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‘System is broken’: Darcy Swain’s ban is far too light, SANZAAR’s judiciary process is failing the game

Ever since French referee Mathieu Raynal blew time on in last Thursday’s Bledisloe Cup Test it’s been a very confusing time for rugby.

In the days since, circumstances surrounding the end of the Test match have been done to death. What is undeniable however, is that no matter whether Raynal was right to call time on Bernard Foley or not, the Wallabies genuinely feel that this was a match that was unjustly stolen from them.

Predictably, Rugby Australia pressed World Rugby for a please explain and, by Dave Rennie’s account yesterday, found a sympathetic ear. As always though, whenever these things happen, it’s never clear whether a mea culpa makes a losing coach feel better or worse; the outcome isn’t going to change.

Another contentious decision from the match surrounded Darcy Swain’s attack on the leg of New Zealand’s Quinn Tupaea; an action which forced an anguished Tupaea from the field into an extended rehabilitation.

Despite a strong lead from his TMO and compelling video evidence of a foul, Raynal chose to limit Swain’s sanction at a yellow card; a decision which arguably, given Swain’s subsequent citing upgrade and guilty finding, reflects more poorly on Raynal than any of the furore around time-wasting.

Darcy Swain of the Wallabies is spoken to by referee Mathieu Raynal. (Photo by Cameron Spencer/Getty Images)

When these types of events occur, the usual practice is for fans to align on parochial, national grounds; either protective of the man in their shirt, or spitting hell and damnation at the offender in the opponent’s shirt.

What is particularly noteworthy in the Swain case is the impressive objectivity which accompanied much of the reaction from Australian fans, who recognised the incident for what it was, not for the shirts worn by Swain and Tupaea.

In an interview with New Zealand radio host Martin Devlin, Wallabies legend David Campese was disdainful about Swain’s behaviour, warning of the need to impress upon parents that rugby is a safe game for their children, before stating; “It was horrible. I would have given him six, seven, eight months.”

Campese would likely have found favour with news.com’s banner headline yesterday, which read “Horrific: Wallabies Star’s Monster Ban”, under which ran the copy, “Wallabies forward Darcy Swain has had the book thrown at him after an awful tackle labelled ‘thuggery’ in the controversial Bledisloe Cup thriller.”

Campo – and if the reaction of the global rugby press is any guide, many others – might well be wondering which book was thrown at Swain. The Very Hungry Caterpillar, perhaps? Or Clifford the Big Red Dog?

A three-man panel, led by Andre Oosthuizen SC, determined the following;

“Having conducted a detailed review of all the available evidence, having heard from the player and from his legal representative, Aaron Lloyd, the Judicial Committee upheld the Citing and deemed the incident meet the red card threshold for Law 9.11.”

“With respect to sanction the Judicial Committee deemed the act of foul play merited a mid-range entry point of six (6) weeks. Through the actions by the player such as position, control, and player movements they found the incident was not intentional, however, it was highly reckless.”

“With respect to sanction the Judicial Committee deemed the act of foul play merited a mid-range entry point of six (6) weeks.”

“Through the actions by the player such as position, control, and player movements they found the incident was not intentional, however, it was highly reckless.”

Because Swain had received a red card and suspension in July, for headbutting England’s Jonny Hill, he was deemed not eligible for a ‘discount’ or reduction. Notably, the sanction was determined in weeks as opposed to matches, with a date fixed at November 6th, after which Swain becomes free to resume playing.

This distinction is important because Rugby Australia moved to get ahead of the decision on Wednesday, naming Swain in the Australia A side which will play three matches in Japan, next month.

While Rennie indicated that Swain would have been selected for this tour regardless, by then, the move had already been widely criticised as a cynical attempt to game the system.

Perhaps the best that can be said is that this is a genuine tour, and no Canberra or Brisbane club side was required to go through the charade of reconvening for three post-season matches that Swain would never have played in anyway.

It is important to note that his type of scheming is not unique to Australia, rather it is reflective of the normal desire that any coach has to ensure the availability of his best players.

