Pichot's message

Discussion in 'General Rugby Union' started by Cruz_del_Sur, Nov 21, 2018.

  1. The Alpha Bro

    The Alpha Bro Fat Boi

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    This legal part of this post is probably going to come across as arrogant, condescending, patronising and a whole lot of other things. I don't intend for it to be that way but its going to be hard for it not to be considering what I have to say.

    Unless you have a background in law (and from the argument presented I presume you don't), you shouldn't. It takes 7+ years to qualify as a lawyer for a reason.

    Irish/EU law absolutely supersedes WR regs, it would be mad if the it didn't. I'll get to the second part later in the post, it ties in with the Nacewa argument you presented.

    Never part of my argument, my argument is exclusively relating to the grandparent rule, which under Irish law will have to apply to anyone born before 1 July 2005. The new 5 year ruling is probably 5 years because that is an extremely common period of residence required to attain citizenship though.

    No it hasn't, the sports lawyer in Nacewa's case never argued a case based on Nacewa's citizenship because he knew it'd be fruitless, his argument was based around undue influence and misrepresentations made by Fiji. It failed because regulation 8.2 provides any player with reasonable notice that if they play for one country they are bound to play for that country and unable to switch. This is not an example of WR regs circumventing or superseding employment equality law, this is a term of contract which every player who plays for a country's 1st or 2nd XV, or 7s team binds themselves to and this is a contractual exception that would limit an employees rights under the Employment Equality Act here in Ireland, NZ is good precedent for Ireland as well considering they are both common law jurisdictions. Anyway, Nacewa is a far better example to endorse my case than my military example, I wish I had thought of it.

    The only people hung up on technicalities, baseless and incorrect ones at that, are yourself and Cruz. You found a logical hole in my argument and ran with it, unfortunately as I have said and as Heineken, a qualified and practicing lawyer endorsed, the law is not always logical. WR have a history of enforcing regulations that are stricter than what the law requires such as Nacewa's case and that's perfectly ok, what they don't have a history of is enforcing legislation that is totally against the rules set out in legislation of a country's national law which is what getting rid of the grandparent rule would be. The difference is subtle when put into practice and difficult to understand without a developed understanding of how the law is created and applied. Essentially yourself and Cruz are arguing that World Rugby aren't bound by the law of any country because they are an international sporting body, its absolutely mad when put that way.

    "The law is an ass"

    Are either of those statements incorrect?

    1. Stander said himself he wasn't going to get a contract with the Bulls if he didn't move position. That left whatever other South African clubs would want him and probably only one two year contract to establish himself or else be let go. Considering it wasn't until his third season with Munster, a club who weren't boasting about their backrow talent at the time, that he became a starter. Is it not feasible that he wouldn't have broken into his new club and not been given a contract because he was approaching 25 and had done little of note and be out of rugby or forced to go abroad? It was never stated as fact but its absolutely reasonable

    2. You're trying very hard to find something that isn't there. The context I said that in was when I was saying I'd prefer slightly looser eligibility laws if it means the best players will end up playing international rugby. Stander is one of the most entertaining players in the game, he's a key part in the world's 2nd best team, he's part of the reason why every Ireland home game is a sell out. Its the same as Scotland, they'd be awful without their international intake, I prefer good entertaining rugby to that within reason. It's purely me not being a very nationalistic person which is somewhat ironic considering I also have strong nationalist beliefs but that's not for this website at all!
     
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  3. Thingimubob

    Thingimubob First XV

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    God typical arrogant Engli... Irish?

    Genuinely interesting insight though!
     
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  4. TRF_heineken

    TRF_heineken RIP #J9

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    @The Alpha Bro, I think you're nailing it on the head here with this above post.

    While WR, FIFA, ICC are all international sporting bodies and can make their own laws regarding the sport and how it's governed. They can't ever make laws that's above a country's laws. If we use the residency law as an example. The Sporting Entity can make a law and have a different time period to that of an individual country but it may cause problems.

    If a country now makes a law that a person must be 7 years physically residing (domicilium citandi et executandi) in that country before being granted residency, the Sporting entity's law of 3 or 5 years will mean absolutely nothing to that individual country as the person will only be qualified as a resident after the 7 year prescribed law.

