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Regulating against player movement in professional rugby league: a competition law analysis of the RFL's "club-trained rule".

Who do you want to play for Great Britain Great Britain, officially United Kingdom of Great Britain and Northern Ireland, constitutional monarchy (2005 est. pop. 60,441,000), 94,226 sq mi (244,044 sq km), on the British Isles, off W Europe. The country is often referred to simply as Britain. ? The elite or the mediocre? Because at the moment you are forcing clubs to sign mediocre players instead of other players because of this [club trained rule]. ... The problem is we don't have enough top quality players in this country. There needs to be something done to develop players for Great Britain ... but I don't think this is the right tool.' (1)


In recent years the number of foreign players participating in Europe's premier professional rugby league Professional Rugby League (Russian: Профессиональная регбийная лига  competition, the Super League competition, has increased. (2) According to according to
1. As stated or indicated by; on the authority of: according to historians.

2. In keeping with: according to instructions.

 the Rugby Football League, the sporting code's governing body Noun 1. governing body - the persons (or committees or departments etc.) who make up a body for the purpose of administering something; "he claims that the present administration is corrupt"; "the governance of an association is responsible to its members"; "he  for rugby league in the United Kingdom, in 2007 at least 45% of players employed in the Super League competition were ineligible to play for Great Britain. (3) Rugby league is played at a professional level in the United Kingdom, France, New Zealand New Zealand (zē`lənd), island country (2005 est. pop. 4,035,000), 104,454 sq mi (270,534 sq km), in the S Pacific Ocean, over 1,000 mi (1,600 km) SE of Australia. The capital is Wellington; the largest city and leading port is Auckland.  and Australia, and the Super League competition is one of two full time professional rugby league competitions in the world (the other competition is the Australian NRL Noun 1. NRL - the United States Navy's defense laboratory that conducts basic and applied research for the Navy in a variety of scientific and technical disciplines
Naval Research Laboratory
). At some stage during a professional career a foreign player may take up employment in the Super League competition.

Many of the foreign players who play in the Super League competition are from Australia, New Zealand or the Pacific Islands. Some of those players are dual nationals (with one nationality being that of a Member State); or are nationals of a country with whom the European Union has an association agreement. These players fall outside the scope of the RFL's "overseas quota rule" which limits to five the number of foreign players which a Super League club may register in its first team squad. (4)

A foreign player of dual nationality An equal claim, simultaneously possessed by two nations, to the allegiance of an individual.

This term is frequently perceived as synonymous with dual citizenship, but the latter term encompasses the concept of state and federal citizenship enjoyed by persons who are born or
 with (one nationality being that of a Member State) is able to provide playing services to a Super League club without national immigration immigration, entrance of a person (an alien) into a new country for the purpose of establishing permanent residence. Motives for immigration, like those for migration generally, are often economic, although religious or political factors may be very important.  constraints. Other foreign players participating in the competition-including those players who may benefit from the decision in Deutscher Handballbund eV v Kolpak (5) -require immigration approval to work as a professional rugby league player in the United Kingdom. The criteria for a professional rugby league player's work permit are determined by the United Kingdom Border Agency following consultation with the RFL RFL Relay For Life (American Cancer Society fundraiser)
RFL Rugby Football League (UK)
RFL Robot Fighting League
RFL Refuel
RFL Resorcinol-Formaldehyde-Latex
 and the Rugby League Players Association ("RLPA RLPA Religious Liberty Protection Act
RLPA Rugby League Professionals Association
RLPA Replacement Level Players Association
RLPA Rotating Log Periodic Antenna
"). (6) Consultations usually take the form of meetings and/or written correspondence, and the criteria are renewed annually. (7) Overall, the immigration procedures for employing a foreign player in the Super League competition are similar to those which apply to other industries in which an employer wishes to employ foreign labour.

The increased number of foreign players in the Super League competition purportedly harms the employment opportunities of local players in the competition; and reduces the pool of players available for selection to the English international representative team with a consequential con·se·quen·tial  
1. Following as an effect, result, or conclusion; consequent.

2. Having important consequences; significant:
 detrimental effect for the success potential of the team in international representative matches. Consequently, in 2008, the RFL adopted the "club trained rule" (which is based on UEFA's "Home-Grown Player Rule"). The "club trained rule" aims to reduce the number of foreign players in the competition (amongst other things). Pursuant to the rule, a club's first team must comprise of a certain number of players who satisfy the definition of "club trained", "federation trained" and "academy junior". (8) If a player does not satisfy the relevant definition in relation to his employment at a particular club, he is ineligible for registration with the RFL and unable to provide playing services to that club. (9)

This article: examines the legality le·gal·i·ty  
n. pl. le·gal·i·ties
1. The state or quality of being legal; lawfulness.

2. Adherence to or observance of the law.

3. A requirement enjoined by law. Often used in the plural.
 of the "club trained rule" under Article 81 (EC). It considers the background to the rule's introduction, including: the regulatory framework in which the competition operated in 2007; the principal pathway for a player into a professional career in Super League; the factors that influenced the level of financial investment made by a Super League club in junior player development; and the factors that influenced club demand for foreign players. It summarises the relevant market; highlights the rule's market effects; examines the justifications advanced in favour of the rule; and considers whether or not the rule is a proportionate means of achieving a legitimate aim, taking into account the "specificity of sport". (10) The article concludes that the "club trained rule" is anticompetitive; does not satisfy the requirements of the test established in Meca-Medina and Majcen v Commission; (11) and was unnecessary in light of other changes to the competition's regulatory framework made between 2007 and 2009.

