Club-v-Country Edinburgh Rugby control elite players

22 August 2007

Patrick Camerer Cuss

Club v country disputes: where it all started

Few eyebrows were raised when rugby union turned professional in August 1995; it had become clear before this time that the game had outgrown its amateur status. One reason was the advent of the World Cup in 1987, which brought sponsorship and marketing into the mix. Another was the increase in the physical demands upon players, requiring the best players to seek greater benefits from their participation and incentivising a full-time mentality within the game. The IRB’s hand was, effectively, forced and it removed all restrictions on payments or benefits to those connected with the game.

The move from amateurism to professionalism has brought many benefits to the sport, not least in a higher quality of rugby being played. However, it has also had its drawbacks. A steady increase in the number of matches being played in a season and the constant need for players to be in peak physical condition has raised concerns that players are in danger of burnout. In the short-term, this would appear to manifest itelf in an increase in player injuries.[1]

The risk of player injury is something that every club has to bear. However, it is a bitterer pill to swallow when players are injured on international duty. The financial repercussions for a club can be significant if one of its top players is injured whilst representing his/her country and is forced to miss domestic matches as a result. Therefore, it is understandable why a club might be reluctant to release a player, not least for friendly matches and training camps.

On the flipside, clubs naturally want to maximise the use of their prize assets. For example, after the British Lions tour of New Zealand in the summer of 2005, a number of Premiership clubs refused to honour the eleven-week rest and recuperation period for their players that had been on the tour. In response, the RFU withheld payments due to the clubs, prompting Premier Rugby to take legal action in a dispute that escalated into areas of elite player management and agreement of a fixed number of England training days.[2]

The Edinburgh Rugby v SRU dispute

The most recent club versus country dispute involved Edinburgh Rugby when, at the beginning of July this year, Bob Carruthers, the club’s owner, refused leave to twelve of its international players to attend a Scotland training squad.[3]

Carruthers’ justification for not releasing the players was based on an agreement (following the club’s privatisation in the summer of 2006[4]) that Edinburgh Rugby had negotiated with the SRU specifically concerning player release. In it, the club agreed to comply with any reasonable request to release Scotland players during the months of May and June, and to release players for the eight weeks prior to the 2007 World Cup. Since these eight weeks did not commence until after Friday 13 July 2007, this meant that there was a two-week period at the beginning of July during which, Carruthers claimed, Edinburgh Rugby had no obligation to release its players. At the subsequent disciplinary tribunal, Edinburgh Rugby argued that the release period had been agreed between the SRU and the club and it was the SRU that was at fault by now seeking to unilaterally alter the agreement.

It was determined by the disciplinary tribunal that the obligation on Edinburgh Rugby extended beyond those periods stipulated in the agreement and that the SRU was actually entitled to reasonably request the release of players at any time. The SRU’s request to release players between 1 July and 13 July was deemed to be ‘reasonable’ and Edinburgh Rugby’s objection failed.

It is also worth pointing out that the SRU’s position was supported by IRB Regulation 9.2, which states unequivocally that:

" … no Union, Association, Rugby Board or Club whether by contract or otherwise may inhibit, prevent or render unavailable any player from selection, attendance, and appearance in a National Representative Team or National Squad, including training sessions, and any player must be released upon request by his Union."[5]

Although Edinburgh Rugby’s players were subsequently released in accordance with the decision, this had little practical impact since the hearing took place on Thursday 12 July 2007 (the final day before the obligatory eight-week period for player release commenced) and, by then, that week had been announced as a holiday week for the Scotland squad anyway. Nevertheless, the importance of the decision lies in the fact that it represents another victory for the game’s regulators in enforcing player release mechanisms and, therefore, is a welcome precedent for other governing bodies.

The Charleroi v FIFA dispute

It remains to be seen whether player release rules can continue to survive within the increasingly commercial world of professional sport. This might become clearer next year when the European Court of Justice hears a case that goes to the very heart of this issue. A Belgian football club, Royal Sporting Club of Charleroi, is bringing an action against FIFA that challenges its right to demand the automatic release of players for friendly internationals after one of its players, Abdelmajid Oulmers, tore ankle ligaments in a friendly for his native Morocco.[6]

Charleroi asserts that the injury to one of its key players ruined its chancing of winning the domestic league title. The club received no compensation for the player’s wages during his eight month absence, or, for that matter, for the cost of the player’s surgery and claims that the rule requiring the obligatory release of players for international games[7] (the equivalent of IRB Regulation 9.2) constitutes an unlawful restriction of competition and/or an abuse of FIFA’s dominant position under Articles 81 and 82 of the EC Treaty.[8]

FIFA had initially sought to argue that its sporting rules were not subject to European law, but this was rejected by the Commercial Court of Charleroi. Indeed, its decision to refer the issue to the ECJ for a prelimanary ruling has been ratified by a White Paper on Sport, published by the European Commission on 11 July 2007, which confirmed that sporting rules may infringe EC competition rules where the sports association is shown to be an undertaking or an association of undertakings, trade between Member States has been affected and there is no exemption under Article 81(3). Finally, it must also be established that the rule in question restricts competition within the meaning of Article 81 or abuses a dominant position under Article 82. It is this which is likely to cause greatest debate in the Charleroi case, since FIFA will be required to demonstrate that the rule is proportionate in light of its objective.