    I think what we have to do here, to get more of an equal ground between law and logic is to look at maximum and minimum periods, and how that can be implemented.

    forget about the grandparents rule or descendant rule or whatever other rule there is and purely look at the skeleton of the law. and how to qualify. There is a period involved and by not complying to that period you can't qualify. Simple.
     
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  5. Cruz_del_Sur

    Cruz_del_Sur First XV

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    The point is that if what he claims is true, there'd be very specific, tangible and actionable evidence and that is not the case. It'd be, quite literally, discovering a mega loophole that tons of people could benefit from yet nobody is using. That's a very hard sell.
     
  6. The Alpha Bro

    The Alpha Bro Fat Boi

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    No there wouldn't, and before I continue I implore you to stop arguing something that you clearly aren't well versed in at all.

    Anyway, the Isa Nacewa case backs part of my argument up, Isa Nacewa would have had the right to play for NZ but for his appearance for Fiji.

    The other case you'd need is a case where an Irish employer that refused to hire a person for a position reserved for an Irish citizen based on the fact that they only qualifed as a citizen because of a grandparent, and that would have had to have happened no earlier than 1988. Bare in mind we're a nation of only 5 million and positions reserved for Irish nationals are most commonly highly skilled positions with educated people in charge of the hiring process and you have the reason why there is no case law on this exact area. In fact the most likely area this would happen in is sports and every international sport Ireland compete in allow grandchildren of Irish born people compete to the extent of my knowledge.

    This is very common too, Ireland is highly influenced by English law and we use precedents set by English courts to establish our rules regularly. There are numerous examples of rules set in English courts being endorsed by Irish courts over 100 years later an example of that which I happen to be studying as we speak, the rule in Turquand's case (1856) was endorsed in Ireland in AIB ltd v Ardmore Studios in 1993 because the rule set in Turquand's case wasn't broken in the interim. There's an example of a rule which was followed in Ireland for 137 years despite there being no specific, tangible and actionable evidence that it actually applied in Ireland.

    So no, there wouldn't necessarily be specific, tangible and actionable evidence other than legislation which has more or less been presented to you.

    It wouldn't, I don't know how you can see any loophole in anything that's been said.

    Its a much easier sell than the IRFU being allowed to break the law because of a WR regulation tbh.

    Grandparent Rule - Has to apply to anyone born before July 2005 with an Irish grandparent due to them having the right to Iris citizenship and the Employment Equality Acts 1988 amended 2015 which provides a person can't be treated less favorably than another based on "that they are of different race, colour, nationality or ethnic or national origins". (S.6(2)(h)) The Irish rugby team reserves the right to work for them to citizens acting in compliance with WR regulations, such as Reg 8(2) BUT WR regulations are subject to Irish law and can't have a greater threshold for working in as a citizen Ireland than Irish law itself.

    Switching nations - By playing international rugby, for all intents and purposes you enter a contract with an implied or express term that you cannot play for another country. It is perfectly legal to sign away legislative rights in a contract. See Isa Nacewa case.

    It took me a while to be get there. Heineken was definitely far more eloquent, direct and universal than I was but if a qualified, practicing lawyer and a law graduate studying for law school entrance exams can't sway you on this nothing will.

    Can I ask you why you think soccer continues with the grandparent rule despite being far stricter on their nationality requirements by all accounts?
     
  7. ncurd

    ncurd International

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    Here's an interesting one (and I agree with you Alpha Bro so this will get me into trouble as throws muddier waters).

    I can sign away my rights to EU Working Time Directives but can't sacked, treated unfairly it also can't be a condition of my employment.
    https://www.gov.uk/maximum-weekly-working-hours/weekly-maximum-working-hours-and-opting-out

    How does that work with the international game if signing away my rights to play for a country I would normally qualify through citizenship is a condition of my employment doesn't that make the contract null and void.

    My guess it Isa Nacewa would have to of objected to the clause in his Fiji contract at the time of signing it.
     
  8. Steve-o

    Steve-o Bench Player

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    It didn't come across as arrogant. You're in the law field and I'm not, so I appreciate the time you took to provide a detailed explanation.