"The Club Trained Rule"

Pursuant to the "club trained rule" a Super League club's first team must comprise of: a maximum of five players who satisfy none of the definitions of "club trained player", "federation trained player" or "academy junior"; and a minimum of eight club trained players or academy juniors. The remainder of the team must comprise of federation trained players or academy juniors. (12)

"Club trained player" is defined as, 'a player who has been on the Club's register for any 3 full Seasons before the end of the Season in which he ceases to be eligible by age for Academy rugby league.' (13) "Federation trained player" is 'a player who, for any 3 full seasons before the end of the season in which he ceases to be eligible by age for Academy rugby league has been on one of the Club's registers or the register of another Club being a member of the same rugby league federation'. (14) An "academy junior" is a player 'who is eligible by age for Academy rugby league and who is on the club's register'. (15) A player ceases to be eligible by age for academy rugby league at twenty one years.

The RFL may declare that a player who does not comply with the rule's requirements is nonetheless "federation trained" or "club trained" provided the player demonstrates that he 'satisfies the spirit of the definition'. (16) Failure to comply with the "club trained rule" is an act of misconduct. (17) Penalties imposed against a club for an infringement of the rule include: a fine; the deduction of competition points; or the requirement that a club play its games behind In sports, the phrase games behind, often abbreviated as GB in tables, is a common way to reflect the gap between a leading team and another team in a sports league, conference, or division.  closed doors (amongst others). (18)


Before examining the legality of the rule under Article 81 (EC) it is pertinent to consider the context in which the sport was played immediately prior to the rule's introduction. The information summarised below is extrapolated from interviews conducted with industry stakeholders Stakeholders

All parties that have an interest, financial or otherwise, in a firm-stockholders, creditors, bondholders, employees, customers, management, the community, and the government.
 during 2007. (19)

1. The Principal Pathway Into Employment in the Super League Competition

In 2007 the principal pathway for a player into a full time professional career at a Super League club was through participation in rugby league at school or an amateur club. The RFL-then as now-divides the United Kingdom geographically into service areas which are based on metropolitan council boundaries. Talented junior players are selected from amateur clubs to play "service area" rugby. The service area competitions are divided into age levels (for example, under-15, under-14, and so on). Players who participate in service area competitions are also likely to attend regional and national rugby league training camps.

A scholarship scheme runs in conjunction with the various service area, amateur and school competitions. Pursuant to the scheme a professional rugby league club provides an annual scholarship to a player aged seventeen years or under. The player receives advice on nutrition and fitness and is permitted to train with the professional club. The RFL Scholarship Scheme Rules regulate the scheme. (20)

At seventeen years of age a player is eligible for employment in a Super League club academy team and from the academy may obtain a contract as a full time professional player in the first team of a Super League club. Those players who do not obtain employment in a first team may seek employment as a part time professional player in the competition divisions below Super League or leave the industry altogether. (21)

2. Factors That Influenced Recruitment Decisions

In 2007 professional players were typically recruited to a Super League club's first team from: the club's academy; other Super League clubs; the Australian NRL clubs; and Championship clubs. Factors that influenced a club's decision to recruit a player were: the player's skills; the player's contract costs; the salary cap; a player's personal attributes and character; whether the player fitted within the team dynamic; the player's potential off-field contribution to the club; the player's experience and/or age; the player's public profile, and the player's potential to add-value to the club's brand and generate income for the club's sports business. The effect of a player's recruitment for the development of the Great Britain international representative team was not a consideration for a majority of the British clubs.

Nationality was a factor in the recruitment decisions of the French club, Catalans Dragons. A goal of the club was to develop French rugby league and the calibre calibre

see caliber.
 of French professional rugby league players. Of 28 players employed at the time of interview in 2007, twenty players were French and eight players were from Australia and New Zealand.

The majority of British clubs interviewed preferred to recruit players residing locally rather than foreign players. However, information extrapolated from interviews suggested that a shortage of skilled professional players existed in the northern hemisphere. As one club sta-ted:
  '... the policy we have is to recruit the best players available to
  ensure we have the best possible team from whatever origin that is.
  ... As an individual club we would rather recruit English players
  than overseas players but the quality isn't always there in the
  English players that it is in the overseas players, particularly in
  the Australian players'. (22)

The majority of British clubs interviewed commented that it was not cost effective to recruit a foreign player when compared to the cost of investment in an academy or junior player development. One club stated that it was cost effective in the short term. The cost of recruiting a foreign player was described as including: the player's salary; transport costs to and from the United Kingdom; accommodation costs; and the costs associated with providing a car. In some cases, it also included the costs of relocating the player's family. The cost of developing a player in the academy was described as the player's salary plus the money invested in junior player development. Over time the cost of developing a junior player was cheaper than recruiting a foreign player. The recruitment of a foreign player was described by some British clubs as a "short term" or "easy option" when compared to the time taken to develop a junior player.

3. Factors That Influenced Club Demand For Foreign Players

In 2007 the factors that influenced Super League club demand for foreign players were: the threat of relegation from the competition; the means of entry for a club into the competition; a shortage of skilled local players; and the financial benefit accruing to a club from the employment of a foreign player (particularly a high profile player).

One club described increasing its recruitment of foreign players during the playing season in order to avoid relegation. Those clubs interviewed that entered the competition by way of promotion from the division below Super League commented that the recruitment of foreign players increased following promotion. The point in time at which promotion was confirmed; and the non-availability of skilled players in the local labour market contributed to an increased demand for foreign players. According to one club:

'There aren't very many players around once you get promoted and you look where you can. Most of the quality English players are all signed because generally people would prefer to sign English players rather than overseas players so then you look overseas where there are a lot more players in Australia and New Zealand, particularly in Australia where there are a lot more people playing the game there than what there are here.' (23)

London Broncos (now Harlequins RL) entered the Super League competition in 1995 and Catalans Dragons was admitted by agreement of the existing Super League clubs in 2006. Both clubs were provided with an exemption from the "overseas quota rule" which enabled the clubs to recruit an increased number of foreign players. The exemption was provided owing to owing to
Because of; on account of: I couldn't attend, owing to illness.

owing to prepdebido a, por causa de 
 a shortage of skilled players in the local labour market.

