Is IRFU policy against a person's rights?

aimee1

Dricmeister wrote: »

What are they then?

Do you think that a foreign based Irish player submits an invoice after playing a match?

No - They're employees on the payroll.

they get paid a fee thats pre-agreed AFAIK. Its not like Player A sits down with the IRFU and says I'll play for Ireland but I demand €XYZ.

SOB was on a Leinster contract and got paid per match [Internationally] but the fee per match wasnt negotiated, it was the same fee as other non centrally contracted players got.

The players are set up as companies and the employee of that company [player] provides a service to Province/IRFU for €X.


Thats my understanding of it all anyway

Dricmeister

No, they get payslips

molloyjh

Dricmeister wrote: »

No, they get payslips

You know this for a fact I'm sure. Which is why the RFU have been sued for their policy and the NZRU. Oh no, wait. They haven't. Because it is not the same as working in an office. At all. Just because you might think it is doesn't make it so.

Riskymove

Dricmeister wrote: »

No, they get payslips

payslips on the basis of games actually played

the squad is not hired via interview!!

no one is hired to play for Ireland, they are selected by a coaching team and are paid afterwards a set fee.

that isn't employment in any sense that discrimination could be claimed by people not selected

aimee1

Dricmeister wrote: »

No, they get payslips

POC has his own company, NELLCON - I think is the name. The IRFU engage NELLCON for the services of POC as a rugby player at Munster and Ireland, the players would put sponsorship money through the company too.

You will see reports in the papers in the new year about players like POC, BOD, Sexton etc having a company with €500,000 [or whatever] in cash reserves and the company made €x profit in 2014/2015 etc.


The papers pay the €2 to get the accounts for the players companies from the CRO website

Dricmeister

aimee1 wrote: »

POC has his own company, NELLCON - I think is the name. The IRFU engage NELLCON for the services of POC as a rugby player at Munster and Ireland, the players would put sponsorship money through the company too.

You will see reports in the papers in the new year about players like POC, BOD, Sexton etc having a company with €500,000 [or whatever] in cash reserves and the company made €x profit in 2014/2015 etc.


The papers pay the €2 to get the accounts for the players companies from the CRO website

Those companies are for their non-playing income.

Dricmeister

molloyjh wrote: »

You know this for a fact I'm sure. Which is why the RFU have been sued for their policy and the NZRU. Oh no, wait. They haven't. Because it is not the same as working in an office. At all. Just because you might think it is doesn't make it so.

Using the New Zealand Rugby Union as an example in a discussion regarding the applicability of EU law...an interesting approach.

In the eyes of the law, working for Bank of Ireland is no different to playing for Ireland or Real Madrid.

Clareman

Thinking about the whole "legality" of the international setup, the whole IRFU should all be in jail

• It's sexist - Only men are allowed play for the men's senior team
• It's agest - only men between certain ages can play
• It's not open to all - for example BoD wouldn't be allowed play front row

desertcircus

Dricmeister wrote: »

In the eyes of the law, working for Bank of Ireland is no different to playing for Ireland or Real Madrid.

Playing for Ireland is limited to Irish citizens and those who've been ordinarily resident for three years. Playing for Ireland or Real Madrid is incredibly selective and functionally closed to anyone over the age of forty (and the payment is wildly divergent based on your gender). Neither of these are anything like working in an office, and the law doesn't treat them similarly in the way you're claiming.

There's zero legal case here. One: Madigan would effectively be a contractor rather than an employee, so that's that comparison gone. Two: the IRFU has a legitimate interest in maximising the Irish team's performances (much as the RFU has with the England team), and no court would seriously attempt to tell them that a preference for Irish-based players wasn't a legitimate long-term policy for same. Three: even if a court decided such a policy as the RFU's was contrary to EU law, the organisation in question could simply stop talking about the policy and make the occasional selection to keep the heat off (pick Delon Armitage on the bench against Italy in the Six Nations and give him ten minutes, and you no longer have a blanket ban no matter what else you choose to do). Four: this cannot get to the courts without someone taking a case. Nobody will take a case, because it would mean instant Test career death.

This will never be challenged in a European court. Even if it somehow ends up being litigated, the challenge will fail on any one of half a dozen grounds. A player doesn't have a right to be selected for the Irish team, and prioritising players in the Irish setup who you can rest according to your timetable, have released for training camps and field alongside his provincial teammates for stability is a perfectly legitimate choice.

marco_polo

Interesting article on it here from the English point of view, the angle he is coming at it from is not when a player has already moved and cannot be selected, but that its existence acts as a disincentive for moving abroad in the first place.

http://blogs.ntu.ac.uk/nlsblog/england-rugby-selection-policy-may-breach-eu-law/

An obvious difference is of course that the IRFU has no formal ban in place on overseas players playing for Ireland so any challenge would be even more difficult to take.

molloyjh

Dricmeister wrote: »

Using the New Zealand Rugby Union as an example in a discussion regarding the applicability of EU law...an interesting approach.

