How many Non-EU nationals can you have on a rugby team?

durkadurka

from www.frontrow.ie

Excellent blog from Frankie Sheahan's legal buddy.


Posted on May 10, 2011 by Frankie Sheahan

It’s not often you get a European Court of Justice ruling so well-known that the name of the case becomes a sporting term. One such case was the Kolpak case. In brief, Kolpak was about a Slovak handball player. At the time, although Slovakia was not yet an EU member state, he was playing in Germany. He had a valid residence permit and contract. The governing body of the sport in Germany placed restrictions on the number of non-EU nationals who could play on a team. Mr. Kolpak asked for a player licence which didn’t have those restrictions; and was refused. As Slovakia at the time had an association agreement with the EU, this was an invalid discrimination, because Slovak nationals were entitled to the benefit of free movement of workers. The European Court of Justice (ECJ) also held that there was no sports-related reason for this discrimination, so it couldn’t stand.
This may seem very, dificult to understand. It is, but it has had a huge effect on rugby. The reason is, the same right not to be counted towards limits on the number of non-EU players is extended to nationals of countries that have Association Agreements with the EU. Once those players are lawfully working in the EU, they have equal rights to work as EU citizens and can’t have their numbers restricted. And under the Cotonou Agreement among the list of the countries that have those agreements, are South Africa, Namibia, Fiji, Tonga and Samoa. And that’s where rugby comes in.
Because once a rugby player from those countries signs for a European club, he doesn’t count towards the restrictions on players. That makes him more valuable to that club, as each Kolpak player signed opens up a space for a non-Kolpak player – like an Argentinean, New Zealander or Australian – to be signed as well.
To give a practical example; the French club RC Toulon have, on their books Carl Hayman (NZ – non-Kolpak), Juan Fernandez Lobbe (Argentina – non-Kolpak) and Felipe Contepomi (Argentina – non-Kolpak) on their books. With only two non-EU, non-Kolpak slots available in a match-day 23, this means one of those three will always lose out. However, Joe van Niekirk (SA – Kolpak), George Smith (Tongan passport – Kolpak) or Rudi Wulf (Samoan – Kolpak) are always eligible to play.
This means it’s worth a lot to a club to find a way for a non-EU non-Kolpak star to be registered as a Kolpak player in order to get their full money’s worth out of the player. For example, when All Black great Andrew Mehrtens was playing with the English team Harlequins in 2005-6, he sought a South African passport (Mehrtens was born in Durban) in order to count as a Kolpak player.
This has led to dramatic results. There are apparently some 150 South Africans playing professional rugby in France alone. The EU has reviewed how it views their status under the Cotonou Agreement – the association agreement that gets them in under Kolpak – from free movement of workers to the provision of services. This has led to big restrictions in the UK for example, where players have to have been playing there for four years to be classed on the same footing as EU players.
However, there may, for some players, now be another angle. In the recent Zambranocase, the ECJ held that 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 consequence of the rights of that EU national child. So, the non-EU, non-Kolpak parents of an Irish child could work in Ireland with no restrictions; and, following on other decisions, could move to another EU state to work.
Again, one might ask – so? Well, take a concrete example. Paul Warwick of Munster is moving to Stade Français. Warwick is Australian – non-Kolpak. His wife is Irish, his children are entitled to Irish passports and are EU nationals. Under Zambrano, Warwick, as the parent of dependent EU national children, is entitled to live in Ireland without restriction – and also, under other cases, to move to and work in France without restriction.
Unwittingly, Stade Français have effectively just got themselves another Kolpak player – without the premium for a Kolpak player.
Now, obviously, this is of much more limited impact for a lot of players. However, it’s significant. The easiest place in the major rugby-playing EU countries in which the child of non-EU parents can get EU citizenship is Ireland.
A child with an Irish-citizen parent or ancestor; a child with a parent in Ireland for three of the last four years before the child is born; or the child of a Kolpak player – all are entitled to Irish Citezenship. That means that for an awful lot of overseas players looking to build an NH career, Ireland would be the logical place to come; especially if they are having a family here. Again, to give a concrete example; Lifiemi Mafi of Munster holds a Tongan passport, and is a Kolpak player. Under Kolpak, there are no restrictions on his residence in Ireland. His daughter was born in Ireland in 2007, and is entitled to Irish citizenship; so, under Zambrano, there are, in effect, no restrictions on Mafi‘s moving or working within the EU.
Of course, the downside of this is that for French clubs, it adds an extra incentive to look at Australians and Kiwis playing in Ireland.
Thankfully, from the viewpoint of a Munster fan, one Douglas Charles Howlett, Esq., has already signed an extension with Munster. He’s not going anywhere.
This post was submitted by my friend and legal eagle Tim O’Connor. Further details on his Rugby Law blog.

hardCopy

It's a crazy system, it doesn't seem to do anything to encourage the signing of local players, and instead just penalises the players who can't find a golden ticket in the ancestral lottery.