Finally, one club reported that recruitment of a high profile foreign player had positive financial effects for a club's sports business:

'You know when [name omitted for reasons of confidentiality] came over to play for us, did it have an uplifting factor on all of the squad here? Absolutely. The whole borough wide community. Shop sales, lottery sales, everything benefited. ...' (24)

4. Foreign Players in the Super League Competition

According to those industry participants interviewed, foreign players benefited the competition, clubs and consumers in a number of ways. First, foreign players brought to the Super League competition: new playing skills; experience of development, training and playing methods used in the Australian NRL; and professional work habits (such as, for example, an awareness of player responsibilities to the club and its sponsors).

Secondly, some foreign players: acted as role models for less-experienced players; and shared playing experience and skills which assisted the development of local players. Thirdly, foreign players with experience of playing at an international representative level provided a benchmark against which British and French international representative players could measure their skills. Fourthly, a high profile foreign player contributed positively to a club's financial position through, for example, increased gate revenue and merchandise sales. Overall foreign players assisted with improving the standard of rugby league played in the Super League competition.

Some industry participants commented that competition from foreign players for employment in the Super League competition had: limited the development opportunities of some local players; and reduced the selection pool for the Great Britain international representative team. A successful international representative team brought benefits for a Super League club's business and the game as a whole by raising the profile of the sport. Three clubs interviewed also commented that their respective supporters preferred to see a majority of local players in a team rather than a team comprising mainly of foreign players.

Interestingly, those British players interviewed who followed the principal pathway into a career in Super League did not perceive the presence of foreign players in the competition as an obstacle to gaining employment. Instead players referred to: competition with experienced players generally (irrespective of irrespective of
Without consideration of; regardless of.

irrespective of
preposition despite 
 nationality); the higher performance expectations of a player in the competition (when compared to the performance expectations in the academy competition); more strenuous training requirements; and the faster, more physical level of play when compared to that required to participate in the academy competitions, as obstacles to gaining employment or playing opportunities in a Super League club first team.

Finally, participation in the Super League competition provided some foreign players with the opportunity to gain selection to an international representative team (subject to the selection policy adopted by a sporting code's governing body). One New Zealand rugby league The New Zealand Rugby League (NZRL) is the governing body for the sport of rugby league in New Zealand.

The NZRL administers the Kiwis, the New Zealand national team.
 player interviewed commented that playing in Super League had assisted his career progression through to selection for the New Zealand international representative team.

5. Factors That Influenced Club Investment in Junior Player Development

In 2007 the number of players and coaching staff employed in a Super League club academy; and the quality of training facilities differed between clubs. Generally, those more affluent clubs with a history of playing in the Super League competition had well established academies, and academy players were recruited to: the club's first team; another Super League club; or a club in the Championship competition divisions.

A club's: financial circumstances; history of participation in the Super League competition; and policy concerning junior development, influenced the level of investment that a club made in its academy. Some clubs interviewed commented that investment in junior development was not a priority when the club was seeking promotion or avoiding relegation.

In 2007 Super League clubs received financial payments from the RFL for: rugby league scholarships; the employment of a player performance manager; and the development of a player who was selected to the Great Britain international representative team. No other financial incentives were provided by the RFL to the clubs for investing in junior player development.

Changes to the Regulatory Framework Between 2007 and 2009

Between 2007 and 2009 a number of amendments were made to the competition's regulatory framework. First, the means of entry for clubs into the competition was amended; relegation and promotion was removed and replaced by a franchise licensing system. The license application process assesses the club against criteria which take into account: the club's playing strength (including investment in the development of junior players); and the club's financial position and business performance amongst other things. Secondly, in 2009 the number of clubs competing in Super League was increased from twelve to fourteen thereby increasing the number of full time players required for the competition. The following section summarises the market for playing services provided to the Super League competition, and discusses the effects of the "club trained rule".

The Relevant Market Defined

The "club trained rule" applies in the market for playing services to the Super League competition. (25) The Super League clubs which compete in the competition from time to time comprise the demand-side. A Super League club requires twenty five players for its first team squad. A change in the number of clubs participating in the Super League competition may increase (or decrease) demand for playing services. In 2009 the number of clubs participating in the competition increased from twelve to fourteen thereby increasing demand from 300 players to 350 players. A change in the regulatory rules to permit a club to name more players in a first team squad may also positively affect demand.

On the supply-side, the market comprises of players with skills of a standard required to compete in the Super League competition. Those players generally have experience of playing in Super League. Additionally, players employed in a Super League club academy, at a Championship club or at an Australian NRL club may fall within the market provided the player has the requisite skill level and/or talent to play in the Super League competition.

