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Spanish Rugby in the Dock Pt II: Mitigating Ineligibility

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About The Author

Ben Cisneros (Regular Writer)

Ben is a third-year law student at Selwyn College, Cambridge, currently spending this year studying law at the Universidad Autónoma de Madrid as part of the Erasmus scheme. He has a keen interest in Sports law, and is a future trainee of boutique firm, Morgan Sports Law. Outside of academia, Ben is a keen singer and actor with a unflinching love of Wasps and England rugby.

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This article is part of the 'RWC Qualification Saga' series, edited by Ben Cisneros.

The decision of World Rugby’s Independent Judicial & Disputes Committee regarding the European Qualification Tournament for the Rugby World Cup 2019 has drastic implications for all the nations concerned. The decision, which can be appealed, leaves both Romania and Spain out of the qualification process. In a two-part series, Ben Cisneros examines the Committee's reasoning and suggests ways in which the Spanish Rugby Federation might look to appeal.

Other articles from this series are listed at the end of this article.

On 15 May 2018, World Rugby published the decision of its Independent Judicial & Disputes Committee (the Committee) relating to the European qualification tournament for the Rugby World Cup 2019 (RWC 2019). The findings of the Committee were that Belgium, Spain and Romania each fielded ineligible players during the qualification tournament, and that the controversial Belgium v Spain match (the Match) should not be replayed.

A previous article in this two-part series examined the Committee’s refusal to order a replay of the Match. This article, meanwhile, explores the player ineligibility issues facing the Spanish Rugby Federation (FER). In this respect, the Committee found that the FER breached Regulation 8 of the World Rugby Handbook. It imposed sanctions, deducting five tournament points for each game in which Spain fielded an ineligible player.

Given the allegedly ineligible players played in eight qualification matches, the overall deduction was 40 points; this left Spain on -14 points, with no hope of qualifying for RWC 2019. The FER, however, remain adamant that their players are eligible.

This article will seek to examine the possible grounds of appeal for Spain. It argues that, though the Committee’s treatment of the Spanish arguments is largely well-reasoned, the sanctions that were imposed are too severe.

The Allegations

Spain have been accused of fielding Mathieu Belie and Bastien Fuster in the European qualification tournament for RWC 2019 when they were ineligible. This would leave Spain in breach of Regulation 8.1 and Regulation 8.2 of the World Rugby Handbook, which – when the players were first picked for Spain – stated:

A Player may only play for the [National Team] of the country in which:

  1. He was born; or
  2. One parent or grandparent was born; or
  3. He has completed thirty six consecutive months of Residence immediately preceding the time of playing.

[However] a Player who has played for the [National Team, ‘Next’ National Team or the National Sevens Team] of a Union is not eligible to play for [National Team] of another Union.

In Spain’s case, there would be a violation of Regulation 8.2 of the World Rugby Handbook: Belie and Fuster had played for France’s ‘Next’ National Team in 2008 and 2012 respectively. According to  the Explanatory Guidelines for Regulation 8 at the time:

There should be no uncertainty over which team constitutes a Union’s [‘Next’ National Team because] Unions are required to notify the IRB of the name of its nominated [‘Next’ National Team].

In 2008 and 2012, France had notified the IRB that their “Next’ National Team was their under-20s side. This is unusual; like the ‘England Saxons’, most other nations have reserves sides that comprise senior players. The situation created by Regulation 8.1 and Regulation 8.2 is complicated by Regulation 8.3(a), which states that:

[A] Player is deemed to have played for the [‘Next’ National Team] if he is selected for such team to play in an International Match against the [National Team] or [‘Next’ National Team] of another Union… and is present at the Match played by that team either as a replacement, substitute or a playing member of that team and has, at the time of the Match, reached the age of majority.

When Belie and Fuster played for France under-20s, both played against Wales under-20s which had also been nominated as a ‘Next’ National Team. It therefore seemed clear that both players had been automatically ‘captured’ by France and, by virtue of Regulation 8.2 of the World Rugby Handbook, ineligible to represent Spain.

Crucially, Regulation 8.5.1 of the World Rugby Handbook explains that the offence of fielding an ineligible player is a strict liability offence, which should be interpreted like other strict liability offences under English law. Therefore, it is unnecessary that:

[F]ault or intent on the part of a Union be shown in order for a breach of Regulation 8 to be established. Nor is lack of fault or intent on the part of a Union a defence to a breach of Regulation 8.

Applying this provision, World Rugby held that Spain was responsible for the breach of Regulation 8 of the World Rugby Handbook. The Committee therefore sought to impose appropriate sanctions in line with this provision.

