Does World Rugby need a new process to handle dual-nationality player release disputes? Lessons from the Shields & Samu cases

Published 30 May 2018 By: Jonathan Collins

Rugby player scoring a try

Recently, the issue of whether World Rugby (the governing body of rugby union) 1 could compel a national union to release a player to play international rugby union for the representative team of another national union appeared to be close to becoming the subject of a dispute between New Zealand Rugby (NZR) and World Rugby.

The matter was unusual as it concerned a player contracted to one national union (New Zealand), with the contractual intention of being available for international selection for New Zealand´s national team only (better known as the All Blacks), being potentially requested to be released to play international rugby union for England, despite not previously having played rugby union in England, or indeed represented the English national team.

The purpose of this article is to:

  • provide a summary of the matter;

  • review eligibility criteria for international rugby in the case of dual-qualified players; and

  • consider the possibility of such a matter arising again in the short to medium term and how any such dispute between World Rugby and a member union may be resolved.


Brad Shields is a 27-year-old rugby union player currently playing with the Hurricanes franchise in Wellington, New Zealand. The Hurricanes are one of five franchise teams under the jurisdiction of NZR who compete in the Super Rugby competition with teams from South Africa, Australia, Argentina and Japan. Currently, Mr. Shields is effectively under contract with NZR (via his franchise contract with the Hurricanes), which shall end upon completion of the Hurricanes´ involvement in the Super Rugby competition. According to reports, Mr. Shields´ contract stipulates that he is permitted to play rugby only for teams under the jurisdiction of NZR (being either the Hurricanes´ fellow franchises in the Super Rugby competition or the All Blacks) and accordingly is contractually deemed as eligible for All Blacks selection 2.

From NZR´s perspective, this ensures that all players eligible for selection for the All Blacks are within its management (via the franchises) and are available for selection for the All Blacks, if so required. NZR pursues a policy of only picking players who play rugby in New Zealand, with the obvious corollary being that they intend to play international rugby for the All Blacks.

(A point to note at this juncture is that franchises may Register to three players who are not eligible to represent New Zealand- of course, NZR cannot object to these players being requested to represent their national team).

Eligibility 3

Although born in Masterton, New Zealand, Mr. Shields is eligible to play rugby union for England by virtue of his English parentage 4 . I n 2017, Mr. Shields informed NZR that he had agreed to join the Wasps team in England from the beginning of the 2018-2019 season, with the additional intention of playing international rugby union for England.

Any player eligible to play for the All Blacks who intends to continue their rugby career outside of New Zealand forfeits the possibility of being selected for the All Blacks, as was the case with Mr. Shields.

While Mr. Shields had previously represented New Zealand at Under-20 level, this does not preclude him from representing England. Under World Rugby Regulation 8 , as Mr. Shields has not represented either of the All Blacks, the next senior fifteen-a-side team of New Zealand (the Junior All Blacks), nor New Zealand ´s national representative team in the abbreviated seven-a-side format of rugby union, Mr. Shields is not "captured" by New Zealand considered eligible to represent England.

A digression here is worthwhile in order to consider the question of what constitutes the next Senior fifteen- a-side national representative team (the "Next Fifteen") of a national union , as this is less obvious than what it may appear to be and has been the subject of numerous disputes between unions which World Rugby has had to settle.

In 1999, the Australian-born Jason Jones-Hughes declared his intention to play international rugby for Wales, owing to his father being born in Wales. Rugby Australia 5 (RA) The governing body of rugby union in Australia, claimed that as Jones-Hughes had played for the Australian Barbarians (its designated Next Fifteen) on 9 June 1998 against a touring Scottish representative team, Jones-Hughes was `captured` by Australia and ineligible to represent Wales.

The Welsh Rugby Union (WRU) brought the matter to World Rugby for settlement, who initially ruled in favour of ARU in July 1999, on the basis that both RA and the Scottish Rugby Union (SRU) considered that the teams which played in June 1998 constituted the Next Fifteen of both unions. The WRU appealed the decision, and following a hearing, in September 1999 World Rugby upheld the WRU´s appeal. While it agreed that Jones-Hughes had represented Australia´s Next Fifteen, it now found that the Scottish team which played the Australian Barbarians was not strictly the SRU´s Next Fifteen- rather, it was designated as a Scotland XV by the SRU and thus would not impact Jones-Hughes for eligibility purposes. Thus, Mr. Jones-Hughes was free to represent Wales 6 .

More recently, unions such as SRU, WRU and the French governing body Fédération Française de Rugby (FFR) had pre-designated their Under-20 teams as their respective Next Fifteens, which had implications for the ability to certain dual-eligible players to switch their international allegiance.