The skills of players from other sporting codes are not usually substitutable for those of a professional rugby league player. (26) A rugby union player is more likely to possess skills which transpose trans·pose
To transfer one tissue, organ, or part to the place of another.
 to rugby league; although the ease with which a player may move between the codes depends on the player's talent and the position played in rugby union (for example, rugby union players who play in a "forward position" have "rucking and mauling" skills which are not required in rugby league). Those rugby union players recruited to a club generally have prior experience of playing professional rugby league. (27) Owing to the presence of French and British clubs in the relevant market, inter-state trade is potentially affected by the rule's application. (28)

The "club trained rule" was agreed by the clubs and the RFL at a meeting in June 2007 and implemented unilaterally in February 2008. For the purposes of Article 81 (EC) the "club trained rule" forms an agreement between undertakings. A Super League club engages in economic activity when it purchases playing services in the market and accordingly may be described as an "undertaking". (29) Playing services acquired by the clubs in the relevant market are used in the RFL's Challenge Cup competition, from which the RFL derives revenue. The RFL also derives revenue from the participation of the international representative team in international matches. When adopting a rule like the "club trained rule" it may be argued that the RFL is exercising a regulatory function and is not engaged in economic activity. (30) Nonetheless the rule was adopted following agreement by the RFL and the clubs; the RFL co ordinates the activity of the clubs in the relevant market; engages in economic activity on other related markets; and potentially benefits from the rule's implementation. On this basis the RFL may be described as an undertaking and a party to an agreement that restricts competition in the market for playing services to the Super League competition. (31)

Market Effects

The rule distorts, restricts and prevents competition between the clubs and between the players in the market for playing services. In the absence of the "club trained rule", a Super League club would recruit without limitation a player on the basis of his playing skills and experience (subject only to national immigration rules The Immigration Rules of the United Kingdom are laid down by Parliament and provide the framework within which entry to the United Kingdom is administered. The requirements for Leave to Enter or Leave to Remain under different categories of the Rules are provided as well as  and financial constraints). Now a club is obliged to recruit players taking into account the player's status as "club trained", "federation trained" or "academy junior". The rule may prevent a club from recruiting a player; and a player may be unable to access employment at a particular club even though demand may exist for the player's services. (32) It may also encourage player recruitment based on the location of a player's development training rather than the player's skill level. Overall, the "club trained rule" results in an inefficient allocation of resources allocation of resources

Apportionment of productive assets among different uses. The issue of resource allocation arises as societies seek to balance limited resources (capital, labour, land) against the various and often unlimited wants of their members.
. The flow-on effect for consumers is a reduction in the quality of the entertainment product.

The larger more affluent clubs with a history of developing junior players are in a better position to comply with the rule's requirements than the less affluent clubs with smaller academies. Additionally, a player who was not registered at an RFL member club prior to the age of twenty one is at a disadvantage when compared to a player who was so registered. The former player's capacity to compete for a contract in the Super League competition is reduced; and access to employment is limited. Additional effects of the rule are described below.

1. Age Discrimination

The rule as initially implemented in February 2008 had an age-related discriminatory effect that arose irrespective of a player's nationality. The circumstances of ten professional players interviewed in 2007 illustrate the rule's effects. All players were aged over twenty-one at the time of interview, and eight players were British; one player was a dual national (Australian/British); and one player was a New Zealander with British residency A duration of stay required by state and local laws that entitles a person to the legal protection and benefits provided by applicable statutes.

States have required state residency for a variety of rights, including the right to vote, the right to run for public office, the
. All players interviewed qualified under Rugby League International Federation Rules for selection to the Great Britain international representative rugby league team. (33)

Of those players interviewed, six players were not affected by the "club trained rule". Those players had entered a career in professional rugby league through employment at a Super League club academy and satisfied the rule's requirements. However, four players interviewed did not enter a career in Super League through the principal pathway and en face did not satisfy the definition of "academy junior", "club trained" or "federation trained". Owing to their age, the players were unable to comply with the rule's requirements.

The pathways of the four affected players were as follows:

* A player of dual Australian/British nationality trained and played at a club in the Australian NRL and did not qualify as "clubtrained", as "federation trained" or as an "academy junior".

* A New Zealand player with British residency was recruited from New Zealand and did not satisfy the rule's requirements.

* A British player attended a tertiary institution immediately after he left school. He played in a Super League club academy team during the summer holidays. Following the completion of his tertiary education Tertiary education, also referred to as third-stage, third level education, or higher education, is the educational level following the completion of a school providing a secondary education, such as a high school, secondary school, or gymnasium. , the player obtained a contract at a Championship club and then a contract with a Super League club. The total period of time registered at an RFL-member club before the age of twenty one was less than three years.

* A British player who did not play rugby league at school, attended university and played professional rugby union at academy level before turning to professional rugby league at twenty years TWENTY YEARS. The lapse of twenty years raises a presumption of certain facts, and after such a time, the party against whom the presumption has been raised, will be required to prove a negative to establish his rights.
 of age. The total period of time registered at an RFL-member club before the age of twenty one was less than three years.

Amendments to the rule made subsequently in August and September 2008 reduced the age-related discriminatory effect (although the timing of the rule changes nonetheless disadvantaged some players). (34) As a consequence of the amendment, the four players described above now qualify as "federation trained" (provided the player applies for the exemption). The players, however, will never qualify as "club trained" because of: the player's age; and the pathway each player took into a professional career. "Club trained" status may be more beneficial than "federation trained" status owing to the rule's requirements that a club recruit a minimum number of "club trained players".

2. Loss of "Club Trained Player" Status

When a "club trained player" moves from the club at which he received his development training, the player is categorised Adj. 1. categorised - arranged into categories

classified - arranged into classes
 as a "federation trained player" in relation to his subsequent employment at another Super League club. Owing to the minimum recruitment requirements for "club trained players" and "academy juniors", the capacity of a "federation trained player" to compete for employment is reduced. The more "club trained players" or "academy juniors" a Super League club employs, the fewer positions available for a "federation trained player". Over time a first team may potentially comprise of up to twenty five "academy juniors" and "club trained players" and zero "federation trained players". The loss of "club trained player" status may provide an incentive for a player to remain at the club with whom he received his development training or to return to that club at some point in the future. Over time, the "club trained rule" may contribute to less player movement throughout the competition thereby harming competitive balance. (35)

3. Access to Employment

The "club trained rule" limits access to employment for those players who do not follow the principal pathway into a career in professional rugby league. A professional rugby union player who undertakes his development training at a professional rugby union club does not satisfy the rule's requirements. Similarly affected is a player who learned his trade in the Australian NRL. As the interviews demonstrated above, a player who delays entering a professional rugby league career in order to pursue a tertiary education may also be disadvantaged. Although the rule applies equally to all players irrespective of nationality, it may, nonetheless, infringe in·fringe  
v. in·fringed, in·fring·ing, in·fring·es
1. To transgress or exceed the limits of; violate: infringe a contract; infringe a patent.

