McFadden v Hoyland: The disciplinary process

The wheels of justice are supposed to turn slowly but the Pro 12 moved quickly to deal with Fergus McFadden’s tackle on Damien Hoyland in Friday night’s game in Dublin – banning the Leinster player for 3 weeks. Unlike EPRC (responsible for the Champions and Challenge Cups) but in common with the Aviva Premiership, the league do not routinely publish their disciplinary findings in any detail. That being the case it’s worth looking at the principles behind the procedures and how they are likely to have impacted in relation to this specific incident.

The guidelines for citing hearings are laid down in Regulation 17 of World Rugby’s Handbook and can essentially be boiled down to a five step process:

  1. Determine whether the cited act of foul play took place.
  2. Assess the seriousness of the foul play to find an entry point for sanctions.
  3. Identify any off-field aggravating factors that should increase the sanction.
  4. Identify any off-field mitigating factors that should decrease the sanction.
  5. Combine the findings in stages 2 to 4 to identify the appropriate level of sanction to impose.

Stage  1 – Determination

The first role of the Disciplinary Committee (DC) is to decide whether, on the balance of probabilities, the player committed the act of foul play they were cited for. The actual act itself in this instance was covered in some detail in We need to talk about: McFadden v Hoyland – suffice it to say the DC agreed with the commonly held opinion (and, crucially the independent citing officer) that the tackle was worthy of a red card.

Stage 2 – Entry point

The assessment of the seriousness of the Player’s conduct (in order to determine the entry point) is determined by reference to the following features:

(a) whether the offending was intentional or deliberate;
Mr. Mitrea’s contention that this was not intentional foul play should not have been relevant to the on-field decision but will have been one of the most significant factors for the DC when deciding the seriousness of the offence. It is unlikely that the DC considered that the player had intentionally tackled his opponent above the line of his shoulders otherwise the entry point would almost certainly have been higher.
(b) whether the offending was reckless, that is the Player knew (or should have known) there was a risk of committing an act of Foul Play;
Given the player’s positioning, tackling around the chest and rising up, it would seem reasonable to expect the DC would have categorised the offence as reckless and he should have been aware there was a risk of a high tackle.
(c) the gravity of the Player’s actions in relation to the offending;
World Rugby have been keen to clamp down on contact with the head and neck area due to the potential for injury and the player’s actions are likely to have been considered as serious.
(d) the nature of the actions, the manner in which the offence was committed including part of body used (for example, fist, elbow, knee or boot);
It was a tackle situation but contact was made with the head and no arms were used.
(e) the existence of provocation;
Not relevant in this case.
(f) whether the Player acted in retaliation and the timing of such;
Not relevant in this case.
(g) whether the Player acted in self-defence (that is whether he used a reasonable degree of force in defending himself);
Not relevant in this case.
(h) the effect of the Player’s actions on the victim (for example, extent of injury, removal of victim Player from the game);
Damien Hoyland was treated briefly on the pitch but was not substituted. Edinburgh would have been asked for their submissions so if their player was feeling any after effects these would have been noted and included in the assessment.
(i) the effect of the Player’s actions on the Match;
The player’s actions stopped an attacking situation for the opposition and a penalty was awarded against him.
(j) the vulnerability of the victim Player including part of victim’s body involved/affected, position of the victim Player, ability to defend himself;
The Edinburgh player was in a vulnerable position. One of the (many) reasons there has been such a clampdown on contact with the head and neck is because it is very difficult for players to protect these areas.
(k) the level of participation in the offending and level of premeditation;
McFadden was the only one involved in the act of foul play and premeditation is not likely to have been considered a factor in this case given the game situation and the speed at which the incident unfolded.
(l) whether the conduct of the offending Player was completed or amounted to an attempt;
The conduct was completed.
(m) any other feature of the Player’s conduct in relation to or connected with the offending.
There was little other opportunity for any further action from the player as he injured himself in the self-same incident.

The above list covers all on-field elements relating to the cited incident. Having assessed all of these the DC then categorises the foul play as at the low end, mid range or top end of the scale of seriousness of offending. The process is at it most opaque here with nothing in the regulations or previous decisions to indicate how these factors are to be weighted and combined by the DC to reach a decision. Guidance must be provided but this is not publically available.

