Australia lost a rugby match in which there was a contentious decision. They had trailed most of the game and coughed up possession immediately after taking the lead. The subsequent torment reminds me of the poem Antigonish. If referee Mathieu Reynal did not exist, we might need to invent him to avoid having to examine real issues.

Unsurprisingly, I see a lot in common with the practice of law and the practice of rugby. Both are fluid, subject to a plethora of laws and rules that are highly discretionary in their application and, in both cases, it is essential for success to manage the decision maker and to prepare properly. When you prepare a case for hearing and during or after when you analyse a ruling, or rulings there are some basic matters you attend to.

Converted to rugby these are:
1. What actually happened? Get the facts and the chronology straight.
2. Did the ref get the Law right?
3. Play the ref and know the ref.
4. How significant was the decision?

The example here will be the allegedly fatal moments around the 78th minute in the game between Australia and New Zealand on 16 September 2022 in Melbourne, when a ruck penalty was awarded to the defending side (Australia) close to their try line and close to the goal posts. Australia were defending a 3-point lead, having come back from an 18-point deficit in the middle part of the game. That penalty was then cancelled by the referee and a scrum called with the feed to New Zealand. The ruling by the referee was that the Australian side’s kicker had taken too long (time wasting) to do anything with the ball awarded.

Facts and Chronology

No decision in an 80 minute game happens without context.

36th minute – The referee said repeatedly to Australia ‘play now’ and ‘you play’. He had first said this 17 seconds after he blew time on for Australia to kick a goal line drop out and Australia kicked the ball after a total of 32 seconds and a second demand to play. The decision made in the 78th minute was not a decision made out of the blue. The referee had expressed his concerns. Perhaps the players felt he would not do more, but that is a risk they took.

Australia had trailed for most of the match, but took the lead after surmounting an 18 point deficit in the 77th minute of the game, after Nic White kicked a long range penalty that took him about a minute. The penalty was awarded to Australia, against the carrying side at the ruck (the danger of possession might be a theme).

77th minute – New Zealand restarted play immediately after the penalty, kicking deep to Marika Koroibete, who carried the ball and was tackled just outside the Australian 22. From the next ruck, taken tight by Australia’s forwards, the referee (correctly) penalised Australia, in possession, for sealing off.

New Zealand had a very kickable penalty option, about 15 metres in and just over 22 metres out. If they kicked it they levelled the scores with time still to play. New Zealand instead kicked for touch and the lineout feed.

78 minutes 24 seconds – New Zealand win their lineout and set up a maul, but the maul breaks into two and the part with the ball collapses. The referee calls this a ruck and awards a penalty to Australia for New Zealand (in possession) not releasing.

78 minutes 50 seconds – With Australia still not playing, the referee calls ‘play on please.. we play’. Australia do not play. Compare this with the referee’s call at the 36th minute and you will see that he has followed a similar time frame, albeit been more generous to Australia this time around.

78 minutes 54 seconds – A clearly frustrated referee calls ‘time off’. Shortly after he says quite clearly ‘we play now’ he blows his whistle and says ‘time on’. It is now 79 minutes and 1 second, some 37 seconds after the original penalty call. Australian players can be seen gesticulating (a splendid word) at Foley and they appear to be calling for him to do the obvious and kick the ball into touch. Foley does not kick, or do anything.

79 minutes 3 seconds – The referee blows his whistle and calls a scrum for the All Blacks. It is now 39 seconds of match time plus the few seconds (I counted about 5 seconds) of time off since the penalty was awarded to Australia. The referee had twice asked the side to play but the side with the ball had not acted.

Nic White of the Wallabies talks to referee Mathieu Raynal . (Photo by Morgan Hancock/Getty Images)

The Law

The applicable law is Law 9.7(d), which comes under the Heading of ‘Foul Play’ and the specific subheading is ‘Unfair Play’. The relevant law is deceptively simple stating “A player must not waste time”. The sanction is a free kick against the offending side. I could not find anything further of relevance under the Variations, Law Application Guidelines or the Clarifications in Law sections of the World Rugby Laws of the Game.

The other relevant Law is Law 20.5 which states that a penalty or free kick ‘must be taken without delay’.

I cannot see that the referee got the law wrong. The argument, so far as much of the comment merits that description, seems to be that it just isn’t applied the way referee did here. I have some sympathy for this claim, in so far as a lot of delay is tolerated in the game. But those making the argument need to concede that the referee did not apply the wrong law, or get the law wrong in some other way. What they are saying is that the application whilst correct was in some way ‘unfair’.

The chronology does not support the argument of unfairness. Had there been no warning I would be very sympathetic to the argument about unfairness. However, the referee had repeatedly told the kicker to ‘play on’ and said ‘now we play’ and he had even stopped the clock for a period to show he was concerned about time wasting.

We also know that the referee had spoken to the player and to the side about taking a very long time to make kicks in defensive situations earlier in the game (just one example being near the end of the first half when Australia were looking to ‘soak up’ – another term for waste – time with two players in the sin bin). So, Australia can hardly claim to be unaware that the referee had concerns about time wasting.