    I'm not saying that WR regulations aren't bound by the law in countries because they're an international organisation.
    I'm saying WR already go above countries minimums for national 'entitlements' (for example in Argentina 2 years to citizenship) with the new 5 year residency rule. I don't understand why they follow certain minimum laws but not others, especially when some are more robust than others. Why even bother changing it to 5 years and instead say according to what each country has to meet citizenship status?

    That said and to back up your point, the fact that they do this even after the review (which Pichot ran) means there must be something stopping WR from closing the granny rule. I'm sure he would have taken that out if he could.

    Still doesn't make sense to me but then again the law doesn't need to for a lay person.

    Yes both are incorrect as Stander seems to be selling the Cinderella story of rugby which the Irish are eating up.

    1) He captained the Baby Boks at the 2010 Junior RWC and was included in the extended Springbok squad in 2012 at 22 years old based on his form as a loose forward, the same year he signed with Munster. Doesn't sound like a guy who's career is in danger.

    His job at the Bulls was not in threat. The Bulls could not match the offer and spoke what a big loss it was when he left:

    Barend van Graan, chief executive of the Bulls, admitted: “We identified CJ at schoolboy level already and he was part of our future planning at the Bulls. However, we couldn’t match the Munster offer – such is the reality of professional sport.”

    Bulls coach Frans Ludeke offered a brief insight into the calibre of player that is heading Munster’s way.

    “Quality players like CJ, who have also shown tremendous leadership abilities, don’t come around very often and so it was not a surprise to hear about his overseas offer.


    https://www.irishtimes.com/sport/munster-sign-young-springbok-stander-1.1068000

    Heyneke Meyer (Bok coach at the time) came up with the idea of converting him to a hooker, just like he did for Malcolm Marx later on. Stander makes it out like there was a gun to his head. Convert to hooker or back to the farm with you boy! Nothing actually points to this.

    The conversations about shifting to hooker lasted for six or seven months and Stander said he was initially willing to give it a try, even if his heart wasn't in it. Payne offered him an alternative path.

    "I knew it was on the table to play for Ireland one day and seeing how big rugby is in Ireland, the supporters, the culture. I was getting this feeling that I wanted to play for Ireland that I can't really describe," he says.

    "It was a bigger feeling than I'd had for the Springboks, because when I was a youngster you think you want to play for that team but not really knowing how to get there.


    Instead it looks like it was the case of a big money offer to leave South Africa, which had a time pressure. And it appears that the money instantly made him want to play for Ireland more than anything in the world.
    All I'm saying is that he needs to say it like it is rather than making out that SA rugby unions shunned him. We've had smaller loose forwards than him.

    2) Rugby players don't live in a bubble to the rest of us. He is following a very well established trend of young white South Africans leaving the country. Top reasons being (1) politics, (2) crime and (3) uncertainty.

    https://www.news24.com/SouthAfrica/News/were-running-out-of-whites-20170806-2

    Want the best players playing international rugby? Instead of advocating for eligibility regulations to loosen up, why not advocate that WR actually enforces its anti-discrimination regulations based on race so that a developing country like SA can keep its best players? That's why I said 'how convenient'. International rugby didn't gain, Ireland gained.
     
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    Last edited: Nov 29, 2018
  9. Amiga500

    Amiga500 First XV

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    I think the judgement went in their favour as they refused to write a pro-gay message on the cake, rather than refused to sell a cake (i.e. a generic cake with no message).

    So they were not refusing the customer for who/what the customer was, they were refusing to do what the customer asked because they didn't agree with it.
     
  10. Amiga500

    Amiga500 First XV

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    Sporting regulations are not the law, neither is the law sporting regulations.

    If someone, say, Born in Brazil, great club rugby player (never played for Brazil internationally) and gained Argentinian citizenship through residency after 2 years - I don't see how WR could legally stop them playing the game - as WR has no legal basis for preventing that player playing for a country they are a citizen in as they have not been captured by WRs rules prior to that point.

    However, if same person played for Brazil then moved to Argentina - then they are captured by WRs rules and subject to them.


    For me it should be fairly simple what is possible and what makes sense regulations wise:
    (1) You cannot declare for a country you are not a citizen of.
    (2) After declaring for country, you cannot change declarations.