In the eyes of the law, working for Bank of Ireland is no different to playing for Ireland or Real Madrid.

That's 100% untrue. You don't have to be Irish or have parents/grandparents from Ireland to work in BoI (or be resident 3 years). You also can move from AIB to BoI. However to play for Ireland you must have parents/grandparents from Ireland (or be resident 3 years) AND you cannot have played for any other representative side.

If working in an office and representing your country in sport were governed by the same laws then eligibility rules would be illegal. They aren't. And it's not like this information is hidden or secret. We all know it....

Dricmeister

Incredible

irishbucsfan

molloyjh wrote: »

That's 100% untrue. You don't have to be Irish or have parents/grandparents from Ireland to work in BoI (or be resident 3 years). You also can move from AIB to BoI. However to play for Ireland you must have parents/grandparents from Ireland (or be resident 3 years) AND you cannot have played for any other representative side.

If working in an office and representing your country in sport were governed by the same laws then eligibility rules would be illegal. They aren't. And it's not like this information is hidden or secret. We all know it....

That's an occupational requirement imposed on the IRFU by the industry. The IRFU didn't just come up with national eligibility laws on their own. The EU government don't like rules based on national eligibility, the IRFU are lucky they get away with the NIQ rules currently. I used to think basing it on eligibility instead of nationality was the reason they got away with it but it seems that doesn't fly, it's still considered unacceptable.

It's only Leinster/Munster/Connacht/Ulster players who are permanent employees of the IRFU though. The overseas players would be service providers but they're still protected by the same employment protection, if Joe Schmidt refused to involve Zebo because of his skin colour it would still be completely illegal whether he played for Munster or Toulon.

desertcircus

irishbucsfan wrote: »

That's an occupational requirement imposed on the IRFU by the industry. The IRFU didn't just come up with national eligibility laws on their own. The EU government don't like rules based on national eligibility, the IRFU are lucky they get away with the NIQ rules currently. I used to think basing it on eligibility instead of nationality was the reason they got away with it but it seems that doesn't fly, it's still considered unacceptable.

It's only Leinster/Munster/Connacht/Ulster players who are permanent employees of the IRFU though. The overseas players would be service providers but they're still protected by the same employment protection, if Joe Schmidt refused to involve Zebo because of his skin colour it would still be completely illegal whether he played for Munster or Toulon.

Because refusing to select a player based on their skin colour is utterly indefensible. Refusing to select a player who's plying their trade abroad is a legitimate policy decision by a national representative organisation. It's a completely meaningless comparison.

A brief summary of the conversation with the lawyers:

"So you refused to give Madigan a contract?"
"No, we offered him one but he took the one from Bordeaux."
"But you've refused to pay him for any international games he plays?"
"No, he'll get the same match fee as before."
"But he probably won't be selected if he's abroad. Why is that?"
"Because we operate the national team as a very tight-knit group, and heavy involvement with the squad is a big factor in a player's role. Joe really prefers to use players who know the system inside out and who've trained side by side with everyone else, so they can slot in with minimum fuss. Ian playing in Bordeaux means he's not as available, and he doesn't spend his club time with other Irish players, and he can't be rested at key points of the season if we think we're going to need him. Because of all those reasons, he's objectively at a major disadvantage to outhalves playing in Ireland."
"But Sexton was selected when abroad?"
"Yes, because he was so far ahead of the other options that even allowing for all those factors he was comfortably our best option."
"Was there talk about refusing to select him?"
"No. But it would have been a defensible position. We need to make sure that we can field the best possible Irish team. What works in the short term doesn't always make sense long term - we call this the O'Gara horizon. If Sexton wasn't quite so phenomenal, we might have refused to select him and gone with Madigan and Jackson for two years. We'd have denied ourselves Sexton, but we'd have made it clear to other players that their Test careers depend on staying in Ireland. We're much better off having Conor Murray, Rory Best and Jamie Heaslip in Limerick, Belfast and Dublin than having them in London, Toulon and Montferrand - we benefit massively from having them under our guidance at all times, and I doubt very much that a court would presume to tell us what does and doesn't work in terms of selection and long-term planning."
"I see. Well, this should be a pretty simple case."

swiwi_

irishbucsfan wrote: »

That's an occupational requirement imposed on the IRFU by the industry. The IRFU didn't just come up with national eligibility laws on their own. The EU government don't like rules based on national eligibility, the IRFU are lucky they get away with the NIQ rules currently. I used to think basing it on eligibility instead of nationality was the reason they got away with it but it seems that doesn't fly, it's still considered unacceptable.