 Article 39 (EC) if it detrimentally affects a player's right of free movement. A detailed consideration of the rule's compliance with Article 39 (EC) is beyond the scope of this article.

Justifications Advanced in Respect of the "Club Trained Rule"

The RFL Operational Rules 2009 describe the rationale for the "club trained rule" as two-fold:
  'The purpose behind the 'Club Trained Player' Rule is to encourage
  clubs to develop and better develop their own players so that there
  are more players coming into the game and so that the standard
  improves. A further purpose is to afford an opportunity to junior
  players to play in top level competitive matches in order to aid
  their development and ensure the development of the sport.' (36)

The interviews with industry participants in 2007 highlighted additional purposes of the rule as: to increase the selection pool for the Great Britain international representative team; and to decrease the number of foreign players participating in the competition. Each of these objectives are discussed in turn.

1. To Encourage Clubs To Develop Their Own Players So That There Are More Players Coming Into The Game And So That The Standard Improves

The European Commission has acknowledged that the development of junior athletes is a legitimate objective of a professional sports The examples and perspective in this article or section may not represent a worldwide view of the subject.
Please [ improve this article] or discuss the issue on the talk page.
 organisation. (37) In Union Royale Belge des Societes de Football Association v Bosman (38) the European Court of Justice accepted, inter alia [Latin, Among other things.] A phrase used in Pleading to designate that a particular statute set out therein is only a part of the statute that is relevant to the facts of the lawsuit and not the entire statute. , that in view of the considerable social importance of sporting activities, the aim of encouraging the recruitment and training of junior players was legitimate. (39) Since the aim is accepted as legitimate, the question is whether the "club trained rule" is a proportionate means of pursuing that objective.

All clubs interviewed acknowledged investing in junior player development although the level of club investment depended upon: the length of time a club had participated in the Super League competition; and relegation and promotion. The latter no longer applies as a means of entry into the competition thereby removing a regulatory factor which may have discouraged club investment in junior player development.

Other aspects of the competition's regulatory framework already apply to encourage clubs to develop junior players. First, under the RFL Operational Rules, a Super League club is obliged to operate teams in the academy reserve competition and the U18 competition. (40) Failure to do so amounts to misconduct and penalties apply. (41) Secondly, a successful application for a Super League license requires a club to demonstrate investment in junior development. A club that wishes to obtain a Super League license will likely focus on the development of junior players (amongst other things) in order to satisfy the criteria for entry into the competition.

In light of changes to the regulatory framework between 2007 and 2009-in particular the removal of promotion and relegation-the "club trained rule" was unnecessary as a means of encouraging clubs to develop junior players. Owing to the simultaneous introduction of the "club trained rule" and the licensing system, the opportunity to measure the effect of the latter as a mechanism for encouraging junior player development was lost. Since the competition's regulatory framework already encourages clubs to develop junior players in ways that are non-discriminatory and less restrictive of competition, the rule is not a proportionate means of achieving the stated aim.

2. To Provide Junior Players With the Opportunity To Play At an Elite Level and to Aid Their Development and the Development of the Sport

A measure which provides a junior player with the opportunity to play at an elite level satisfies a legitimate objective of a professional sports business and/or sporting code's governing body. (42) Without experience of playing in Super League, a junior player may face difficulties securing a contract in a Super League club first team, and some players may be lost from the sport at an academy level as a result.

The interviews demonstrated that a club's objective of avoiding relegation may have limited the opportunities for a junior player to break into a club's first team. In order to avoid relegation, a club generally preferred to recruit or field experienced players rather than provide a less experienced player with the opportunity to play. Relegation, however, no longer applies in the competition and in light of the licensing system requirements To be used efficiently, all computer software needs certain hardware components or other software resources to be present on a computer system. These pre-requisites are known as (computer) system requirements and are often used as a guideline as opposed to an absolute rule. , a club may be more inclined to provide playing opportunities to junior players.

Some players interviewed who entered a career in the Super League competition through the principal pathway commented that competition with other more experienced players (irrespective of nationality) was an obstacle to employment in a first team. A regulatory rule which reserves a number of first team positions for academy players may be justified as a measure for assisting academy players to overcome that obstacle, provided a reasonable number of first team positions are reserved. (43)

The "club trained rule" in its current form, however, applies to all players who wish to participate in Super League and its restrictive effects are wide ranging. Whilst it may afford junior players with a greater opportunity to be included in a Super League club's first team squad, it does so in a manner which is disproportionate, discriminatory and anti-competitive.

3. To Increase the Pool of Players Eligible For Selection to the International Representative Team

A successful international representative team assists the RFL with its constitutional objective of developing the sport of rugby league. It raises the profile of the sport which in turn benefits the businesses of Super League clubs, consumers and the sport generally. The more players eligible for selection to the English international representative team, the more depth in squad positions and the success potential of the international representative team may improve as a result. In Bosman UEFA UEFA Union of European Football Associations

UEFA n abbr (= Union of European Football Associations) → U.E.F.A.
 argued that a rule which limited the number of foreign players that a football club could select for its team was required, inter alia, to promote a large pool of playing talent for selection to the international representative team of the country in which the club was located. The argument was rejected in the context of a claim brought under Article 39 (EC) and may also be rejected in the context of an alleged infringement of Article 81 (EC).