In 2011 James Loxton and Matthew Jarvis, previously having represented Wales at Under-20 level, indicated their intention to switch their international allegiance to Ireland, both being eligible to represent Ireland by virtue of heritage. The WRU objected to this, claiming that their appearance for Wales in an Under-20 international against France in 2010 meant that they were bound to Wales. Nonethless, World Rugby´s view was that as the FFR´s Next Fifteen in 2010 was the France A team, and not its Under-20 team, Mr. Loxton and Mr. Jarvis were not tied to Wales and were eligible to represent Ireland 7 .

However, in 2011 the FFR´s decision to disband its A team and designate its Under-20 team as its Next Fifteen meant that Steven Shingler, who played for Wales Under-20 against its French counterparts that year, was found to be captured to play international rugby union for Wales (Mr. Shingler was also eligible to play for Scotland as his mother is Scottish, and accepted an invitation to play for Scotland in January 2012). As in the cases of Mr. Loxton and Mr. Jarvis, the WRU again objected, but in this case World Rugby found in favour of the WRU and decreed that Mr. Shingler could not play for Scotland, as at the time of his appearance for Wales Under-20 against France Under-20 in 2011, both the WRU and the FFR had designated their Under-20 teams as their Next Fifteen, after their respective senior international teams 8 .

Clearly, the common thread through the cases of Mr. Jones-Hughes, Mr. Loxton, Mr. Jarvis and Mr. Shingler is that where players play for a Next Fifteen, the players in question only become tied to a national team if they play in a match where the unions of both representative teams agree that the teams are the Next Fifteens of the unions in question.

World Rugby has sought to clarify matters by providing that after 1 January 2018, Under-20 representative teams cannot be pre-designated as the next senior fifteen-a-side national representative team, however players who have played in an Under-20 representative match prior to 1 January 2018 where both teams were designated as the next senior fifteen-a-side national representative teams of the relevant unions remained captured by the nations concerned.

Potential conflict between World Rugby and NZR

NZR anticipated that Mr. Shields would complete the remainder of his contract with NZR 9 , potentially until August 2018 depending on the success of the Hurricanes in the Super Rugby competition, following which he would then commence his playing contract with Wasps in England, and potentially play international rugby union for England.

In April 2018, however, England´s head coach Eddie Jones indicated that he intended to choose Shields for England´s three matches against South Africa in June 2018, on the basis that Regulation 9 of World Rugby (examined below) would oblige NZR to release Mr. Shields .

However, the chief executive of NZR, Steve Tew, was quite strident in his view that NZR was under no obligation to release Mr. Shields to play rugby for England :

"I don't think you should jump to the conclusion that he will be available from our point of view. He has signed to New Zealand and he is contracted to play for New Zealand teams until the end of Super Rugby.We have a New Zealand player who is contracted to be here until the end of that competition and that would be our expectation. We are obligated to release players who have signed to play for other countries so they have made themselves unavailable for New Zealand. We always make sure that occurs and that is of particular relevance to the Pacific countries. But in this instance, Brad has signed a contract that makes him available for New Zealand teams . 10"

NZR´s view was that Schedule Three of Mr. Shields´ contract could be cited to potentially refuse release of Mr. Shields, on the basis that his contract does not allow for any other entity outside of teams under NZR jurisdiction to call upon his services 11.

NZR and Mr. Tew nonetheless adopted a more conciliatory tone following a formal request from Mr. Shields to be given dispensation to play for England, ahead of the completion of his obligations to the Hurricanes and NZR, and indicated that they would consider Mr. Shields´request for dispensation 12.

Incidentally, an interesting point raised by one commentator was that this matter was almost identical to a situation which arose in 2017, where Mr. Jones picked Piers Francis (also under contract with NZR at the time) to represent England 13. Like Mr. Shields, Mr. Francis had signed a contract to play rugby union in England upon the conclusion of his contract with NZR. In that case, NZR did not object to England doing so and perhaps Mr. Jones may have reasonably believed the NZR would, in the present case, be also amenable to releasing Mr. Shields to represent England, despite him being under contract with NZR.

The obligation to release players for international duty

Any sub-national club, franchise or province is obliged to release players for international duty when requested to do so by a national union, under World Rugby´s above mentioned Regulation 914, for designated periods in June and November when international rugby matches are played. These matches are non-competitive in the sense that they do not form part of any tournament, but are nonethless given a similar status to competitive matches in respect of the requirement to release of players for international duty.

However, in the case of any international matches falling outside such designated periods, clubs or provinces are not required or obliged to release players.

The purpose of World Rugby´s Regulation 9 is to safeguard the integrity of international rugby by ensuring that the highest-quality players are available for selection by the nations for which they are eligible. In this sense, one can understand World Rugby´s desire for Regulation 9 to supercede any competing provisions within a players contract with a club, franchise or province- and indeed in this case, a national union.