The Eligibility Question

Spain’s Submissions

Spain argued that the players were eligible owing to their familial ties, and the fact that they have not been ‘captured’ by France. However, strict liability makes this argument incredibly difficult to mount: with no fault element needing to be proved, Unions must take responsibility for any and all de facto breaches of Regulation 8 of the World Rugby Handbook. As such, Spain advanced an argument based on the “nullity” of their players’ ‘capture’ by France. They pointed to the Explanatory Guidelines for Regulation 8, which stated:

The team nominated remains the Union’s [‘Next’ National Team] for a period of 4 years.

This, they argued, meant a team could not validly change its nominated side until a four-year period had elapsed. France – having nominated their under-21 side in 2007 – nominated their under-20s in 2008. In 2009, they changed their nomination to ‘France A’, before reverting back to their under-20 side from 2011. Therefore, Spain contended that the nominations of the under-20 sides in both 2008 and 2012 were void, thereby making neither Belie nor Fuster's 'captures' valid.

Moreover, Spain emphasised that – because Regulation 8 is a strict liability offence – a literal interpretation of the Explanatory Guidelines should be taken; any other interpretation would be unfair.

The Committee’s Decision

The Committee acknowledged the skill with which Spain’s argument had been made, but refused to accept the literal interpretation. Instead, in its decision, it preferred World Rugby’s interpretation: that it was implicit in the Explanatory Guidelines that the nomination would last four years, unless another nomination was made by the Union in the interim.

In support of this finding, the Committee noted that the IRB (now World Rugby) had previously recognised this non-literal interpretation in the past. Indeed, France had not been the only team allowed to make changes of nomination within the four-year period – between 2003 and 2004, Wales’ nominated team changed from Wales A to their under-21 side.

Furthermore, the Committee observed that the under-21 system had ceased to exist in 2007, necessitating the change in France’s nominated team for 2008. Hence, the literal interpretation made no “rugby sense”, in that it would risk some nominated representative teams ceasing to exist. Moreover, it held that there was no wording in the Explanatory Guidelines which explicitly removed the right to make another nomination in the four-year period.

Lastly, at paragraph 40 of its decision, the Committee stated:

[T]he list of [‘Next’ National Teams] published by World Rugby showed France under-20 as the [‘Next’ National Team] before either Mr Belie or Mr Fuster were selected for Spain. In case of doubt Spain could have checked with World Rugby what was the correct position. Had that been done, there would have been no doubt that each player had been already captured by a team nominated by France.

Turning to the sanctions, the Committee considered several precedents. Despite stressing the general undesirability of imposing sanctions, it concluded that fielding an ineligible player undermined the integrity of the qualification tournament and this necessitated sanction. As a result, it imposed on Spain severe points deductions and financial penalties, suspending the latter for five years.

Analysis of the Committee’s Decision

Sound Decision on the Validity of France’s Nomination

The strict liability rules meant arguing the whole situation was a nullity was Spain’s only real option as a defence. However, even if the Committee’s application of a non-literal interpretation of the Explanatory Guidelines is considered harsh, it is clear that France’s ‘capturing’ of the players could not have been declared void. In that respect, the Committee are correct.

In legal theory, there is a difference between what is “void” and “voidable”. Both involve an act being legally invalid, but a void act is one which – for all intents and purposes – never existed: it is of no legal effect. A voidable act, meanwhile, is one which – although it has had some legal effects – can be “avoided” (made void) going forward. A “void” act is a nullity from its inception onwards; a “voidable” act is a nullity only from when it is avoided.

If the changing of France’s nominated team could be declared “void”, Spain’s argument would succeed: if the purported nomination was of no effect, the players could not have been ‘captured’. However, the reality is that France’s nomination could only be considered “voidable”, if indeed it was invalid. To understand why, it is useful to turn to the ‘Second Actor’ theory developed by Professor Christopher Forsyth, which describes how invalid acts:

[C]early exist in fact and they often appear to be valid; and those unaware of their invalidity may take decisions and act on the assumption that these acts are valid. When this happens the validity of these later acts depend upon the legal powers of the second actor. The crucial issue to be determined is whether the second actor has legal power to act validly notwithstanding the invalidity of the first act. And it is determined by an analysis of the law against the background of the familiar proposition that an unlawful act is void.

In this case, France are the first ‘actor’ and Spain the second. Thus, following this theory, the crucial issue is whether Spain had the power to select Belie and Fuster notwithstanding the invalidity of France’s nomination.

The answer, unfortunately, is they did not. Regulation 8.5 of the World Rugby Handbook makes clear that breaching the eligibility rules is a strict liability offence. Therefore, even if Spain doubted the validity of France’s purported nomination, they were still bound by it until it was overruled by World Rugby. It can only be considered “voidable”. As such, by selecting Belie and Fuster, Spain breached Regulation 8 of the World Rugby Handbook: at that time, France’s nomination was (and still is) valid.

