Is IRFU policy against a person's rights?

Slideshowbob

Is it correct that the IRFU can discriminate against a player that decides to earn a living abroad for national selection?

Could this be challenged in a court?

Ian Madigan is the latest case:

"IRFU performance director David Nucifora stated last week that Madigan’s chances of a national call-up will now decrease. “Does it mean that he is at disadvantage behind the boys playing in Ireland? Yes, it does.”"

http://www.irishtimes.com/sport/rugby/international/ian-madigan-exit-will-put-irfu-policy-under-microscope-1.2478934

gordongekko

do you really think a judge is qualified to pick the national team?

swiwi_

I agree. It is a basic and fundamental human right. I expect to see the UN involved.

Dricmeister

In all seriousness, there could be something under the Treaty of Rome...freedom of movement etc. A stated policy which contravenes that could be an issue. "Less likely" is different to a blanket ban though. The powers that be could just contend that logistically his form is harder to assess, making him "less likely" to be picked. That shouldn't be an issue.

I can't speak for anyone else but I WANT THE TRUTH

BoJack Horseman

gordongekko wrote: »

do you really think a judge is qualified to pick the national team?

If only that was the question asked.... But it's not.

aimee1

Dricmeister wrote: »

In all seriousness, there could be something under the Treaty of Rome...freedom of movement etc. A stated policy which contravenes that could be an issue. "Less likely" is different to a blanket ban though. The powers that be could just contend that logistically his form is harder to assess, making him "less likely" to be picked. That shouldn't be an issue.

no, because he [madigan] would be paid by the Union for his time with Ireland if he is called up and it is the Union's [JS as head selector as such] choice as to who they employ.

former total

It's an interesting question because they are, essentially, treating him differently because he has moved elsewhere for work.

But while you have an inalienable right to earn a living, you have no right to be picked for your national team.

Madigan would have to prove restraint of trade and if he's now earning more than he would have at home or was offered a new contract here, he'd have no case.

So, no.

aimee1

aimee1 wrote: »

no, because he [madigan] would be paid by the Union for his time with Ireland if he is called up and it is the Union's [JS as head selector as such] choice as to who they employ.

That would not hold up at all.

In theory it would be discriminatory and restrict freedom of movement BUT they can cite trouble with getting players released, from foreign clubs, the fact that they are not able to assess him as easily as others based here etc.

They have good lawyers who will advise on the wordings etc.
The IRFU don't have the carrot of money so need some kind of stick to keep players

Slideshowbob

Thanks for the genuine contributions folks.

Seems intrinsically unfair that someone can be held in less regard for national selection by the club and earning choices they make.

Is getting a national cap to be defined as "being paid for your time" ?

swiwi_

Being serious here, if there was case, how do you go about proving the sole and unique reason he is excluded from the team is his presence in France? Unless, you have a paper trail, Schmidt could simply say I think other players are playing better. Given he is not the first choice Irish 10 currently, and possibly not even the 2nd choice, you would have your work cut out.

Life is not fair by the way OP.

former total

swiwi_ wrote: »

Being serious here, if there was case, how do you go about proving the sole and unique reason he is excluded from the team is his presence in France? Unless, you have a paper trail, Schmidt could simply say I think other players are playing better. Given he is not the first choice Irish 10 currently, and possibly not even the 2nd choice, you would have your work cut out.

Life is not fair by the way OP.

The fact that Nucifora publicly confirmed that this is IRFU policy would make that pretty easy to establish.

You would need to establish that the policy itself infringes his rights, and I don't think it does.

mfceiling

[Deleted User] wrote: »

I can't speak for anyone else but I WANT THE TRUTH

You want the truth, you can't handle the truth

Clareman

I think it's against my rights that I'm not selected for Ireland. Nevermind the fact that I'm a late 30 something, with a turning circle of an artic and the lung capacity of an asthmatic newt.

Now, South Africa picking players based on their race, I wouldn't fancy checking the legality of that.

Topper Harley

The IRFU didn't seem to have such reservations about selecting Sexton while he was playing in France and I'm sure if Paul O'Connell was still available it wouldn't apply to him.

But I'd like to think that Joe Schmidt would have enough backbone to tell the IRFU what to do with their policy and let him pick the players he wants.

