Irish RFU limits non-Irish players: 6+5 all over again?Cormac WIlde
The recent well publicised contract negotiations between Munster and South African national BJ Botha regarding an extension to his contract with the province have again focused the spotlight on the Irish Rugby Football Union’s (‘IRFU’) controversial Player Succession Strategy and its potential infringement of both EU and domestic Irish law. This article examines the new strategy from the perspective of Article 45 of the Treaty on the Functioning of the European Union (hereinafter “TFEU”)1 and its likely infringement of the provisions pertaining to it.
Announced in December 2011, the new strategy seeks to introduce the following rules:
- There can only be one non-Irish eligible (hereinafter “NIE”) player contracted to play in each of the 15 field positions across the provinces of Leinster, Munster and Ulster e.g. one foreign player permitted across all three teams per position.
- From the 2013/14 season and onwards, for any given position involving a contracted NIE player, a province will not be permitted to renew that NIE player contract or bring in a new NIE player into that same position in its squad.
- All future provincial injury replacement players must be eligible for selection for Ireland.
- All future provincial non-Irish eligible player contracts will be position specific.
* The Connacht professional side is external to this process as it has recently commenced a new programme of structural and performance development agreed with the IRFU.2
Professional rugby players in Ireland are employed by way of a provincial or central IRFU contract. Whilst the provinces retain a certain degree of control over the players that they wish to employ on provincial contracts, the IRFU supplements this by issuing central contracts to the Irish international players considered pivotal to the national team. In addition, the negotiation and finalisation of player contracts is always subject to a final veto from the IRFU (the Professional Contracts Review Group hereinafter the “PCRG”).
Similarly to many of the other quota systems littered throughout professional sport, the IRFU’s new policy centres on a desire to improve the performance of the national team in international competition. Notwithstanding such objectives, the IRFU has placed itself in a difficult legal position in that these rules appear on their face to fall foul of EU legislation concerning the free movement of workers.
Free movement of workers
In deciding to join the European Union (hereinafter the “EU”) in 1973, Ireland and by implication the IRFU became part of a common European market in which the free movement of goods, persons, services and capital became central to its being. With the achievement of a common market as its principle objective, the EU sought to guarantee these basic freedoms for all EU citizens through the implementation of various treaties, the latest of which is the Treaty on the Functioning of the European Union (hereinafter “TFEU”)3.
Specifically, Article 45 of the TFEU guarantees the free movement of workers within the EU. Direct and indirect discrimination based upon the nationality of a worker in an EU member state in relation to their employment, remuneration or other working conditions is prohibited under Article 45 of the TFEU.
A directly discriminatory restriction is one which uses nationality as the basis upon which it seeks to favour one particular individual over another and it can only be justified under specific derogations related to public policy, public security and public health.
An indirect discriminatory measure is one which has the effect of discriminating on nationality grounds as opposed to having the objective of doing so. Such measures can only be justified under derogation or when there are objective considerations independent of nationality which are proportionate to the legitimate aim pursued by the rule and are reasonable and necessary.
Quite aside from being an indirect form of discrimination, it would seem that the IRFU’s policy change is one of direct discrimination in that the new rules use nationality as the basis upon which they are being implemented. While this policy will impede the provinces in their attempts to employ quality NIE players, it will also have very real consequences for existing NIE players such as BJ Botha (Munster) and Ruan Piennar (Ulster).
The applicability of this form of law to sport in Europe has been frequently examined. The ECJ’s decisions in the cases of Walrave & Koch v Association Union Cycliste International (1974)4 and Dona v Montero (1976)5 are important in that they confirmed that the EU Treaties apply to the activity of sport so long as it can be constituted as an economic activity. In addition, they examined the provisions of Article 45 and its effects on the free movement of professional sports individuals in Europe.
The case of Jean Marc Bosman6 is important in that the free movement of workers legislation was successfully challenged by a professional sports person. The case focused on two separate issues; transfer fees payable for players who are out of contract and restrictions on the number of foreign players permitted on a given sports team. Whilst the first issue is largely irrelevant for the purposes of this article, it is the second one which is of crucial significance and relevance to the IRFU’s new policy and its effects on the free movement of professional rugby players in Europe.
