RUGBY FOOTBALL UNION INDEPENDENT APPEAL HEARING. VENUE: Holiday Inn, Filton, Bristol. DATE: 23 February 2017

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1 RUGBY FOOTBALL UNION INDEPENDENT APPEAL HEARING VENUE: Holiday Inn, Filton, Bristol. DATE: 23 February 2017 Player: Francois LOUW Club: Bath Rugby Match: Bath Rugby v Harlequins RFC Venue: The Recreation Ground Date of Match: 20 February 2017 Panel: Jeremy Summers (Chairman), Nick Dark and John Vale ( the Panel ) Secretary: Rebecca Morgan In Attendance: Francois Louw ( the Player ). Sam Jones - counsel for the Player. Sophie Bennett - Team Manager, Bath Rugby. DECISION 1) The appeal brought against both the finding at first instance and the sanction then imposed was dismissed. 2) The Player accordingly remains suspended until 6 March 2017 and may resume playing on 7 March ) The appeal fee is to be retained by the RFU. 1. There was no objection to the composition of the Panel, and no preliminary issues arose. THE APPEAL 2. On 21 March 2017 an Independent RFU Disciplinary Panel ( DP ) found that the Player had dangerously tackled an opponent contrary to Law 10.4(e) of the Laws of the Game. The Player was thereafter suspended for a period of 2 weeks from 21 February 2017 until 6 March 2017.

2 3. An alternative charge, alleging that the Player had committed an offence contrary to Law 10.4(j) of the Laws of the Game (tip tackle) was dismissed. 4. The Player appealed against the DP s finding on liability and sanction. 5. The Grounds of Appeal advanced were as follows: Pursuant to Regulation the Appeal is brought on the following grounds, namely on the basis that the original Panel: (a) Came to a decision to which no reasonable body could have come; and (b) The sanction imposed was so excessive as to be unreasonable. 6. The Grounds of Appeal were amplified in helpful written submissions lodged by Mr Jones in advance of the hearing. 7. No application for a de novo hearing was made and accordingly it fell to the Player to establish that, on the balance of probabilities, the DP had erred as submitted in the two grounds of appeal set out above and that the appeal should therefore be allowed. MATERIAL/EVIDENCE CONSIDERED 8. The Appeal Panel considered the following documents: I. The Judgment of the DP dated 22 February 2017; II. Notice and Grounds of Appeal dated 23 February 2017; III. The Citing Commissioner s Report dated 20 February 2017; IV. The CCW Report issued in respect of Charlie Ewels ( B5 ) dated 20 February 2017; V. The decision, on appeal, in Ford and Gray (RWC2015) VI. The match footage; and VII. Oral submissions on behalf of the Player. SUBMISSIONS 9. Mr Jones advanced detailed and considered oral submissions on behalf of the Player and no discourtesy is intended in not setting these out in full. 10. Mr Jones pointed to the fact that the DP had found the Player had not committed an act of foul play contrary to Law 10.4(j). That decision had been taken in light of the fact that the DP could not be satisfied that the Player had dropped an opponent or driven him into the ground being one of the four constituent elements of the offence. It was satisfied that the other three elements had been made out. 11. Having reached that decision, the DP made the following findings in relation to the alternative charge contrary to Law 10.4(e). 12. Those findings were as follows: 2

3 25. We make the following findings of fact: I. On the approach to the ruck Mr Louw pushed his teammate B5 (time marking 1.16) to the right so that each approached the same jackaling player, but from opposite sides. To this extent he knew from the approach that there were two of them about to clear out the ruck. II. III. IV. Mr Louw wraps his right arm over the top of the H9 s back and shoulders and uses his left hand to hook underneath H9 s right knee. At the same time B5 wraps his left arm over the back of H9 and his right hand goes near to the ground then comes up towards the torso of H9. It is Mr Louw who first lifts H9. As a result he rotates leftwards (as seen on the footage), but with his left foot remaining on the ground, at first. Only once H9 s right knee has been brought up to around the groin area of B7, does B5 then significantly contribute to the lift by placing his right arm underneath the torso of H9. By this stage H9 s left foot has started to come off the ground as well as can be seen at time marking V. By this stage B5 is right in front of B7, who continues with the lift using his left arm to the point where his elbow is either level with or above his left shoulder. We find that the lifting action of B7 is the main cause of H9 now being placed in a position where he is (at 1.22) near enough upside down. B7 is stood to full height and his left arm is still lifting. Mr Ewels has continued to move forward and lift (with his right arm) from the opposite side. This was a contributing factor to H9 spinning around, but not the main one. VI. Having put H9 in this dangerous position we accepted that B7 did make efforts to mitigate his actions: he tried to pull H9 upwards with his right arm and tried, unsuccessfully, to get his body underneath the falling player. 26. As a result of these findings of fact we were satisfied on a balance of probabilities that the offence of dangerous tackling was made out. Furthermore, we were satisfied that his offending met the red card test. 13. It was contended that, having dismissed the Law 10.4(j) charge, no reasonable tribunal could have then gone on to find an offence contrary to Law 10.4(e). In this respect it was submitted that it would not automatically follow that, if a 10.4(j) offence was not found, that a player could still commit a dangerous tackle contrary to Law 10.4(e). 14. In particular, Mr Jones pointed to the findings of the DP in relation to the actions of B5, stressing that B5 significantly contributed as recorded at IV above and that B5 continued to move forward and lift (V above). In so far as the actions of B5 were a contributing factor, the matter was wholly analogous with the decision, on appeal, in Ford and Gray, which analysis he argued should be followed. 15. Mr Jones asserted that the findings of fact made in relation to the Law 10.4(j) offence could not be divorced from the findings of fact in respect to Law 10.4(e). Similarly the actions of the Player could not be divorced from the actions of B5, again in his submission consistent with the appellate decision in Ford and Gray. 3