CMOTDibbler

former total wrote: »

The fact that Nucifora publicly confirmed that this is IRFU policy would make that pretty easy to establish.

You would need to establish that the policy itself infringes his rights, and I don't think it does.

I think everyone is missing the point here. Nucifora didn't say it was IRFU policy, he just said he would be at a disadvantage to the lads playing in Ireland.

Which he will. The IRFU have no say over T14 clubs. Sexton got it in his contract to attend Irish training camps when he signed for Racing, but he still had to go back to France during the 6N etc. Madigan will have to do the same and possibly wouldn't have got the same contract clauses.

Whichever way you look at it, he'll be at a disadvantage to his provincial counterparts.

I see nowhere in direct quotes, a reference to "policy".

kub

He could be saying that for other players also, say the likes of Zebo

Topper Harley

Topper Harley wrote: »

The IRFU didn't seem to have such reservations about selecting Sexton while he was playing in France and I'm sure if Paul O'Connell was still available it wouldn't apply to him.

But I'd like to think that Joe Schmidt would have enough backbone to tell the IRFU what to do with their policy and let him pick the players he wants.

Nucifora didn't say "he won't be picked" he said, "less likely to be picked" or something to that effect.

Even without the aspect of trying to deter players going abroad, they will see a lot less of him playing for Bordeaux than they would at an Irish club.

They didn't say it about Sexton because he was so far out front they probably didn't need to see him play all that much.

Either way, no ones rights are infringed by this, selection for a national team falls under a different set of rules to regular employment. If Conor Murray was played at Lock and then dropped for poor performance he couldn't take a constructive dismissal claim for example.

former total

CMOTDibbler wrote: »

I think everyone is missing the point here. Nucifora didn't say it was IRFU policy, he just he would be at a disadvantage to the lads playing in Ireland.

Which he will. The IRFU have no say over T14 clubs. Sexton got it in his contract to attend Irish training camps when he signed for Racing, but he still had to go back to France during the 6N etc. Madigan will have to do the same and possibly wouldn't have got the same contract clauses.

Whichever way you look at it, he'll be at a disadvantage to his provincial counterparts.

I see nowhere in that article a reference to "policy".

Just because he doesn't use the word "policy", that doesn't mean it isn't a policy. It absolutely 100% is policy and they are on the record to that effect.

The difficulty is in proving that the policy infringes his rights or is restraint of trade, neither of which are the case IMO.

The Rape of Lucretia

former total wrote: »

The fact that Nucifora publicly confirmed that this is IRFU policy would make that pretty easy to establish.

You would need to establish that the policy itself infringes his rights, and I don't think it does.

What 'rights' do you refer to ?

Dricmeister

Playing for Ireland is a job. If it could be established that the IRFU are discriminating against players based on the fact that they are employed elsewhere within the EU, it's likely that the players would have a case based on EU law.

CMOTDibbler

former total wrote: »

Just because he doesn't use the word "policy", that doesn't mean it isn't a policy. It absolutely 100% is policy and they are on the record to that effect.

The difficulty is in proving that the policy infringes his rights or is restraint of trade, neither of which are the case IMO.

Where "on the record"?

It's a bullcrap article. Look at the reference to his salary, It's made to look ridiculously low, but there's no way in hell that Madigan is on €80,000 as implied. The telling phrase "before his current contract". :rolleyes:

How many years "before his current contract"? That amount is usually what lads a year out of the academy get.

Clareman

It didn't do Geordan Murphy, Keith Wood or Simon Geoghegan much harm playing overseas, but not being involved in camps will have a effect on players selection, if its a toss up between 2 players chances are it'll be the 1 that's been around the most that'll be picked.

former total

The Rape of Lucretia wrote: »

What 'rights' do you refer to ?

His employment rights.

alias no.9

Slideshowbob wrote: »

Is it correct that the IRFU can discriminate against a player that decides to earn a living abroad for national selection?

Could this be challenged in a court?

Ian Madigan is the latest case:

"IRFU performance director David Nucifora stated last week that Madigan’s chances of a national call-up will now decrease. “Does it mean that he is at disadvantage behind the boys playing in Ireland? Yes, it does.”"

http://www.irishtimes.com/sport/rugby/international/ian-madigan-exit-will-put-irfu-policy-under-microscope-1.2478934

Rightly or wrongly, Joe places a lot of emphasis on performance in Irish Camp, unless Madigan has negotiated a release for these, his opportunities will naturally be diminished

The Rape of Lucretia

former total wrote: »

His employment rights.

