Rugby: conflict of interest between club and countryCharles Maurice
The culmination of this year’s Six Nations Rugby tournament is something I am very much looking forward to. Whether you think Wales or England will win (I’m with Jeremy Guscott on this – Wales to win, but not by enough to win the tournament) and whether or not you think the rugby that has been played has failed to excite as much as in past tournaments, there can be little doubt that the 2013 edition has been one of the closest in recent memory.
The tournament is also interesting to view from a legal perspective in terms of the wider ‘club v country’ debate.cBoth release windows are a defined period in the rugby calendar when each of the relevant Unions can request a squad of players to be released from their clubs for training and match purposes to contest the Six Nations and Four Nations tournaments. Simply put, the clubs have a binding obligation to release their players for what, in three out of four seasons, is the pinnacle of competitive international rugby. Contrast this with the relatively unhappy November and June global release periods (a three weekend period where southern hemisphere and northern hemisphere international teams go on tour), where clubs have similar release obligations but where Unions have also freely attempted to negotiate additional games into the international calendar to maximise revenues and increase the profile of international rugby.
The contrast between the two sets of release windows is quite marked and gives the IRB much to deal with for 2013.
The rules on player availability
IRB Regulation 9, “Availability of Players” is the regulation that binds Unions and their constituent clubs to release players for international rugby. The regulation sets out a number of underlying principles that are to be observed in both letter and spirit. The underlying theme being that international rugby is in the best interests of the sport at all levels and accordingly, a Union must have the right to a player’s availability for selection and appearances for a national team.
Subject to the release windows and maximum numbers of games in a year (for example, 11 for northern hemisphere Unions split between the various release windows), this right is an unfettered one in theory, meaning that “no Union, association, body or club whether by contract, conduct or otherwise may inhibit, prevent, discourage, disincentivise or render unavailable any player from selection, attendance and appearance in a national team or squad once a request for attendance by the Union has been made.”
Notably, the IRB Regulation 9 sets a minimum standard for player availability, and Unions are free to negotiate additional collective agreements with clubs and organisations in their jurisdiction. This explains then the Heads of Agreement reached between the RFU and Premiership Rugby relating to player access, along with compensation to the constituent clubs and players. But this is for the Unions to agree themselves and is supplementary to the IRB Regulations.
Sanctions exist for non-compliance with Regulation 9 and are clearly set out: “termination or suspension of membership of the Union; financial penalties; deduction of league points; relegation; such other sanction as may be appropriate; or a combination of any of the above.” So in theory at least, the IRB have some teeth to deal with failures to release players to their international squads.
There appears to be problems in relation to specific release windows. Take the November release window for example: the designated number of games for Unions in this period is 3, spread over the second, third and fourth weekends in November. Any further games outside of this period are subject to agreement between the Unions and the releasing clubs and unless otherwise agreed, the clubs are not obliged to release the players to the Unions. For the Unions though, a fourth international is a lucrative opportunity that is difficult to pass up – England and Wales both had an extra one in 2012, and despite the reported high fees for the fixtures charged by the New Zealand and Australian Unions respectively (approximately £1.5m), revenues from a full stadium makes it worth the trouble for the host Union.
Unfortunately, player availability for the additional international only works to the extent that the Union has an agreement with the clubs to which the featuring players are contracted. This is why the English and Welsh domestic based players were available to play in the extra fixture, whilst players plying their trade in different leagues where no agreement is in place between their club and international Union were left at the mercy of their clubs over their availability. So, unless you are Luke Charteris and have a mandatory release clause negotiated into your foreign playing contract (and that seems a very good solution for aspiring international players), an additional international outside of the release window may be something a player forgoes in return for playing outside of their home domestic league. Followers of this issue will remember past issues with Dwayne Peel and Gethin Jenkins to name but two.
The clubs are vilified in this process by a rugby watching public keen to see the best players performing on the international stage, but can the clubs really be blamed for withholding their players in these instances? Viewed in accordance with the letter of the law, the clubs are certainly not obliged to release their players, and I am not convinced that the spirit of the law extends to agreeing to something that is clearly outside of the scope of the existing regulation. Cynically speaking, to the Unions the additional internationals in the November window serve more of a financial than a sporting benefit, so it is unsurprising that the clubs are reluctant to play ball, unless they have a (presumably) lucrative agreement in place with the requesting Union to persuade them to do so.
The competitive nature of the Six Nations and the Four Nations tournaments means that this is less of an issue during the Northern and Southern Hemisphere Release Periods, but presumably only because the Unions are unable to shoehorn another international into the calendar at the end of March. Regulation 9 also provides that during these competitive release windows the Unions are only entitled to player availability for a certain amount of the window (e.g. five out of a seven week period for the Six Nations – the games are scheduled to allow for this), so the clubs plights are alleviated somewhat as a result. It is also an opportunity for new and fresh talent to emerge, so there are potential other gains to the clubs and the game more generally.
A challenge too far?
This is a legitimate struggle and one that needs careful management by the IRB. Of greater concern though are reports of players (including several high profile international names) being incentivised to take early retirement at the request of their club so as to avoid international call-ups during the season. This adds an unsavoury element into the mix and is something that the IRB are on notice to address. This was also the subject of an IRB meeting last week, with its head Bernard Lapasset, acknowledging the existence of a problem and the need for consistency. Indeed, Regulation 9 places a 12 month international playing ban on those players who have declared themselves unavailable due to international retirement, but as always it is the enforcement of this that will stand the test rather than the wording of the regulation itself.
And enforcement is really the key point here. The regulations are very clear on the sanctions available to the IRB, but whether it is able or willing to take these is another matter. This summer’s Lions tour to Australia is likely to be the next time this is put to the test. Itself a Designated Release Event under Regulation 9 (and an additional release obligation on clubs in the same way as the Rugby World Cup), the start of the Lions tour overlaps with the final of the French Top14 league on 1 June and Bernard Laporte, director of Rugby at Toulon, has vocalised his view that Toulon will refuse to release any affected players until after the final should Toulon be involved. Unfortunately for Laporte, the letter of Regulation 9 is actually on the side of the Lions on this one (a Lions Tour is billed as “ordinarily” commencing on 1 June in a relevant year), so any failure by Toulon to release their players would likely be a breach of Regulation 9 and potentially also place the FFR in breach as well. Nathan Hines took this into his own hands on the last Lions tour by walking out on Perpignan, but I bet the IRB wish they have someone of Mr. Hines’ stature to help them out on enforcement matters this summer. It will remain to be seen how they fare.
In my view, this is a conflict that is not going to go away until something is done to balance out the Rugby calendar (for example a break in domestic competitions during international windows) or a clarification of how the existing rules will be enforced. I would be keen to know your views on this, any solutions you might see from a legal perspective and whether you think Regulation 9 is likely to need changing in the coming seasons as Unions seek to maximise struggling revenue.
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About the Author
Charlie is a senior associate at Stevens & Bolton LLP and specialises in the sports, media and entertainment sectors. Charlie advises on a wide range of sporting issues and has particular experience in the motor racing and football industries.