Decision of the Independent Judicial Officer

Held at the offices of Russell McVeagh, Vero Centre, 48 Shortland Street, Auckland on 16 October 2011 at 16.30.

In respect of

Sam Warburton of (the “Player”)

And

An Ordering Off in respect of an act of foul play under Law 10.4(j) namely dangerous play by lifting a player from the ground and dropping or driving that player into the ground whilst that player’s feet are still off the ground such that the player’s head and/or upper body come into contact with the ground (for ease of reference described herein as a ‘dangerous tip tackle’) in the Rugby World Cup semi-final match between Wales v France on 15 October 2011 at Eden Park, Auckland.

Judicial Officer appointed to hear the case:

Christopher Quinlan QC of England (the “Judicial Officer”)

Decision of the Judicial Officer:

(i) The Player admitted the act of foul play.

(ii) The Player is suspended from taking part in the game of for a period of 3 weeks, up to and including 6 November 2011. The Player is free to resume playing on 7 November 2011.

111017 RWC 2011 JO Decision – Sam Warburton (Wales) Page 1 of 6 Introduction

1. The Judicial Officer appointment was made by Mr Tim Gresson, Chairman of the IRB’s independent Judicial Panel in consultation with Mr Bernard Lapasset, Chairman of the IRB Council, pursuant to IRB Regulation 18.2.1. The Judicial Officer was appointed to consider the ordering off of the Player during the semi-final match played between Wales v France on 15 October 2011 in the Rugby World Cup 2011 (“the Tournament”).

2. The Player was ordered off by referee for an act of foul play contrary to Law 10.4(j), namely a ‘dangerous tip tackle’.

3. In addition to the Judicial Officer the following persons were present at the hearing:

• Sam Warburton (the Player) • Aaron Lloyd, Leading Counsel • Kieran Donnelly, Junior Counsel • , Wales Head Coach • Rhodri Lewis, WRU Head of Legal Affairs • John Williams, WRU Head of Communications • Simon Rimmer, WRU National Squad Communications Manager

• Ms Susan Ahern, Designated Disciplinary Official, Rugby World Cup Limited (‘RWCL’) • Mr Ben Rutherford, Legal Counsel, RWCL

4. In advance of the hearing and pursuant to directions I issued, Mr Lloyd informed RWCL and me that the Player would admit the act of foul play.

5. At the start of the hearing, Mr Lloyd indicated that no issue would be raised pursuant to TDP Clauses 8.1-8.3, namely inviting any enquiry into the reasons for the decision to order off the Player. In short his submissions would address the issue of sanction, if any.

The facts

6. The act of foul play occurred in the 18th minute of the first half of the match. In his concise Ordering Off Report dated 15th October, referee Alain Rolland (IRFU) stated:

“Dangerous tip tackle by Wales 7”

7. The report also made clear that the decision was his, without consultation with either assistant referee.

8. The parties and I were provided with a DVD containing footage of the incident. The footage from thirteen different angles, at full speed and in slow motion. In summary the footage showed the following -

The France scrum half received the ball from his side’s lineout and approached Wales’ defensive line. As he was about to be tackled he passed the ball to his left. France 14 (‘F14’) advanced onto the pass. As he received the ball in his right hand, the

111017 RWC 2011 JO Decision – Sam Warburton (Wales) Page 2 of 6 Player tackled him. The Player was bent at the waist and put his right shoulder into F14’s midriff. He wrapped both arms round the top of F14’s thighs and lifted him up, such that both feet were off the ground. He then tipped him through the horizontal and dropped him. Still holding the ball, F14 landed heavily on his shoulders/upper back and then neck and head. As he hit the ground, his feet were still pointing skywards.

9. I also received evidence in the form of an email from Lionel Rossigneux, France Team Media Manager dated 16th October (12.56). Therein he confirmed that F14 “…suffered no injury as a result of the tackle made by Warburton. The tackle had no impact on his ability to continue the match…” which he did.

10. The Player gave an account. He accepted committing a ‘dangerous tip tackle’ and did not challenge the referee’s decision to order him off. His intention was to effect a lawful tackle and pursuant thereto got himself into a ‘text book position’. At the point of contact, he was surprised by how little resistance he met. He lifted F14 and then “his body weight and momentum took over”. As F14 headed downwards, he instinctively thought the safest thing to do was to let go. He did so because he was concerned that had he maintained his hold he might have driven F14 into the ground. He said he acted without malice and denied twisting F14 in the air.

