Liverpool Rugby Referees

OK so Rassie Erasmus has been banned again, hes not learnt and the SARFU have a role to play. Apparently SARFU, the national coach are in dialogue to work things out.

For those of you interested in reviewing things in content and through a structured process the following article may help you better understand ground zero in terms of this ongoing saga.

Will he or SARFU ever learn?

The headline fixture of the opening round of the 2022 Six Nations championship Scotland v. England featured two of the match officials who refereed test matches during last summer’s three-match series between the world champions South Africa (aka. the Springboks) and the British and Irish Lions (B&I Lions/the Lions)

Nic Berry from Australia who refereed the first test and Ben O’Keefe from New Zealand who had the whistle for the second test (with each of them being an assistant for the other in each game). It was a series overshadowed by issues regarding the officiating, in particular the performance of Mr. Berry in the First Test, not because of his actual performance during the match but because of the public way in which it was dissected by the South Africa Director of Rugby (and 2019 World Cup winning coach), Rassie Erasmus.

Three days after the First Test, which South Africa lost, an hour-long video appeared on the online platform Vimeo (since taken down but avail on various other platforms for the reader to source if they wish). The video was posted by Mr. Erasmus, giving a wide-ranging critique of the performance of Mr. Berry and the decisions which he felt went against his team.1 Such a remarkable critique has never been made public before in the sport of rugby union and there was considerable consternation from the global Rugby community.

This article summarises the case and draws out the prevalent legal issues arising from the Decision of the World Rugby Judicial Committee.3. With particular focus on the growing trend of criticism of match officials in rugby union (and sports more broadly) given the author has been a qualified and active referee, first in football (soccer) and then rugby union, for almost 15 years. Specifically, it provides:

A summary of the case and findings from Kevin Carpenter -Principal for his own consultancy business Captivate Legal & Sports Solutions, and Special Counsel for Sports Integrity at leading global sports technology and data company Genius Sports

Summary Of The Case And Findings

The Video

Mr. Erasmus said he produced the video because he was dissatisfied with the response he received from Mr. Berry to his requests to meet to discuss certain decisions in the First Test which he had sent in the form of clips to World Rugby. He also wished to discuss what he claimed was the “disrespect” shown by the match officials to the Springbok captain.

The video was neither password-protected nor had privacy settings applied to it, and was sent by Mr. Erasmus by email to: Mr. Berry, two World Rugby officials and two officials of the South African Rugby Union

Crucially, Mr. Erasmus also shared it with another forty members of the Springbok playing and coaching staff by way of a WhatsApp message, with the absence of any warning that it was confidential and not for sharing or onwards transmission. Consequently, the Judicial Committee’s view was that it was an almost inevitable consequence, and a consequence readily foreseeable to any perceptive person, that the video would be published in the public domain.

Mr. Erasmus claimed throughout that the decisions made by Mr. Berry in the video, and clarification thereon, would feed into the Springboks team selection for the Second Test. He denied that the video making it into the public domain was his intention or a purpose for which it was prepared. The Judicial Committee found the following to contradict this stance and told the true purpose of and intention for his video:

The video clips had commentary from Mr. Erasmus;

There was a long introduction (around 15 minutes) by Mr. Erasmus before the first clip of analysis was shown;

References by Mr. Erasmus to the video potentially being “picked up” by a South African sports TV broadcaster;

That Mr. Erasmus anticipated being in trouble if the video were disseminated publicly;

Mr. Erasmus saying he was making in the statement in his personal capacity, despite being in Springbok kit and having discussed with SA Rugby making such a video;

The day before having threatened Mr. Berry that he would go public with his feelings about the officiating if he felt he had not properly been heard.

The Charges

As the actions of Mr. Erasmus were in relation to an international fixture, World Rugby’s Regulations applied, in this instance six charges were brought against him pursuant to Regulation 18 titled ‘Misconduct and Code of Conduct’.