It's only Leinster/Munster/Connacht/Ulster players who are permanent employees of the IRFU though. The overseas players would be service providers but they're still protected by the same employment protection, if Joe Schmidt refused to involve Zebo because of his skin colour it would still be completely illegal whether he played for Munster or Toulon.

Whereas most (all) western countries prevent discrimination on the basis of sex, race, sexual orientation, skin colour etc, none of the human rights law as far as I am aware include a clause preventing discrimination on the basis of where you live.

You can't choose the above, but you can freely choose where you live. Madigan wasn't forced to move to France etc.

Complete non-event this discussion imo, albeit somewhat interesting.

Dricmeister

People seem to be underestimating the significance of the Treaty of Rome (basically free movement of people and capital within the EU).

Players such as Sexton while he was at Racing are employees of the IRFU. They do not bill the IRFU via companies. If they have companies, it's for their other income (e.g. endorsements).

In Madigan's case, if it can be established that he is not employed by the IRFU to play for Ireland solely on the basis of plying his trade elsewhere within the EU, I would be very interested to hear what the European Court of Justice (ECJ) would make of that.

There are many things which we take for granted which the EU would strike down. It's just that it doesn't happen until someone brings a case.

former total

desertcircus wrote: »

Because refusing to select a player based on their skin colour is utterly indefensible. Refusing to select a player who's plying their trade abroad is a legitimate policy decision by a national representative organisation. It's a completely meaningless comparison.

A brief summary of the conversation with the lawyers:

"So you refused to give Madigan a contract?"
"No, we offered him one but he took the one from Bordeaux."
"But you've refused to pay him for any international games he plays?"
"No, he'll get the same match fee as before."
"But he probably won't be selected if he's abroad. Why is that?"
"Because we operate the national team as a very tight-knit group, and heavy involvement with the squad is a big factor in a player's role. Joe really prefers to use players who know the system inside out and who've trained side by side with everyone else, so they can slot in with minimum fuss. Ian playing in Bordeaux means he's not as available, and he doesn't spend his club time with other Irish players, and he can't be rested at key points of the season if we think we're going to need him. Because of all those reasons, he's objectively at a major disadvantage to outhalves playing in Ireland."
"But Sexton was selected when abroad?"
"Yes, because he was so far ahead of the other options that even allowing for all those factors he was comfortably our best option."
"Was there talk about refusing to select him?"
"No. But it would have been a defensible position. We need to make sure that we can field the best possible Irish team. What works in the short term doesn't always make sense long term - we call this the O'Gara horizon. If Sexton wasn't quite so phenomenal, we might have refused to select him and gone with Madigan and Jackson for two years. We'd have denied ourselves Sexton, but we'd have made it clear to other players that their Test careers depend on staying in Ireland. We're much better off having Conor Murray, Rory Best and Jamie Heaslip in Limerick, Belfast and Dublin than having them in London, Toulon and Montferrand - we benefit massively from having them under our guidance at all times, and I doubt very much that a court would presume to tell us what does and doesn't work in terms of selection and long-term planning."
"I see. Well, this should be a pretty simple case."

Definitely.

The bolded bit is the most relevant point in any of this. All this talk that it's not a job, he's not an employee and employment rights don't apply are totally wrong and frankly a bit mental.

It comes down to a question of being available.

Ireland have scheduled a greed-fuelled test outside the international window next November. Jackson will be available, Madigan will not. They will have to pick Jackson. That's not discriminatory, it's a simple fact.

Likewise for the innumerable training camps we're obsessed with; if Madigan can't make it to them, then he is of course at a disadvantage.

What you've omitted from your conversation above about Sexton is that he had all sorts of clauses for release for national duty. If Madigan doesn't have those, he has to lose out.

If you were interviewing for a job and you said that sometimes overtime would be involved; one guy says no problem, the other guy says no way, I'll work my 39 hours and no more, which do you hire?

desertcircus

Dricmeister wrote: »

People seem to be underestimating the significance of the Treaty of Rome (basically free movement of people and capital within the EU).

Players such as Sexton while he was at Racing are employees. They do not bill the IRFU via companies. If they have companies, it's for their other income (e.g. endorsements).

In Madigan's case, if it can be established that he is not employed by the IRFU to play for Ireland solely on the basis of plying his trade elsewhere within the EU, I would be very interested to hear what the European Court of Justice (ECJ) would make of that.

There are many things which we take for granted which the EU would strike down. It's just that it doesn't happen until someone brings a case.

Madigan is not an IRFU employee once he moves to Bordeaux. A match fee for being picked does not make you an employee. He won't have a salary from the IRFU, he won't be guaranteed a penny. It's not an employer/employee relationship.

irishbucsfan

swiwi_ wrote: »

Whereas most (all) western countries prevent discrimination on the basis of sex, race, sexual orientation, skin colour etc, none of the human rights law as far as I am aware include a clause preventing discrimination on the basis of where you live.

