The contrast and legal considerations between the position of English and non-English players in Premiership RugbyDamian Brown QC
In his recent insightful article, `The curious case of George North’, Sam Vitty analysed some of the issues arising from the George North/Northampton Saints case. I want to follow up by looking at matters from a slightly different angle.
Disclosure alert: I advised Saints at the time. Obviously I cannot reveal the content of any specific advice but can refer to the general issues and some underlying legal principles.
A quick recap first. As Sam says, there is a multi-layered approach to release periods for international matches. The starting point is regulation 9.7 of the IRB Regulations, which operates in two ways: it sets out which games are sanctioned in relation to releases, and the period of any release. The next layer is the local one: Premier Rugby League provides that non-English players cannot be released to play for their international team outside of the IRB sanctioned matches and, if any contrary release is permitted, it will be a breach of the code of conduct. The rule is broadly drafted and any breach of it, and its policies, will result in disciplinary sanctions. George North was being transferred by Scarlets to raise money. Throughout the negotiations, he was liaising with the Welsh Rugby Union ("WRU") to ensure he was still able to play for Wales. The WRU insisted on the release provisions contained within Mr North's side letter with Saints. These are exactly the same provisions that are agreed with Welsh players joining French clubs.
As Sam says, there is a contrast between the position of English and non-English players: the RFU compensates Clubs for the release of English players but there is no such agreement in place for non-English players. The RFU have said that they will not select players who are based outside England unless there are 'exceptional circumstances'. Slightly mixed messages have come out on what would happen if a player did not get a release. In 'The Rugby Paper' (17th December 2013), Warren Gatland was reported as saying that he wouldn't begrudge players moving abroad but that they should make sure they get 'full release for international matches'. I suspect that means the same as the English Rule.
Saints agreed to the release. Ultimately, had they not they would have been in a Catch-22 position: on the one hand, if they adhere to the Rule, they would be acting unlawfully under domestic and European law; on the other hand, if they don't adhere to the Rule, they may be subject to disciplinary sanctions or, to avoid it, are effectively unable to sign a non-English "Marquee Player" – which, by itself, would have an unlawful consequence under both domestic and European law. There are three areas to look at.
Restraint of trade
Traditionally, any provision in a contract preventing an individual from pursuing the ability to work or engage in economic activity after employment has been held to be void and contrary to public policy, unless it can be justified as being reasonable to protect the employer's legitimate interests. That justification is usually based on goodwill and trade secrets. This could not occur in the sporting cases, and it cannot be suggested that George North would satisfy either of those forms of justification. In any event, it is for the person seeking to enforce the restriction to justify it. In this case the IRB.
Here, we are dealing with a restriction during 'employment', but the principles still apply, as the provisions in the contract restrict George North's ability to engage in economic activity – match day fees and potential increased sponsorship/image rights deals. It also restricts his ability to move after the contract ends, as he may have a lower profile due to a lack of international opportunities, which might make him less attractive to a buying club as he is not as experienced. On the other hand, it may make him more attractive, as he may have incurred fewer injuries, will be free for more matches and could be cheaper as a result of his lack of profile.
It is at least arguable that the standard contractual provision required by the IRB/PRL deprives the public (and PRL) of that player should he decide not to sign for a club because of those contractual terms.
Freedom of Movement
Article 45 of the Treaty on the Functioning of the European Union provides for freedom of movement or workers within the EU. Any freedom of movement must not discriminate based on nationality unless justified on grounds, including public policy. The freedom includes the right to accept offers of employment and to move freely within the EU for that purpose. Although George North was not moving between Member States, if his circumstances applied to a French national, by way of example, who was told by his national union that he would not be picked because the contract contained only the minimum IRB release rules, and he declined the contract on that basis, it would be a discriminatory provision (inserted by PRL) because an English national would have been offered different terms. The player, if he accepted the standard release provisions and was not picked, would stand to lose the match fee and any enhanced sponsorship opportunities.
This is reminiscent of Bosman territory and any restriction on freedom of movement would need to be objectively justified. Of course, we may run into our old friend 'specificity of sport', as Sam points out, but is the Delige1 case really that clear? Both Dona2 and Meca-Medina3 suggest that there are limitations to the exception, and this is an activity with a significant economic component as opposed to one involving 'pure' sport. More recently, in the Olympique Lyon and Commission v France cases, the AG's Opinion showed no deference to this concept.
Equalities Act 2010
The provision is either directly or indirectly discriminatory. As George North is Welsh, any difference in treatment between him and an English player would amount to unlawful discrimination because of his nationality. Direct discrimination arises where a person treats another less favourably than they treat another because of, in this case, their nationality. There is a clear discriminatory difference of treatment between English and non-English players. This form of discrimination, unlike indirect discrimination, cannot be justified.
It may be, however, that the IRB provision is a "provision, criterion or practice" which places a non-English player at a disadvantage compared to an English player and George North is placed at that disadvantage in relation to the usually more favourable contractual terms afforded to the English. A provision criterion or practice is justified if the employer can show that it is a proportionate means of achieving a legitimate aim. The objective of the measure in question must correspond to a real need, and the means used must be appropriate with a view to achieving the objective and be necessary to that end. In each case it will be fact specific, and presumably the PRL and RFU will do better than saying that it is all about the money.
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- Tags: Europe | European Rugby Cup (ERC) | Freedom of Movement | Premiership Rugby | Rugby | United Kingdom (UK)
- The curious case of George North part 2 - player power and terms of contracts
- The curious case of George North part 1 - global release periods and Premier Rugby policy
- Relating to the fans
- Anelka - a matter of trust and confidence?
About the Author
Damian Brown QC is a Barrister at Littleton Chambers specialising in sports and regulatory law. He regularly appears for clubs, players and managers in sports disputes in a variety of fora.