Some foreign players with dual nationality may qualify for selection to the international representative team. Over time other foreign players may qualify for selection on the basis of residency. Maurie Fa'asavalu Maurie Fa'asavalu is a former Samoan rugby union player who now plays rugby league for St Helens.dde

He is one of the most feared players in rugby league

Maurie Fa'asavalu was signed by the then St Helens coach Ian Millward in the winter of 2003 after a series of
, a former Samoan rugby union player, is an example of a player who qualified on the basis of residency for selection to the English international representative team. (44)

4. To Reduce Super League Club Demand For Foreign Players

The interviews demonstrated that demand for experienced foreign players increased when: a club was threatened with relegation from the Super League competition; a club was promoted to the Super League competition; or a skills shortage existed in the local labour market. The removal of relegation and promotion as a means of entry into the competition has removed two key factors that influenced demand for foreign players.

In times of a skills shortage the industry requires skilled foreign players to fill positions. The "club trained rule" reduces the capacity of a club to recruit skilled (and experienced) foreign players. An increase in the number of teams participating in the Super League competition in 2009 potentially exacerbates the problem and overall, there may be a decrease in the quality of the entertainment product for consumers.

The interviews demonstrated that foreign players participating in Super League: benefited Super League clubs financially through increased ticket sales and merchandise sales; improved the skills of local players; and improved the standard of play in the Super League competition (thereby enhancing the entertainment spectacle for consumers). Furthermore, attendance data collated by the RFL demonstrates that average weekly attendance at a Super League match increased annually between 2001 and 2008. (45) Since the number of foreign players participating in the competition also increased over the latter part of that period, it is arguable ar·gu·a·ble  
1. Open to argument: an arguable question, still unresolved.

2. That can be argued plausibly; defensible in argument: three arguable points of law.
 that the number of foreign players in a Super League first team squad does not negatively affect supporter interest. The positive benefits provided by foreign players to the competition, local players and consumers outweigh the introduction of a rule that discriminates, limits competition in the relevant market and ultimately reduces the quality of the sporting spectacle for consumers.


The "club trained rule" is anti-competitive, discriminatory and disproportionate to the aims it seeks to achieve; it infringes Article 81(1). Furthermore, it is unlikely the exemption contained in Article 81(3) applies. Whether the "club trained rule" improves production of playing services or promotes technical or economic progress is difficult to ascertain because of its simultaneous introduction with the licensing system; and the removal of the "rule of promotion and relegation In many sports leagues around the world (with North American and Australian professional leagues being the most notable exceptions), relegation (or demotion) means the mandated transfer of the least successful team(s) of a higher division into a lower division at the end of ". The competition's regulatory framework encourages the Super League clubs to develop junior players in ways that: are non-discriminatory; have a minimum effect in the market for playing services; and do not impede access to employment for some players. The "club trained rule" was thus unnecessary in light of other aspects of the regulatory framework.

The RFL and the clubs can not protect the local labour market from competition with nationals from other Member States (a factor in common with other British employers). If a reduction in the number of foreign players is required, the RFL may use the consultation process undertaken annually with the United Kingdom Border Agency to strengthen the criteria for a professional rugby league player's work permit. In that way the RFL may legitimately influence the number of foreign players entering the competition through employment at British clubs. Finally, the rule was introduced by the RFL and the clubs unilaterally following limited consultation with affected parties. A more robust application of European competition law is required in order to limit the exercise of private regulatory power that detrimentally affects the consumer interest and the employment interests of professional rugby league players.

Latin Legum Magister (Master of Laws)

LLM Master of Laws [Latin Legum Magister]

Noun 1.
(Hons), BA. The author is a solicitor qualified in England and New Zealand, and is a candidate for the degree of Doctor of Philosophy in Law at Trinity College, Dublin For other institutions named Trinity College, see .
Trinity is located in the centre of Dublin, Ireland, on College Green opposite the former Irish Houses of Parliament (now a branch of the Bank of Ireland).
, Ireland.

(1) Personal interview with Coach A (November 2007).

(2) The Super League competition is a professional rugby league competition which comprises of fourteen rugby league clubs. The clubs are situated in the United Kingdom and France. In 2009 the clubs participating in the Super League competition are: Bradford Bulls Bradford Bulls is a professional Rugby League club based in the city of Bradford, England. It has been one of the major success stories of the Super League era, with the 2003 season being its best where the club successfully won all of the major Rugby League honours, (Challenge ; Castleford Tigers Castleford Tigers are a rugby league club in England. They are based in Castleford in West Yorkshire. They are sometimes known as 'Cas' 'Cas Tigers' or 'Classy Cas'. In the early days many of their supporters worked as glassblowers which is another of the club's nicknames. ; Catalans Dragons; Celtic Crusaders The Celtic Crusaders are a rugby league club based in Bridgend, Wales, United Kingdom. They joined National League Two in 2006, and were promoted to National League One at the end of the 2007 season. ; Harlequins RL; Huddersfield Giants Huddersfield Giants are a professional rugby league club (from Huddersfield, West Yorkshire) who play in the Super League. They are currently coached by Jon Sharp and play their home games at the Galpharm Stadium (which they share with Huddersfield Town FC). ; Hull FC; Hull KR; Leeds Rhinos Leeds Rhinos are a professional rugby league club who are based in Headingley in north-west Leeds, West Yorkshire.They are the current Super League Champions. They are owned by the same company that also run Leeds Carnegie rugby union team. ; St Helens St Helens may refer to:

  • St Helens, Merseyside, England
  • St Helens RFC, rugby league club
  • St Helens Town F.C.
; Salford City Reds Salford City Reds are a British professional rugby league club based in Salford near Manchester. They play in the National League One following the clubs relegation from the Super League in 2007. ; Wakefield Trinity Wildcats Wakefield Trinity Wildcats is a professional rugby league club that plays in the Super League. They achieved promotion in 1999 and have remained in the League since. They are known to their fans as 'Wakey', 'Trinity' or 'Wildcats'. ; Warrington Wolves Warrington Wolves are a professional rugby league team in the town of Warrington, Cheshire in England. In the past the club have been nicknamed "The Wire" or "Wires", in reference to the strength of the wire-pulling industry in Warrington. ; and Wigan Warriors Wigan Warriors are a professional rugby league team based in Wigan, Greater Manchester. The team currently plays in the Super League and are coached by Brian Noble.

