In what is merely the latest drama surrounding World Rugby’s eligibility rules, former Niue international sevens player, Toni Pulu, has been declared eligible for Australia. The new Brumbies signing hit the headlines this week after rumours circulated that he had been granted “special dispensation” by World Rugby. Such rumours have since been dismissed by the sport’s governing body, but many questions remain.

Indeed, it has been contrasted to the case of Leinster legend Isa Nacewa who, in recent interviews, has explained his frustration at the eligibility battle which meant he accumulated only a solitary cap for Fiji over an illustrious 15-year career. Having been capped hastily at the age of 20, Nacewa regretted representing Fiji and wanted to become eligible for New Zealand. But, after a fruitless legal fight against the then-IRB, one of the most talented players of a generation was left in the international wilderness.

This article will examine the cases of both players, exploring the ‘capturing’ aspect of World Rugby’s eligibility rules (Regulation 8) and considering whether the legal concepts of ‘void’ and ‘voidable’ could have any role to play in determining how they are both interpreted and applied.

Toni Pulu

The Facts

Born in the USA, and raised in New Zealand, the former Chiefs winger was previously on Tonga’s radar, but has now moved to Australia to pursue a career with the Wallabies. However, there was an apparent hitch: Pulu has played for Niue on the international sevens circuit. On the face of it, therefore, under Regulation 8.2(c), the player would be ineligible to represent any other nation – he was purportedly ‘captured’ by Niue.

Niue is a small island in the Pacific, home to just 1600 people (including Pulu’s ancestors). Despite its size, the game of rugby (union, sevens and league) is very popular, and the country’s sevens team played on the then-IRB World Sevens Series between until 2011. It was in their final tournament – the 2011 Gold Coast Sevens – where Pulu made three appearances. Though still a member of Oceania Rugby (and World Rugby), the Niue Rugby Football Union has not played any competitive matches in 7 years.

However, in a press release dated 7^th August 2018, World Rugby made clear that no dispensation had been granted and that:

“While a 2014 World Rugby Regulations Committee hearing determined that a breach of Regulation 8 had occurred as Pulu was not eligible for Niue, under the regulation as it was at the time, it was the union, not the player, who was culpable for any breach…and the player deemed not to be captured by Niue.” (Emphasis added)

Though the previous rules placed responsibility for Regulation 8 breaches squarely on the Unions, its current version also holds players liable. Nonetheless, as World Rugby stated, “it is not retrospectively applied”. As such, Pulu is free to represent Australia – a country for which he holds a passport – presumably as it is the birth-place of one of his parents/grandparents.

Analysis

Though World Rugby’s statement provides clarity amid rumours, questions remain.

Nowhere in World Rugby’s handbook explicitly addresses whether a player remains ‘captured’ after breaching Regulation 8. The implication of World Rugby’s statement seems to be that because players are now jointly liable for such breaches, they will remain captured by the team for which they are found to be ineligible. In other words, the player will be in international exile.

Previously, though, when only Unions were liable, the players would not be captured – as in Pulu’s case. It is hugely unclear what the basis for this distinction is. Why does the liability of the player mean that they must be exiled?

Current Regulation 8.5.3 states:

“Players may also be subject to sanction in accordance with Regulation 18 where they breach Regulation 8 in circumstances where they knew or ought reasonably to have known they were not eligible to play for the relevant Union at the time of participation.”

However, nowhere in Regulation 18 does it state that exiling a player from international rugby is a possible sanction.

More probably, the general rule about only representing one Union would stop a player being picked by another country. Still, in the recent World Rugby v Belgium, Spain and Romania case there was no clarity given. Could the ineligible Spanish duo of Mathieu Belie and Bastien Fuster now be eligible for France? Could the ineligible Romanian, Sione Faka’osilea, return to play for Tonga?

It could be argued that if a player breaches Regulation 8 by playing for country X, their purported capture by country X should be invalid and therefore void. As such, they have, arguably, not been captured at all, and should be free to represent another country for which they fulfil the eligibility criteria. It is unclear what the addition of player liability changes about this position, when there is nothing explicit in the regulations.

Is it fair that a player who “ought reasonably to have known” they were ineligible is punished by international exile? Depriving a player of international opportunity for what is ultimately ‘negligence’, seems more than a little harsh – particularly when, as in the cases of Belie and Fuster, there were other parties who contributed to the error (not least World Rugby). Moreover, there is no clear basis for that punishment.

Players deserve greater clarity, if nothing else.

“Could the ineligible Spanish duo of Mathieu Belie and Bastien Fuster now be eligible for France? Could the ineligible Romanian, Sione Faka’osilea, return to play for Tonga?”

Isa Nacewa

The Facts

Speaking in an interview with former Leinster teammate, Brian O’Driscoll, Nacewa recently explained how it came to pass that he was only ever capped once – by Fiji:

“I was playing with Auckland…and I just got a phone call…saying would you come to a World Cup with Fiji. An easy decision to make as a 20 year old. Two minute thirty-eight seconds I think it was, I ran on, missed a tackle and that was the end of the game.”

