, there was a botched qualification tournament in Europe for the 2019 Rugby World Cup.

A World Rugby committee found Belgium, Spain, and Romania fielded ineligible players. The sanction for these infractions were to deduct log points, ultimately resulting in Russia taking the place of Romania.

The committee also decided the highly controversial match between Belgium and Spain should not be replayed. As a reminder, Spain was in the driver’s seat for qualification. Belgium had only won once in the previous ten matches, and Spain had beaten them in an earlier round. Still, the Belgians triumphed 18-10, and this put Romania through.

The problem was the referees were all, bizarrely, Romanian. The officiating crew managed to penalise Spain 28 times (with only 5 against Belgium), a ratio almost unheard of in tests.

Spanish players chased the Romanian referees from the pitch at the end, inexcusably.

The committee’s decision was methodically written and from a lawyer’s view, well-reasoned. Even if they had no real need, practically, to work that hard at delivering a professional opinion, the fact is they did. Also, even though World Rugby opined the match should be replayed due to apparent bias, the committee showed independence by disagreeing.

The committee noted rugby’s core principle that a referee is sole judge of fact and law during a match, and thus, an abhorrence of overturning results on the pitch based on those referee decisions, unless corruption is proved.

In Spain vs Belgium, all that was proved was the “appearance of bias,” not bias itself. Overturning a result on that basis was not a precedent the committee was willing to set, as it would undermine the larger doctrine of de facto referee infallibility. Thus, their verdict was the match was “inadequate” but a “very long way” from being overturned.

(Photo by Soccrates/Getty Images)

The takeaway was discouraging criticism of referees was the overarching goal. Undefined was what proving actual “bad faith” would entail. In fact, it seems the presumption of neutrality was strengthened to a formidable degree by this case.

Is that good?

English administrative law is highly interested in the appearance of fairness; not just the provable absence of corruption. Lord Hewart CJ in R v Sussex Justices, ex p McCarthy [1924] set forth that “[J]ustice should not only be done but should manifestly and undoubtedly be seen to be done.”

World Rugby imports “general principles of justice and fairness” from English law, which means “procedural fairness” comes along for the ride, as a bedrock of English jurisprudence.

Seventy-seven years after Lord Hewart’s opinion, in Porter v Magill [2001] Lord Hope framed the issue as:

“[W]hether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the [decision-maker] was biased.”

The Romanian referee in the 2018 match between Spain and Belgium appeared to be biased. Not because of where he came from, but because almost every reasonable rugby viewer cannot watch the match without wondering if the referee is biased–on the basis of his calls.
Spain appealed.

The Appeals Committee affirmed the decision of no replay, as well as the heavy sanctions for fielding ineligible players, and Spain lost their chance.

English law will be the backdrop for the Erasmus decision, because the stakes are higher, the antagonists are well funded, and the potential penalties (a lost Lions series, a ban that goes past the next World Cup, and the reputation of rugby’s recent golden boy, a coach who took only two seasons to turn around an 0-57 team to win the greatest prize in the sport) are so large.

Libel law varies greatly from country to country. English and Australian law are related, of course, but there are nuanced differences in proving Erasmus defamed Berry in England, as opposed to in Australia or other countries.

England has a one-year statute of limitation (Section 4A of the Limitation Act 19805) for defamation cases, shorter than typical claims, because libel and slander necessarily cut away at the freedom of expression. The year starts from the first date of publication, subject to equitable extension in extreme cases. Unlike in Australia, you may not keep extending the time with each new republication.

Australian plaintiffs — perhaps like Berry himself – also do not need to prove the 2014 English burden of serious harm.

The 2014 test in the UK requires that defamation requires proof that the attitude of other people towards the claimant (rugby as a whole or World Rugby as a body or Berry the ref) be substantially affected in an adverse manner, to cut out trivial claims. This is the “serious harm” prong: harm to reputation, not mere consequences thereof.

By contrast, Australia has no such “serious harm” requirement for defamation claimants. All states have substantially uniform laws, passed in 2005 and 2006, which instead use the defence of triviality to dispose of weak cases. Practically, this is not a winner very often.