You can't choose the above, but you can freely choose where you live. Madigan wasn't forced to move to France etc.

Complete non-event this discussion imo, albeit somewhat interesting.

Not in NZ, but in Europe you have a right to move freely. And the argument (albeit not one I'm sure would be likely to succeed) would be that this policy attempts to restrict this by penalising people for moving elsewhere within the region.

It is possibly a non-event but I do think it's interesting. Rugby is very lucky in that it's low profile means it gets away with a little more than other sports. Where FIFA are trying very hard to bring in a policy already in use by the IRFU and are being told it's illegal!

Magico Gonzalez

Lot of TV Lawyers here picking up on one piece of legislation which they have recently googled !

irishbucsfan

former total wrote: »

Definitely.

The bolded bit is the most relevant point in any of this. All this talk that it's not a job, he's not an employee and employment rights don't apply are totally wrong and frankly a bit mental.

It comes down to a question of being available.

Ireland have scheduled a greed-fuelled test outside the international window next November. Jackson will be available, Madigan will not. They will have to pick Jackson. That's not discriminatory, it's a simple fact.

Likewise for the innumerable training camps we're obsessed with; if Madigan can't make it to them, then he is of course at a disadvantage.

What you've omitted from your conversation above about Sexton is that he had all sorts of clauses for release for national duty. If Madigan doesn't have those, he has to lose out.

If you were interviewing for a job and you said that sometimes overtime would be involved; one guy says no problem, the other guy says no way, I'll work my 39 hours and no more, which do you hire?

This is definitely right. But what if Madigan had/has those clauses and the IRFU still overlooked him? It's a hypothetical but it is where it'd get interesting, the IRFU would be faced with possibly having to admit they have a policy of not selecting overseas players.

The RFU are in a more difficult situation because they have a restrictive agreement with their own clubs meaning they can't have the same training camps, and so they have had to make the admission. Which is why if anything is going to happen on this, they'll probably be the ones who are made an example of.

Dricmeister

desertcircus wrote: »

Madigan is not an IRFU employee once he moves to Bordeaux. A match fee for being picked does not make you an employee. He won't have a salary from the IRFU, he won't be guaranteed a penny. It's not an employer/employee relationship.

He will be paid through payroll. Tax will be deducted at source by way of PAYE. He will get a payslip.

You don't have to be guaranteed a penny to be an employee.

irishbucsfan

Magico Gonzalez wrote: »

Lot of TV Lawyers here picking up on one piece of legislation which they have recently googled !

This isn't a recent debate. This has been debated in England for a long time.

This was the article posted earlier:

http://blogs.ntu.ac.uk/nlsblog/england-rugby-selection-policy-may-breach-eu-law/

Article 45 of the Treaty on the Functioning of the European Union (TFEU) does not just prohibit discrimination based on nationality, but also requires that workers should not be impeded in seeking and taking up employment in other member states. In Bosman this was found to be present in rules which prevented a professional player moving from one club to another on the expiry of their contract.

It is plainly arguable that the selection policy adopted for the England team has the aim and indeed the effect of limiting players’ ability to move to other EU countries to take up employment as professional rugby players. It is important to note that EU law does not require that a rule act as an absolute barrier to free movement, only that it discourage or disincentivise that movement. While the selection policy may not effect a total ban on players moving overseas, it will certainly act as a limiting factor and make it less likely that players will place their international careers in doubt by choosing to play their trade abroad. This seems particularly the case given the commercial opportunities likely to available to England rugby internationals around the Rugby World Cup, due to be contested on these shores in 2015.

Inhibitions on free movement such as the selection policy are capable of being justified under European Union law and may be regarded as being legitimate. Both the European Commission and the European Court of Justice have recognised the interests of a national team as being a legitimate aim, which can be pursued through measures otherwise regarded as being unlawful. However, only proportionate measures which can be shown to be absolutely necessary can satisfy EU law requirements.

Flood, or any other player who might choose to go to court to fight this policy, could face the prospect of a lengthy legal process; but ultimately it seems unlikely that the policy could be sustained when pitted against intense legal scrutiny. It might be better for the RFU to reconsider its approach now, rather than face the expense and distraction of and extended legal battle.

Simon Boyes is no TV lawyer.

former total

swiwi_ wrote: »

Whereas most (all) western countries prevent discrimination on the basis of sex, race, sexual orientation, skin colour etc, none of the human rights law as far as I am aware include a clause preventing discrimination on the basis of where you live.

You can't choose the above, but you can freely choose where you live. Madigan wasn't forced to move to France etc.

Complete non-event this discussion imo, albeit somewhat interesting.

