The IRFU Non-Irish Eligible Policy.

Over the past fortnight, I've been in the news by pointing out just why the Irish Rugby Football Union (IRFU)'s new policy on Non-Irish Eligible players at Irish provinces won't work.

The original articles in the Irish Independent - which you can read HERE and HERE - caused a fair stir, and a fair few follow-up articles, some of which you can read HERE and HERE, including comments from Joe Schmidt of Leinster.

The reason for this post is that I feel it's only fair to, as it were, show my workings.

First, it's as well to recap on the details of the IRFU's policy, the Player Succession Strategy.

The basic idea behind is entirely right and laudable; the Irish provinces should develop young Irish players, not being a pension fund for Southern Hemisphere journeymen. To that end, the IRFU proposed that from 2013 onwards, only one player ineligible to play for Ireland (Non-Irish Eligible - NIE) in each of the 15 positions on the pitch would be able to play across three of the four provinces (it doesn't apply to Connacht). So, if there was a NIE tight-head at Munster, then Leinster and  Ulster would not be allowed to renew, or sign, a contract with another NIE tight-head.

It should be noted, in passing, that there's a difference between, say, the Munster Branch of the IRFU, which runs the domestic game, and Munster Rugby, which is the beast taking the pitch in Thomond Park in the Heineken Cup; the two sides of the game were split off into different entities in the provinces a few years back, so players at Munster, Leinster and Connacht aren't directly employed by the IRFU unless they have central Irish contracts (in which case, of course, Irish eligibility is academic).

The problem with the policy is, of course, and as was pointed out swiftly, that without top-class overseas players, the development of local players would have been stunted. There would have been no Paul O'Connell without Jim Williams and John Langford, no Sean O'Brien without Rocky Elsom, no Keith Earls orSimon Zebo withoutDougie Howlett. Suffice to say there's been enough debate on this in the Irish press, and a quick look through the archives of the Irish papers will give a full guide to it.

The question then arose, naturally: what of the effect of this on players from overseas who aren't Irish-eligible, but are EU citizens, or have similar rights?

Now, some of this - the Kolpak and Zambrano situation - I've already covered on this blog back in May of last year, and I'm not proposing to go over that again; you can read it HERE.

What I want to do in this post is to give those who wanted to look at the Bosman judgement to which I referred in the interview a quick guide to what Bosman said.

The Bosman judgement is one of the best known EU cases ever. It's the source of the phrase "a Bosman transfer" in football, for starters. You can read the decision HERE; it's surprisingly readable for the layperson. Jean-Marc Bosman was a footballer with RFC Liege in Belgium who wanted to move to the French team, Dunkerque. As Dunkerque wouldn't pay the transfer fee demanded for the out-of-contract Bosman, he wasn't allowed move by Liege and his wages were cut. He went to court, and wound up in front of the European Court of Justice (ECJ), the chief EU court.

It turned on two issues; transfer fees for out-of-contract sports players, and restrictions on the numbers of foreign players in a given sports team - "foreign" being defined as "ineligible for the national team in the country where that team was based". The first is largely irrelevant to this post. The second is crucial, because the question the European Court of Justice was asked, at paragraph 49, was :

Are Articles 48, 85 and 86 of the Treaty of Rome of 25 March 1957 to be interpreted as:...

(ii) prohibiting the national and international sporting associations or federations from including in their respective regulations provisions restricting access of foreign players from the European Community to the competitions which they organize?'"

One of the reasons put forward at paragraph 124 of the judgement was the exact same as the IRFU's rationale:

Secondly, those 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.

And the ECJ was unambiguous: that wasn't good enough. 

128 Here, the nationality clauses do not concern specific matches between teams representing their countries but apply to all official matches between clubs and thus to the essence of the activity of professional players.

129 In those circumstances, the nationality clauses cannot be deemed to be in accordance with Article 48 of the Treaty, otherwise that article would be deprived of its practical effect and the fundamental right of free access to employment which the Treaty confers individually on each worker in the Community rendered nugatory (on this last point, see Case 222/86 Unectef v Heylens and Others [1987] ECR 4097, paragraph 14).

130 None of the arguments put forward by the sporting associations and by the governments which have submitted observations detracts from that conclusion... 

And so the ECJ laid it out in black and white: you can't restrict they number of EU nationals on any professional team below international level.

136 It follows from the foregoing that Article 48 of the Treaty precludes the application of rules laid down by sporting associations under which, in matches in competitions which they organize, football clubs may field only a limited number of professional players who are nationals of other Member States.

As was remarked; this isn't very complicated law, it's actually pretty simple once you know it's there. And, with Kolpak and Zambrano extending it further, it's now a very live point for people like Isa Nacewa, Doug Howlett and Lifiemi Mafi, all of whom have to look at their contract situation.

For the good of those players, who've done so much for the Irish game, and for the good of the Irish game itself, the last thing we all need is for this to end up in the Courts for want of attention. The current policy is unlawful, however much everyone agrees the idea behind it is a good and desirable one. It needs to be changed; and the faster that the IRFU sort this out with the provinces, the better for everyone.