It was the 2003 Rugby World Cup, Nacewa was only with the squad six days, and he was brought on for a cap at the end of Fiji’s match against Scotland. According to reports, Mac McCallion – then Fiji’s coach – acknowledged that the decision to send Nacewa on was designed purely to capture the youngster’s eligibility.

As the son of Fijian parents in New Zealand, Nacewa’s rise within the provincial game caught attention and, though Fiji swept in early, it wasn’t long before he was called up to Super Rugby side Auckland Blues. It was only then, because of the competition’s rules on foreign players, that the issue of his eligibility arose. Only then was he told that, being capped by Fiji, his All Blacks “pipe dream” was over.

Nonetheless, it is said that the All Blacks were keen on selecting him for the 2007 Rugby World Cup so, in 2005, sports lawyer David Jones took a case to the then-IRB, arguing that Nacewa had been unduly influenced to play for Fiji, and that dispensation should be granted to revoke his capture. The IRB reportedly dismissed the case without hearing the facts.

Analysis

This case, along with Pulu’s, raises interesting questions about whether it is possible for the capture of a player to be void, or voidable.

In sports law, it is common for regulations to be construed as contracts, as players agree to be governed by what are essentially terms and conditions. As such, contractual legal theory can be applied. In World Rugby’s case, Bye-Law 15(b) of the World Rugby Handbook states that the Regulations should be construed in accordance with English law.

In English contract law, a contract which is void is treated as if it had never been formed and cannot be enforced by either party. A contract would be void, for example, where it is impossible for one party to perform the contract. In Pulu’s case, it was impossible for him to be eligible for Niue and thus, arguably, impossible for him to be captured. Hence, any purported capture would be void.

On the other hand, a voidable contract is valid and can be enforced until it is ‘avoided’ – made void – by one of the parties. Contracts can be avoided on various grounds, such as duress, undue influence and misrepresentation. Each of these operate on the basis that consent to the contract was vitiated, and it is this idea which Nacewa sought to argue.

Duress

For a claim of duress to succeed, an “illegitimate threat” is typically required – as explained in R v Attorney General for England and Wales – which causes the party to act as they did, owing to no reasonable alternative. In Nacewa’s case, there was no suggestion of any such threat and it is difficult to imagine any rugby case satisfying this test.

Undue Influence

For circumstances falling short of duress, English law has the doctrine of undue influence. As the leading decision of RBS v Etridge (No.2) makes clear, its essence is the abuse of a relationship, be it one of trust and confidence, or vulnerability and dependence, exploited for the defendant’s own advantage. Though there is overlap with duress, undue influence tends to cover cases where there is illegitimate pressure falling short of a threat per se.

The key issue with undue influence is determining the limits of legitimate persuasion. ‘Influence’ alone is, of course, acceptable – salespeople would be jobless otherwise – but the law must guard against this becoming ‘undue’. Typically, influence can become undue in two ways: when an influencer is influencing a particularly vulnerable party or, secondly, when the level of influence is so high that the influenced party loses autonomy.

In Nacewa’s case, there is no clear evidence that he was pressured extraordinarily. However, he may have fallen into the ‘vulnerable party’ category: he was an uninformed 20-year-old being pursued by an international organisation. On the face of it, at least, Nacewa did have a case.

World Rugby seem to have acknowledged the vulnerability of 20-year-olds by ruling that U20 sides can no longer be ‘capture teams’, but there will still be many youngsters who agree to play international rugby. It is not simply a matter of age. For a finding of undue influence to be made, it would have to be clear that a Union had deliberately exploited the inexperience of a player, who was not otherwise advised – strong evidence would be needed to avoid undermining the integrity of Regulation 8.

Misrepresentation/Mistake

In the event that a player was misled about Regulation 8, they could try to bring a claim of ‘misrepresentation’ or ‘unilateral mistake’. In reality, the chances of this succeeding would be slim, as it would be difficult to prove ‘causation’. The Regulation 8 Explanatory Guidelines explain that:

“Notwithstanding the Union’s obligation to inform the Player and team management it shall be the sole responsibility of each Player to ensure that he is aware of the status of every Match in which he plays and the implications of playing”

As such, it would take a significant error (or deception) to absolve the player/Union of fault. Arguably, though, Spain’s case was not too far from that.

Conclusion

“Rather than turning to the law to bail players out after the event, time would be better spent educating players on the eligibility rules, and on the consequences of playing international rugby”

From the above, it is clear that the legal concepts of voidness and voidability can theoretically be applied to World Rugby’s eligibility rules.

In a case like Pulu’s it appears logical that a player who is not validly captured should be eligible to represent another country. Indeed, it is unclear why that should not be the case under the current Regulations. This is something that World Rugby must clarify.

With a Nacewa-type case, however, the difficulty lies in the fact that a high level of misconduct would need to be proved to establish any of the vitiating grounds needed to avoid a player’s capture. Rather than turning to the law to bail players out after the event, time would be better spent educating players on the eligibility rules, and on the consequences of playing international rugby – as the current guidelines aim to. Ultimately, it was Nacewa’s legal challenge which cost him further Fiji caps but, had he been better informed, he could have enjoyed a long career as an All Black.