Sam Vitty, analyses the recent George North case and considers the legal implications of Northamption Saints Rugby Club allowing North to represent Wales outside of the designated IRB windows
There are a number of issues currently dominating Northern Hemisphere rugby union including: which European competition English clubs will be playing in Europe next season, the exodus of Welsh players from the Welsh Regions and the ‘manipulation’ and use of the salary cap. A further issue has recently arisen involving George North and the fine that has been imposed on his club, Northampton Saints, by Premier Rugby Limited1, for allowing North to represent Wales outside of the designated IRB windows.
This article will look at the legal implications of a breach of such a policy; but also the implications of Northampton being compelled to release North for international duty in accordance with a clause in his contract agreed when North signed in the summer of 2013. The interest in the case will have reverberated across the Aviva English Premiership domestic club rugby competition because this was the first time such a matter had arisen and the fact Northampton were very open in admitting the existence of the clause in breach of a policy agreed by all 12 Premiership clubs.
George North, a Welsh Rugby Union player currently playing for Northampton Saints in the Aviva Premiership, is widely regarded as one of the leading current players in world rugby, indeed some would go as far as to describe him as one of the few genuine world superstars following his performances in last years victorious British and Irish Lions tour to Australia. Being just 21 years old, 6 foot 4 inches tall, strong and fast, he is a winger of similar dimensions to New Zealand rugby legend Jonah Lomu and an integral part of the Welsh squad.
In 2012, North was coming into the final year of his contract with Llanelli Scarlets with no sign of an agreement being reached to extend. In previous years, the Welsh Rugby Union have sought to assist their Regions financially in an attempt to keep their best players playing in Wales. However, this has become increasingly difficult with the financial muscle of clubs in other countries, especially France, and interest in recruiting North away from Wales was high.
The recent exodus of Welsh players to France was of particular concern for Llanelli who, when it became clear North would not agree a new contract, decided it made more economic sense to release him a year early, in return for a transfer fee rather than retain him for another year and lose him for free. Similar to the Bosman ruling in football, Rugby Union players nearing the end of their club contracts are entitled to negotiate moves to other clubs for which the club will usually not receive a fee. There are exceptions and protections in place for younger footballers but this has not extended to Rugby Union. However, releasing the player early will in some cases allow compensation to be paid to the club when the player subsequently moves to another club.
North had a strong bargaining position from which to negotiate his departure from Llanelli and finally, in April 2013, it was announced that he had agreed a move to Northampton Saints for a salary estimated to be £250,000 per year (with a fee of £250,000 paid to Llanelli for releasing the player a year early).2 Northampton Saints were subject to a much tighter salary cap than French clubs3, who have access to a €10m (£8.6m) budget, whilst English clubs have just £4.26m with one excluded player and as such, were limited in what they could offer North.4Especially when players such as Courtney Lawes, Dylan Hartley and Ben Foden were already on the payroll and North was being joined as a new recruit by Alex Corbisiero who had agreed to move to Northampton from London Irish.
As a result of Northampton not being able to necessarily match the salary on offer from some French clubs, North negotiated a clause in his contract which is understood to state that, if selected to play for Wales, he could be released, irrespective of whether that release took place during a Global Release Period or not.
GLOBAL RELEASE PERIODS AND PREMIER RUGBY POLICY
To control the number of matches being played, Rugby Union has a number of Global Release Periods as set out by Regulation 9.7 of the IRB Regulations.5
Being within the IRB Regulations, it is deemed as being one of the laws of the game for the release of players to be allowed. However, this does not mean international matches cannot be organised outside of the Global Release Period.
In addition, each league will agree a number of different policies with its clubs to determine how it is run and how each club and player conduct themselves which will differ from country to country including agreeing policies with clubs in relation to selection of players and ensuring that teams are as strong as possible6. The aim of the League is to ensure its integrity and to have as good a competition as possible.
Premier Rugby Policy states that Non-English players cannot be released to play for their International team outside of the designated IRB windows7 as agreed by all 12 Aviva Premiership clubs, with any breaches governed by a code of conduct.8
The purpose of the policy is to prevent the rugby calendar being dominated by extremely profitable Test matches and to ensure the integrity of club games and leagues. However, that does not stop clubs such as Northampton agreeing to clauses in breach of a policy, if it is deemed to assist their own aims of winning as many trophies as possible.
This policy can be contrasted with English players when the RFU will compensate clubs in England for players selected to play for England but no such agreement is in place for players who represent any other nation.
