It’s October, a time of annual tradition, especially in Welsh rugby as old arguments are reached for and played out before the November internationals. Geraint Powell is reassured by familiar feelings at this time of year – as Wales row with the English clubs over whether they can play the likes of George North – but asks, does it really have to always be this way? On Monday afternoon, the row was settled when the clubs lifted their blockade. But it’s a temporary measure and next year the Goundhog will be centre stage again.

 

The groundhog, Punxsutawney Phil, really belongs in Welsh rugby every October (save for a World Cup year) before hibernating for the winter.  He is truly wasted just predicting the spring weather in Pennsylvania.

I am personally starting to really empathise with meteorologist Phil Connors, memorably portrayed by Bill Murray in the 1993 hit film, as World Rugby’s Regulation 9 “Groundhog Month” issue crops up yet again in relation to the Welsh 4th Autumn International outside of the prescribed minimum Regulation 9 window for Test matches.

Every November, other than during a World Cup year, Wales host touring teams (invariably two from Tier 1 and one from Tier 2) on the 2nd, 3rd and 4th weekends in November within Regulation 9.  This season it will be Argentina on 12 November, Japan on 19 November and South Africa on 26 November.

All non-Test teams, whatever nationality or ownership model, globally are required to release their players for this minimum period of Test rugby without recompense.  For a private owner at non-Test level, acceptance of this regulation is another one of the conditions precedent to his entering and investing in the sport at all.

Given the preparation time limitations in Regulation 9.7, and the need to properly prepare, many nations ensure that domestically based players are available for much longer periods even for training.  Either through arranging from their domestic subsidiary business or, as in some countries, with domestic private owners below Test level.

As we have previously seen, beyond travelling/accommodation expenses, 6 Nations Test teams earn nothing from their Regulation 9 June tours to SANZAAR and, vice versa, SANZAAR earn nothing from their Regulation 9 November visit to the 6 Nations.  It is a host Test team retention financial model, a source of increasing anger in the Southern Hemisphere with the ever increasing non-terrestrial broadcaster duopoly fuelled player wage inflation at the English and French clubs and player mobility poaching.

The Welsh rugby business model is predicated on a revenue earning 4th match outside of the Test window against another Tier 1 country (themselves earning an appearance fee).  The match has traditionally been played on the 5th Saturday in November (where there is one) or on the 1st Saturday in December (where there is no fifth Saturday in November).

This has proved controversial with fans of the regions/”super” clubs, because it interferes with the preparations for the European matches traditionally played a week later.  This season, so cash-strapped are they currently, Australia are playing England after the Test window on 1 December.  But they are also playing Wales before the Test window on 5 November, the same day that Ireland are playing New Zealand in Chicago in addition to their Regulation 9 Test match against the All Blacks in Dublin on 19 November.

This has currently triggered another kerfuffle on Welsh rugby social media because the domestic based Test players will not be available for the Pro12 Welsh derbies being played on 28/29 October.  Blues v Scarlets and Ospreys v Dragons.  As the Australia Test date was known long before the Pro12 fixture list was agreed, and despite the commercial revenue hit, the overriding consideration must have been that derbies with weakened region squads on 28/29 October could not result in more than two Welsh defeats.

But the focus of this piece is upon those players based outside Wales, players who were not able to gain automatic additional release for the Wallabies match as a result of the RSA 2014-20 between the WRU and the Welsh regions.  For this has become the annual “Groundhog Month” for Welsh rugby every non-World Cup season and the player availability debate every such October has become extremely tiresome.

Players exiled in France have had little problem in obtaining additional release in their employment contract with their individual club, the French clubs being more commercially self-sustaining and not so dependent upon income streams from the FFR (the French rugby union).  Freedom of contract rules, in place of collective policy across all Top 14 clubs, and individual French clubs have been reasonably happy to agree an extra week’s release to Wales to ensure they capture the marquee signing for their Top 14 campaign e.g. Leigh Halfpenny will be contractually released by Toulon for the Wallabies Test as part of his employment contract.

There are two problems in Welsh players going to France, flogging in a 26 match domestic league and overall conditioning suitable for Test rugby, but players obtaining additional release has not proved a serious obstacle.  And the French clubs provide a useful insight into natural club behaviour, other things being equal.

The situation is radically different in England, other things not being equal, and where the clubs are far more commercially dependent upon their payments from the RFU (the English rugby union).  As former England prop Jeff Probyn described the business model of the English clubs on 30 September – “Even those boasting a profit can only do so because of the money extorted from the RFU and the rest of the game for the use of their players.”

In 2007, the English clubs agreed an 8 year participation agreement with the RFU for 2008-16. Payments in excess of £100 million over the duration of the contract, primarily culminating in the use of the player assets that the RFU, just like the FFR and the WRU, negligently failed to secure for themselves in 1995.  And the amount being paid by the RFU in the successor 2016-24 participation agreement has apparently doubled in this crazy era of “prune juice” player inflation.

This is an income stream that the English clubs are naturally very anxious to protect.  Very anxious indeed.  If the RFU are paying an awful lot of cash for additional access to English players, including additional release for non-Regulation 9 England Tests, then the English clubs additionally releasing players to Wales for free would be commercially illogical for both the clubs and for the RFU.

Hence the policy of the England club cartel to prohibit any club from agreeing an additional release clause with a non-English player and the one-off £60,000 fine levied on Northampton in 2013 when they granted additional release to George North in his 2013-16 employment contract in breach of the cartel’s policy.  With a less than subtle hint from the cartel that further breaches by any club could result in substantially higher fines and even points deductions.