The team's players wear cherry and white hooped shirts with white or red shorts, and play at the JJB Stadium.

(3) Personal interview with the Rugby Football League ("RFL") (October 2007). In 2007 the Great Britain international representative rugby league team was comprised of players who were selected from throughout the British Isles British Isles: see Great Britain; Ireland. . In 2008 international representative teams for Wales Wales, Welsh Cymru, western peninsula and political division (principality) of Great Britain (1991 pop. 2,798,200), 8,016 sq mi (20,761 sq km), west of England; politically united with England since 1536. The capital is Cardiff. , Scotland, England and Ireland were created and the selection process amended accordingly. In 2009 the RFL is responsible for the selection of the English international representative rugby league team.

(4) RFL Operational Rules 2009, C1:4:2. See also Case C-415/93 Union Royale Belge des Societes de Football Association v Bosman [1995] ECR ECR Efficient Consumer Response
ECR European Congress of Radiology
ECR Electron Cyclotron Resonance
ECR El Camino Real (Kings Highway; California)
ECR Electronic Cash Register
ECR East Coast Radio (South Africa) 
 I-4921; Case C-438/00 Deutscher Handballbund eV v Kolpak [2003] ECR I-4135; and Case C-265/03 Simutenkov v Ministerio de Educacion y Cultura, Real Federacion Espanola de Futbol [2005] ECR I-2579.

(5) Supra A relational DBMS from Cincom Systems, Inc., Cincinnati, OH ( that runs on IBM mainframes and VAXs. It includes a query language and a program that automates the database design process.  n 5.

(6) Personal correspondence with the United Kingdom Border Agency (17 September 2008). The criteria for a permit to work as a professional rugby league player are listed on the official website of the United Kingdom Border Agency: <>.

(7) Personal correspondence supra n 7.

(8) RFL Operational Rules 2009, B1:11A.

(9) RFL Operational Rules 2009, C1:2:1.

(10) See Case C-519/04 Meca-Medina and Majcen v Commission [2006] ECR I-69; and Commission (EC), White Paper on Sport COM (1) (Computer Output Microfilm) Creating microfilm or microfiche from the computer. A COM machine receives print-image output from the computer either online or via tape or disk and creates a film image of each page.  (2007) 391 final, 11 July 2007.

(11) Supra n 11.

(12) RFL Operational Rules 2009, B1:11A.

(13) RFL Operational Rules 2009, B1:11B(a).

(14) RFL Operational Rules 2009, B1:11B(b). "Federation" is defined as 'a governing body for a country recognised by the Rugby League International Federation': RFL Operational Rules 2009, 1(x). "Club" means 'any member which is a Rugby League Club and any other Rugby League Football club or other body which may be invited to join the RFL from time to time': RFL Operational Rules 2009, 1(k).

(15) RFL Operational Rules 2009, B1:11B(c).

(16) RFL Operational Rules 2009, B1:15.

(17) RFL Operational Rules 2009, D1:10(r).

(18) RFL Operational Rules 2009, D1:12.

(19) Those stakeholders interviewed included: Super League clubs, Championship clubs (the competition division below Super League), professional rugby league players, the RFL, the Rugby League Players' Association, professional coaches, and sports agents.

(20) RFL Operational Rules 2009, E9.

(21) There are two competition divisions below Super League: the Championship; and Championship 1.

(22) Personal interview with Super League Club D (February 2007).

(23) Personal interview with Championship Club A (November 2007).

(24) Personal interview with Super League Club F (May 2007).

(25) For a general discussion concerning market definition, A. Jones and B. Sufrin, EC Competition Law (2008) 58-93. See also guidance published by the European Commission: Commission (EC), Definition of the Relevant Market for the Purposes of Community Competition Law (Notice) [1997] OJ C372/5.

(26) An example of an athlete who tried to switch between sporting codes is that of Dwayne Chambers, a Great Britain representative track athlete who temporarily played for Castleford Tigers in April 2008: see "Chambers Secures Castleford Trial" BBC Sport BBC Sport is the sports division of the BBC. It became a fully dedicated division of the BBC in 2000. It incorporates programmes such as Match of the Day, Grandstand (discontinued in early 2007), Test Match Special, Ski Sunday,  (London, 31 March 2008) < BBC
 in full British Broadcasting Corp.

Publicly financed broadcasting system in Britain. A private company at its founding in 1922, it was replaced by a public corporation under royal charter in 1927.> accessed 17 June 2009; and "Chambers Not Wanted by Castleford" BBC Sport (London, 6 May 2008) <> accessed 17 June 2009.

(27) For example: Mr Iestyn Harris (Leeds Rhinos, Cardiff Rugby Rugby is played in Cardiff in both rugby league and rugby union forms. Cardiff RFC and the Arms Park
The rugby union side Cardiff RFC was formed in 1876 and has always been one of Wales's leading sides.
 Union Club, Bradford Bulls); Mr Henry Paul Henry Paul, born 10th February, 1974 in Tokoroa, New Zealand, is a New Zealand rugby league player.