In this case, there was also a strong whiff of the Wallabies calling ‘enough’ and taking matters into their own hand, feeling that they were handed the rough end of the stick in Melbourne.

Even so, the congratulations being afforded the Wallabies and Rugby Australia for their cleverness and initiative seems to completely miss the point about Swain’s act, and why he was found guilty and suspended in the first place.

Which brings us back to the question of whether Swain’s suspension is appropriate for the crime, or not?

Forget claims that suspensions should mirror the time out of the game for players injured as a direct result of a foul act. It’s an easy concept to latch on to, but is no more than a throwback to the days when the death penalty was seen as just retribution for murder.

In short, there is no reliable or workable way to apply consistent sentences where future outcomes for a victim – often indeterminate at the time of the hearing – are the primary factor in sentencing.

But whatever the process, and no matter the arguments put forward by defence counsel and character witnesses, it is important for rugby’s integrity that players, coaches and fans all believe that the system not only provides defendants a fair hearing, it delivers just sentences when players are found guilty.

At face value, Swain’s six-weeks clearly falls into the bounds of what might be considered reasonable. Too light for some, six months too short for Campo, but in terms of World Rugby’s judicial framework, in light of Swains action being classed mid-level entry, definitely understandable.

But when is six weeks actually six weeks?

Swain is a Test rugby player. Removing all of the noise and smokescreens, his next rugby was scheduled for Saturday in Auckland, followed by the Wallabies’ end of year tour.

By fixing an end date to the suspension, Swain and the Wallabies are now afforded the certainty of Swain being available for the final three Test matches on tour, against Italy, Ireland and Wales.

Six weeks, yes. But three Test matches.

Swain’s foul was a bad one; reckless, with due care and respect not shown to a defenceless opponent. Three matches feels light. Far too light.

Too light for the act itself, and too light for a player already sent-off for another reckless act this season, to seriously consider the consequences and how he might go about his football in the future.

SANZAAR’s judicial process provides for flexibility in the application of weeks, or matches. What usually determines this are variable circumstances such as the time of year; for instance, a ten-week suspension in the final match of the year is not the same as a ten-week suspension in the middle of the season.

In this case, the application of weeks, instead of matches, has worked in Swain’s favour, and resulted in the punishment not fitting the crime. It’s another in a long line of judicial outcomes that leave fans believing that the machinations of the process too often take precedence over common sense.

This frustration is also seen regularly where player upon player, after being found guilty, is afforded the luxury of a 50% sentence discount for factors including, but not limited to, a good prior record, expression of remorse, and young age. Further to that, for cases involving high contact, players are able to substitute the final week of their already reduced suspension by submitting to a coaching intervention process.

Whatever the intent, it’s a system that smacks of convenience and which breeds cynicism. This season, Melbourne Rebels centre Ray Nu’u received the standard six-week reduced to three reduced to two sentence, after being sent off for a high shot against the Western Force, then immediately on his return, was sent off again for another high shot, this time against Moana Pasifika.

Observers might reasonably have expected the book to be thrown at Nu’u; the real book. But the same process applied. Nu’u was adjudged to have been just as clean, just as remorseful and just as young, and his six-week sentence was discounted down to three.

Only the additional week for the intervention was missing; after all Nu’u was fresh from completing it a week before, albeit it proving demonstrably ineffective.

The point here is not to denigrate Nu’u, who is a fine, humble young man who will continue to play an important role for the Rebels in 2022. Swain too is personable, and while he has a lot of maturity yet to come, and the wrong he committed on Tupaea cannot be easily waved away, he is not an evil-minded player who needs rubbing out of rugby.

But these are just two examples of where a judicial process has allowed itself to disappear too far up its own backside, and in the process of doing so, is doing rugby a disservice.

SANZAAR can employ all of the QCs, crafty player advocates and carefully crafted judicial frameworks it likes. But any system that allows Swain to play in the UK after sitting out only three Tests, is a broken one.

Let’s hope Swain takes a good book with him to read on the plane.

 

Rugby – The Roar 

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