His employment rights will be in France.

He would be a contractor to the IRFU should they choose to use his services for one off internationals. He will have no employment contract with them, and has no 'right' to one, nor right to be selected over their own employees or other non employees for one-off jobs.

CMOTDibbler

former total wrote: »

His employment rights.

He is employed. By Bordeaux. Selection for Ireland is not his main source of income. It's a matter of fitness, competition, form and availability. His availability is now in question.

swiwi_

former total wrote: »

The fact that Nucifora publicly confirmed that this is IRFU policy would make that pretty easy to establish.

You would need to establish that the policy itself infringes his rights, and I don't think it does.

He said it would reduce not eliminate his chances IIRC. Given that sexton was still selected while in France you could just say that Madigan wasn't considered good enough if overlooked.

Anyway it's academic because it's not a human right and I don't think breaks employment law either as you say.

aimee1

[Deleted User] wrote: »

That would not hold up at all.

In theory it would be discriminatory and restrict freedom of movement BUT they can cite trouble with getting players released, from foreign clubs, the fact that they are not able to assess him as easily as others based here etc.

They have good lawyers who will advise on the wordings etc.
The IRFU don't have the carrot of money so need some kind of stick to keep players

Madigan will no longer be an employee of the irfu and could only become a part time employee if selected for the national side. There is no way he can claim discrimination by someone he doesnt work for.


Edit - Madigan also knew he would be disadvantaged by leaving ireland.

irishbucsfan

The Rape of Lucretia wrote: »

His employment rights will be in France.

His employment rights will be in Europe.

former total

CMOTDibbler wrote: »

Where "on the record"?

It's a bullcrap article. Look at the reference to his salary, It's made to look ridiculously low, but there's no way in hell that Madigan is on €80,000 as implied. The telling phrase "before his current contract". :rolleyes:

How many years "before his current contract"? That amount is usually what lads a year out of the academy get.

What article?

Nucifora said during the week that moving abroad would harm a player's chances of being picked. It doesn't get much more on the record than that.

irishbucsfan

CMOTDibbler wrote: »

He is employed. By Bordeaux. Selection for Ireland is not his main source of income. It's a matter of fitness, competition, form and availability. His availability is now in question.

We don't really know that. It's unlikely he'd even want to bring a case but if he can prove his availability, which he could very easilly point to WRs international window to do so, then it would be an interesting case.

Also, can I ask why it's relevant whether or not it's his main source of income?

The Rape of Lucretia

irishbucsfan wrote: »

We don't really know that. It's unlikely he'd even want to bring a case but if he can prove his availability, which he could very easilly point to WRs international window to do so, then it would be an interesting case.

Also, can I ask why it's relevant whether or not it's his main source of income?

How could he possibly have a case? The IRFU will no longer be his employer. He has an employer in France. They IRFU has no obligation to give him work.

The Rape of Lucretia

irishbucsfan wrote: »

His employment rights will be in Europe.

Indeed. With his French employer. Nothing to do with the IRFU anymore.

CMOTDibbler

irishbucsfan wrote: »

We don't really know that. It's unlikely he'd even want to bring a case but if he can prove his availability, which he could very easilly point to WRs international window to do so, then it would be an interesting case.

Also, can I ask why it's relevant whether or not it's his main source of income?

Because employment rights are based on your ability to earn a wage. He clearly is earning a wage (a very good one), he just will be disadvantaged with regard to national selection which is a subjective 'employment' in any case.

In a lot of cases it's not even a wage based 'employment'. Many players who get international caps get paid on a 'per match' basis and don't have contracts with the IRFU. I believe Madigan falls into that category.

aimee1

aimee1 wrote: »

Madigan will no longer be an employee of the irfu and could only become a part time employee if selected for the national side. There is no way he can claim discrimination by someone he doesnt work for.


Edit - Madigan also knew he would be disadvantaged by leaving ireland.

Any player not centrally contracted, playing with provinces, is the same. He could claim that he is not treated the same as the competition,in thise provinces.

His availability will be the reason the IRFU give and it's all that they need give

sydthebeat

Surely playing for the irfu is a 'representative' appearance with no formal employment contact per say. I'd imagine that kind of engagement is water tight legally.