Or you could just forget where your grandparents were born

durkadurka

Makesyou wonder if the niq rule is legal

CIARAN_BOYLE

durkadurka wrote: »

Makesyou wonder if the niq rule is legal

Its not about nationality but rather eligibility.

Think of international eligibilty as a degree qualification, I'll only hire you if you are qualified to work for me in two different roles (IRFU and IRFU owned subsidiary the Munster branch).

At least thats how I read it

durkadurka

Hmmmm .......a significant, overwhelming component of that qualification is nationality though.

apoeiguq3094y

I think that the way around this is to look at competition squads & match day squads. From a legal point of view it seems it would be a no-no to say to Munster rugby (e.g.) that they can only hire 5 non-Irish qualified players. It would make more sense to say that they can only name 5 non-Irish players in their H-Cup and Celtic League squads.

Its vitally important for Irish rugby that we have a mechanism that limits the amount of non-Irish qualified players.

I have no problem with someone of a different nationality coming to Ireland and commiting to the Irish setup so long as they are Ireland qualified. Its great to get a couple of players of Howlett and Warick's quality play with irish squads as younger players can learn from the best. However, it can kill the game at academy level if younger players have no hope of coming through. Munster have over relied on Southern-Hemishpere centres and that is somewhere they are getting weaker now. Deasy, Cusack or others may have broken through sooner if they didn't have Halstead, Mafi, Tipoki, De Villiers, and Tuitupou tying up the 12 and 13 jerseys. Even Earls is being bumped around positions to accomodate non Ireland qualified players.

Podge_irl

I imagine the NIQ limits are very much skirting the edge of illegality.

danthefan

How would the law be enforced, if it was illegal?

Podge_irl

danthefan wrote: »

How would the law be enforced, if it was illegal?

No idea. I'm no expert but I find it interesting that Hines, for example, was specifically told he couldn't re-sign as he was NIQ. I'm sure there is some basis for a lawsuit based on restraint of trade or whatever it's called there, not that I expect anyone to be filing one any time soon.

If it is illegal I expect we'll find out in the next couple of seasons as the French start introducing their cap on foreigners as some of the owners there are less likely to just accept it then the branches are.

durkadurka

Dunno , could be a problem if say Hines contested it saying that he was denied a place with Leinster for next year due to his nationality.

Turns out he'll probably do fine in France, but he might have a case

Edit: podge nipped in ahead of me

danthefan

Podge_irl wrote: »

No idea. I'm no expert but I find it interesting that Hines, for example, was specifically told he couldn't re-sign as he was NIQ. I'm sure there is some basis for a lawsuit based on restraint of trade or whatever it's called there, not that I expect anyone to be filing one any time soon.

If it is illegal I expect we'll find out in the next couple of seasons as the French start introducing their cap on foreigners as some of the owners there are less likely to just accept it then the branches are.

What I don't really understand is how you can give a guy a 2 year contract, which he agrees to, then possibly get sued for not renewing it.

They'd just have to change the reasons given I suppose from being NIQ to not meeting the needs of the team or some such.

errlloyd

Right hate to do this, but sat an EU economic law exam on Monday so it's all fresh.

The phrase "valid sporting reason" is the important one there, because the development of the national game is a valid sporting reason. German handball clubs maybe can't make the argument so much, but I think the Irish clubs certainly could because they're branches!!

Ciaran-Irl

Podge_irl wrote: »

I imagine the NIQ limits are very much skirting the edge of illegality.

Without a doubt. If Nathan Hines sued the IRFU, I wonder what would happen. He wanted to stay at Leinster, and Leinster wanted to keep him, but he had to go.

durkadurka

Supposing an English lad, living In ireland, who would not like to play for Ireland for his own reasons, but is a good player, and he cannot get a contract in Ireland as he is niq.


He might have a case.