EU law explicitly prohibits anything which prevents free movement of people within the Union. They would go to town on anything that discriminates against someone who moved from Dublin to Bordeaux, absolutely destroy it because it's a core principle of the EU.

But Madigan would have to prove that he is being treated unfairly because of the move and that would be very difficult because of all the other factors.

Dricmeister

Exactly. It would be a complex case, but the people screaming "this is all irrelevant...he's not an employee" are off the wall. The prudent course of action from the IRFU's perspective would be to protect themselves from a claim by seeking robust professional advice and adhering to it.

molloyjh

swiwi_ wrote: »

Whereas most (all) western countries prevent discrimination on the basis of sex, race, sexual orientation, skin colour etc, none of the human rights law as far as I am aware include a clause preventing discrimination on the basis of where you live.

You can't choose the above, but you can freely choose where you live. Madigan wasn't forced to move to France etc.

Complete non-event this discussion imo, albeit somewhat interesting.

Exactly. There are 9 grounds of discrimination that qualify under human rights law. Where someone lives is not one of them. I even referenced that in the post IBF quoted. The employment law thing doesn't apply to national representation. If it did then eligibility wouldn't be legal. Whether anyone has a problem with it or not is irrelevant. It hasn't been challenged, let alone defeated, so clearly it's not a legal issue.

former total

molloyjh wrote: »

Exactly. There are 9 grounds of discrimination that qualify under human rights law. Where someone lives is not one of them. I even referenced that in the post IBF quoted. The employment law thing doesn't apply to national representation. If it did then eligibility wouldn't be legal. Whether anyone has a problem with it or not is irrelevant. It hasn't been challenged, let alone defeated, so clearly it's not a legal issue.

See above reply to Swiwi; it's not about discrimination on the 9 grounds (which is only an Irish thing, not an EU thing, and EU law is what it's all about) - it's about treating someone differently on the grounds they now live in Bordeaux rather than Dublin. That is absolutely contrary to EU law.

But Madigan would never be able to prove that he is being discriminated against purely on the basis of living in France; there are too many other variables to do that.

That it hasn't been challenged means nothing; it would be career suicide for someone to do it while playing and pointless to do so afterwards.

No one challenged the soccer transfer fee system until Bosman came along. And then the whole thing was shot to pieces because it was completely illegal. So you never know what might happen.

There are a lot of different angles, it's an interesting discussion.

molloyjh

former total wrote: »

EU law explicitly prohibits anything which prevents free movement of people within the Union. They would go to town on anything that discriminates against someone who moved from Dublin to Bordeaux, absolutely destroy it because it's a core principle of the EU.

But Madigan would have to prove that he is being treated unfairly because of the move and that would be very difficult because of all the other factors.

You're talking about 2 different legal principles as though they are one. The first is the free movement principle. There is nothing wrong here as he was free to make whatever decision he wanted to. He knew any move would have made it harder for him to get selected for the national side and he made the decision knowing that full well.

The second principle you are talking about is discrimination. Does Armitage have a case for discrimination? If there really was a case to be made do you not think at this stage it would have been made? Rugby isn't the only sport with eligibility rules remember. In this situation employment law rules (human rights would if one of the 9 grounds for discrimination was breached, which isn't the case here). As I said before employment law would make any and all eligibility rules illegal. If BoI refused to give me a job because I worked in AIB previously I can sue them. This isn't the case with representative sport. Not because someone is or isn't an employee of the national Union, but because representative sport is seen as a very different thing from employment. And it is something that the EU has deliberately avoided legislating for. Whether people recognise it or not employment law does not factor in here. If it did then we'd have seen cases like this brought up before, cases like this succeed before and as a result eligibility rules done away with. There's a reason that hasn't happened.

At the end of the day Mads knew what impact leaving Ireland would have on his selection chances for all the practical reasons outlined above. And he chose to leave. He can't then complain about the reduced opportunities for selection.

irishbucsfan

molloyjh wrote: »

There's a reason that hasn't happened.

Because noone wants to waste considerable time and money pissing off their own NGB.

Just because something hasn't happened before doesn't mean it can't ever happen.

EDIT: Care to give your thoughts on why a senior lecturer of sports law is wrong when he's saying the exact opposite of you? I'd be interested in know why what he's saying in that article is incorrect. Obviously he's not omnipotent/omniscient because he has a degree but it's a pretty credible opinion on the matter.

connemara man

A lot the talk here would be more applicable at club level where contracts of employment are signed with terms etc.... Like the NIQ rules could be challenged

But wouldn't being selected to represent your country be different as you'd be getting more a compensation fee than a contract etc.. It's not employment persay

padser

former total wrote: »

EU law explicitly prohibits anything which prevents free movement of people within the Union. They would go to town on anything that discriminates against someone who moved from Dublin to Bordeaux, absolutely destroy it because it's a core principle of the EU.

