WR Reviewing international eligibility

[goodNumber10]

All this business about the right to work as it relates to national eligibility for sports teams is just BS. It doesn't arise, because the Labour Laws simply do not apply, period. And before someone, brings up the old chestnut of the Bosman & Kolpak rulings, they do not apply to International Sports teams.

Playing for your country is not a job or a right...its a privilege!

WR determines the eligibility of players for National Teams not the European Court or any other court for that matter. Same goes for FIFA regarding football, the ICC for cricket etc, FIBA for basketball etc etc.

I don't see how it's BS, it's well documented that FIFA set their eligibility ruling under guidance of the EU, so it most certainly does have an impact on national teams and how governing bodies set their eligibility laws.

It would be very surprising if WR didn't tackle this issue with a similar approach making sure they are not setting eligibility laws that can be legally undermined by rulings such as Kolpak, Bosman etc...

The thing in the WR favour is that a lot of the player migration is from outside of the eligible nations so the legality of NZ, SA and Aus players will have less impact than those of Europe or somewhere like Fiji.

 

[TRF_stormer2010]

But do those rulings have bearing on test rugby and not just club rugby? I see them as distinctly seperate myself even if that not might be the case as a point of law.

 

[goodNumber10]

But do those rulings have bearing on test rugby and not just club rugby? I see them as distinctly seperate myself even if that not might be the case as a point of law.

well that's the point Smartcooky is making, he believes they don't but they certainly had an influence on FIFA's eligibility laws, and on Olympic eligibility laws, so i don't see why they won't have an impact on test Rugby.

The point isn't really that Kolpak etc... will undermine eligibility laws it's that they will influence them.

 

[Every Time Ref]

That last bit is my point. If someone can get a passport for that country in 4 years then they can't be denied or it will be a human right law issue. But the issue now is every country is different in laws of citizenship.
Like I don't disagree with what ye are saying but World Rugby have to be very careful in the approach as there can be legal issues and all that.

Yeah sounds like we're basically on the same page.

In real life, I think if someone comes to this country, works hard, pays taxes, obeys the law and yah-de-yah-de-yah-de, fulfils all the criteria for citizenship for the appropriate amount of time then I fully support their right to become a citizen with all the rights that entails. Yet in rugby, instinctively I feel that it takes more "Englishness"* than that to be English enough to represent my country - basically it takes a fundamental connection which can't be gained by living there as an adult. I don't know why I feel this, but I do, and a lot of people seem to agree.

Can those two contradictory principles exist together? I'm not sure. Morally, it is tricky, legally even more so. I think of the issue of refugees for example, unlikely, but say there was a massive civil war in New Zealand and loads of people fled and couldn't go back, settling in London (presumably Acton ... ). Would I deny their right to represent England if they were good enough? Or take Rokoduguni, the guy joined the army, will go out and put his life on the line for my country - I'm not going to stand here and say he doesn't deserve the right to represent it on a rugby pitch, however tenuous his connection to it may be.

*in this country the issue is complicated by the fact that the political entity Britain has 3 / 4 different "national" rugby teams.

Playing for a your club is a right. Playing for your country is a privilege!

Not, legally speaking, if you are on a central contract and therefore the RFU is (at least in part) your employer

 

[TRF_stormer2010]

well that's the point Smartcooky is making, he believes they don't but they certainly had an influence on FIFA's eligibility laws, and on Olympic eligibility laws, so i don't see why they won't have an impact on test Rugby.

The point isn't really that Kolpak etc... will undermine eligibility laws it's that they will influence them.

I suppose they probably will as will (probably) other factors that shouldn't in a perfect world.

I for one would like for World Rugby to firstly make a decision on what they see test rugby as being and then work from there to put in place simple policies to ensure that the integrity of the test stage remains more or less intact. Sure there are bound to be a few head-scratchers but leave that for committee to decide on case-by-case as Smartcooky has suggested.

World Rugby isn't in line with either FIFA or the IOC on policies as it stands so I don't see any obligation for them to do so from where I am looking.

 

[YoungScud]

Where will Scotland get it players now?

Quite right. How dare Scotland select Vunipola, Vunipola, Cobisiero, Hartley, Kvesic, Botha, Waldrom, Barritt, Tuilagi, Dickson and all those other kilted kiwis?

 

[goodNumber10]

World Rugby isn't in line with either FIFA or the IOC on policies as it stands so I don't see any obligation for them to do so from where I am looking.

No, their not in line, but they will be subjected to the same legal scrutiny that those sports have come under so they will be influenced by those laws.