World Rugby, while not commenting formally on the present matter, informed The Guardian that should England contact the Hurricanes requesting Mr. Shields´ release, it would be "absolutely the case" the Hurricanes and NZR would be obliged to comply with such a request 15.

The outcome of Mr. Shields´ request to NZR

Ultimately, NZR acquiesced to Mr. Shields´ request for special dispensation to represent England, while nonethless expressing its displeasure about the manner of his selection and reiterating that there were "clear legal grounds" to refuse to release him 16.

Accordingly, in May 2018 Mr. Shields was selected to represent England in its forthcoming matches in South Africa.

Peter Samu

A similar issue arose for NZR ´s consideration following the conclusion of this matter in late May 2018 when Peter Samu, a player contracted to NZR via its´ Crusaders franchise, signed an agreement to play for the RA´s Brumbies franchise effective upon the conclusion of his obligations towards NZR, with the further intention of representing Australia.

Similarly to Mr. Shields, Mr. Samu committed his playing future abroad while under contract with NZR, however Mr. Samu´s case differed slightly from Mr. Shields´ in that Mr. Samu is eligible to represent Australia by birth, and his eligibility to represent the All Blacks is based on completing a period of thirty-six months continuous residency in New Zealand 17 . It is understood that Mr. Samu´s contract with NZR also included the same provision as Mr. Shields´ contract, Schedule Three, which provides that Mr. Samu may only represent teams under the auspices of NZR 18 .

Australia indicated its intention to select Mr. Samu for its´ international matches against Ireland in June 2018, though in contrast to England desisted from selecting Mr. Samu and until having received formal permission from NZR to do so, following a written request from RA to NZR.

At the time of writing, NZR is yet to respond to RA´s request for Mr. Samu´s release and at the present time, Mr. Samu has not been selected in Australia´s squad for its forthcoming matches in June 2018 19 .


It is quite possible that similar cases to those of Mr. Shields and Mr. Samu shall arise in future given how talent recruitment by national unions has long since moved from a localised endeavour to a worldwide pursuit, especially in respect of players who may be eligible via birth and heritage to represent more than one nation. One commentator raised the point that the matter has created a precedent for NZR and thus New Zealand- eligible players like Mr. Shields, who are also eligible to represent nations other than New Zealand, could now feel emboldened to commit their international allegiance elsewhere during the duration of their contract with NZR, without fear of any possibility for NZR to stop them doing so 20.

While NZR was willing to accede to Mr. Shields´ request in the present case in view of his long and distinguished service to New Zealand rugby, one commentator made the point that Mr. Samu does not have the same ”goodwill” in this regard that Mr. Shields has 21 .NZR´s pragmatic and conciliatory approach perhaps thus may not be replicated in Mr. Samu´s case, and also if a similar situation arose in future where a younger player with dual-eligibility who may be viewed as a future All Black wishes to change his or her international allegiance.

Given the absence of precedent concerning dispute resolution in this scenario, it is difficult to say with certainty how any dispute between World Rugby and a national union would unfold, in what forum the matter would be determined, and ultimately the outcome of such dispute. Interestingly, World Rugby Regulation 19 , which deals with mediation of disputes between member unions and/or associations, does not contemplate the mediation of a dispute between World Rugby and a member union/association.

There are four competing interests in question:

Certainly, should a national union refuse to release a player to play international rugby for the representative team of a second national union where it is obliged to do so, Regulation 9.35 22 would apply and it would, in principle, be subject to sanctions under World Rugby Regulation 18 .

Nonetheless, the national union may reasonably take the view that it is within its´ rights to insist that the matter is a contractual one between itself and the player in question, and that the player should honour the terms of his or contract.

From the player ´s side, he or she may justifiably feel that notwithstanding his or her contract with the national union, it should not stand in his or her way in switch his or her international allegiance to another nation and progressing his or her career accordingly, where the second national union considers itself entitled to select such player, and especially where the first national union does not intend to choose the player to play for its´ national team.

Aside from the reported provisions of Mr. Shields´ and Mr. Samu´s contract s , one commentator 23 averred that a subsection 9.38 of Regulation 9 provided a strong basis for NZR to resist any request by England to release Mr. Shields. Certainly, from a pragmatic aspect one may expect NZR, and indeed other national unions, to protect their interests in future by requesting contracted players with dual eligibility, and who have reached the age of majority and following the taking of independent legal advice, to commit in writin g to not representing another nation for the term of his or her contract with the national union , as provided for under and in accordance with World Rugby Regulation 9.38.

In the case of any such dispute, and taking all competing interests into account, assuming that the player is not "captured" by a nation in accordance with Regulation 8, it is submitted that the overriding factor should be the best interests and wishes of the player concerned, with due consideration being given to how realistic the possibility of the player being chosen to represent the national team of the union with with which he or she is contracted.