But Madigan would have to prove that he is being treated unfairly because of the move and that would be very difficult because of all the other factors.

This is pretty much spot on (I'm not a lawyer, but I have studied both EU and employment law so have a rudimentary understanding of both)

IF Madigan could prove that he is being discriminated against based on where he lives or who he works for within the EU then it's definitely arguable he would have a case. (And no one is really going to know whether that will succeed or fail without taking the case or at the very least engaging in real detail with a solicitor / barrister who specialises in exactly this niche area).

However, establishing this would appear to be virtually impossible in this case.

As total former mentions, form, availability, injury, condition, knowledge of systems and coaches biases for certain styles, skills etc mean it would be virtually impossible to objectively show whether being based abroad hinders chances of being selected for discrimatory reasons (as opposed to legimate, logistical reasons).

The irfu can also point to lots of examples of foreign based (inclusion french based) players being included in Irish teams (albeit this doesn't rule our discrimatation, it just means it's not a blanket ban).

Despite what IBF mentioned a few pages back about Nicofora being taken aside and not repeating such comments again, I actually think his comments were well planning and thought through. He used the word "disadvantaged", while you could argue it implies that home based players will be preferred, it could relate to a whole host of legimate (eg logistical) issues. I imagine he would have no problem repeating the same things again!

CMOTDibbler

There are two difficulties with (for example) Madigan having such a case. The first is that he made the move to Bordeaux proving that he was not restricted in his right to ply his trade anywhere in the EU. The second has been alluded to many times on this thread; being able to prove that his move to Bordeaux has automatically prevented him from playing for Ireland due to a restriction in place by the IRFU.

There are so many difficulties in proving the latter (especially in Madigan's case) that it would be nigh on impossible to win. His contract with Bordeaux may well be the first stumbling block if it limited his release time for international duty.

padser

Also, FWIW, I think we are debating the wrong thing.

The real question for me is, does a policy of selecting home based players where possible (ie barring a big gap to the quality of foreign based player eg sexton, Bowe) help Irish rugby?

My personal view is that it's spot on.

It allows us to retain more of our player base in Ireland, while getting players to forgo some earning potential because of the lure of playing test rugby.

It doesn't come with the downside of having to to forgo a player like sexton when he moves (which England had to do with Armitage)

Keeping our players mostly at home boosts the provinces and allows us the best possible chance of keeping our best players fit and optimising their seasons around peaking for Ireland tests.

All in all, I think we would be mad to drop it

swiwi_

former total wrote: »

EU law explicitly prohibits anything which prevents free movement of people within the Union. They would go to town on anything that discriminates against someone who moved from Dublin to Bordeaux, absolutely destroy it because it's a core principle of the EU.

But Madigan would have to prove that he is being treated unfairly because of the move and that would be very difficult because of all the other factors.

Don't think this prevents free movement. He has no intrinsic right to be in the Irish 23, and the Irfu has every right to choose who it wishes in its match day 23.

Rights are not carte Blanche for every scenario. I mean you could say with whatever job you do I'm going to move to France. If that means you can't do 8 to 5 Monday to Friday at your job in Dublin you can't then take a case to the eu that your company is preventing your free movement in Europe.

irishbucsfan

padser wrote: »

Despite what IBF mentioned a few pages back about Nicofora being taken aside and not repeating such comments again, I actually think his comments were well planning and thought through. He used the word "disadvantaged", while you could argue it implies that home based players will be preferred, it could relate to a whole host of legimate (eg logistical) issues. I imagine he would have no problem repeating the same things again!

I read the full comments after that, should have read them before. I have no issues with what he said at all. They should be fine. He said they will continue to watch him as they do any overseas player, so nothing wrong with it as far as I'm concerned.

padser wrote: »

Also, FWIW, I think we are debating the wrong thing.

The real question for me is, does a policy of selecting home based players where possible (ie barring a big gap to the quality of foreign based player eg sexton, Bowe) help Irish rugby?

My personal view is that it's spot on.

It allows us to retain more of our player base in Ireland, while getting players to forgo some earning potential because of the lure of playing test rugby.

It doesn't come with the downside of having to to forgo a player like sexton when he moves (which England had to do with Armitage)

Keeping our players mostly at home boosts the provinces and allows us the best possible chance of keeping our best players fit and optimising their seasons around peaking for Ireland tests.

All in all, I think we would be mad to drop it

We definitely should keep doing it as long as we're allowed. I'm more wondering how long we'll be allowed to continue it, or how long the RFU would be allowed to continue doing it.

curiosity

Doesn't this 'policy' financially benefit the players availing of offers from English/French clubs? Would UBB have offered such a good deal to a player highly likely to be a regular starter for his national side? To use the English RFU as more clearcut example, would players of the calibre of the Armitage brothers be as employable for Toulon if the RFU reversed it's stance on non-selection of overseas English players?