In this instance, the Policy of Premier Rugby works with the RFU to achieve the ultimate aim of making the England team as successful as possible and determines what they hope to achieve and the methods and principles it will use to achieve them.9
This, to a certain extent, ensures that English players are available for training camps, Autumn Internationals, the Six Nations and the Summer International Tours whilst those players who play outside of the country struggle to negotiate a release. James Haskell was requested to return to Paris for a club match during a free weekend for the 2010 6 Nations while he was playing for Stade Francais, a request that was rejected by the RFU.10
The current England management team have stated that they will not select players who are based outside of the Premiership unless in exceptional circumstances, in an attempt to dissuade top players from making the move to leagues outside of England11. This has meant the likes of Jonny Wilkinson (Toulon), Andrew Sheridan (Toulon), Danny Cipriani (Melbourne) and Steffon Armitage (Toulon) were not selected during their time spent abroad.12
This is a bigger concern from a European Law Perspective. With players being paid by their clubs and England being a representative team, the Policy is unlikely to fall foul of European Employment Laws from a restraint of trade aspect, but there could be arguments it would be deemed ‘discriminatory’. In order for it to be discriminatory though, it would need to fall into one of the relevant areas of discrimination.13
The fact the policy was agreed by all clubs may not prevent this provision from being deemed anti-competitive. It has also not yet been challenged as to whether it will fall foul of European regulations on restraint of trade as it relates only to matches played outside of the Global Release Periods. It would certainly seem to fit the definition of ‘restricting an individual’s freedom to work for others or carry out his trade or business’14 but as with other aspects, EC Law may apply the ‘specificity of sport’ ruling (as has been seen in the Deliege Case15) where the European Court of Justice decided there is to be a sporting exception in the selection criteria of national teams even though this may be contrary to EU Law.
From a practical perspective though, no player seeking to further their international career is likely to take their own Union to Court to request that they be considered for England duty.
Toby Flood looks destined to move to France following his decision to leave Leicester Tigers, effectively ending his international career but likely earn him huge financial reward.16 Indeed Flood is not in the Six Nations Squad for England for 2014 with Head Coach Stuart Lancaster stating that “Given the policy of not selecting players based overseas it’s important we allow others to progress.“17
HOW THE ISSUE WITH GEORGE NORTH AROSE
On Saturday 30th November 2013, Wales played Australia in an Autumn International Test fixture at the Millennium Stadium, Cardiff in a match that fell outside of the designated Global Release Period.
North was selected to play having been released by Northampton for the weekend fixture, in accordance with the terms of his contract, despite Northampton having a Premiership fixture against Worcester Warriors the same weekend.
In accordance with Premier Rugby Policy, North was a non-English player and as such his release to train with and then play for his country outside of the designated International window was deemed to be in breach of the Policy.
Premier Rugby carried out an investigation into the matter and announced on December 18th 2013 that they had found Northampton Saints to have breached the Premier Rugby Policy and fined them a significant sum of £60,000.18 The fine was deemed to be for 2 different breaches, one for allowing North to train with Wales, the other to allow him to play.
Northampton admitted they were in breach of the policy, but confirmed that the clause in North’s contract, which allowed him to be released, was not against any laws or regulations:
“Every player asks for specific conditions to be included in their agreements. This is not unusual in professional sport. In order to realise this rare opportunity of bringing a player like George to Franklin’s Gardens we agreed to allow him to represent Wales if and when selected.”
“The Saints management wants to make it clear that our agreement with George has not contravened any laws, rules or regulations. However when it was finalised the agreement included terms for his release to play international rugby which were outside Premiership Rugby board policy.“19
EMPLOYMENT LAW AND SPORT
One of the issues for sports lawyers and agents in this situation has to be the ability to negotiate individual clauses in contracts and what scope there is for clauses to be agreed.
The modern age combines both employment law and sport. The actual employment aspects are clearly established by the law itself in the case of Walker v Crystal Palace Football Clubwith the determination that sportsmen are to be deemed employees.
Trade unions and the world of industrial relations are not immediately associated in people’s minds with the world of sport but there are affiliated bodies. The Rugby Players Association (‘RPA’) represent the interests of its members in rugby union and act as a representative in the case of any disputes, but do not tend to have the collective authority to bind players. Contrast that with players unions in the major American professional sports of basketball, ice hockey, American football and baseball, who all have powerful player associations and have had ‘lock outs’ where the players have refused to play until certain clauses are negotiated collectively and agreed to.
The interplay between the standard terms in a sport professional’s contract and general employment law is of central importance. This is particularly the case with the rights and duties of the contracting parties and the ability of the players to negotiate individual contracts.
In most professional sports, there is not a perfectly free market in players. In other words, the ability of a club to purchase and sell players and the corresponding ability of players to join and move clubs is not unconstrained. As has been seen with the case of Bosman, the free movement for workers within the community has seen that EU Law is applicable, especially in situations where players are out of contract.
Most employees in what would be deemed normal day to day jobs are presented with a contract of employment by a new potential employer, and beyond such issues as pay and start dates, cannot negotiate specific terms to be included in their contract. North was able to negotiate a clause in his contract due to the relative bargaining strengths of him and Northampton.
In the second part of this two-part article, Sam Vitty reviews the impact of player power on rugby employment contracts with reference to the recent George North case where Northamption Saints Rugby Club allowed North to represent Wales outside of the designated IRB windows.
Written by Sam Vitty for http://www.lawinsport.com/