He plays for Harlequins RL in the European Super League.

Henry's position of choice is as a loose forward. He can also operate in the back row.
 (Bradford Bulls, Gloucester Rugby Gloucester Rugby are a professional English rugby union team representing Gloucester. The club plays in the domestic Guinness Premiership. They also compete in the Anglo-Welsh EDF Energy Cup and the European Rugby Cup.

The team plays out of its home stadium in Kingsholm.
 Union Club; Harlequins RL); Mr Chev Walker (Leeds Rhinos, Bath Rugby Bath Rugby (also known as just Bath) is an English professional rugby union club that are based in the city of Bath. They play in the Guinness Premiership league. The club has experienced major success, having in the past won England's domestic competition, the Anglo-Welsh  Union Club, Hull KR); Mr Karl Pryce Karl Pryce (born July 27, 1986 in Bradford, England) is an English rugby union player who currently plays for Gloucester in the Guinness Premiership competition. His position of choice is on the wing. Pryce previously played rugby league with the Bradford Bulls until 2006.  (Bradford Bulls, Gloucester Rugby Union Club, Wigan Warriors); and Mr Brian Carney Brian Carney may refer to:
  • Brian Carney (rugby footballer), Irish rugby league and rugby union player
  • Brian Carney (editorialist), writer and Wall Street Journal Editorial Board member.
 (Wigan Warriors, Australian NRL Club Newcastle Knights The Newcastle Knights are an Australian professional rugby league football team based in Newcastle, New South Wales. They compete in Australasia's premier rugby league competition, the National Rugby League (NRL) premiership. , Munster Rugby Munster (also known as Munster Rugby) is an Irish professional rugby union team based in Munster, that competes in the Magners League and Heineken Cup. They won the Heineken Cup final in 2006 to become the champions of Europe.  Union Club, Warrington Wolves).

(28) See, for example, Case 56/65 Societe La Technique Miniere v Maschinenbau Ulm GmbH [1966] ECR 235. See also Commission (EC), Guidelines on the Effect of Trade Concept Contained in Articles 81 and 82 of the Treaty (Notice) 27 April 2004 [2004] OJ C101/81.

(29) See, for example: Case C-41/90 Hofner and Elser v Macroton GmbH [1991] ECR I-1979, para 21; and Case C-49/07 Motosykletistiki Omospondia Ellados Npid v Elliniko Dimosio [2008] 5 CMLR CMLR Centre for Mined Land Rehabilitation (The University of Queensland, Australia)
CMLR Common Market Law Report (legal journal) 
 11, para 11.

(30) See generally R. Subitto QC, 'How a Lack of Analytical Rigour rig·our  
n. Chiefly British
Variant of rigor.

rigour or US rigor

 Has Resulted in an Overbroad Application of EC Competition Law in the Sports Sector' [2009] 2 ISLR ISLR Impuesto Sobre La Renta  21.

(31) See, for example: Meca-Medina, supra n 11, para 38; and Case T-193/02 Piau v Commission [2005] ECR II-209.

(32) See, for example, the situation of Mr James Evans James Evans may refer to:
  • James Evans, Sr. and J. J. Evans, fictional characters on the American television series Good Times
  • James Evans (actor) (born 1961), American actor
  • James Evans (linguist) (1801–1846), Canadian missionary
 whose contract at Bradford Bulls was not renewed despite the club's desire to retain his services: 'Bulls Chief Slams RFL Dispensation' Rugby Leaguer lea·guer 1  
1. A siege.

2. The camp especially of a besieging army.

tr.v. lea·guered, lea·guer·ing, lea·guers Archaic
To besiege; beleaguer.
 & League Express, (Brighouse, 1 September 2008) 5.

(33) Rugby League International Federation Rules (January 2001), 3.1.

(34) See: 'Bulls Chief Slams RFL Dispensation' Rugby Leaguer & League Express, (Brighouse, 1 September 2008) 5; 'RFL U-Turn Gives Career Lifeline to Non-Brit Players' League Weekly (Dewsbury, 1 September 2008) 2; and 'Thunder Land Tigers Hooker' League Weekly (Dewsbury, 29 September 2008) 10.

(35) An even distribution of playing talent maximises "uncertainty of outcome" which in turn purportedly: increases spectator interest in the sporting competition; and revenue for the competition's organisers. For a general discussion, see S. Szymanski, 'Economic Design of Sporting Contests' [2003] 41(4) Journal of Economic Literature 1137.

(36) RFL Operational Rules 2009, B1:8.

(37) White Paper on Sport, supra n 11, 68.

(38) Bosman, supra n 5.

(39) Bosman, supra n 5, para 106.

(40) Rule B7:4 of the RFL Operational Rules 2009 provides that: 'It is compulsory for Super League clubs to comply with the regulations and to run teams in both the Reserve and Academy (U18) competitions which are fit for purpose and meet the entry criteria specific to the competitions'.

(41) Ibid.

(42) Bosman, supra n

(43) See generally R. Conzelmann, 'Models for the Promotion of Home Grown Players For the Protection of National Representative Teams' [2008] 3-4 ISLJ 26.

(44) 'Maurie Fa'asavalu Demonstrates He Is True Brit' Telegraph (London, 29 October 2007)'asavalu-demonstrates-he-istrue-Brit.html> accessed 17 June 2009.

(45) Rugby Football League, Super League Attendance Data 2000-2008 (as at 4 September 2008).

by Leanne O'Leary *
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Title Annotation:ARTICLES
Author:O'Leary, Leanne
Publication:The International Sports Law Journal
Geographic Code:4EUUK
Date:Jul 1, 2009
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