4 16. On further analysis with the Panel, Mr Jones accepted that it had been open to the DP to dismiss the Law 10.4(j) charge but find the Law 10.4(e) offence as established. However, Mr Jones submitted that the findings, at least as articulated in the written decision of the DP, were not capable of supporting such an outcome. Mr Jones however fairly acknowledged the pressure of time to which the DP was under to produce what had been a detailed and complex decision. DECISION 17. The Panel took time to consider carefully the evidence and submissions. 18. It noted that Mr Jones accepted that, leaving aside any deficiencies in the findings recorded in the DP s written decision, the decision reached by the DP had been entitled, as a matter of principle, to have found that an offence contrary to law 10.4(e) had been committed. 19. Having regard to that position and, having conducted its own assessment of the findings made by the DP, the Panel was not able to conclude that the decision made by the DP was one which no reasonable tribunal could have come to on the evidence. 20. The Panel noted Mr Jones complaint that the findings in the DP s written decision did not indicate how it was that the Player was said to have committed the offence alleged against him. The Panel was, however, as above, mindful of the pressure of time on the DP to produce a written decision, and commend the DP for producing a lengthy and reasoned document in the time available. To the extent that greater time would have enabled the DP to have more clearly articulated its findings, this did not alter the central point that, ultimately, the decision it had reached could not be viewed as one to which no reasonable body could have come to. 21. The Panel had regard to Mr Jones submissions in relation to Ford and Gray. The rugby disciplinary process requires that each case is considered on its own facts and therefore decisions in other similar matters are not of direct relevance. 22. The Panel did not in any event read the decision on appeal in Ford and Gray as establishing a principle that, if a charge proffered contrary to Law 10.4.(j) is not made out, it is not then permissible to consider the offending in the alternative for the purposes of an offence contrary to Law 10.4(e). 23. The decision similarly did not suggest that actions, which would constitute a clear out rather than a tackle per se, could not give rise to an offence contrary to Law 10.4(e). 24. The decision taken on appeal followed a partial de novo hearing which heard further evidence from the players concerned and led the appeal panel to conclude that neither had driven an opponent into the ground for the purposes of an offence contrary to Law 10.4(j). 25. The Panel could however see the force in the reasoning applied at first instance, in Ford and Gray which decision itself followed a line of previous cases involving an offence contrary to Law 10.4(j). These had found that a player accelerating an opponent s 4

5 descent by applying pressure to him/her would constitute driving an opponent into the ground for the purposes of an offence contrary to Law 10.4(j). 26. In the view of the Panel, by applying that line of reasoning, had the DP found that the Player had committed an offence contrary to Law 10.4(j), that finding would not obviously have been objectionable. The footage from one angle suggested that the Player had remained in contact with H9 throughout, and thereby might reasonably have been considered likely to have accelerated his descent. 27. The Panel separately considered this issue of sanction. The DP had assessed the offending as being at the low end of the scale of seriousness, which finding was not criticised in the Grounds of Appeal. The Player had contested the charge and the Panel had no hesitation in finding that the DP had been correct in not allowing a discount from the entry point by way of mitigation. 28. A submission that, by reference to the fact that B5 had only been issued with a CCW, the sanction imposed should fall to be regarded as wholly disproportionate was rejected. 29. The Panel did not therefore find the sanction imposed so excessive as to be unreasonable. 30. The Appeal was accordingly dismissed on both grounds advanced. COSTS 31. The appeal having been dismissed, the appeal fee lodged by Bath Rugby is to be retained by the RFU. Jeremy Summers Chairman 28 February