In 1823, William Webb Ellis first picked up the ball in his arms and ran with it. And for the next 156 years forwards have been trying to work out why. - Tasker Watkins VC, LJ.

Tuesday, April 19, 2011

Kolpak, Zambrano and Players

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 Bosman judgement in football; another is 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, very abtruse. 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 Zambrano case, 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 Fran├žais. 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 Fran├žais 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 citizenship. 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...

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