    IMO, none of Jared Payne, Bundee Aki or CJ Stander should have been able to declare* for Ireland until they were Irish citizens.

    But, the likes of Rob Herring with an Irish granny was an Irish citizen at birth, and thus is able to declare* when he wants**.

    *assuming no prior declarations for another country.

    **WR trying to prevent this is extremely likely to fall foul of law.
     
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  11. ncurd

    ncurd International

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    Problem is different countries have different qualifications to be a citizen of. So WR implements rules based on the lowest criteria rather than the highest.

    Example, I have both Irish and SA ancestry (ancestry is lose term in regard to SA but I have SA granny even if my great-grandparents were British ). I can't declare as a citizen of either.

    Ireland because its my Great-Grandfather
    South Africa because I wasn't born there or lived there even though my Grandmother is SArican (she worked for the embassy in London at one stage).

    If my Grandmother was Irish I could claim Irish citizenship.

    And thats the problem two top nations have completely diffrent rules on what qualifies you to be citizen. So WR sets rules that level the playing field. Otherwise players could easily
    transfer for one nation to another but not in reverse.
     
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  12. ncurd

    ncurd International

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    Yup its weird legal thing, you can't refuse service to a person for what they are but you are allowed to refuse anything which promotes a message you object to.

    Example would be I couldn't say no to selling to a Neo-Nazi (as much as I'd like to) but I am allowed to refuse to let them use my services to promote a neo-Nazi message.
     
  13. Amiga500

    Amiga500 First XV

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    Because they probably cannot stop a citizen from playing if they are not captured by WRs rules already.

    They'd fall down in court of law.

    Then as you say, trying to create a level playing field.

    Its a problem many international sporting organisations face - they'd likely be best off seeking a ruling on the matter at the Court of Arbitration from Sport so that they could have a nailed down legal precedence that guides lower courts - can a sporting bodies rule (on the matter of
    legibility for playing at the international representative level of that sport) supersede established *generic* employment laws.
     
  14. ncurd

    ncurd International

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    I didn't say that.....I said why they set rules that means you can not be a citizen and still play for other nations.
     
  15. Amiga500

    Amiga500 First XV

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    Yes - and I'm saying *why* they have to do it that way.


    If I were WR, I'd probably forget about the level playing field (well, actually, I'd first approach the CAS for a ruling) - and just go with citizenship as most T1s have similar rules.
     
  16. Which Tyler

    Which Tyler First XV

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    I thought you could refuse service to anyone, for any reason EXCEPT because they're a protected class.
    So I CAN refuse someone because they're a nazi, or annoying; but I can't because they're gay, female, religious, different ethnicity etc
     
  17. ncurd

    ncurd International

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    Isn't political ideology usually a protected class?
     
  18. Which Tyler

    Which Tyler First XV

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    Not that is been taught, but it may be.
    Either way, Nazism is (I'm pretty sure) illegal in the UK, so wouldn't be protected anyway.

    ETA, from the CAB:

    The characteristics that are protected by the Equality Act 2010 are:
    age
    disability
    gender reassignment
    marriage or civil partnership (in employment only)
    pregnancy and maternity
    race
    religion or belief
    sex
    sexual orientation


    So you'd need to argue that your political ideology counts under religion/belief
     
  19. ncurd

    ncurd International

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    I'd quite happily make that argument dunno if it would stand up in a court of law though.
     
  20. Which Tyler

    Which Tyler First XV

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    It's be an interesting one - the reductio ad absurdium for Nazism would almost certainly fail though, as it's already illegal to encourage nazism in the UK.


    Either way; you could still simply refuse to serve them because they're ugly; and you'd be fine.
     
  21. TRF_heineken

    TRF_heineken RIP #J9

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    Again, this is where countries laws may differ from others. The concept of dealing with certain parties, and/or refusal of service varies a lot. I think it would be hard to warrant refusal of service based on physical appearance in South Africa. But then we have laws like Black Economic Empowerment and societies like the Black Lawyers Association where the exclusion of race is completely warranted.

    But before we digress too much, let's get back on topic with regard to rugby related citizenship.
     
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