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Sport is Not Just Football! The Case of Cricket, and of Rugby

Is cricket different? This is a tempting line of inquiry because it provides a concrete illustration of the inquiry into whether this is a law of sport or a law of sports. The league structure of English professional cricket is based on eighteen counties who play each other in four-day championship cricket (which is currently split into two Divisions) and in two principal one-day competitions. The best players are selected to play for the English national representative side, which competes in Test match and one-day competition against other countries round the world. In the past, the best English cricketers would play both for their county and, when selected, for the national side. More recently the expansion of the international programme, driven heavily by its much greater attraction to fans, sponsors, and broadcasters when compared with the county game, has meant that the best players appear only rarely at county level and have become almost exclusively full-time international cricketers.

The question is to what extent would it be lawful to introduce nationality-based discrimination into the criteria governing selection for county cricket as a means to establish a priority in favour of English players, and thereby to protect and deepen the pool of players available to play at international level for England. There are

such rules. They have been adjusted over time. Rules on ‘overseas players’ in county cricket pre-date the United Kingdom’s accession to the EU. Subsequent changes have in part been driven by perceptions of the effect of EU law: Bosman had little effect, because cross-border movement in the EU is rare since in Europe there is no Test cricket played outside the United Kingdom, but Kolpak had a greater impact as nationals of states outside Europe with association agreements similar to that with Slovakia, which was at stake in Kolpak, sought equal treatment with domestic players. The phrase ‘Kolpak player’ has resonance in cricket: South Africans have been the most notable beneficiaries. These EU-influenced rules too have changed over time. There are, moreover, instances of cricketers who are not qualified to play for England because they have already represented another (non-European) country acquiring the nationality of another Member State and then claiming entitlement to play county cricket in England as a matter of EU law, with the result that an England-qualified player is ousted. The concern in this analysis is not the detail nor the currently applicable arrangements.[1] [2] The concern here is principle and in particular whether the antipathy shown by the Court in Bosman to nationality discrimination outside the context of international representative football has the same force when applied to cricket.

It does not have the same force.34 The example of cricket sharpens awareness of the argument which the Court chose to miss in Bosman. Imagine a rule introduced by cricket administrators concerned about the future health of the England team that requires counties, in assembling their squads, to select only players qualified to play international cricket for England, or, at least, to reserve a certain percentage of the places on the squad to players who are so qualified. This would involve discrimination against EU nationals who do not carry the required sporting connection with England. Another variant would be to distribute income raised from the international game on terms that favour those counties who prioritize the selection of England-qualified players: again, the result would be to discriminate against EU nationals who are not England-qualified. It was argued earlier that the Court’s logic that national football teams will not suffer from the abolition of nationality discrimination because players unable to find a place locally will be able to cross borders in search of work misses the point that the patterns of migration will not be consistent: some states will be net losers. But the logic clearly does not work in the context of cricket. An England-qualified cricketer whose place is lost to an EU national who is not English-qualified cannot work as a cricketer anywhere else in the EU. So the presence of the migrant unarguably restricts the size of the available pool of English-qualified players and risks damaging the strength of the national representative side. So the rejection in Bosman of the need for nationality-based restrictions in club competition as a device to sustain the national side is based on the economic pattern of football, which is played professionally in almost all European states, and even if I have previously argued that it is not fully convincing in the context of football, it simply does not apply at all to cricket, which is played professionally in only one European state, the United Kingdom. So this means that cricket should be able to exclude or at least limit opportunities for EU nationals who lack the necessary qualification to play international cricket for England, for otherwise the production of an England international team that is good enough to compete with the other Test-playing nations will be imperilled.

So EU nationals do not have to be treated alike but can be separated out on the basis of qualification to play cricket for England.35 There are other reasons for treating cricket differently from football. Football supporters watch both club and international football in large numbers, live, on television, and increasingly through other audiovisual media. Both club and international football are commercially highly significant. But in cricket attendance at county games is dwarfed by the numbers that pay to see international cricket, live or on television or through other media. Broadcasting of county cricket games is of trivial significance. County cricket would be unsustainable in anything remotely comparable to its present shape were it not for the substantial income transferred to the counties from the pot filled by income from ticket sales, sponsors, and broadcasters of international cricket. Nothing of this sort occurs in football, where the relationship between club and country is strikingly less hierarchical. The richer football clubs might plausibly consider the international game a drain on their resources, not a supplement, in part because there is competition between club and international competitions to attract sponsors and broadcasters and in part because clubs must release their best players to play—and get weary or even injured—at international level.36 In cricket it is well understood that the best players will rarely appear for their county. In football many supporters have an ambivalent attitude to the national side—they typically want it to succeed, but feel a stronger tie to the club they follow week in, week out—whereas by contrast in cricket it is more readily accepted that the primary function of the county game is to produce players capable of representing the national side. Country stands unarguably above club in cricket; not so in football.