The referee could have been more clear about his intentions. Ideally, he would have said “If you do not use the ball in the next 5 seconds, I will sanction for time wasting”. However, the referee is not required by the laws to communicate his intentions at all, only to communicate his decisions. So, what we are talking about is managing the flow of the game, not whether the referee got it right or not. I like the referee to who communicates a lot, but that is far from the common standard or that of this particular referee and it is not required by the Laws.

There remains an issue about consistency of application, but that applies to every area of the Laws. What consistency is there about ‘tackler immediate release’, or the jackler not leaning on hands first and then dragging back? Or the front row pushing straight, or any number of other parts of the game? It is also trite to point to a lack of consistency between referees – one might as well argue that it is unfair that some people die from lightning strikes.

True, many, many times one will get away with it, but sometimes one won’t. Do we blame the storm and rage against physics or do we consider that a different pattern of behaviour might be achievable in future?

Those who feel the decision was somehow bad, ask yourselves whether you ever complain about the amount of time the ball is in play, or the time taken to kick for touch, or for goal, or for the plethora of ways teams try to wind down the clock in pressure situations without actually playing the ball. Because if you are one of those people and you are complaining about a referee who has acted on what strikes me as being clearly very slow work at kicking a football, you risk being inconsistent.

A less kind expression is hypocrite, or sore loser. Let’s remember, this is a game. It doesn’t prove genetic superiority, moral standing, or anything else. It is just a game, a diversion, a past-time for its followers (although not the players and officials at this level).

Play the Ref and Know the Ref

When you prepare for a hearing before a judge you have to take into account what you know of their style and preferences. Judges are not robots and the exercise of discretion abounds in the law. Additionally, once the case is underway, there may be arguments, or behaviours or lines of questions that you have to change or drop because they are not only failing to win over the judge but may actually be turning the discretionary aspect against your client, because the judge is getting irritated. It is no different in rugby; indeed two of the first things I recall being taught about the game were ‘play the whistle’ and ‘take the ref out of the game’.

I am struck by how poor both sides playing in Melbourne have been in recent times at adapting their game to the requirement of the specific referee. I thought Melbourne was no different. In the lead up to this game there was surprisingly little discussion of this referee’s particular style, foibles and strengths and weaknesses.

Obvious issues to me were that, in my perception, he blows a lot of penalties, doesn’t give a lot of warning before blowing, doesn’t give much reward to the side in possession, often appears to struggle to control the game and that like many referees he tends to reward the side perceived to be going forward as much as anything, leading to issues of perceived consistency. In other words, don’t play in your own 40-50 and work hard to make him feel you are listening and trying to work with him.

I could write a lot more about this but all I will say is that Australia were playing at the wrong end of the field at the wrong time in the game, given a narrow lead. They had repeatedly ignored the referee urging them to ‘play on’ and ‘play now’ and had never spoken with him about these calls to make him feel they were listening, or were trying to work with him.

The defensive ruck penalty he awarded them was never going to be the last play of the game and given the hazards of ruck penalties, one has to say they were lucky to get the penalty go their way. Australia were given numerous calls by the referee to play. A smart side would have listened, kicked long to touch (so why Foley and not White, given White has a longer kick) and then taken time to set the lineout, thrown to the front and then taken some deliberate rucks, or kicked deep and with a good chase (admittedly this last remains a long term Australian weakness). Isn’t that really why they lost?

Australia were offered a rare chance, they blew it (again). They chose to ignore the referee and suffered the consequences. Why should there be any sympathy for negative play done stupidly?

Referee Mathieu Raynal speaks to Nic White and Bernard Foley. (Photo by Cameron Spencer/Getty Images)

How Significant Was the Decision?

Finally, a lot of discussion is of the ‘it cost us the match/we wuz robbed’ variety. I don’t feel any sympathy for this. This wasn’t the last play of the game. There was always going to be a lineout and then something from there.

Given the general capacities of this Australian side you would need to have a confidence unanchored by their past or their present performance to think a lineout win was assured and that a safe set of plays off the lineout were inevitably to follow.

Indeed, look at how easily New Zealand scored the winning points off a scrum at the end, or how readily Australia coughed up vital possession immediately after scoring the 76th minute penalty. If the decision at issue here was an appeal point in a case, a concern I would have would be that it would be considered to have insufficient bearing on the outcome to warrant a successful appeal.

My own take was that the referee had actually kept Australia in the game and that he made a number of discretionary calls at scrum in the first half, to cite one example, that Australia could consider fortunate. I thought he was somewhat unpredictable, although rarely wrong, in ways that tended to go against both sides and that he performed as expected. If one side misread him at the end, after 80 plus minutes, who was the bigger fool?

Energy and analysis might be better directed at separating out disappointment at losing, from blaming the referee and it might be far more profitable to ask why this side has a win-loss ratio well under 50%, why it is deservedly ranked amongst the international ‘rest of the rest’ and what are some achievable steps within the capacities of the human material to address at least some issues.

I don’t think the baleful presence of Mathieu Raynal will come up as the answer to these questions, unless you, as in Antigonish, wish the man who wasn’t there would go away.