All in all, even though England is one of the best countries in which to mount a libel case, Australia may be even better. For example, despite the fact that words are plainly inaccurate and the inaccuracy is detrimental to the claimant, a case might succeed if it is initiated in the Australian courts, but fail if brought before the English courts.

All is not lost for Erasmus in court in England, however, if he is socked with a million pound fine or banned from rugby for years.

Rassie Erasmus (Director of Rugby) of South Africa

(Photo by Steve Haag/PA Images via Getty Images)

He has several possible defences under the Defamation Act 2013.

First and foremost, he has a truth defence, which allows a defendant to escape liability, fully or in part, if he can prove the substantial truth of his offending statement. Erasmus will be able to carry that burden rather easily on about seventy-five percent of his video.

Even the most rabid rugby gurus in the British Isles have for the most part conceded the accuracy (but not the etiquette) of the majority of Erasmus’s complaints. As Tory a paper as the Daily Telegraph could only find two of his points to be erroneous.

No, the counter to his video has focused far less on Erasmus being wrong on the merits, but more that (a) he is cherry picking only the parts that favoured the Lions, (b) it’s just not done this way, and (c) rugby is a very difficult game and you could penalise someone at almost every ruck or scrum.

None of those issues will matter in a real court, because if editorial unfairness were libel, media would be extinct, and the law does not punish rudeness per se (Erasmus was definitely rude) and therefore, the main counters to truth are unlikely to matter to the commission deciding this for World Rugby’s disciplinary system.

Also, the last point (which makes rugby seem even more arbitrary than Erasmus claimed) is not good for World Rugby to highlight, as it signals to the criminal underworld and syndicates that the sport is as ripe as boxing for the taking, and short of that, makes it sound like every match has thirty or so mistakes. Does it? I think not. I think it is just very difficult to get almost all of it right, but that is not the same as impossible, or at least, an error rate of ten or less per match.

Erasmus also has the Section 3(18) defence of honest opinion: statements of opinion (as in, if he says he thought Willie le Roux was onside, and points to the fact the TMO admitted it was a tight call, before he abruptly reversed the on-field call, which requires clear and obvious evidence) are not libel.

Many reasonable people, including the commentators at the time, on British TV, held the same opinion as Erasmus on that call, or the tip tackle on the hapless le Roux; this can be brought into evidence to show “honest opinion.”

Erasmus also has one more defence in English law: if he believed there was real public interest in the subject matter of his video (this might be his last-ditch attempt to win if he is found to have released the video) and that he acted in good faith, without personal animosity.

There is danger to Erasmus in that last point. Lions tours to South Africa are conducted at fever pitch, even more so than the tours to New Zealand (which caused Sir Clive Woodward to lose his head in 2005).

The bickering on a Lions-Bok tour goes to the next level from any other tour. The 2021 Lions tour was the first one to South Africa when social media was fully established in all its nasty ire.

The pandemic’s isolating effect was a force multiplier for this acrimony. The 2021 tour may have been the most studied, disembodied rugby series in social media history, with an eerie lack of fans making every voice heard, and waterboys became coaches and vice versa.

Erasmus will need to be sure of his side-communications because all of it will be relevant to his defence.

Still, you can view Erasmus (and SARU) as being a castle, around which are many walls and moats and forward defences.

The first one World Rugby will need to overcome is the leak.

Erasmus says he only sent the video to Jutge and Berry. His lawyer intimates World Rugby had more incentive to leak than Erasmus did.

Head coach Rassie Erasmus looks on

(Photo by David Rogers/Getty Images)

Balanced against that is Erasmus’ own words on the video, in which he seems to expect some sort of harsh penalty. Why would he fear that if he was only sending it to the refs?

But still, there are many moats and walls to scale before the burning oil is encountered:

1. Can World Rugby prove Erasmus or SARU leaked the video to the world, to a degree of certainty the English courts will find just?
2. Can they show anything in the video is false or not an honest opinion, even if wrong? (Erasmus will actually have to treat this as his burden, for all practical purposes, but seems ready to do just that).
3. Can they show more than trivial harm to World Rugby, rugby itself, and/or Berry?
4. Can they argue that this many errors are normal (and more than Erasmus identified) and still claim their ref if defamed?
5. Can they clearly show Erasmus’ video caused a lack of public faith in referees?