I'm no expert though i have a very basic wiki knowledge of international law

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Not, legally speaking, if you are on a central contract and therefore the RFU is (at least in part) your employer

It's a good job all those New Zealanders play for the AB's for free.

 

[munstermuffin]

Well technically it does have an issue for example in Ireland. You must be Irish Qualified for a spot in a province unless your a designated NIQ. But my point is if someone is in Ireland 4 years and gets an Irish passport. WR can't technically stop a player then playing for the country. Soccer tried it before but couldn't.
Look at Diego Costa for example. Born in Brazil, made his debut for Brazil in a friendly and then switched to what he thought was a better team in Spain. FIFA had their hands tied in all them issues as it goes beyond sports. And if WR tries to battle it could be a messy legal battle

 

[Mcfadden]

Yeah sounds like we're basically on the same page.

In real life, I think if someone comes to this country, works hard, pays taxes, obeys the law and yah-de-yah-de-yah-de, fulfils all the criteria for citizenship for the appropriate amount of time then I fully support their right to become a citizen with all the rights that entails. Yet in rugby, instinctively I feel that it takes more "Englishness"* than that to be English enough to represent my country - basically it takes a fundamental connection which can't be gained by living there as an adult. I don't know why I feel this, but I do, and a lot of people seem to agree.

Can those two contradictory principles exist together? I'm not sure. Morally, it is tricky, legally even more so. I think of the issue of refugees for example, unlikely, but say there was a massive civil war in New Zealand and loads of people fled and couldn't go back, settling in London (presumably Acton ... ). Would I deny their right to represent England if they were good enough? Or take Rokoduguni, the guy joined the army, will go out and put his life on the line for my country - I'm not going to stand here and say he doesn't deserve the right to represent it on a rugby pitch, however tenuous his connection to it may be.

I agree with all of this, and I don't even see that it's contradictory. Most jobs obviously work internally (i.e: within a country). But this is something for international consumption under the banner of international rugby. Each country is tasked with assembling their best to take on the world. The best of England. The best of Australia. The best of New Zealand. Not "the best of some fella who's had a house here for about 3 odd years." If a player feels in their heart that they are truly connected to a country they've moved to, then it's their emotions and I can't tell them otherwise.

So I suppose a material connection needs to be established for me. I dunno, give me something more than X amount of years. Did you undergo an education of any sort in that country? Did you participate in that nation's development system? Were you living your life there before the age of 18 and not just bugger off there when you suddenly became good at 20 something?

 

[smartcooky]

But do those rulings have bearing on test rugby and not just club rugby? I see them as distinctly seperate myself even if that not might be the case as a point of law.

They absolutely do not.

GN10 is getting confused between the Court of Arbitration for Sport (CAS) (which FIFA consulted with over their eligibility criteria) and the European Court of Justice(ECJ) that was responsible for both the Bosman Ruling (1995) and the Kolpak Ruling (2003)

It is important to realise that the CAS cannot force any sporting body to comply with its rulings unless that sporting body chooses to be bound by them. Disputes can only submitted to the CAS when there is an arbitration agreement between the parties that specifies such recourse.

Just think about it for a moment. If the CAS could rule that National Unions could not have eligibility criteria that excluded naturalised citizens from playing for their adoptive country for a period of time if their eligibility had not already been captured for the country of their birth, what would stop them from also ruling that such captured eligibility was irrelevant. They could rule that ex-Wallabies, ex All Blacks and ex Springboks must be allowed to play for their country of residence. They could rule that all the mercenaries playing for Toulon would be eligible for France. Quite clearly, this sort of thing will never happen!

ETA: Its worth noticing that cricket has only recently relaxed its for qualification by residency. It used to be far more stringent.

 

[TRF_stormer2010]

They absolutely do not.

GN10 is getting confused between the Court of Arbitration for Sport (CAS) (which FIFA consulted with over their eligibility criteria) and the European Court of Justice(ECJ) that was responsible for both the Bosman Ruling (1995) and the Kolpak Ruling (2003)

It is important to realise that the CAS cannot force any sporting body to comply with its rulings unless that sporting body chooses to be bound by them. Disputes can only submitted to the CAS when there is an arbitration agreement between the parties that specifies such recourse.

Just think about it for a moment. If the CAS could rule that National Unions could not have eligibility criteria that excluded naturalised citizens from playing for their adoptive country for a period of time if their eligibility had not already been captured for the country of their birth, what would stop them from also ruling that such captured eligibility was irrelevant. They could rule that ex-Wallabies, ex All Blacks and ex Springboks must be allowed to play for their country of residence. They could rule that all the mercenaries playing for Toulon would be eligible for France. Quite clearly, this sort of thing will never happen!