Similarly, to the IRFU, both FIFA and UEFA argued that these clauses “are necessary to create a sufficient pool of national players to provide the national teams with top players to field in all team positions”.7 Unconvinced by this argument, the ECJ highlighted the fact that there were no rules which restricted a club to fielding players from its own district or town in national competitions. It held that restrictions on the number of foreign players violated the free movement of workers under Article 48 of the EC Treaty and also under Council Regulation 1612/68 which prohibits provisions that restrict the employment of foreign EC nationals.8
The ECJ’s decision was unequivocal in its confirmation of the free movement of workers and its applicability to sporting organisations in Europe. Given its existence, it is therefore difficult to understand why the IRFU would seek to breach its terms in such an obviously blatant manner.
All professional rugby playing citizens in Europe are entitled to avail of employment contracts with the provincial playing provinces of Ireland and any attempt to limit such entitlements based on nationality considerations are simply not permitted. Furthermore, NIE players who are already contracted to play for Irish provinces are entitled to expect that any potential renewal of their contract will not be subject to discrimination based on nationality considerations.
Whilst there is no doubt that the above case law provides assistance for NIE EU citizens, the situation in Ireland is unique in that the majority of NIE players either seeking to play or playing professional rugby in Ireland are nationals of southern hemisphere countries such as New Zealand, Australia and South Africa. This raises the question as to whether such nationals would be capable of availing of any similar protections in their contract negotiations with the IRFU. Unfortunately for the IRFU, a number of subsequent ECJ decisions conspire to further impede their newly developed policy.
The case of Kolpak9 concerned a professional handball player from Slovakia who was employed as a goalkeeper for a second division handball team in Germany. Kolpak was issued with a player’s license which included the letter ‘A’, a letter which essentially highlighted the fact that he was a non-EU player who did not enjoy the privilege of equal treatment. League rules dictated that teams could only field two ‘A’ marked players in any game. Kolpak requested that he be re-issued with a license that did not contain the stated lettering as he had similar rights to that of an EU citizen by way of an Association Agreement agreed between the EU and Slovakia.10 In holding that there was no sports related reason for the discrimination, the ECJ held in Kolpak’s favour and ruled that the restriction was a form of discrimination under European law.
The effects of Kolpak and subsequent decisions have been such that the term ‘Kolpak player’ has become commonplace in sports such as rugby and cricket. In particular, the Cotonou Agreement between the EU and the nations forming the Africa, Caribbean, Pacific Group (including South Africa, Samoa, Tonga and Fiji) represents the association agreement that many may seek to exploit. Once these so called ‘Kolpak’ players are lawfully employed in the EU, they have equal rights to their EU born colleagues and their numbers cannot be restricted by the governing bodies of their particular sport.
If cases such as Kolpak did not create enough difficulty for the IRFU, the recent ECJ decision in the case of Zambrano11
creates further issues. In that case, the ECJ held that the parents of a dependent EU national child are to be given full rights to work in the EU state of which those children are nationals as a direct consequence of the rights afforded to that EU national child. In effect, this facilitates a non-EU, non-Kolpak parent of an Irish child to live and work in Ireland with no restrictions. From a practical rugby perspective, this allows an Australian or New Zealand national who has children that are entitled to an Irish passport and who is playing provincial rugby in Ireland to live and work in Ireland. In addition, the case of Chen and Zhu12 allows him to move freely within other EU states in search of a professional playing rugby contract.
Having outlined some of the case law surrounding the free movement of workers, it is clear that the basic law is that a national association which applies a rule in professional sport that restricts the free movement of citizens in the EU is illegal. The IRFU’s policy is one which uses nationality as the basis upon which it will discriminate and thus, it is one of a directly discriminatory nature. Article 45 is clear in that such discrimination can only be justified under specific derogations related to public policy, public security and public health. I would submit that none of these derogations could realistically be argued by the IRFU in any defence of their new policy.