In scrutinising the evidence before them, the Judicial Committee dealt with the charges in the round, as there was a significant degree of overlap between them:

“…numerous comments that were either abusive, insulting and/or offensive to Match Officials…”

“…numerous comments that either attacked, disparaged and/or denigrated the Game and the Match Officials…”

“…did not accept or observe the authority and decisions of Match Officials…”

“…criticism of 38 different refereeing decisions…”

“…criticism of the manner in which a Match Official handled a match…”

The first charge by World Rugby was treated by the Judicial Committee as being the most encompassing:

“…Mr Erasmus (i) threatened a Match Official that unless a requested meeting took place, he would publish footage containing clips criticising the Match Official’s performance and then making good on that threat; and (ii) published or permitted to be published the Erasmus Video containing numerous comments that were either abusive, insulting and/or offensive to Match Officials.”

Following on, having already decided that Mr. Erasmus “published or permitted to be published”, the principal issue for the Judicial Committee was: whether the video contained comments which were, when assessed objectively, abusive, insulting and/or offensive?

The Judicial Committee’s assessment
The Judicial Committee’s overall view of the 38 clips of incidents in the video was that it ‘was not an objective analysis of the refereeing seeking explanations, discussion, correction. Rather it lacked perspective, impartial analysis or balance. In places it is sarcastic.’

The Judicial Committee were also ‘comfortably satisfied that the video contained comments which were abusive, insulting and/or offensive to Nic Berry and the other match officials’ [73] and that Mr. Erasmus threatened Mr Berry with the video before following through on his threat and releasing it.

On these bases, the Judicial Committee found the charges proved.

Sanction

Rugby union has a prescriptive approach to sanctioning on-field offences, using a low-end, mid-range, top-end and maximum approach, and the Judicial Committee accepted as a useful starting point the range of sanctions for the abuse of match officials on the field. Top-end was 48+ weeks, with the upper limit being a maximum of 260 weeks.

Although many examples of sanctioning from rugby union competitions around the world at all levels were put before the Judicial Committee, and they acknowledged there was some virtue in consistency, none were treated as being a particularly useful precedent given how fact-sensitive each decision was, and therefore they did not establish any principles or guidelines.

Indeed, the Judicial Committee were of the view that this case was more serious than any of those put before them being especially serious and egregious, as well as Mr. Erasmus’ comments being premeditated, and involving multiple abusive and insulting comments and attacks on the officials’ integrity. Three further compounding factors were considered to be:

the video was made for wider public dissemination;

it was made public by or at the behest of Mr. Erasmus; and

Mr. Erasmus threatened Mr. Berry.

Being a director of rugby for the whole of SA Rugby, rather than just a coach of the national team, the Judicial Committee felt it necessary to adopt a nuanced approach when it came to the period of suspension to be imposed on Mr. Erasmus so as for it to be properly impactful. The suspension they imposed was:

Suspended from all rugby and rugby-related activities for two (2) months; then

A ‘match day’ ban covering all rugby union at whatever level until 30 September 2022 (whilst returning to his Director of Rugby duties).

The Judicial Committee justified the length of the ban on the following basis:

“The suspension is proportionate in terms of length and scope. It reflects the real capacity in which he committed the Misconduct, the gravity of his offending and is meaningful. It takes him out of the Game completely for a time. Thereafter, he can return and to attend to his other duties, but the punishment continues to have meaningful effect for a further 8 or so months.”

Analysis Of The Evidence Of The Main Protagonists

The actions and attitude of Mr. Erasmus

From the Decision, it does not appear that at any point up to and including the hearing did Mr. Erasmus accept that his conduct was (as objectively viewed) an attack on the impartiality and integrity of the match officials.

Even once the Judicial Committee had found the charges proven, in a written statement for the sanctioning process, Mr. Erasmus offered no acceptance of fault, no apology or any acknowledgement of the effect on Mr. Berry.

One particularly serious aspect of the claims Mr. Erasmus made about Mr. Berry was the suggestion that the lack of equal treatment towards the Springbok captain Sya Kolisi had in some way a racial component, for which he offered no evidence. The Judicial Committee gave this short-shrift and dismissed it out of hand. In the author’s view, to even make such a baseless suggestion gives the actions and intentions of Mr. Erasmus a darker hue.

It is regrettable in the author’s view that Mr. Erasmus did not make this suggestion orally and that that he was not able to be questioned and held to account by either World Rugby’s counsel or the Judicial Committee itself.