Indeed, as the Committee noted, the list of nominated teams was available online and it was always an option for Spain, if doubted the validity of France’s nomination, to clarify the issue with World Rugby prior to selecting Belie and Fuster. Further undermining Spain’s case was the stark warning given by the Chairman of the Rugby World Cup 2003 (RWC 2003) that explained Russia’s expulsion from the 2003 qualification process for fielding three ineligible players:

Unions have to go that extra mile to satisfy themselves beyond any doubt whatsoever that players are indeed eligible... It is a matter of the greatest regret that Russia, a fine Union with great promise, should lose the chance of qualifying for the Finals in this way. This should be a lesson to others.

This statement was made some 15 years ago, but its relevance remains. Indeed, the parallels between Russia’s case and the current saga are almost eerie; lessons, evidently, have not been learned. And the irony? In 2003, it was Spain who had accused Russia of player ineligibility and took their qualification place. Now, it is Russia who are going to RWC 2019.

A Glimmer of Hope for Spain?

The Wrong Punishment

It therefore appears impossible for Spain to succeed in its appeal by insisting their players were, in fact, eligible. However, all may not be lost. Rather than appealing the decision on eligibility itself, Spain could look to appeal the sanction: it is, after all, the severity of the point deduction which sees them miss out on RWC 2019.

Regulation 18.6.1 of the World Rugby Handbook sets out the range of options available to the Committee when imposing sanctions. It ranges from cautions, warnings and fines, to the cancellation or forfeiture of a match, and even the suspension or expulsion from a tournament.  But this is not a definitive list. Thus, to guide its decision, the Committee considered several past cases.

This included Russia’s expulsion from the RWC 2003 European Qualification Tournament, the overturning of match results involving Tahiti and FC Grenoble from 2018 and 2012 respectively, and the deducting of all points from South Africa that they had earned from matches in 2004 in which ineligible players were selected.

The Committee, however, appeared drawn to the precedent set down in 2008, whereby 5 points were deducted from Japan for each match in which an ineligible player had played. Noting that this followed the standard penalty in English Rugby, the Committee clearly felt that this was the approach which was most appropriate.

However, for the purposes of Spain’s appeal, there is a vital precedent missing from the Committee analysis: ‘Grannygate’. In 2000, international rugby was plunged into controversy after it was found that Shane Howarth and Brett Sinkinson of Wales, and David Hilton of Scotland, were all ineligible for their adopted countries under the then-regulations. Though all had played in the 1999 Rugby World Cup (the results of which also guaranteed qualification for RWC 2003), the IRB’s disciplinary tribunal saw it fit merely to reprimand both countries and order them to pay the costs of the hearing, a bill of under £10,000. This case is auspicious in its absence from the 2018 decision and highlights the preferential treatment which has been historically afforded to ‘Tier 1’ nations.

The Failure to Address Mitigating Factors

Under Regulation 18.6.3 of the World Rugby Handbook, when considering the imposition of penalties, the Committee can take into account mitigating circumstances. In ‘Grannygate’, the fact that the errors concerned were made in “good faith” appeared to play a part in the levity of the sanction. It is argued, therefore, that Spain’s good faith should have been considered more seriously as a mitigating factor.

Indeed, in this respect, Spain’s case can also be distinguished from those of Russia and Tahiti. In the IRB’s statement on Russia, there was a strong suggestion there had been “bad faith”: after the eligibility documents provided were held to be unreliable, no further documents were supplied and no explanation was offered. Similarly, a Tahiti player had started playing a year before the residency requirements would have been met, in a blatant breach. Spain’s case could not be more different.

Another mitigating factor that should be noted is the fact that France, in recent years, have changed their nominated team more regularly than any other nation. This created severe uncertainty in an already-complex area in which there are glaring administrative issues. For example, the Explanatory Guidelines require each Union to notify World Rugby of the names of all Players selected for the ‘Next’ National Team on an annual basis and obliges World Rugby to maintain a database of all such Players. Indeed the rules were the same back in 2008 and 2012.

Yet, despite these rules having existed for at least ten years, such a database does not exist. As a result, given they have full responsibility to handle eligibility issues, countries have been forced to turn to unreliable sites like ESPN or Wikipedia (as Romania did in this case) to work out whether a player is eligible. For Spain to be sanctioned so harshly under strict liability, despite acting in good faith in a context where World Rugby does not even have its own house in order, smacks of injustice.