11. The Player has played professional rugby for a number of years. He plays in Wales for Blues. He expressed regret and told me he emailed F14 to apologise. He felt ashamed that he had let down his country, team and himself. He told me that he leads by example; he takes pride in his disciplinary record and the ordering off had “devastated” him. He was acutely conscious that he had been ordered off in what he and Mr Gatland described as the biggest game in Welsh rugby history.

12. Mr Gatland spoke on the Player’s behalf. It was as cogent as it was complementary. He described the stellar trajectory of the Player’s career. It was Mr Gatland’s decision to make him captain. In a short period of time the Player had completely vindicated that decision: he leads by example and is a “terrific ambassador for Wales”. He also gave me his assessment of the tackle.

Submissions on behalf of the Player

13. In able and attractive submissions, Mr Lloyd sought to persuade me that the sending off was sufficient punishment. He submitted that I must have regard to the fact he was ordered off in the semi-final of the RWC and the associated opprobrium. He further submitted I must take into account the fact that the ordering off occurred early in the match and had had a “monumental” impact on the game.

14. As to the regulatory approach I should adopt, he boldly argued that different sanctioning regimes apply in ordering offs, as distinguished from citings. He submitted that TDP Clause 8.3 gave me a residual and general discretion when deciding what sanction “if any” I considered appropriate. The scheme in TDP Clause 12 was “helpful” for assessing the seriousness of the offence but not mandatory, he submitted.

111017 RWC 2011 JO Decision – Sam Warburton (Wales) Page 3 of 6 Sanction

Approach

15. As well as Mr Lloyd advanced his argument, it is untenable:

a. The starting point is TDP Clause 8.2 which reads, “in any case where a Judicial Officer [‘JO’] considers an incident(s) of illegal and/or Foul Play of alleged illegal and/or Foul Play, he may decide to impose a sanction in accordance with the provisions of Clause 12 (if any)…:. That is a clear reference to the process by which I must assess the necessity (or otherwise) for a sanction. b. TDP Clause 8.3 states that the function of the JO when dealing with an ordering off is to “…consider the circumstances of the case and determine what further sanction, if any, should be imposed on the player…”. I accept that Clause 8.3 does not make specific reference to Clause 12 but it must be read together with Clause 8.2. c. If there is any ambiguity in Clause 8 (and I am content that there is not), it is removed by TDP Clause 12 which starts, “When imposing sanctions, Judicial Officers dealing with an ordering `off and/or citing and/or Temporary Suspensions shall, subject to Clause 12, apply the Board’s recommended penalties for illegal and/or Foul Play set out in Appendix 9…”. d. If TDP 12 applied only to citings, it would have been easy for it to say so, in terms. It does not. e. I can see no sensible basis or reason for there to be different sanctioning regimes for citings and ordering offs.

16. I appreciate there is an immediate sanction with an ordering off, not present when a player is subsequently cited. That is no doubt why Clause 8.3 refers to what “further sanction, if any, should be imposed” (emphasis added).

17. Therefore, I must approach the question of what sanction (if any) to impose, in addition to the ordering off, by reference to TDP Clause 12.

Decision

18. In assessing the seriousness of the offending and by reference to TDP Clause 12.2 I find as follows: . a. The offence was committed by the Player deliberately lifting F14 to a height, twisting and then dropping him into the ground whilst his feet were off the ground. I accept he did not force or spear him into the ground. However, no attempt was made to bring F14 safely to ground; it was executed without any regard for his safety and was dangerous (12.2(a) (b)) b. The F14 landed heavily on his shoulders/upper back and then neck and head (12.2(c)(i)). c. There was no provocation (12.2(c)(ii)). d. The Player’s actions did not cause F14 injury and he played on (12.2(d)). e. The act led to an immediate and very short-lived reaction from some France players (12.2(e)). f. Mr Lloyd conceded that the tackled player was vulnerable. I agree (12.2(f)). g. I do not find the offending was premeditated (12.2(g)) but it was complete (12.2(h).

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19. On 8 June 2009 the IRB issued a Memorandum, entitled Dangerous Tackles to Referees, Citing Commissioners, Judicial Officers and Non-Legal Judicial Committee Members. It was circulated to Member Unions on 10 June 2009 (the “June 2009 Memorandum’). It was drafted by Paddy O’Brien, IRB Referee Manager and Tim Gresson, IRB Judicial Panel Chairman and, inter alia, summarises three “possible scenarios when a tackler horizontally lifts a player off the ground”. In descending order of gravity they are as follows:

a. The player is lifted and then forced or ‘speared” into the ground. A red card should be issued for this type of tackle b. The lifted player is dropped to the ground from a height with no regard to the player’s safety. A red card should be issued for this type of tackle. c. For all other types of dangerous lifting tackle it may be considered a penalty or yellow card of sufficient.”