Future impact

Edinburgh Rugby did not seek to justify its non-release of players on the grounds of European law possibly because, this being an internal dispute, no trade between member states had been affected. Neverthless, the outcome of the Charleroi dispute could have a significant bearing on all disputes of this nature in the future: a decision against FIFA could render IRB Regulation 9 extremely vulnerable, particularly given that IRB rules on player release are even more onerous on clubs than those of FIFA.[9] Whereas clubs currently struggle to impose rights over their players,[10] the decision in the Charleroi case may make it difficult for the Unions to rely on IRB rules in future and thereby guarantee the release of players for international duty. Even for the least patriarchal of rugby fans, this would be an unfortunate indictment on the game.

The IRB already has an agreement in place for the Rugby World Cup whereby it compensates playing countries’ Unions for player participation (a figure of £20 million has been designated for the forthcoming 2007 World Cup). It is only natural that the clubs want such compensation to be filtered through or come directly from the Unions to the clubs, who, after all, have the ultimate responsibility for the players’ day-to-day wages. From time to time the wealthiest national governing bodies, such as The FA, might be in a position to compensate clubs; indeed, it is reported that Newcastle United has been awarded substantial compensation not only from FIFA but also from The FA for Michael Owen’s injury at the 2006 World Cup. But it is another matter altogether when considering whether a country such as the Ivory Coast would have sufficient resources to compensate Chelsea for the wages paid to Didier Drogba whilst on international duty, let alone were he to suffer an equally serious injury to Owen’s.

Moving forward

As things stand, Edinburgh Rugby and other clubs will continue to test the boundaries of their legal obligations in attempts to ease their own commercial pressures and realign the balance of power in their favour. Such disputes arise not in the requirement on clubs to release their players per se but on the regularity of which they are now required to do so. This suggests that there is room for compromise.

In England, negotiations over recent months now appear close to concluding a peace deal between the RFU and Premier Rugby. Although some points are yet to be resolved, Twickenham officials have pledged that the deal will be signed before the World Cup in September 2007. Most significantly, when it is signed, the agreement will give the RFU control over an elite player group of players, which must be released by their clubs in return for an increased compensation package to the clubs of £12 million. This will allow block international preparation periods before specified international matches, including the Six Nations (which means that, for the first time, the England players will have the same eight-week block together as their French, Welsh and Irish opponents). It should also go towards alleviating some of the concerns over burnout of the top players.

However, the deal would not incorporate central contracts, a change that the RFU has been seeking to bring it in line with all but one of the other major test playing nations (France). So, whilst compensatory measures may have been agreed, it is the clubs that would retain control of the players’ contracts (as Edinburgh Rugby has done since its privatisation in 2006). Whilst that remains the case, there will continue to be potential for further disputes in the future.

Published in the August edition of the World Sports Law Report




[1] In a report published in the British Journal of Sports Medicine in 2000 the authors concluded that the introduction of professionalism has coincided with an increase in injuries to both professional and amateur players (Impact of professionalism on injuries in rugby union (W M Garraway, A J Lee, S J Hutton, E B A W Russell and D A D Macleod)).

[2] In the event, the parties settled the dispute one week before going to court.

[3] This originated from an earlier dispute between the parties after the SRU (in the opinion of Edinburgh Rugby) failed to distribute monies owing to it as a result of the club's participation in the Magners League and Heineken Cup.

[4] Indeed, the 2007/8 season is likely to see the Glasgow Warriors as the only SRU-owned club remaining.

[5] The disciplinary tribunal was also asked to consider whether the Union had acted in good faith in its reliance upon IRB Regulation 9 (Guideline 3.7 allows a sanction to be brought by the IRB against any Union that “fails to apply Regulation 9 properly and in good faith”) but held that such determination was to be made exclusively by the IRB.

[6] Olympic Lyon is taking a similar action over its player Eric Abidal, who broke his foot whilst on international duty with France.

[7] FIFA's Regulations for the Status and Transfer of Players, Annex 1, Article 1.

[8] In its 2006 Independent Sport Review on the future of European football, the European Parliament’s Culture Committee stated that “clubs should release their players for national team duty without entitlement to compensation”. It remains to be seen whether the ECJ adheres to this approach.

[9] In contrast to FIFA’s rules, IRB Regulation 9 does not place a limit on the number of requests for player releases.

[10] For example, a High Court judge ruled in favour of the RFU after Premiership clubs refused to release their players in protest at the RFU scheduling an England match against New Zealand for November 2006, even though this was outside the three-week window approved by the IRB (Premier Rugby Limited v Rugby Football Union [2006] All ER 412).