Furthermore, as the Committee rightly observed, Unions which ‘might not have the administrative resources of other Unions’ suffer more from this lack of a database. Indeed, another important mitigating factor in Spain’s case should be how ‘Tier 2’ nations are inherently prejudiced by Regulation 8 of the World Rugby Handbook. Given a lack of resources, they are often unable to operate ‘Next’ National Teams. This means they lose the opportunity to ‘capture’ their own young players and are more susceptible to having them ‘poached’ by ‘Tier 1’ nations.

It is also worth noting Regulation 8 of the World Rugby Handbook now blocks Unions from nominating under-20s teams as their ‘Next’ National Teams. Though this can have no substantive bearing on the 2008/12 ‘captures’, it shows World Rugby has rethought its policy and decided it is inappropriate for junior players to be ‘captured’. Given this current view, Spain’s case should be looked on with greater leniency.

It is also being reported that, in Belie’s case, the player twice requested confirmation from the French Rugby Federation (FFR) that he was free to play for Spain and, as France confirmed at the hearing, he was given the all-clear on both occasions. Spain allegedly also sought confirmation from World Rugby. If representations were made by the FFR, this is another mitigating circumstance. If they were made by World Rugby, there could be arguments about estoppel and legitimate expectations which could even result in Belie being declared eligible. Further such details must be divulged and used forcefully on appeal.

Finally, in the dispute between Scotland and Wales over Stephen Shingler’s ties to Wales in 2012, weight was given to the fact that Wales clearly explained to Shingler that he would be ‘captured’. In contrast, it should be considered important for the Spain case that, in an email to World Rugby regarding Belie and Fuster, the President of the French Rugby Federation observed that it was unknown whether:

[T]hese players had been informed… that selection for France U20 would no longer allow them to compete for the national team of another Federation… As of today, there are no specific procedures aimed at informing the player that he is no longer eligibility for another Federation’s national team.

This is yet another potentially mitigating circumstance not mentioned in the Committee’s decision. Indeed, under the current Explanatory Guidelines, Unions are obliged to:

[E]nsure that all persons involved in an International Match… are made aware of the status of their team as the [‘Next’ National Teams] and what that means from a capturing perspective under Regulation 8.

Similar obligations also existed in 2008/12. Although players are themselves also obliged under the Explanatory Guidelines to ensure they are aware of their situation, this provision suggests that World Rugby have been concerned about the lack of information players had been receiving, particularly at junior level.

Ultimately, it is clear there is a range of mitigating factors which the Committee failed to consider when making its decision. It is also clear World Rugby must reform its eligibility system as a matter of priority. Given these circumstances, the sanctions imposed upon Spain are clearly disproportionate. The Committee could send out a strong message about eligibility without undoing the progress made in Spanish rugby. There is a real passion for it now, and to deal such a blow at this point could well be knock-out.

Considering three of the five teams in the qualification tournament made similar errors, and that both Russia and Germany are relatively weak, the advantage which Spain gained by having ineligible players is negligible. Prospective sanctions preventing Belie and Fuster from playing for Spain, along with heavy financial sanctions, would be more proportionate, and would send a message to Unions worldwide that they must be more careful.

Indeed, Regulation 8.5.1 of the World Rugby Handbook makes clear that financial penalties are the primary sanction for punishing ineligibility. Deducting so many points and taking away access to RWC 2019 frustrates not only the work done by the FER, but also the work of World Rugby itself in investing in ‘Tier 2’ nations. Spain must appeal: if they can reverse these point deductions and win a replay of the Belgium fixture, they will be on their way to Japan.

Conclusion: Suggested Grounds of Appeal for Spain

  • While the Committee’s reasoning on how France’s changes to their ‘Next’ National Team are not invalid is largely sound, the sanctions imposed are disproportionate.
  • The most analogous precedent – ‘Grannygate’, in which there were no sanctions – should have been considered, if not followed.
  • Several mitigating factors were not considered when it came to imposing sanctions which, given the strict liability, makes the outcome disproportionate. Greater weight should be given to Spain’s good faith, France’s frequent change of nomination, the lack of a World Rugby database, the disadvantaged position of ‘Tier 2’ nations, the subsequent rejection of U20 teams as ‘capture teams’, and the lack of information given to Belie and Fuster by France.
  • Given the complex and convoluted situation, any sanctions should be prospective only. Belie and Fuster are no longer eligible for Spain, and the Committee would be right to set a strong precedent going forward. However, it should do so without punishing Spain so severely for what is ultimately World Rugby’s mess.
  • Financial penalties would teach the FER a lesson about good administration. Point deductions robbing Spain of their spot at RWC 2019 will destroy the aspirations of a nation.

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Tagged: Administrative Law, Litigation, Public Law, Sport Law

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