Dricmeister

I'd summarise it as follows:

If Madigan is fully available for everything that the IRFU demands of its international players, and he is excluded solely on the basis of playing in France, then I believe the IRFU would have a problem in relation to the Treaty of Rome.

However, there are likely to be practical considerations which can justify his exclusion.

Either way, the IRFU should consult with its lawyers and instruct Nucifora to be more careful with his comments.

former total

swiwi_ wrote: »

Don't think this prevents free movement. He has no intrinsic right to be in the Irish 23, and the Irfu has every right to choose who it wishes in its match day 23.

Rights are not carte Blanche for every scenario. I mean you could say with whatever job you do I'm going to move to France. If that means you can't do 8 to 5 Monday to Friday at your job in Dublin you can't then take a case to the eu that your company is preventing your free movement in Europe.

Yeah, I totally agree with all of this, was just making the point that it's not "discrimination" in the race/sex/religion/etc sense of the word that is the possible issue here.

In reality, it comes down to this; Madigan would never bring a case because he (presumably) wants to come home at some point in the future and he'd be slitting his own throat by suing. He'd probably be retired by the time it would reach the ECJ anyway and even then, his chances of success would be very, very slim.

But there are a couple of angles from which you could start to build a case. I agree with Dricmeister that people are really underestimating the tendency of the EU Commission and courts to take a sledgehammer to anything they think might interfere with free movement and equal working rights throughout the union.

If anything, the limit on foreigners at the provinces is probably a bigger red flag legally.

CMOTDibbler

Dricmeister wrote: »

I'd summarise it as follows:

If Madigan is fully available for everything that the IRFU demands of its international players, and he is excluded solely on the basis of playing in France, then I believe the IRFU would have a problem in relation to the Treaty of Rome.

However, there are likely to be practical considerations which can justify his exclusion.

Either way, the IRFU should consult with its lawyers and instruct Nucifora to be more careful with his comments.

Have you actually read Nucifora's comments? As in what he actually said rather than what a journalist interpreted from what he said or how he was paraphrased?

Because from what I can see, there's nothing in what he said that could be construed as either stating an IRFU policy or stating that Madigan was out of the reckoning because of his move to France.

irishbucsfan

former total wrote: »

Yeah, I totally agree with all of this, was just making the point that it's not "discrimination" in the race/sex/religion/etc sense of the word that is the possible issue here.

In reality, it comes down to this; Madigan would never bring a case because he (presumably) wants to come home at some point in the future and he'd be slitting his own throat by suing. He'd probably be retired by the time it would reach the ECJ anyway and even then, his chances of success would be very, very slim.

But there are a couple of angles from which you could start to build a case. I agree with Dricmeister that people are really underestimating the tendency of the EU Commission and courts to take a sledgehammer to anything they think might interfere with free movement and equal working rights throughout the union.

+1. Exactly what I'm thinking as well.

former total wrote: »

If anything, the limit on foreigners at the provinces is probably a bigger red flag legally.

A very similar rule in soccer has already been ruled illegal by the EU. It's also more likely to be challenged I guess.

Dricmeister

CMOTDibbler wrote: »

Have you actually read Nucifora's comments? As in what he actually said rather than what a journalist interpreted from what he said or how he was paraphrased?

Because from what I can see, there's nothing in what he said that could be construed as either stating an IRFU policy or stating that Madigan was out of the reckoning because of his move to France.

I have read the direct quotes, not just the editorialised pieces. The point is that if there are legal landmines, he should probably eschew the topic entirely.

The Rape of Lucretia

irishbucsfan wrote: »

+1. Exactly what I'm thinking as well.


A very similar rule in soccer has already been ruled illegal by the EU. It's also more likely to be challenged I guess.

Did that not refer to limits on EU players ?
Limiting non-EU players is no issue. (And given NZ/Aus/SA as the source of the bulk of imports limits on them can be maintained without restraint).

irishbucsfan

Dricmeister wrote: »

I have read the direct quotes, not just the editorialised pieces. The point is that if there are legal landmines, he should probably eschew the topic entirely.

I think what he said is fine.

He said:

“If Ian decided to go and he played 10 every week, we wouldn’t ignore him, we don’t ignore any of the players that might be overseas. We watch them all very carefully,” Nucifora said, before adding: “Does it mean that he is at disadvantage behind the boys playing in Ireland? Yes, it does.”

That seems fair enough to me really. Acknowledging he's disadvantaged is completely fine.

irishbucsfan

The Rape of Lucretia wrote: »

Did that not refer to limits on EU players ?
Limiting non-EU players is no issue. (And given NZ/Aus/SA as the source of the bulk of imports limits on them can be maintained without restraint).

