World Rugby’s proposed red-card law changes make sense – crowds can sway officials

“Hard cases make bad law.” You have probably heard this, and what it means is that a general law is better drafted for average circumstances, not extreme ones.

After his red card in the recent Ireland-England game, Freddie Steward probably agrees. The England full-back braced as he tried not to go through with a tackle on Ireland’s Hugo Keenan, and his elbow contacted Keenan’s head. Not even ardent Irish fans accused Steward of deliberately injuring Keenan and the fact is that this was a combination of circumstances that might never be replicated.

I thought it was, at worst, a yellow card and referee Jaco Peyper’s assessment was, to me, flawed but not unarguable and therefore not wrong. He certainly did not just pluck a card out of thin air. Steward did have a clear line of sight to the contact but tried not to make it and Keenan dipped slightly, trying to gather the ball. I have sympathy for Keenan, who did nothing wrong either and had to leave the field permanently. However, the fact that Steward’s red was later reduced to yellow as he faced the disciplinary panel supports my reading of the incident.

Steward’s plea of innocence was met with the phrase “in the current climate”, by which the referee meant the background of the multi-million-pound, global litigation over concussion. Those who rushed to claim “The game’s gone soft” and “In my day...” should be reminded of this fact when they trot out these wearisome homilies. This issue is one that could potentially bankrupt the sport and World Rugby must never forget this.

What people cannot overlook is that rugby has a legal and moral duty to remove or ameliorate reasonably foreseeable risks that could cause damage and, of those, contact to the head is chief. The law does not require the removal of all risk, and nobody is trying to do this, even though that allegation is, unfortunately, still widely parroted.

Pundits later mentioned a duty of care between players, and they are right. However, unfortunately for the injured party, that duty does not extend to never injuring a player, if you have not done anything wrong. To claim, as was done in the TV studio, post-incident, that injury means a breach of your duty of care, is to misunderstand what is at issue. What they, unwittingly, advocate is a construction of the law that actually creates a standard of strict liability. Ergo, no matter how it occurred, if you make contact with a player’s head and he is sufficiently badly injured, you are to blame. “According to the letter of the law” is exactly what “hard cases make bad law” is all about and in this instance, it succinctly encapsulates the confusion over this case.

World's top referees appear confused

I believe that the unfortunate consequences for Keenan influenced the official’s application of the law, rather than the circumstances. That is not uncommon, in fact it is inevitable given human subjectivity. Keenan was laid out, therefore it could not just be a rugby incident, even though such incidents can also have injurious ends.

That one World Rugby source was quoted as saying “I’m not sure we would have been comfortable doing that [going with a call of no foul play] because of the emphasis around protecting players’ heads” evidences the claim that this construction is strict liability. I have no problem if that is what the authorities want, but such an interpretation should be openly stated and defended with evidence, and yellow cards would be apposite where no blame can be made.

It now seems as if the world’s top referees and law makers are not too clear about this either. This paper on Sunday reported a mooted change in protocol to allow a TMO to review incidents during a 10-minute sin-binning for the accused player. If it is decided that a yellow is sufficient, the player returns. If it is decided it should be a red, then it becomes permanent. It is not like the 20-minute red card in the Super Rugby Pacific, which is just a license to cop out of making difficult decisions.

Officials should not consider the balance of the game when making these decisions. Nobody wants to see games effectively ended as contests, but referees do not want that either, especially as they know the disgusting abuse they will later receive from idiots, via social media.

The proposed amendment makes sense. It will provide a period of reflection for decision-makers who are not in the stadium hearing boos and chanting of “Off, off, off” – which do influence referees for reasons that should be obvious to sensible supporters. If this change is made for the forthcoming World Cup, World Rugby should make sure it does not make the same mistakes as the RFU did over tackle law trials – get the message right, explain it and back it up with cogent reasoning and facts. If that still is not accepted by some people – ignore them.

Do you believe the proposed change in protocol regarding red cards makes sense? Share your thoughts in the comments section below