The issue has come to the forefront again with interim Welsh coach Rob Howley announcing that George North (now a possible injury doubt) and Jamie Roberts have confirmed to him their availability for the Wallabies Test match.  George North’s club for one do not agree.  This is a ridiculous state of affairs, for such a serious matter and such a straightforward question.

In the absence of any agreement between the WRU and the English club cartel, or any provable binding oral agreement outside of the written employment contract (i.e. with some form of consideration) between the club and the player, it is a simple question of reading individual player contracts for the appropriate additional release clause in an employment contract.  If there is one, the player is available if he contractually enforces it.  If there is not one, the player is unavailable.  In the absence of a particularly unhappily worded and ambiguous clause, this would take the WRU general counsel or another WRU solicitor less than a minute to verify either way.

This is a separate legal question to the repercussions for any club that breaches cartel policy.  For Northampton, at least in relation to the 2013-16 contract where it was agreed by all that additional release had been contractually granted, the fine was just an additional player employment cost for them outside of the salary cap and treated by them as such.  £60,000, or £20,000 a season, added to the cost of a long-term profitable club in employing George North.

Because of the impact upon George North under a separate contract to which the cartel is not a party, if the latest employment contract repeats such a clause (which Northampton appear to deny), it would be unlikely that the cartel could obtain any court injunction prohibiting George North from playing and the cartel’s legal remedy would be confined to punishing Northampton for breach of cartel policy.

The law in relation to restraint of trade, as with most areas of competition law, is far from straightforward in the event of a club or clubs challenging the cartel policy.  Whilst the cartel prima facie has a legitimate interest in protecting its income stream for additional release from the RFU, the other side of the equation relating to blocking a player’s right to freely negotiate his contract with his employer is where the cartel is on far weaker legal ground.  One could easily see a club or clubs refusing to pay any fine and/or accept any points deduction and mounting a successful legal challenge.

If there is no repeat of the additional player release in his latest employment contract, then serious questions should obviously be asked of George North and his agent about the re-sign.  Exacerbated by his apparent advice to the WRU that he is available.

So, in practical terms, accepting that a non-Regulation 9 Test is integral to the Welsh rugby business model, what are the solutions to this annual “Groundhog Month” issue in Welsh rugby?

(1) The obvious solution in terms of removing the onus from an individual player altogether and his usually less than dependable and enthusiastic agent, especially if the agent is on a % payment, is for the WRU to reach a collective agreement with the English club cartel and remove players/agents from the equation.

The problem with this approach is that it is hardly consistent with the home preference of expanding dual central contracts and “play in Wales to play for Wales” policy currently subject to only a very limited number of “wild card” exceptions.

Transferring funding away from the domestic regions, for that is what would have to happen as there is no reserve pot of money to give to English rugby beyond that £6.7 million to the regions plus dual central contracts, to pay the English clubs for additional release would not be consistent with overall current WRU policy in this area.  In fact, the very direct opposite.

(2) The other extreme is for the WRU to simply draft a specific standard WRU exile additional release clause for giving to players for insertion in their employment contracts and for the WRU to announce at this stage that, from 2020, exiled players will not even be eligible for any “wild card” or replacement regime unless they additionally have this standard clause inserted into their exile contracts of employment.

This would well and truly place the burden on individual players and their agents, including potentially taking a financial hit even if a club is prepared to break rank and grant additional release, adding another disincentive to exile but risking increasing the pool of unavailable Test talent in the failure to obtain on a still narrow player base.

And recent history tells us that Welsh players are notoriously weak at imposing their will on their own money driven agents.

(3) The half-way house would be for the WRU and for the English clubs to formally trade Regulation 9 release, exchanging availability for the Regulation 9 Tier 2 Test match for the non-Regulation 9 Tier 1 Test match.  Especially as the Regulation 9 Tier 2 Test match frequently coincides with an Aviva league weekend in England, unlike the non-Regulation 9 Tier 1 Test match.  Simply trading existing release, not obtaining any additional release.

Would World Rugby intervene, because Regulation 9 is not being fully complied with by the WRU as a constituent Tier 1 union (or by another, the RFU, through tacit approval?)?  I would suggest that must be unlikely, with release for 3 matches still obtained.  De minimis compared to apparent allegations that some clubs are pressurising Pacific Islanders into Test retirement before awarding contracts.

This approach would at least still limit cartel player release to 3 matches, entailing no additional release in terms of quantity if not in terms of date, and something justifiable to the RFU.  It would remove for the English clubs a serious disincentive to Welsh players, ready for exile, in selecting them instead of French clubs.  The Welsh players would be available for a more important English domestic club weekend.  And it would also minimise the risk of an unhappy and/or penalised club from launching a successful legal challenge against the entire policy, with potential implications for RFU payments for additional release.  And the WRU will still only have access for three matches.

I recollect that Bath tried to agree a trade on an individual basis in November 2013 over Paul James that mutually suited them, the player and the WRU, but were stamped on from above by the cartel.  So such a trade will have to be agreed between the WRU and the club cartel, and would amount to a fudging of the overall issue.  But, as we all know, since 1995 rugby in the Northern Hemisphere has loved a jolly good fudge!

Those are the options, to put an end to this tiresome and tedious annual nonsense.

And as for Punxsutawney Phil, the groundhog in Pennsylvania?  If he was brought to Wales, and in the absence of any modernisation progress, he would probably play safe and predict another month of the same nonsense in Welsh rugby in October 2017.

This article appears courtesy of The VietGwent – a Welsh rugby blog. https://thevietgwent.wordpress.com/2016/10/23/the-welsh-national-squads-annual-groundhog-month-the-non-regulation-9-test-match-additional-release-issue-yet-again/