No. The rule was that 6 starting players had to be eligible to play for the nation that the club is registered in.

Also you can't limit South African imports, or any of the green countries on this map:

https://upload.wikimedia.org/wikipedia/commons/6/66/EU_free_trade_agreements.PNG

molloyjh

I really should have done this a few days ago.....apologies for the length, but it's called for at this stage.

So prior to the Lisbon Treaty the EU had no competency over sport at all. None. That meant that they had no ability to rule over or legislate for sporting matters. They were able to rule on matters like economic competition (sponsorship, tv rights etc) because they were economic matters and things like the free movement of people within the EU because that is one of the foundations of the EU. However in terms of how sports were run it had absolutely no say.

With the Lisbon Treaty came Article 165 which stated that the EU would "contribute to the promotion of sporting issues, while taking into account the specific nature of sport, its structures based on voluntary activity and its social and educational function".

The EU Office produced the below document explaining the impacts of Article 165:

http://www.euoffice.eurolympic.org/files/guide_to_eu_sport_policy_final_versionwithlinks.pdf

The specificity of sport is the major thing here, i.e. that sport is different from other things like regular employment:

The specificity of sport has multiple facets. It is deeply connected to the legal environment and therefore has a different definition depending on whether the context is national, European or international. As far as EU law is concerned, the specificity of sport means that, whereas sport rules may contain restrictions to EU law, they can still be admissible. While such restrictions would be prohibited for any other sector, these may be justified and accepted by the EU Institutions (European Commission, ECJ), considering the specificities of sport, its organisation, its principles such as “the purely sporting rules”, its strong social and educational anchoring, etc

So in other words certain things that relate specifically to sport that may be considered illegal in other areas may be considered perfectly legal in sport. Take for example the Walrave Koch case (excerpt from the EU White Paper on Sport - here):

Two Dutch nationals who participated in medium-distance cycling championships behind motorcycles as pacemakers questioned the rule of the Union Cycliste Internationale which required pacemakers in a national team to be of the same nationality as the “coureurs” or “stayers”.

The Court confirmed for the first time that the practice of sport is subject to Community law in so far as it constitutes an economic activity within the meaning of Article 2 of the Treaty; but it also found that the prohibition of discrimination based on nationality does not affect the composition of teams, in particular national teams, which is a question of purely sporting interest and not an economic activity.

So in other words the selection of the national team is a sporting interest as opposed to an economic concern. Meaning that the specificity of sport comes into play and the laws that govern something like an office job may not apply at all. In real terms that just means that there is no general exemption from EU law for sport, and that issues are dealt with on a case-by-case basis:

The White Paper says that “in line with established case law, the specificity of sport will continue to be recognised, but it cannot be construed so as to justify a general exemption from the application of EU law”. It does confirm that any potentially anti-competitive effects of “organisational” rules in sport would be unlikely to breach anti-trust provisions of the Treaty provided that they can be shown to be both based on legitimate objectives and proportionate to them.

The last line there is the crucial one. It is unlikely that things like eligibility rules or the selection of the national team will be considered anti-competitive.

While I did say the EU didn't want to touch stuff like that it appears that they are actually looking to clarify it now with the new elements included in Lisbon. However when I said sport is looked upon completely differently from other forms of employment it turns out that I was correct. So comparing to office work is pointless. And if the IRFU can show good reason for not selecting Mads then the EU won't have an issue with it. And a few here have already identified good practical reasons why his selection chances will be reduced.

TL;DR - The EU views sport differently and as long as the IRFU can show good reason for excluding players from selection then there is no case to answer.

irishbucsfan

molloyjh wrote: »

So prior to the Lisbon Treaty the EU had no competency over sport at all. None. That meant that they had no ability to rule over or legislate for sporting matters

Haha really?

I wonder what Marc Bosman would think of that statement!

connemara man

irishbucsfan wrote: »

Haha really?

I wonder what Marc Bosman would think of that statement!

But that's about a working binding contract no? Not representing your country

irishbucsfan

connemara man wrote: »

But that's about a working binding contract no? Not representing your country

It's the exact same article they're talking about when referring to the potential problems with the policy of not selecting overseas players.

The Lisbon treaty has absolutely no relevance to that at all. None.

molloyjh

irishbucsfan wrote: »

Haha really?

I wonder what Marc Bosman would think of that statement!

Selective quoting again. The Bosman Ruling was about the free movement of people which I covered in the very same paragraph you just cut short. Jesus people, really!?

irishbucsfan

molloyjh wrote: »

Selective quoting again. The Bosman Ruling was about the free movement of people which I covered in the very same paragraph you just cut short. Jesus people, really!?

Free movement of people is exactly the issue. I used a short quote because the unfortunately the posts brevity didn't match it's inaccuracy. Did you read the article that was linked to?