The Rape of Lucretia

sydthebeat wrote: »

Surely playing for the irfu is a 'representative' appearance with no formal employment contact per say. I'd imagine that kind of engagement is water tight legally.

I am sure in fact it does have a contract though as you say, not an 'employment' one, very clearly distinguishing him from being an employee, rather a contract 'for services' i.e. a one off game, rather than a contract 'of service' i.e. he is employed and is in the continued service of the IRFU.

This is a non issue guys.

irishbucsfan

CMOTDibbler wrote: »

Because employment rights are based on your ability to earn a wage. He clearly is earning a wage (a very good one), he just will be disadvantaged with regard to national selection which is a subjective 'employment' in any case.

Of course his rights don't apply only to his main source of income :pac:

CMOTDibbler wrote: »

In a lot of cases it's not even a wage based 'employment'. Many players who get international caps get paid on a 'per match' basis and don't have contracts with the IRFU. I believe Madigan falls into that category.

Employment rights apply regardless of his form of employment, whether or not he is contracted. There is room in the law for discrimination, it's quite important that employers can be allowed discriminate, it just has to be done in a manner which doesn't restrict any of their players freedom of movement. I'd imagine someone has had a quick chat with Nucifora to explain that to him and we won't hear the same from him again, because noone really wants to discover the legality of this practice.

The Rape of Lucretia

Deleted User wrote: »

Any player not centrally contracted, playing with provinces, is the same. He could claim that he is not treated the same as the competition,in thise provinces.

His availability will be the reason the IRFU give and it's all that they need give

The giving of a reason doesnt even apply. He is not an employee of theirs so no claim for not being given a game can apply.

The Rape of Lucretia

irishbucsfan wrote: »

noone really wants to discover the legality of this practice.

The legality of the practice is very well known and clear. There is nothing to discover.

They might reign in that type of comment from Nucifora alright, since it gets the backs up of fans. Not that it will change the reality of Madsers chances being reduced somewhat.

irishbucsfan

The Rape of Lucretia wrote: »

The legality of the practice is very well known and clear. There is nothing to discover.

As far as I aware there isn't any specific reference to it in law and it has never been tested. If it is clear then I'd be interested in seeing a source for that.

Ash.J.Williams

gordongekko wrote: »

do you really think a judge is qualified to pick the national team?

Bod was trying to pick the team yesterday and he's a pundit

The Rape of Lucretia

irishbucsfan wrote: »

As far as I aware there isn't any specific reference to it in law and it has never been tested. If it is clear then I'd be interested in seeing a source for that.

http://www.kala.ie/recent-updates/contract-of-service-and-contract-for-service-what-is-the-difference/

http://www.cpaireland.ie/docs/default-source/Students/Study-Support/P1-Corporate-Laws-Governance/contract-for-services-v-contract-of-services.pdf?sfvrsn=0

CMOTDibbler

irishbucsfan wrote: »

Of course his rights don't apply only to his main source of income :pac:

What rights do you have to an ad hoc, selection based, match by match basis of employment? I doubt it differs from any other short term, ad hoc contract.

irishbucsfan wrote: »

Employment rights apply regardless of his form of employment, whether or not he is contracted. There is room in the law for discrimination, it's quite important that employers can be allowed discriminate, it just has to be done in a manner which doesn't restrict any of their players freedom of movement. I'd imagine someone has had a quick chat with Nucifora to explain that to him and we won't hear the same from him again, because noone really wants to discover the legality of this practice.

You can't be discriminated against for lack of availability. If you don't get a contract because you're not available to fulfill all the terms of it, what rights do you have?

Nucifora just said he was disadvantaged. He didn't mention any 'policy' that I could see. He just stated the obvious. It's exactly the same for an actor who's contracted to play in a soap opera and may be disadvantaged in relation to availability for a feature film that requires them being on location abroad for a protracted period.

blindsider

Interesting (if purely theoretical) debate.

So Madigan's contract is up in June -> he leaves the employ of the IRFU.

He signs a contract with UBB, and has a legally binding contract with them.

He has no contract with the IRFU - none!


He may have clauses in his UBB contract which allow him to participate in Irish camp etc. but this may be purely academic.