In Walrave and Koch the Court insisted that any restriction on the scope of EU law must ‘remain limited to its proper objective’,37 and although the precise understanding of just how and why sport intersects with EU law has been adjusted by the Court over time, as explored in the previous chapters, this basic controlling formula has not been abandoned. So the Court’s insistence in Meca-Medina that EU competition law is not infringed on condition that restrictions ‘must be limited to what is necessary to ensure the proper conduct of competitive sport’ and that they do not ‘go beyond what is necessary in order to ensure that sporting events take place and function properly’ is a functional equivalent.38 To insist on no players lacking [3] [4] [5]

English qualification in the county cricket game might be the subject of challenge by an EU national on the basis that such a stringent approach goes beyond what is needed to sustain the national game. In this vein, it might be possible and sensible to differentiate players not qualified to play for England and who never will be qualified, on the one hand, and, on the other, those not currently qualified to play for England but who might become so as a result of meeting residence require- ments.[6] The latter appear to have a stronger claim to being allowed admission. But it is improbable that these refinements would be the subject of intense or sceptical review by the Court, provided the basic point—that all EU nationals do not have to be treated alike but can be separated out on the basis of qualification to play cricket for England—is accepted.

Cricket, then, is different from football. In so far as one seeks to argue that nationality-based discrimination is permissible because of its contribution to sustaining the health of the national side, one is making a much stronger case in relation to cricket as contrasted with football because in cricket, but not in football, there is clear acceptance that the national representative team stands culturally and commercially at the summit of the sport.

Rugby would provide another intriguing case study into the possible adaptation in the interpretation and application of EU law in the face of sporting discrimination and the scope to understand that a law of sports, not sport, is at stake. Rugby, like cricket, has ‘Kolpak players’, and so similar questions arise about the extent to which eligibility for a national team may be used as a basis for distinguishing between players in the selection rules laid down by the lex spor- tiva. However, practice in rugby has a particular twist. The English Rugby Union has agreed with the clubs in its main competition, the Premiership, that players who choose to play professionally for a club outside England will be considered for selection for the English national side only in exceptional circumstances.[7] Strong preference is therefore given to a player who works for an English club. In practice the deterrent effect largely applies to players tempted to play professionally in France, the only other country in Europe apart from England which has a significant number of professional rugby clubs. This plainly brings EU law into play.

As in the case of cricket, the argument would be to defend an apparent restriction on rights granted by EU law in the light of the contribution to sustaining the health of the national side, on the basis that the relationship between club and country is not the same as that found in football and addressed in Bosman. But in rugby the argument is not convincing. There is a cross-border market for players in club rugby, in contrast to cricket, and the rules governing eligibility for the English national side distort that market by deterring cross-border movement, to the advantage of commercial operators in the state where the rule is made and enforced. The most obvious consequence, and arguably the motivation, of such rules is that they encourage English-qualified players to play in England rather than France. This tends to reduce the competition on wages in the (cross-border) market to the commercial advantage of owners of English clubs and helps to improve the appeal of the English Premiership at the expense of competing events. Observations by those engaged in agreeing and enforcing the rules readily bring to mind the dismissive attitudes of governing bodies in the run-up to Bosman. Mark McCafferty, chief executive of the English Premiership, was reported to have described it as a ‘joint policy’ and stated that ‘Nobody is doing it against anybody’s will in terms of the partnership between England, the RFU and ourselves’.[8] [9] This complete blindness to the effect of the rules on players helpfully underlines that this is a horizontal restraint agreed by and for the advantage of employers. Moreover, the rule, in so far as it leads to some players choosing to forgo international recognition in favour of a lucrative deal in France, weakens the strength of the English national teamTh The only sporting reason that might be advanced to defend the rule would relate to difficulties that might arise in securing the release of a player based in France for an England match— but this cannot justify a general unwillingness even to consider the selection of such players, which therefore constitutes a disproportionate interference with free movement rights granted by EU law.

