Part I of this article analysed the legal and regulatory difficulties of re-scheduling the English Premiership season as a result of the Coronavirus crisis. This second part will consider the challenges faced by the international season.
The International Game
As noted in Part I, the re-scheduling of the club season is complicated by the international rugby season – part of which is itself going to be re-scheduled. Four Six Nations matches have been postponed as a result of the Coronavirus pandemic, whilst the July test fixtures are also in doubt.
For the Six Nations, the principal issues will relate to the tournament regulations whilst, for the international tours, the World Rugby Tours Agreement will be crucial. Relevant to all international fixtures, though, are the issues created by commercial contracts, and by World Rugby Regulation 9 on the availability of players. Each issue shall be addressed below.
1. The 2020 Six Nations
The 2020 Six Nations has not yet been completed, and many are asking whether it ever will be. The Six Nations Championship Rules imply that there can be no winner unless all matches have been completed, but they are light on detail. Does the Six Nations (the organising body) have the authority to cancel the 2020 tournament? Are there any rules on postponement? The answer is that we do not know. The full tournament regulations have not been published online and, unlike at Rugby World Cup 2019, there is no suggestion of specific provisions dealing with the possibility of cancellation or postponement. However, we do know that any changes to the scheduling of an international tournament must first be approved by World Rugby, under World Rugby Regulation 16.1.1.
Presumably, the tournament regulations will grant the Six Nations the authority to postpone matches – if not explicitly, then impliedly. Indeed, in 2001, Ireland’s fixtures against the home unions were postponed until September and October due to the foot and mouth outbreak. However, cancellation of the tournament may be different. The starting position may be that the Six Nations owes obligations to the participating Unions to stage a full tournament and that any failure to do so would be a breach of contract. Of course, there may be a ‘force majeure’ clause (as explained in Part I) or it may even be that this ‘contract’ is frustrated, such that the matches would not legally have to be played. Much will depend upon how the Coronavirus situation evolves and whether it is possible for these matches to go ahead at all, in light of medical and government advice.
However, the Unions will want the tournament to be completed – and not merely to give them a shot at the title. Each home game will generate millions of pounds of revenue and, as discussed in relation to the club game, there are other commercial contracts to consider. The same force majeure/frustration analysis discussed in Part I would apply. If the Six Nations is not completed, it is likely that the Unions will receive a reduced figure by way of revenue from broadcasters and sponsors. There is also the question of prize money, with a reported total of £16m on the table.
Further, there are sporting reasons why Unions will want to see the tournament completed. Aside from ensuring that there is a winner of the prestigious tournament, there is also the important issue of world rankings. The 2023 Rugby World Cup Pool Draw takes place on 30 November 2020 and this will be carried out on the basis of the World Rugby Rankings as they stand after the November international tests. The ranking points at stake throughout the 2020 season are, therefore, vital to securing a favourable draw for 2023 and the Six Nations sides will not want to forgo the opportunity to earn such points.
2. The July & November International Tests
Many of the same concerns also apply to the July and November international test matches. There will be commercial contracts in place for sponsorship, broadcasting and the like, so the same observations about breach, force majeure and frustration are again relevant here. At the time of writing it seems unlikely that force majeure clauses will be triggered for matches taking place in November due to Coronavirus, though the July tests are increasingly in doubt.
Crucial to these fixtures, however, is the World Rugby Tours Agreement. World Rugby Regulation 15.6 states that:
International Tours between Tier One Unions during the Global Release Periods specified in Regulation 9 shall be subject to the provisions of the Tier One Rugby World Tours Agreement
These “Global Release Periods” are defined in World Rugby Regulation 9.7 as being the July and November international windows. The Tier One Rugby World Tours Agreement (the “Tours Agreement”) is the standard contract entered into between Host Unions and Visiting Unions for test matches during these periods, and sets out the various obligations of the parties in relation to everything from travel and accommodation to foul play and anti-doping. Of course, the core obligation in the Tours Agreement is for the Unions to play matches on the agreed dates, in the agreed places (Clause 2 of the Tours Agreement).
Re-Scheduling
Clause 23.6 of the Tours Agreement states that:
where a Match cannot be commenced on the day on which it is scheduled, it shall subject to agreement between the Visiting Union and the Host Union be rescheduled at the earliest possible time
This clause gives the Unions some flexibility in re-scheduling the test match(es), which may prove to be crucial this year. In particular, there may be questions about whether international matches could be moved to accommodate a re-scheduled domestic season – or other re-scheduled international fixtures.