The personal impact on Mr. Berry

The powerful evidence given by Mr. Berry to the Judicial Committee was, in the author’s view, one of the most striking parts of the Decision, as it underscores exactly why the content of this video was taken so seriously. Here are some extracts from what Mr Berry told the Judicial Committee :

“As a match official I understand that our performances will be heavily scrutinised, especially in such a prestigious tournament. However, the public attack on my integrity and character is not something that should be tolerated in any workplace.”

“…due to the actions of Mr Erasmus, my family and I have endured a significant amount of distress and we will only have negative memories of the whole experience.”

“I feel that Mr Erasmus engaged in a character assassination of me on social media. I have spent many years trying to build my reputation as an international referee and in the course of his video which was posted online, Mr Erasmus has caused it immeasurable damage.”

“I feel that regardless of the outcome and any sanctions imposed, my reputation as a referee and person will forever be tarnished.”

“I felt that Mr Erasmus’ video brought into question my professionalism and my integrity as a match official and that there was an inference to be drawn that I was in some way cheating as an official, which is obviously completely untrue.”

“…his actions are against everything our game stands for and I feel it’s important to take a stand against such behaviour.”

“I sincerely hope that the outcome of the independent judicial hearing will set a precedent to discourage similar behaviour in the future so that no person has to experience what I have these past few weeks.”

As said in brief by the Judicial Committee, this is the human cost of Mr. Erasmus’ actions, something which is rarely acknowledged, let alone accepted, when match officials are criticised publicly.

Given the context of Mr. Erasmus’ deep frustration with the feedback process, much of his ire being directed towards Mr. Berry, the Judicial Committee was left in no doubt that his conduct before the video was published amounted to a threat to Mr. Berry, which of course was carried through by the publication of the video. The threatening behaviour of Mr. Erasmus towards Mr. Berry was described by the Judicial Committee as “wholly unacceptable” , and quite rightly so in the author’s view.

The role of SA Rugby

The one charge brought by World Rugby against SA Rugby that was upheld was that they did not ensure Mr. Erasmus complied with the Code of Conduct and/or permitted him to commit acts of misconduct, as the Judicial Committee ruled this to be a form of strict liability. They went one step further in saying that from the evidence it appeared as though SA Rugby did not think Mr. Erasmus had overstepped a line with the video and his associated conduct , indeed they believed, “had good reason to believe that robust debate within appropriate channels is acceptable.”

How the published video could have been considered to be “robust” or within “appropriate channels” is beyond the author, and perhaps speaks of the power Mr. Erasmus has even over his employer and a general culture of defiance in the organisation. In further support of the author’s opinion, the Judicial Committee expressed its surprise that SA Rugby had made no steps or public comment about the video. However, this had not been pleaded correctly by World Rugby in the Judicial Committee’s opinion, it should have been a separate charge, and therefore the sanction of (small) fine was not increased on this basis.

Impact And Takeaways For Rugby Union And Other Sports

The difference between feedback and criticism for the effect on the sport.

The sport of rugby union has core values of Integrity, Passion, Solidarity, Discipline and Respect, with many of those being central to the treatment of match officials. In general, there has always been a view that match officials in rugby union are given far greater respect than in other sports, in particular as compared to the world’s biggest sport football, which is why some of you reading the Decision may be surprised by the strength of feeling towards Mr. Erasmus’ conduct. Therefore, it is important to stress that this entire matter has to be viewed in the context of this culture of respect towards match officials, which was stated clearly by a national disciplinary panel in England,

“Rugby’s Core Values are not empty words or slogans which can be signed up to and then ignored. They are not to be treated as useful bolt-ons dreamt up by a marketing team. They are integral to the game and are what make the game special. Referees are vital to the sport. Without them there would be no games. They deserve respect and they must be respected." (1)

All of that being said, rugby union is now a professional game at the elite level, and with it comes an increased level of scrutiny. The Judicial Committee recognised this saying proper scrutiny, fair comment or (where warranted) criticism should not be beyond match officials, and indeed robust debate about all aspects of the game is healthy, be that from the media, directors of rugby or other coaches. Yet this must be done in the correct manner, bearing in mind the core values of the game, and by an appropriate method.