Re employment law, I'm pretty sure that all pro rugby players have a 'contract for service' and not a 'contract of service'. They are contractors, and not direct employees of the the IRFU. Once the contract expires, there is no onus on either party to renew/re-negotiate.

This arrangement suits both, as the player is free to pursue other business interests e.g. pub, restaurant etc (a few Leinster lads own the bar across from the RDS, and Heaslip has shares in a restaurant, POC is involved in Pinergy, TOL has a watch brand and a few digital media ventures etc etc). In addition, they all get to agree their own boot deals which can be lucrative - an employee would not have this freedom.

They also have more control over image rights after the Tony Ward ballyhoo years ago.......

Finally, Ireland would not be alone in not playing o/seas players, ENG & NZ don't, Wales are iffy about it and we would rather not.

http://www.bbc.com/sport/rugby-union/32626996

irishbucsfan

CMOTDibbler wrote: »

What rights do you have to an ad hoc, selection based, match by match basis of employment? I doubt it differs from any other short term, ad hoc contract.

Do you think you can discriminate against someone in that scenario?

CMOTDibbler wrote: »

You can't be discriminated against for lack of availability. If you don't get a contract because you're not available to fulfill all the terms of it, what rights do you have?

Nucifora just said he was disadvantaged. He didn't mention any 'policy' that I could see. He just stated the obvious. It's exactly the same for an actor who's contracted to play in a soap opera and may be disadvantaged in relation to availability for a feature film that requires them being on location abroad for a protracted period.

As I said above regarding availability

We don't really know that [he's not available]. It's unlikely he'd even want to bring a case but if he can prove his availability, which he could very easilly point to WRs international window to do so, then it would be an interesting case.

For all we know he can make himself available. World Rugby's international windows mean he is definitely available for the vast majority of tests which is plenty of ammunition for any lawyer.


Regardless, this is never ever going to be decided either way. The only people with the power to do it might be IRUPA and they of course would specifically want this practice to remain in place as it works to the benefit of their union members. It's here to stay and no one is going to really care too much so long as players like Sexton can stay involved when they go abroad.

blindsider

@Irishbucsfan - I think you're missing the point. He will have NO rights to employment with the IRFU.

If I'm contracted to Co. A until June '16, and then don't sign a new contract with A; but instead sign a contract with B, then how can I demand that A offers me more work?

There is work available, but it's competitive. If I'm not offered the work, what reasonable grievance can I have?


(As an aside, will Keatley be lodging a complaint if he's not selected for the Ireland 6N squad? On what grounds?)

irishbucsfan

blindsider wrote: »

Re employment law, I'm pretty sure that all pro rugby players have a 'contract for service' and not a 'contract of service'. They are contractors, and not direct employees of the the IRFU. Once the contract expires, there is no onus on either party to renew/re-negotiate.

They still can't discriminate when choosing who to renew or negotiate with. Those laws do still apply. It's illegal to refuse to hire a taxi driver because he's black/gay/female for example.

I don't really think that the IRFU would be restricted from discriminating against a player because he's based abroad, there are obviously legitimate reasons why they should be allowed to do so. But stranger things have happened in Europe.

molloyjh

[Deleted User] wrote: »

I can't speak for anyone else but I WANT THE TRUTH

You can't handle the truth. No truth handler are you. I deride your truth handling ability.

The Rape of Lucretia

irishbucsfan wrote: »

They still can't discriminate when choosing who to renew or negotiate with. Those laws do still apply. It's illegal to refuse to hire a taxi driver because he's black/gay/female for example.

I don't really think that the IRFU would be restricted from discriminating against a player because he's based abroad, there are obviously legitimate reasons why they should be allowed to do so. But stranger things have happened in Europe.

They are not discriminating. They are choosing not to hire his services.

Your taxi driver example is correct, but not a relevant example. It covers 8 specifically clearly legally defined reasons on which employment cannot be discriminated (gender, sexual orientation, age, marital status, member of the travelling community, etc). Working abroad is not one of them.

http://employmentrightsireland.com/equality-and-discrimination-in-the-workplace-in-ireland-an-overview/

(In any case, not sure what you mean above by yout taxi example: you can yourself as the customer choose not to get into a taxi because the driver is black, gay, whatever. Who cannot discriminate against him is the taxi firm that employs him.)