ETA: Its worth noticing that cricket has only recently relaxed its for qualification by residency. It used to be far more stringent.

Tell that to England!

 

[goodNumber10]

They absolutely do not.

GN10 is getting confused between the Court of Arbitration for Sport (CAS) (which FIFA consulted with over their eligibility criteria) and the European Court of Justice(ECJ) that was responsible for both the Bosman Ruling (1995) and the Kolpak Ruling (2003)

It is important to realise that the CAS cannot force any sporting body to comply with its rulings unless that sporting body chooses to be bound by them. Disputes can only submitted to the CAS when there is an arbitration agreement between the parties that specifies such recourse.

Just think about it for a moment. If the CAS could rule that National Unions could not have eligibility criteria that excluded naturalised citizens from playing for their adoptive country for a period of time if their eligibility had not already been captured for the country of their birth, what would stop them from also ruling that such captured eligibility was irrelevant. They could rule that ex-Wallabies, ex All Blacks and ex Springboks must be allowed to play for their country of residence. They could rule that all the mercenaries playing for Toulon would be eligible for France. Quite clearly, this sort of thing will never happen!

ETA: Its worth noticing that cricket has only recently relaxed its for qualification by residency. It used to be far more stringent.

Yes, i'm getting them mixed up.

But CAS rulings are taken under guidance of the ECJ, and subject to their ruling no?

Hence the German courts over ruled them earlier this year in regards to some lad from argentina being eligible to play on his Italian or swiss passport or something. IIRC The ECJ overturned the CAS ruling on that basis.

Maybe i'm misremembering it.


**** Edit: this is the case I'm thinking of: http://kluwerarbitrationblog.com/bl...courts-finds-fifa-compensation-rules-illegal/

Non-recognition of the CAS award

The Bremen Court then turned to the issue of recognition of the CAS award in favour of River Plate and Excursionistas. Since Sergio Sagarzazu was an Italian national, he was entitled to protection under Article 45 of the EU Treaty, the freedom of movement of workers. Citing the ECJ's landmark case in the Bosman matter (judgment dated December 15, 1995, C-415/93), the court held that FIFA's system of training compensation restrained the freedom of movement of professional football players in a way similar to the pre-Bosman transfer rules. The court was of the opinion that the right under Article 45 of the EU Treaty could be invoked not only by the player in question, but also by the club as his employer. The Dispute Resolution Chamber of FIFA and, subsequently, the CAS had not applied Article 45 of the EU Treaty. Failing to apply a fundamental freedom under the EU Treaty was in Violation of Germany's ordre public. Pursuant to Article 5 of the New York Convention, the CAS arbitral award was not capable of recognition in Germany. The fact that SV Wilhelmshaven had failed to apply to the Swiss Federal Court (Bundesgericht) to set aside the arbitral award pursuant to Article 190 Swiss IPRG did not change that outcome.

 

[TRF_heineken]

They absolutely do not.

GN10 is getting confused between the Court of Arbitration for Sport (CAS) (which FIFA consulted with over their eligibility criteria) and the European Court of Justice(ECJ) that was responsible for both the Bosman Ruling (1995) and the Kolpak Ruling (2003)

It is important to realise that the CAS cannot force any sporting body to comply with its rulings unless that sporting body chooses to be bound by them. Disputes can only submitted to the CAS when there is an arbitration agreement between the parties that specifies such recourse.

Just think about it for a moment. If the CAS could rule that National Unions could not have eligibility criteria that excluded naturalised citizens from playing for their adoptive country for a period of time if their eligibility had not already been captured for the country of their birth, what would stop them from also ruling that such captured eligibility was irrelevant. They could rule that ex-Wallabies, ex All Blacks and ex Springboks must be allowed to play for their country of residence. They could rule that all the mercenaries playing for Toulon would be eligible for France. Quite clearly, this sort of thing will never happen!

ETA: Its worth noticing that cricket has only recently relaxed its for qualification by residency. It used to be far more stringent.

Plus, the Kolpak issue was something only used by the ECB, and wasn't used by other nations. For instance, South African players were named as Kolpak players while playing for a county in England, but couldn't represent SA while they were registered Kolpak players, but in the same breath, England players who played in South Africa weren't registered as Kolpak players, and could still play for England while they were contracted for the South African club.

