Are the IRFU right to impose restrictions on foreign players?

As the IRFU attempt to restructure the game in Ireland, GERRY THORNLEY assesses the arguments for and against the proposed move…

As the IRFU attempt to restructure the game in Ireland, GERRY THORNLEYassesses the arguments for and against the proposed move

NO - Philip Lee: AS EMPLOYEES of the IRFU, who do not exactly encourage free speech, the provinces generally don't tend to publicise their grievances but when questioned after matches, the coaches of Leinster, Munster and Ulster – Joe Schmidt, Tony McGahan and Brian McLaughlin – have made clear their acute frustration.

Already consigned to seeing the number of overseas players reduced from six to five (including one non-international “special project” who is or could become Irish qualified) next season, they believe further restrictions would reduce their competitiveness, especially in Europe.

The provincial coaches have all expressed their disappointment at the way this has been forced through and the lack of consultation with them. They are bemused as to how the new diktat will be enforced and by whom.


“I’ve got no idea how they intend to work who gets the casting vote, who gets to make the decisions,” said Leinster manager Guy Easterby . . . It would have been something we would have brought up if we’d been involved in some sort of meaningful discussion.”

Ironically, all this comes in the midst of Ireland’s most successful Heineken Cup pool campaign ever. With two home quarter-finals and a home semi-final already secured, this will ensure another rich dividend from the ERC’s meritocracy payments, which the IRFU pocket. The union budget for one team reaching the knock-out stages, which equates to a payment of €420,000, but with three quarter-finalists and at least one semi-finalist, this ensures a minimum return of €1.68 million.

Were two Irish teams to reach the final, it would net the union just shy of €3 million. Furthermore, with one quarter-final and a semi-final in the Aviva Stadium, that will net the union two additional stadium rentals, estimated to be in the region of at least €350,000 per match.

Others to be alarmed by the IRFU’s new rulings are the players, for it directly affects 20-plus of the Irish Rugby Union Players’ Association 150 or so members, and indigenous players have built enduring friendships with the likes of Isa Nacewa and Doug Howlett and have privately described this as underhand and misguided.

“They are completely contradicting themselves on some of their values with regard to overseas’ players,” says one Irish international. “They are now encouraging mercenaries to come and play here, not players that want to buy into the jersey like Isa and Doug.”

IRUPA were not involved in any consultations, and their CEO Omar Hassenein was away on leave when the IRFU made their announcement on December 21st.

“We feel we’ve worked through that issue,” said a conciliatory Hassenein this week, “and now have a good level of dialogue in which we can express player concerns. Our main priority is to safeguard our membership . . . We respect the governing body’s interest in ensuring that a strong national succession plan is in place. . . Now we’re confident that through further discussions between the game’s stakeholders a solution will be found which promotes success at all levels of Irish rugby . . .”

Provincial supporters associations have outlined their opposition. David Cahill, the PRO of the Official Leinster Supporters Association (which has 13,500 members) said, “we made a submission to the IRFU which was gratefully received”. Cahill calculates that at least 90 to 95 per cent of their members are opposed to the IRFU’s position judging by their active social media.

The diktat that the provinces may not re-sign foreign players could also be challenged legally by say, Nacewa and Howlett, who are in their fourth and fifth seasons here, and have five Irish-born children between them, according to Philip Lee of Philip Lee Solicitors, a law firm which specialises in European law.

“I don’t think you would have to be a specialist lawyer to be aware of the Bosman case,” says Lee. “He was the football player who was out of contract and wanted to transfer, but his club wouldn’t let him be transferred and Uefa decreed that he couldn’t unless his leaving club was paid. “That case established the rules about the free movement of persons in the European community applied to professional sportspeople.”

“This was followed by two other cases concerning a Slovakian and a Russian,” adds Lee, “which meant that not only EU persons were protected in terms of the free movement of goods, but also people from countries which had signed an association agreement with the EU, of which there are about 80.

“The basic law is that a national sports association which applies a rule in professional sport that restricts the free movement of citizens of the EU is illegal. It is only allowed when it actually used to select the national team.”

There have been “loads of other cases” of this ilk, according to Lee, in Spain, Germany, Belgium and the UK. “It isn’t new law at all. What is slightly new is that it applies to also non-EU citizens whose countries have what is called an association agreement with Ireland.”

“There could also be other issues in relation to competition law,” adds Lee . . . “competition law would say that the IRFU, being a national monopoly body, must not adopt rules that are abusive or disproportionate, and in that context a rule that might prohibit somebody like Isa Nacewa renewing his contract for any unfair reason – when in a substantive way he is established here and raised a family here – it may look as being unfair to impose such a rule under competition rules.

“Secondly, the way they’ve structured the rules could force Joe Schmidt to get on to his counterpart in Ulster and in Munster and begin to discuss who is going to recruit who next year so that they slot whichever players into whichever positions.

“Forcing competitors in the economic sphere, to exchange confidential information might bring them into the territory of anti-competitive activity, the IRFU would almost be creating that anti-competitive dialogue between people who are actually competing in the economic sphere.”

YES - Paul McNaughton: ALTHOUGH PAUL McNaughton stresses he is not speaking on behalf of the IRFU, per se, and nor does he slavishly adhere to their new strategy, as outgoing manager of the Ireland team, he is broadly in favour of the union's diktats. And as a former chairman of Leinster's Professional Game Board, which was instrumental in helping to recruit Isa Nacewa, Rocky Elsom and CJ van der Linde, as well as Irish manager, he is better qualified than most to offer an informed opinion.

“It is a complex issue, and your views would depend upon where you are in the spectrum,” says McNaughton, who officially stepped down yesterday week in passing over the baton to Michael Kearney and will decline requests to sit on IRFU committees.

