Burger has been banned for eight weeks after being cited for his actions in the opening minute of the game in Pretoria. Since then there has been a widespread furore regarding eye gouging - an offence SA Rugby insist Burger has been cleared of.
In order to underline that point, SA Rugby issued the full statement of the IRB Judicial Officer, Alan Hudson, in which he cleared the 50-Test Springbok back row man of gouging.
"Media should note the Judicial Officer specifically cleared Burger of eye gouging but found him guilty of committing an act contrary to good sportsmanship by making contact with the face in the eye area of Lions wing Luke Fitzgerald in the first minute of the second Test of the Castle South Africa 2009 Lions Series," said an SA Rugby statement..
"SA Rugby reaffirms its opposition to any form of foul play, including eye gouging, and supports any strong action taken by the authorities to ensure its eradication from the game."
In an attached statement from Burger, who will not only miss the third and final Test against the Lions, but also the first three games in the 2009 Tri Nations, the player apologised to his team mates and supporters for being sin-binned, cited and subsequently banned.
"As a proud South African and Springbok Rugby player I only have the utmost respect for the traditions of the wonderful game of rugby. Through my life and career I have always approached the game with the intention only of playing it hard and fair," said Burger.
"I am not a rugby thug and will never intentionally engage in eye gouging or similar illegal actions. This was also the case in the second Test against the Lions.
"I am therefore grateful that the Judicial Officer confirmed my stance with his conclusion that there was no deliberate eye gouging as charged by the Citing Official.
"I will always play the game as hard as possible within the rules. I apologise to my supporters and fellow team mates for the fact that I have been absent for the first ten minutes of the second test. I look forward to returning with zest in due course."
Findings of Judicial Officer
4.1. I am required by Regulation 17.14.2 to undertake an assessment of the seriousness of the conduct in question in order to identify the appropriate entry point pursuant to Appendix 1 of Regulation 17. I have considered the factors enumerated in Regulation 17.14.2 and have concluded:
a. I do not find this to be an intentional act on the part of Burger. I accept Burger's evidence that he did not intend to make contact with the eye area of Lions No 11.
b. In my view his actions were clearly reckless. That is he knew or should have known that there was a risk that his actions could result in an act of foul play - that is contact with the eye area of Lions No 11.
c. While there was no significant injury to the eye of Lions No 11, the contact could not be described as simply trivial. It is clear on the report of the Lions doctor that there was initially redness and swelling about the left eyelid and there was some short lived tearing and blurred vision.
d. I am unable to conclude that there was eye gouging in the sense of a ripping or aggressive intrusion of the eye area, but I do conclude that there was contact in the left eye area which while not serious in the result, cannot be described as insignificant.
e. Contact with an opponent's eye area is a serious matter because of the vulnerability of the human eye and the potential of a permanent injury to one of the key sensory organs of the body.
4.2. I have been referred by Mr (Gerrie) Swart to the reasons of the Judicial Officer in the case of Bismarck du Plessis dated July 2008 (Tri-Nations test series 2008 - SA vs NZ). The use of the Judicial Officers' Reports is of interest in cases involving similar facts and offences and can be instructive. I find the circumstances in the Du Plessis matter different from this case, and in particular in that case there was no contact with the eye itself. That is not the situation here.
4.3. I find that in this case the appropriate entry level for the determination of sanction is the lower end. In such circumstances Appendix 1 of Regulation 17 provides for a suspension of 12 weeks.
4.4. I must next consider any relevant aggravating factors, which might add an additional period of suspension. I find that there are none applicable in this case.
4.5. I must then turn to an identification of any relevant mitigating factors which could reduce the period of suspension. I find there are some as follows:
a. Burger is clearly a fine rugby player with fifty test caps and many national and international accolades.
b. I have heard a great deal of Burger's fine character off the field. I accept the evidence of Mr (Arthob) Petersen, manager of the Springboks and Mr (Dick) Muir, assistant Springbok coach in this regard.
c. Burger's record is quite good for a player of his experience. Importantly he has never been disciplined for any offence related to the face of any player.
d. Burger expressed remorse for these events at the hearing and conducted himself appropriately throughout the hearing.
4.6. The above all constitute mitigating factors which I have concluded will apply to reduce the period of suspension. Burger's suspension will be reduced from 12 weeks to 8 weeks. He is suspended from playing rugby until midnight 22 August 2009.
4.7. The parties were made aware of the right to appeal.