Try to make any sense of which high tackles will reap which card or penalty or play on. Be sure of which way the arm will raise on a presentment-jackal moment. Explain scrums.

Rugby’s myriad of challenges, whether club versus country, administrative North versus raw player factory South, expansion versus tradition, union versus player union, and all manner of parochial ox-goring, almost all come back to our uniquely recent amateur-cum-professional status.

Even the phrase “bringing the game into disrepute” is old school amateur hour. It sounds like the noble sentiment at a boarding school in the 19th Century just before polo broke out on steeds brought back from Arabia.

This standard predicts one winner always, so long as the dispute stays within rugby: World Rugby. It evokes the bans for players who played a League match. It stifles dissent, in toto.

There is also the problem of players who have battered or raped, or gouged or raked, often being pardoned “for good past behaviour” or brought back soon because they play well. Does that bring the game into disrepute? Surely it does, but the standards are incoherent.

The reputation of rugby outside rugby is of ruffians and lads; we know it is more nuanced. But would anyone outside of rugby been particularly shocked by Erasmus’ video or the Scottish legal threat in the last Rugby World Cup?

Quinlan led the scrutiny of the words by Scottish rugby official Mark Dodson published by The Telegraph on 11 October 2019. Scottish Rugby Union conceded Dodson was quoted accurately, so the issue was “whether those words did or had the potential to bring the sport of Rugby Union, World Rugby, RWC 2019 and the RWCL into disrepute.”

Quinlan noted under English law that this is an objective test, and that “Unhesitatingly we find that they did.” The reason is that Dodson’s words suggested economics guided rugby’s decisions in their marquee tournament, and he doubled down by describing World Rugby’s “handling of the affair” as “disgracefully poor” with the situation “shambolic” and “embarrassing.”

But a line in Quinlan’s opinion will cheer Erasmus. Quinlan found Dodson’s utterances “inaccurate, wrong and misleading” as a necessary part of also concluding Dodson had hurt the sporting integrity of the tournament. Thus, for statements to be “Misconduct” under Regulation 18, perhaps the notion of mendacity is needed, for Quinlan to find disrepute.

If so, Quinlan is tipping his hat to the law of libel in England. Be that as it may, as rugby tragics, we all knew when we saw or heard Erasmus, there would come some punishment.

Rassie Erasmus

(Photo by David Rogers/Getty Images)

The English invented the law of defamation in the 17th Century under King James I, ostensibly to rid the land of the pestilence of duels, and in the 19th Century, the law of rugby, to bring back violent duels lawfully.

The smart money is the three lawyers will find just enough to say Erasmus caused or colluded in the release of the video, that the slender totality of it was intended to harm rugby’s brand or image, and that his defiance will be met with a small fine and a water boy or stadium ban for about six months, which is easily served. They may be clever enough to picking a number for the fine which makes an Erasmus appeal to the courts seem wasteful.

World Rugby will continue to protect their brand, which is what passes now for “repute.” When you have an even the size of the Rugby World Cup, or the Northern Hemisphere club tournaments, betting markets are an attractive nuisance for organised crime. Rugby will be a hard target for corrupters if World Rugby simplifies the laws they do have control over, makes the relative skills and accuracy levels of referees more transparent, is less arbitrary and capricious about who and what they go after in their internal proceedings, and find a way to sort the vagaries of their disciplinary outcomes.

The Erasmus case will the highest profile test of World Rugby’s resolve, rugby’s mindset, and how far the sport has come towards professionalism.

We should all be looking for Quinlan, Hampton, and Mika to do their best, wisest work, on our behalf. It is time to resolve this, in a way that enhances rugby’s reputation as a sport with integrity, fair play, passion, solidarity, discipline, and respect.

Bring Erasmus back into the fold, bring Berry justice, bring referees up to the standard of play, bring the laws into modern reality, bring the process into the light, and bring this infernal case to an end, by not inviting appeal.

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