Cpt_Blackbeard

As far as I was aware Hines was only offered a 1 year deal as is the IRFU's stance on NIQ's over 30, its similar to what caused Warwick to move on.

durkadurka

I thought he wanted to stay but was prevented from doing so by the PAG

durkadurka

durkadurka wrote: »

I thought he wanted to stay but was prevented from doing so by the PAG

This.

As confirmed by Hines in this interview.

Nathan Hines: I'm leaving Leinster because Irish chiefs think I'm preventing homegrown talent from developing
Apr 28 2011 Roddy Duncan
Scotland hero Nathan Hines last night revealed he is being kicked out of Irish rugby - for being too good.
The British Lions lineout specialist will leave Heineken Cup giants Leinster at the end of the season to begin a second spell playing in France.
Hines insisted he wanted to stay on in Dublin beyond his two-year contract - but was forced to look elsewhere when Ireland chiefs ruled that he was blocking the development of homegrown talent.
The former Edinburgh Gunners star, who is due to switch to French outfit Clermont-Auvergne during the summer, said: "Leinster coaches Joe Schmidt and Jonno Gibbes were keen to keep me and fought very hard for that to happen.
"And I thought I was performing well enough to justify being kept on but obviously the IRFU were not happy that I was not Irish qualified.
"They were not prepared to give me a new contract - even for just one more year with the club.
"It was a big disappointment when I was told. However, I suppose I should look on the bright side and take it as a compliment.
"If they don't want me to be here it is because they regard me so highly that I was not allowing Irish guys to get a game. I feel sorry for Joe because he's trying to pick a strong team that he feels can do the best job for him and ultimately it's his neck that's on the line.
"He wants a team filled with the players he wants but obviously that can't entirely happen."
Hines, who tasted two seasons of French life with Perpignan, added: "While I would like to have stayed, the Clermont-Auvergne option was the best one available."

Pretty sure there's an interview with Schmidt where he says that he was disappointed they couldn't retain him too.

Cpt_Blackbeard

Deleted User wrote: »

This.

As confirmed by Hines in this interview.

<interview>

Pretty sure there's an interview with Schmidt where he says that he was disappointed they couldn't retain him too.

Its pretty ridiculous tbh. AFAIK there aren't any quality young locks at Leinster on the verge of making a breakthrough but unable to get ahead of the established players ala. Nagle in Munster.

Hines must have pretty high wage demands to cause the IRFU to say that he isn't even getting a one year contract. Or, they just wanted to get rid of him so they could bring in another project player.

I'd hazard a guess that having a player of Hines quality would help Leinster bring through locks rather than hinder them, much like Howlett in Munster and Botha in Ulster the last few years.

GerM

Cpt_Blackbeard wrote: »

As far as I was aware Hines was only offered a 1 year deal as is the IRFU's stance on NIQ's over 30, its similar to what caused Warwick to move on.

It's a general stance, as opposed to a rule as far as I am aware. Howlett has been allowed sign a 1 year deal in Munster. I'm sure there are other examples.

hardCopy

Cpt_Blackbeard wrote: »

Its pretty ridiculous tbh. AFAIK there aren't any quality young locks at Leinster on the verge of making a breakthrough but unable to get ahead of the established players ala. Nagle in Munster.

Hines must have pretty high wage demands to cause the IRFU to say that he isn't even getting a one year contract. Or, they just wanted to get rid of him so they could bring in another project player.

I'd hazard a guess that having a player of Hines quality would help Leinster bring through locks rather than hinder them, much like Howlett in Munster and Botha in Ulster the last few years.

Is Sykes officially a project player? I know he's not tied to the Boks but didn't realise he was being lined up for Ireland.

wicklowwonder

hardCopy wrote: »

Is Sykes officially a project player? I know he's not tied to the Boks but didn't realise he was being lined up for Ireland.

Hardly is he? He is 26 already so he will be 30 before he is qualified for Ireland. Surely a pointless exercise?

WeeBushy

Well the fact that Hines wasn't allowed stay as he is NIQ, and Sykes was signed despite also being NIQ means that he has to be a project player of sorts. Very silly imo.

GerM

wicklowwonder wrote: »

Hardly is he? He is 26 already so he will be 30 before he is qualified for Ireland. Surely a pointless exercise?

I would think the IRFU would look at it more in the hope of having a very good, Irish qualified lock with a year of international rugby under his belt going to the 2015 WC. He could give the national side 4 years. He is definitely at the end of the scale in terms of age for a project player though.