The IRFU has therefore created a situation whereby they could be the subject of numerous different forms of litigious proceedings. While players such as Piennar (South Africa) and Botha (South Africa) can avail of association agreements such as Cotonou, a number of these players also have Irish born children and thus, can rely on the case of Zambrano in any legal case that they may take.
The new regulations also state that the provinces cannot replace an NIE player with another. By way of example, if Ulster get refused a new contract for Ruan Piennar and want to replace him with the French scrum half, Morgan Parra, the IRFU regulations would seek to prevent such a move from taking place.
Similarities to FIFA’s 6 +5 Rule?
The desire to impose quotas on the number of foreign players taking part in national and domestic sports is not one which is confined to the sport of rugby. A multitude of sporting governing bodies have sought to implement restrictions on foreign participation throughout the years. In this context, it is particularly interesting to highlight FIFA’s 6 +5 rule and the subsequent abandonment of it. By way of background, FIFA’s 6+5 rule was a rule adopted by FIFA in May 2008 which sought to introduce quotas requiring that each club must start with at least six players eligible to play for the national team of the country of the club. Unlike the IRFU, FIFA recognised the significance of the proposed rule change and entered into protracted dialogue with the governing bodies of the EU. Unsurprisingly, the rule change was rejected by both the EU Parliament and the EU Commission as being directly discriminatory and thus in contravention of the Article 45.13 14 FIFA subsequently abandoned the proposed rule change in 2010.
In contrast, UEFA’s “home-grown player rule” was endorsed as being compatible with EU law. This rule requires that clubs participating in UEFA designated competitions must have a minimum of eight “home-grown” players in their squads. UEFA defines “home-grown” players as players who have been trained by their club or by another club in the same national association for at least three years between the ages of 15-21.15 The rule was endorsed by the Commissioner Vladimir Spidla in May 2008 as being proportionate and in compliant with the free movement of workers.16
There is no doubt that the IRFU’s proposed player succession strategy is one of a complex and dividing nature. From a strictly patriotic point of view, such a strategy can be commended as it increases access to young Irish qualified players and by implication, it increases the likelihood that the Irish national team will be able to compete more successfully in the future. In deciding to implement its new strategy, the IRFU are attempting to ensure that they have in place a competitive structure capable of producing two suitably qualified Irish players in each position. In this respect, the proposed changes are no different than other restrictive quotas in place throughout both rugby and sport in general.
However, similarly to FIFA and UEFA, the IRFU exists in an environment where the primacy of EU law is paramount and thus, any rules or policies that it wishes to implement must be done in strict accordance with same. Unlike the very public consultations engaged in by FIFA, UEFA and the EU institutions, it does not seem like there has been any such dialogue between the IRFU and its European governors. Notwithstanding this, having examined both the legislation and the case law, it is difficult to see how the IRFU’s proposed policy change can function in accordance with the EU rules on free movement of workers and thus, in a legally acceptable manner. In using nationality as the basis upon which it seeks to discriminate against existing and future NIE players, the IRFU is seeking to implement a strategy which will directly favor Irish qualified players over NIE players. In proposing to do so, I would submit that they are in direct conflict with Article 45 of the TFEU and thus are open to serious challenge both from existing and potential future players.
Articles that influenced the construction of the artilce:
4 C036/74, Walrave and Koch v Association Union Cycliste Internationale (1974) ECR 1405
5 C-13/76, Dona v Montero (1976) ECR 1333
6 C-415/93, Union Royale Belge des Societes de Football Association ASBL & Others v Jean Marc Bosman (1995) ECR I-4921
7 C-415/93, Union Royale Belge des Societes de Football Association ASBL & Others v Jean Marc Bosman (1995) ECR I-4921 (paragraph 124)
8 Article 4(1) of Regulation (EEC) No. 1612/68 on freedom of movement of workers within the Community, 15 October 1968
9 C-34800, Deutscher Handballbund e. V v Maros Kolpak (2003/C146/07)
10 Article 38(1) of the Europe Agreement.
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About the Author
Cormac Wilde is an Irish qualified lawyer working in the areas of dispute resolution, IP/IT and commercial law. He has a keen interest in the business and law of sport and recently completed the Global Executive Master in International Sports Law with the ISDE University in Madrid.