The footballing equivalent would be to withhold selection for the English national side to a player who chose to play for Juventus or Real Madrid, rather than for Chelsea or Liverpool. There could be no good reason for this—only the bad reason of protecting Chelsea and Liverpool’s chances of contracting with the player. And the national side would be weakened by such obstinacy. The rule would not be allowed in football and its equivalent in rugby should not be allowed either.

A broader observation, introduced earlier, asks whether it is sound policy to restrict access to the labour market on the basis of nationality or proxies such as qualification to play for the local international representative side. The result is to create a cosy advantage for those players that meet the stipulated criteria which is not the result of their talent and which will grant them artificially enhanced power in the market for wages. If X gets the job ahead of equally able Y simply because X has the ‘right’ nationality, the result may be that the national team will be improved (if X improves as a result of his or her privileged position) but the result will be that

X is paid more than Y in that market—unless there is a vast supply of Xs, which defeats the argument in favour of granting X any advantage in the first place. It also may be the result that X will become lazy because he or she does not need to be better than or even as good as Y to get the job they are both chasing.

The rules in rugby confer an automatic advantage on a player simply because he has chosen to stay at home. One might wonder whether the rules are in fact counter-intuitive. Surely the player who broadens his horizons by playing elsewhere would be more likely to improve, unless it were clear that the French game is much weaker than that in England, which is demonstrably not the case. This might add a suspicion that the real aim of the rule is to give English clubs a competitive advantage in the (cross-border) market for (English) players.

But the point of this discussion has been to make the case that i/'governing bodies in sport want to introduce such rules they should not treat Bosman as an inevitable bar. It will, however, depend on the particular circumstances prevailing—this is in its practical application a law of sports, not a homogenous law of sport. Cricket is special. If it is believed that cricketing counties are tempted by shortterm success to hire EU nationals who are not English-qualified and that such tactics will lead to a weakening of the national team and that a rule imposed by the authorities of the sport is needed to sustain that core activity, then EU law would not preclude this. It would be necessary to sustain the very existence of genuinely competitive, international representative cricket. This argument should have been treated with more care by the Court in Bosman, where the judgment mistakenly assumes that the reciprocal nature of worker migration cures any problem of diminished talent available for national representative sides. It does not, in states with net inflows of workers. Even so, there were strong enough other reasons in Bosman to conclude that, overall, nationality discrimination in club football should not be permitted as a matter of EU law. As explained, in rugby the deterrent effect on free movement of English rules that favour players who work in England is also not justified as a matter of EU law. However, the case for nationality discrimination in cricket below international level is a good deal more powerful.

  • [1] The currently applicable ECB Regulations are at accessed 29 November 2016.
  • [2] cf S Boyes, ‘Caught Behind or Following-On? Cricket, the European Union and the BosmanEffect’ (2005) 3(1) ESLJ 2 accessed29 November 2016.
  • [3] Is this even direct discrimination at all, since it is based on sporting nationality rather thanpassport-based nationality? See sect 8.9.
  • [4] 36 On the compatibility of this system with EU law, see Ch 10.8.
  • [5] Walrave and Koch (n 1) para 9. 38 Meca-Medina (n 3) paras 47, 54.
  • [6] Some of the best England cricketers of recent years have qualified in this way.
  • [7] The policy dates from 2011: ‘England to Only Pick Home-based Players from 2011’ BBC Sport,2 December 2010 accessed 29November 2016. It continues: ‘Eddie Jones [England’s coach, an Australian] insists he is happy notto pick overseas players for England’ The Guardian (London, 20 November 2015) accessed 29 November 2016.
  • [8] ‘England to Continue Overseas Ban’ PlanetRugby, 17 September 2015 accessed 29 November 2016.
  • [9] 42 There was much grumbling about its damaging effects in the wake of England’s failure to reacheven the quarter-finals of the World Cup, which it hosted in 2015: eg ‘England Overseas SelectionPolicy Criticised by Nick Abendanon’ Sky Sports, 5 October 2015 accessed 29 November 2016.
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