The way in which Mr. Erasmus approached giving his feedback, by suggesting Mr. Berry favoured the Lions over South Africa in both his decision-making on the field and his treatment of the captains, was, in the Judicial Committees assessment, not feedback, but rather a clear attack on Mr Berry’s integrity, and one which undermines the core values of sport (with the correctness or otherwise of his analysis being irrelevant in this respect).

Indeed, the Judicial Committee was in the author’s view right to highlight the impact such behaviour at the very highest level of the sport could have on people wanting to officiate at any level and the trickledown effect of such actions from the highest level of the game to its grassroots. Afterall, without referees there is no organised sport for people to participate in. It is also well established through research that the behaviour of people at the top of the sport filters through the grassroots15 and in this respect the conduct of Mr. Erasmus in making such a public show of disrespect could not have been worse at a time when referee numbers are down post-pandemic.

Concluding Comments

Sport should never be win at all costs, but professionalism in rugby union (a sport which has only been fully professional for just over 25 years) had one of its darkest days with Mr. Erasmus’ actions that placed winning above integrity.

The delayed 2020 B&I Lions series against South Africa shall not be remembered fondly, not just for being played during pandemic times with no supporters in the stadiums and the attritional style of rugby played by both sides, but importantly for the behaviour of Mr. Erasmus off the field. All of which meant it was not the usual unique and special spectacle when the Lions tour every four years.

To this day, neither Mr. Erasmus or SA Rugby have truly acknowledged the damage their conduct did to the game or the human cost to Mr. Berry and his career. Despite both him and SA Rugby being ordered by the Judicial Committee to issue a full public apology to the Lions’ match officials within 14 days of the decision, somewhat predictably they did the bare minimum with the following statement:

“SA Rugby and Rassie Erasmus wish to apologise to the match officials appointed to the first Test of the Springboks’ Series against the British & Irish Lions…This has been a highly stressful and charged environment with unusual pressures placed on all concerned and we have no wish to prolong that experience for anyone [by making an appeal as initially indicated]. We have drawn a line under the incident and only wish to look forward…”19

Mr. Erasmus is active on social media and has at no point shown any contrition whatsoever, quite the opposite in fact, as shortly after the decision and his “apology”, he announced he would be making a documentary to “share my side of the story”. He seems intent on continuing to drag Mr. Berry, World Rugby and the sport through the mud regardless of the damage to all of those parties. If such a programme is ever aired, further disciplinary action must inevitably follow.

The public criticism and undermining of match officials by coaches and others involved in sport, not just rugby union, has to stop. The author firmly believes governing bodies at all levels of rugby union can follow the lead of the Judicial Committee and come down on such behaviour harder than ever before, whilst at the same time ensuring concerns can properly be aired through effective feedback mechanisms, containing some element of transparency for other stakeholders in the game (i.e. players, fans etc.).

ADDENDUM - Timeline Of Key Events

Sat 24 July 2021

South Africa v British and Irish Lions – First test match

Sun 25 July 2021

Provided clips to World Rugby and asked to speak to Mr. Berry

Mon 26 July 2021

Match officials carry out a regular match performance review and respond to Mr. Erasmus’ clips

Tue 27 July 2021

Video recorded and uploaded

Fri 30 July 2021

World Rugby acknowledges

Sat 31 July 2021

South Africa v British and Irish Lions – Second test match

Mon 02 August 2021

World Rugby charge Mr. Erasmus and SA Rugby

Wed 27 October 2021

Hearing on liability

Thu 28 October 2021

Fri 29 October 2021

Mon 15 November 2021

Hearing on sanction

Wed 17 November 2021

Date and publication of written Decision

Tuesday, 15 March 2022 Core Article Published by KC

Written by Kevin Carpenter (KC)

(1) RFU v Steve Diamond (November 2017) quoted in RFU v Dean Richards, 24 February 2022 https://www.englandrugby.com/dxdam/76/7674f2a0-9d2d-46aa-885e-7c9abc7998ec/RichardsNewcastleFalconsJudgmentFeb22(final).pdf [last accessed 10 March 2022]