Also, a world sporting governing body doesn't have to comply with the CAS or the ECJ. If the governing body isn't registered with the CAS, then they don't have to use their protocols. It's the same as any other international treaty or agreement. The country doesn't have to follow it if they don't want to. I can use South Africa as an example with the recent outrcy by the AU (African Union) when we let Omar Al-Bashir return to Sudan after an AU Summit in South Africa

 

[LeinsterMan (NotTigsMan)]

will we have to give stuart lancaster back?

i'm fine with that

 

[smartcooky]

Yes, i'm getting them mixed up.

But CAS rulings are taken under guidance of the ECJ, and subject to their ruling no?

Hence the German courts over ruled them earlier this year in regards to some lad from argentina being eligible to play on his Italian or swiss passport or something. IIRC The ECJ overturned the CAS ruling on that basis.

Maybe i'm misremembering it.


**** Edit: this is the case I'm thinking of: http://kluwerarbitrationblog.com/bl...courts-finds-fifa-compensation-rules-illegal/

Yes, but it still does not mean that CAS can force a sporting body to comply with its rulings, and the ECJ cannot come along and act as enforcer unless there was an arbitration agreement in place between the disputing parties and one of the parties is refusing to comply with the CAS Ruling.

I repeat, the Bosman and Kolpak rulings DO NOT apply to International Representative Sport; they apply only to clubs.

Read the rulings

Bosman: http://curia.europa.eu/juris/showPd...=EN&mode=req&dir=&occ=first&part=1&cid=339001

Kolpak: http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:62000CJ0438&from=EN


If WR were to decide that the residency criteria will be 10 years, there is nothing CAS or ECJ can do about it.

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Tell that to England!

How long did Graham Hick have to wait to play for England.... five years wasn't it?

And then it wasn't worth the wait, because he was effing useless!!

 

[goodNumber10]

Yes, but it still does not mean that CAS can force a sporting body to comply with its rulings, and the ECJ cannot come along and act as enforcer unless there was an arbitration agreement in place between the disputing parties and one of the parties is refusing to comply with the CAS Ruling.

I haven't said they would/could.

I repeat, the Bosman and Kolpak rulings DO NOT apply to International Representative Sport; they apply only to clubs.

Read the rulings

Bosman: http://curia.europa.eu/juris/showPd...=EN&mode=req&dir=&occ=first&part=1&cid=339001

Kolpak: http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:62000CJ0438&from=EN

No one said they apply to international teams, people said anything would be along similar grounds to Bosnam etc...

If WR were to decide that the residency criteria will be 10 years, there is nothing CAS or ECJ can do about it.

I just don't see how that can be the case when we've seen Sporting bodies decisions over turned by the ECJ already, *the Meca Medina ruling also indicates that Sports Goverment bodies (IOC) are not exempt form EU law.

I understand what you're saying about what's to stop people changing country, but that's already been overturned in football hasn't it?

 

[TRF_heineken]

I haven't said they would/could.



No one said they apply to international teams, people said anything would be along similar grounds to Bosnam etc...




I just don't see how that can be the case when we've seen Sporting bodies decisions over turned by the ECJ already, *the Meca Medina ruling also indicates that Sports Goverment bodies (IOC) are not exempt form EU law.

I understand what you're saying about what's to stop people changing country, but that's already been overturned in football hasn't it?

Hold on.

The International Olympic Committee (IOC) has recognized the CAS and will fall under it's rulings. Actually I think it was because of the IOC that the CAS was established and specifically to assist with Olympic Games. They even have temporary CAS courts at times of the Olympics in the country where the Olympics are being held.

But if we take FIFA for example, they had their own courts in South Africa during the FIFA World Cup in 2010. Nothing was referred to the CAS.

 

[goodNumber10]

Hold on.

The International Olympic Committee (IOC) has recognized the CAS and will fall under it's rulings. Actually I think it was because of the IOC that the CAS was established and specifically to assist with Olympic Games. They even have temporary CAS courts at times of the Olympics in the country where the Olympics are being held.

But if we take FIFA for example, they had their own courts in South Africa during the FIFA World Cup in 2010. Nothing was referred to the CAS.

sorry mate, you've lost me.

i'm not sure how that relates to what i'm saying in that sporting bodies are subject to ECJ/EU law.

 

[TRF_heineken]

sorry mate, you've lost me.

i'm not sure how that relates to what i'm saying in that sporting bodies are subject to ECJ/EU law.

It relates to that Sporting Bodies are NOT subject to ECJ/EU law.

I'm using the IOC as an example as you mentioned of a Sporting body that is subject to the ECJ/EU laws. And then I'm using FIFA as an example that isn't Subject to their laws. That was all I was getting at.

 

[Every Time Ref]

Tell that to England!

Don't know why you're ripping on the English. In cricket terms, you are us.