As the player will usually require a timely resolution of the matter, my view is that the better course would be for World Rugby and the national union concerned to agree to settle the matter via agreed independent arbitration or mediation, rather than through a time consuming and not to say costly legal process which aside from fomenting poor relations between World Rugby and union in question, may in all likelihood have the effect of deleteriously affecting the career of the player concerned.


1World Rugby was known as the International Rugby Board (`IRB´) until November 2014. For reasons of consistency and to avoid confusion, World Rugby is used throughout this article, even when IRB was its operative name at the time of certain event(s) mentioned.
2G. Meagher, "Brad Shields asks for New Zealand release in order to play for England", The Guardian , 20 April 2018, ) (accessed 16 May 2018).
3This section assumes that a player does not intend to re-qualify for another nation for which he or she holds a passport through representing that nation in seven-a-side Olympic qualification events. While this is possible, the process is beyond the scope of the present article.
4World Rugby Regulation 8. 1(b) : "Subject to Regulation 8.2, a Player may only play for the senior fifteen-a-side National Representative Team, the next senior fifteen-a-side National Representative Team and the senior National Representative Sevens Team of the Union of the country with which the Player has a genuine, close, credible and established national link in which: [...] (b) one parent or grandparent was born”.
5Rugby Australia was known as the Australian Rugby Union (” ARU ”) untill 2017. For reasons of consistency and to avoid confusion, Rugby Australia is used throughout this article, even when ARU was its operative name at the time of certain event(s) mentioned.
6"Decision as to the Eligibility of Jason Jones-Hughes" [Website] 1999, (accessed 28 May 2018)
7E.Storey, "In Feud Over Rugby Eligibility, No Easy Answer", New York Times, 19 January 2012, (accessed on 28 May 2018).
8”Steven Shingler tied to Wales not Scotland after losing IRB appeal” [website], 2012 (accessed on 28 May 2018).
9G. Paul, ”Revealed: All Blacks, England at war over Hurricanes star Brad Shields, New Zealand Herald , 19 April 2018, (accessed on 16 May 2018).
12P.McKendry, ”Rugby: Brad Shields asks for release- NZ Rugby says ´we´ll think about it´”, New Zealand Herald , 20 April 2018, (accessed on 17 May 2018).
13M. Cleary, ”England can press on with selecting Brad Shields without fear of losing legal challenge”, The Telegraph, 19 April 2018, ,(accessed 16 May 2018).
14World Rugby Regulation 9.2 : "A Union, Association, Rugby Body or Club is obliged to release a Player to the Union for which the Player is eligible when selected by such Union for a National Representative Team or National Squad in accordance with the provisions of this Regulation 9".
15G. Meagher, "Brad Shields asks for New Zealand release in order to play for England", The Guardian , 20 April 2018, ) (accessed 16 May 2018).
16”Brad Shields: New Zealand-born flanker released for England call-up” [website], 2018 (accessed 16 May 2018).
17World Rugby Regulation 8.1: ” Subject to Regulation 8.2, a Player may only play for the senior fifteen-a-side National Representative Team, the next senior fifteen-a-side National Representative Team and the senior National Representative Sevens Team of the Union of the country with which the Player has a genuine, close, credible and established national link in which: [ … ] (c) he has completed sixty consecutive months of Residence immediately preceding the time of playing [...]”. However, the requirement of continuous residence of sixty months comes into operation only after 31 December 2020, thus Mr. Samu was only required to complete the previous period of thirty-six months continuous resiidence in New Zealand to become eligible to represent the All Blacks.
18G.Paul, ”Another big call coming on Pete Samu for NZ Rugby”, New Zealand Herald , 30 May 2018, (accessed 30 May 2018).
19C. Dutton, ”Wallabies still sweating on Pete Samu clearance after Brumbies deal”, The Sydney Morning Herald , 29 May 2018, (accessed 30 May 2018).
20G. Paul, ”New Zealand Rugby have opened a Pandora´s box with their Brad Shields decision”, New Zealand Herald , 10 May 2018, (accessed on 17 May 2018).
21See footnote 18.
22World Rugby Regulation 9.35 :"A Union or Association that fails to apply Regulation 9 properly and in good faith or whose member Rugby Bodies or Clubs fail to comply with Regulation 9 renders itself liable to sanctions by World Rugby pursuant to Regulation 18".
23L.Napier, ”NZ Rugby in strong position over Brad Shields saga”, New Zealand Herald , 29 April 2018, (accessed on 17 May 2018)

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Jonathan Collins

Jonathan Collins

Senior Associate, PwC Legal

Jonathan is an Irish solicitor and Senior Associate at PwC Legal Luxembourg. Jonathan has represented Munster at Youth level, and is mainly interested in rugby union and football.

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