“My view on all of this issue is the primacy of the national team, that nothing stirs the country as a whole more than the Irish team winning or, say, Ireland winning the Grand Slam, or beating Australia Down Under. Or that nothing disappoints the country more than seeing Ireland lose against Wales in the (World Cup) quarter-finals. In short, the only thing that brings the country together is the national team.

“There are great celebrations, say, when Leinster win the European Cup and I’m sure some of the people down in Munster and elsewhere will be happy about that too, but they won’t be celebrating on the streets, and the same goes with the different provinces,” says McNaughton, who acknowledges that increasing numbers of provincial fans may not share his feeling.

“Assuming the majority of the people feel that the Irish team is paramount, it’s the job of the IRFU to ensure they have a competitive (Irish) team,” he adds, and to that end “make sure that they can deliver the minimum amount of players for selection in the Irish squad with European Cup experience. As players outline, there is a step up from the RaboDirect League to the Heineken Cup and another step up again to international rugby.

“If at all possible,” he says, there should be “two players in every position, so that the national coach at the time would have enough players to play with for two reasons. The most important reason is the non-financial reason, which is that the vast majority of the people in the country want to see Ireland win, and the other reason is the financial reason,” he adds, claiming: “If Ireland started doing badly their prize-money level goes down, their negotiating power at the next television round table goes down, their 10-season ticket revenue goes down, which is a huge source of revenue. So now you have the financial model under threat.”

While tighthead prop might be the most pressing concern, McNaughton says the union have to think of the longer term. He adds that, compared to their European counterparts, “Ireland are way ahead of the rest in terms of spending a bigger proportion of their revenue on ensuring the provinces remain competitive. In the other countries, most clubs are individually owned. There are some subsidies but the only country with central contracting, Scotland, have only two teams.”

He not only cites “the strong policy of retaining Irish players”, but that the IRFU are the only governing body which “directly pays part of the salary for non-Irish qualified players. In fact in one of the provinces, Ulster, more money was pumped in because they don’t have the same revenue streams as Munster and Leinster, and they used the money primarily to strengthen their squad by importing really good foreign players, and that’s been a success.”

As to the argument that says why change something that is evidently working, McNaughton says: “It’s clearly not working for the Irish team if we only have one tighthead prop and, if in future, because of no positional constraints, we only have one loosehead prop, or hooker, or whatever.”

He also cites agreements in France and Wales to increase the number of home-grown players. “If we go into Six Nations championships in the future and we don’t have a tighthead or a loosehead, or an outhalf, the provinces won’t be held responsible, because their job is to ensure they do well. The Irish team is the IRFU’s responsibility and therefore Irish rugby supporters expect the IRFU to safeguard the national team.

“I fundamentally support the aspiration and guiding principle that there should be two players for every position for Ireland, and I also agree when a non-Irish player gets injured he should be replaced by an Irish player. The provinces argue they don’t want journeymen coming in at the end of their careers, but a non-Irish substitute for two or three months is, by definition, not a top-class player, because no top-class player is available for two or three months.”

The union’s power of veto over every signing through the Professional Contracts Review Group is, he maintains, somewhat qualified in practice when the provinces start appealing, and thus clearer guidelines need to be in place.

McNaughton says the union could have communicated their strategy better, that how it will be applied in practice wasn’t outlined, that more could be made of Connacht and that not renewing existing contracts for foreign players needs to be reviewed.

“It is too inflexible. For instance they may be able to achieve two players in every position while still being able to renew somebody’s contract. If, say, the re-signing of Isa Nacewa or Dougie Howlett doesn’t prevent having two players in every position, then I think they would have to show flexibility there.”

As regards every foreign player being “position specific”, McNaughton admits “there are probably only eight or nine specialist positions on the field, the guiding principle that no player can be re-signed in the same position is flawed, and that’s the key one that they have to look at.”

“People have to talk here and people have to work it out. In modern sport or business, you can’t say ‘we don’t want any change’. There has to be discussions and there has to be flexibility. But what shouldn’t be lost and what the IRFU shouldn’t climb down on, is the concept that Ireland should have 30 players playing regularly in the Heineken Cup.”

Background to a controversy

FOUR DAYS before Christmas, the IRFU lobbed something of a grenade into their four proud provinces, or three of them, when outlining their new restrictions on foreign players so as to aid the development of Irish-qualified players.

From 2013/14 onwards, they decreed that a province could not renew the contract of an existing non-Irish Eligible (NIE) player or replace him with a new NIE player in the same position. Furthermore, all future provincial injury replacement players had to be Irish qualified and all future provincial non-Irish eligible player contracts would be "position specific".

Connacht were excluded from this, as they had "recently commenced a new programme of structural and performance development agreed with the IRFU".

Opinions differ as to the extent of the dialogue between the union's Professional Contracts Review Group and the other three provinces, but in any event the PCRG recommended these proposals to the union's management committee, which in turn presented them for approval to a meeting of the executive committee on December 15th.

The document had been sent to the provinces on Thursday, December 8th, and the Leinster and Munster delegates on the executive committee had asked for a deferral on the vote so as to examine the document in greater detail.

That proposal was effectively voted down by the executive committee, who ratified the recommendations by 13 votes to eight.

Cue the IRFU's press conference to announce their new strategy on December 21st.

On foot of this, Leinster, Munster and Ulster mobilised their opposition to the new diktats regarding the recruitment of foreign players, with Joe Schmidt, Tony McGahan and Ulster's director of rugby David Humphreys meeting in Portlaoise on Tuesday, January 10th.

The respective chief executives, Mick Dawson, Garrett Fitzgerald and Shane Logan have also had meetings, and the result of this is a joint document submitted by the provinces which they feel is workable and constructive.

Discussions are ongoing with a view to finding a compromise.