20. This tackle fell into category (b) of the 2009 June Memorandum. The purpose of that Memorandum was to “emphasise that they [lift and tip tackles] must be dealt with severely by referees and all those involved in the off-field disciplinary process”. The said Memorandum followed Law Ruling No5 of 2005 and a IRB Council Laws Designated Members Ruling in 2007 which made clear that tackles involving a player being lifted off the ground, tipped horizontally and then forced or dropped to the ground are illegal and constitute dangerous play. They are inherently dangerous and can (and have) resulted in very serious injury.

21. I reminded myself of the decisions of the Judicial Officers and Appeal Committees in Emerick and Eloshvili, from RWC 2007. In this Tournament there have been four such examples: Waqaniburotu, Hufanga, Estebanez and Gugava. I decided three of them. Three of the cases from this Tournament involved tackles which are factually similar to the instant case. Each resulted in a mid range entry point. I must be consistent but also have regard to the particular facts of this case.

22. On the facts of this case I was driven to conclude the offending is properly categorised as mid range. To find this tackle merited a low end entry point would, in my judgment, be a dereliction of my duty and responsibility for the wider interests of the Game. Pursuant to Appendix 9 to TDP, that is a starting point of six weeks.

23. In Gugava, the Judicial Officer found there was a need for a deterrent and added a further week (Clause 12.3(c)). Careful reading of that case reveals that the Judicial Officer added a further week because of the need for a deterrent and that player’s disciplinary record. This is the fifth example of a ‘dangerous tip tackle’ in the Tournament; each of the previous four were cited and resulted in suspensions of between three and five weeks. After careful thought I have concluded that an additional period of suspension pursuant to Clause 12.3 is not necessary.

24. Turning to the mitigating factors as set out in TDP Clause 12.4, it is compelling. I find the following present in this case

a. He acknowledged culpability and accepted he committed an act of foul play before the hearing (12.4(a)). b. He has an excellent disciplinary record (12.2(b)). The undisputed evidence before me was that he had never received a red card or appeared before a disciplinary committee.

111017 RWC 2011 JO Decision – Sam Warburton (Wales) Page 5 of 6 c. He is of good character. I heard an impressive testimonial from Mr Gatland, who spoke cogently of the Player’s humility when made captain of his country and impressive development as a man and rugby player. He is properly called a ‘leader of men’, very well respected by all in the squad. d. He is twenty-three years of age (born 26/11/86) and has twenty-two test caps for Wales (12.2(c)). He is youngest man to lead his country in a RWC. e. He behaved impeccably before me and during the disciplinary process (12.2(d)). f. He expressed remorse and contrition and apologised to F14. From my observations of him, I was impressed and satisfied that such was genuine. (12.2(e)).

25. In my judgment, those mitigating factors merit a reduction of the suspension by a period of three weeks. Since I found the offending merited a mid range entry point, TDP Clause 12.5 does not apply.

26. Much of the hearing was occupied with complicated submissions on the correct interpretation of the TDP. I did not lose sight of the fact that I was dealing with a Player who at the age of twenty-three years has led his country at the most prestigious and important Tournament in world rugby with distinction. I was (and am) acutely aware that to suspend him would be a sad and inglorious end to a Tournament he has graced with great playing ability and leadership. However, the TDP (and its derivation IRB Regulation 17) does not permit a qualitative assessment of the playing consequences of a suspension. If a player commits an act of foul play which merits a suspension from playing, then he must be suspended even if the suspension would cause him to miss important international matches, including (for example) a RWC final. Ultimately the Player, as Mr Warburton recognised, is responsible for his actions.

27. Accordingly the period of suspension is one of three weeks. Further to TDP Clause 12.5, the effect of that suspension is that the Player is suspended for the bronze final on 21st October and fixtures he would otherwise play for on 29th October and 4 November. The suspension will take effect immediately and run up to and include 6 November. He is free to play on 7 November 2011. In reaching that conclusion I have had regard to TDP Clause 17.4 and 17.5.

Costs

28. In the context of the TDP Clause 13.1 and 13.2 and exercising my discretion, I make no order for costs.

Right of appeal

29. The Player is reminded of his right of appeal under Disciplinary Regulation 15. Such appeal should be lodged within 48 hours of my oral decision at the end of the hearing.

17 October 2011

______Christopher Quinlan QC Judicial Officer

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