Looking at the features above it would appear that the most significant factors that would move the entry point up the scale should be intent, effect on the opponent, and premeditation. In common with the vast majority of DC decisions Fergus McFadden’s offence was categorised at the low end on the scale of seriousness of offending. It appears that, for all types of foul play, low end is intended to capture all bar the most heinous acts.

Stage 3 – Aggravation

Aggravating off-field factors include:

(a) the Player’s status generally as an offender of the Laws of the Game;
The player’s disciplinary record in all competitions during his playing career from the age of 18 is considered. Any previous case where the player has been sanctioned by a DC may be taken as an aggravating factor.
In this case McFadden was cited in January for stamping and suspended for 3 weeks. The DC either did not take this as an aggravating factor; did not consider it significant enough to add a further week to the punishment; or reflected this by not allowing any mitigation due the player’s disciplinary record (see below). It’s most likely that it was the latter reason.
(b) the need for a deterrent to combat a pattern of offending in the Game;
The current recommendation from World Rugby is, as a deterrent, that a week is added for acts of foul play involving contact with the head or neck. This was followed for McFadden.
(c) any other off-field aggravating factor(s) that the Disciplinary Committee or Judicial Officer considers relevant and appropriate.
A bit of a catch all but rarely (if ever) used in decisions.

Stage 4 – Mitigation

Mitigating off-field factors include the following:

(a) the presence and timing of an acknowledgement of culpability/wrong-doing by the offending Player;
There was no on-field interaction between the 2 players but there is no way to know if there was an apology after the game or in the following days.
(b) the Player’s disciplinary record and/or good character;
As noted above under aggravation the player had already been suspended for 3 weeks this season removing one of the main foundations used in mitigation – the ‘clean’ disciplinary record.
(c) the youth and inexperience of the Player;
Not relevant in this case as McFadden is an experienced professional player and Irish international.
(d) the Player’s conduct prior to and at the hearing;
Unknown. Did he eat the biscuits?
(e) the Player having demonstrated remorse for his conduct to the victim Player including the timing of such remorse;
(f) any other off-field mitigating factor(s) that the Disciplinary Committee or Judicial Officer considers relevant and appropriate.
A bit of a catch all but rarely (if ever) used in decisions.

The DC cannot apply a greater reduction than 50% of the relevant entry point suspension but may select any figure starting from 0% up to this maximum if appropriate.

Stage 5 – Sanctions

All DCs from affiliated Unions and tournaments are meant to apply World Rugby’s sanctions for foul play. Each area of the Laws has a recommended number of weeks’ suspension for offending based on an entry point.

These were originally created in 2005 and reviewed in 2012 by an independent process involving former players (including John Smit, Scotland’s own Chris Paterson and that expert on the disciplinary process, Danny Grewcock!), coaches (Didier Retière, Joe Lydon, Robbie Deans), match officials (Ed Morrison, Paddy O’Brien) and members of the media.

Each sanction carries a low, mid and high end entry point which have been determined by the game to be fair and appropriate, with severity depending on the types and seriousness of offending.

After deciding the entry point in Stage 1, the DC must impose the corresponding sanction – contained in Appendix 1 of Regulation 17 which covers 26 different types of offending. For McFadden the relevant section is foul play under Law 10.4 (e):

Dangerous tackling of an Opponent including a tackle or attempted tackle above the line of the shoulders even if the tackle starts below the line of the shoulders.

This carries entry points of: Lower End – 2 weeks; Mid Range – 4 weeks, Top End – 6+ weeks to a maximum of 52 weeks.

Having assessed the entry point in this case as low end the DC applied the relevant suspension – 2 weeks. A week was added for aggravating factors – World Rugby’s deterrent to discourage this type of foul play – and, due to his previous record, no reduction was applied for mitigating factors, giving a total ban of 3 weeks.

As a final note the regulations require that any suspension must apply and be served when the player is scheduled to play. This meant the DC had to defer the punishment due to Leinster not having a match scheduled this week. The punishment also extends to cover full matchday weekends and will therefore normally end on Monday morning to ensure the sanction covers playing weeks and not simply calendar weeks (whereby offenders might effectively receive different punishments depending on the scheduling of their sides’ fixtures). This being the case Fergus McFadden will be free to play again from Monday 23rd May.



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