However, with some leagues being cancelled and others postponed, Unions’ interests will not necessarily be aligned. For example, Japan’s Top League has already been cancelled, while the Premiership is only postponed. The Japanese Rugby Football Union would surely be reluctant to move home tests and potentially lose out on significant revenue in order to accommodate the Premiership’s re-scheduling needs.
It is also important to note the obligation for any changes to the scheduling of international matches or tours to be approved by the World Rugby before they can be made, under World Rugby Regulation 16.1.1.
Force Majeure
The Tours Agreement (mercifully) contains a thoroughly drafted force majeure clause. Clause 24.2 reads:
In the event that either Party is prevented from complying with any or all of its obligations under this Agreement by an Event of Force Majeure the non-performance or failure of the relevant Party’s obligations shall not be deemed to be a breach of this Agreement save where the Party or Parties…prevented from complying with its or their obligations by the Force Majeure event has/have failed to use its/their best endeavours to comply with its/their obligations and/or minimise the impact of the Force Majeure event in which circumstances the relevant Party or Parties…shall be deemed to be in breach of this Agreement. In the event that this Agreement cannot be substantially performed or its obligations substantially fulfilled for a continuous period of two months then the defaulting Party or either Party (if both are affected) may terminate this Agreement by notice in writing at the end of that period. (Emphasis added)
Thus, if, by reason of an “Event of Force Majeure”, the test match(es) cannot be played within two months of their original date, the Union(s) prevented from playing by force majeure may terminate the Tours Agreement. In that scenario, the matches would not then need to be played at all. Crucially, an “Event of Force Majeure” is defined broadly in Clause 1.1 as:
any circumstance(s) not reasonably foreseeable at the date of this Agreement arising from or attributable to acts, events, omissions or accidents which are beyond the reasonable control of the affected party including without limitation…epidemic or other natural physical disaster…or any legislation, regulation, ruling…of any relevant government, court or any competent national or international authority (Emphasis added)
If the Coronavirus outbreak is still widespread by July (or, God forbid, November), or if strict government controls remain in place, and if the match(es) cannot be played in the following two months, the affected Unions will be able to terminate their Tours Agreement(s) without putting themselves in breach.
It is worth noting, however, that the Tours Agreement does not make mention of any right to recover expenses incurred in preparing for the test match(es). As the Tours Agreement is governed by English law (Clause 28.3), it may be that the parties would have rights to recover sums incurred under the Law Reform (Frustrated Contracts) Act 1943.
Across both international test windows, there will be a tension between Host Unions and Visiting Unions. Owing to the financial model of international rugby, where the Host Union keeps all of the gate receipts for a home test match, it is the Host Unions that will most steadfastly want to stick to the original schedule. If some matches cannot go ahead due to Coronavirus, it may be that a revenue-sharing model will need to be implemented in order to keep Unions afloat.
The Rugby World Cup 2023 Pool Draw is also important to remember, when it comes to the cancellation of fixtures. Stakeholders must take care to preserve the integrity of the next Rugby World Cup whilst trying to maintain the integrity of this season.
3. World Rugby Regulation 9
The biggest obstacle to re-scheduling any international rugby match is World Rugby Regulation 9. This guarantees the “Right to Release” for all rugby players and Unions. All Unions have the right to a player’s availability for selection for the national team (Regulation 9.1) and clubs are obliged to release players to the Union when they are selected (Regulation 9.2). Neither players, clubs, nor Unions can contract out of these rights and duties (Regulation 9.3).
However, this Right to Release only applies to Designated Release Events (Rugby World Cups and Lions Tours), Global Release Periods, Hemisphere Release Periods and to the Rugby Championship Release Period (Regulation 9.5). In other words, the Right to Release only exists during the periods explicitly defined in Regulation 9. This represents the balance which has been struck between the clubs and the Unions, which inevitably compete for their most precious asset: the players.
Under Regulation 9.8, the Six Nations takes place during the Northern Hemisphere Release Period, which runs “from the first weekend of February each year and conclude[s] on the third weekend of March”. The July and November tests take place during the “Global Release Periods”, covering “three weekends in July” and “three weekends in November each year, save in a Rugby World Cup year” (Regulation 9.7).
Therefore, if the outstanding Six Nations matches are to be played, and if the July tests are moved, these matches will be played outside of the periods specified in Regulation 9. Therefore, the Right to Release will not apply. Clubs will not be obliged to release their players to play in these fixtures.
This creates an obvious difficulty for the Unions as, without the players, they cannot play the games. However, nothing in Regulation 9 prevents Unions from playing matches outside of the specified periods, nor does it prevent Unions from reaching agreements with clubs about the right to release outside of such periods (Regulation 9.33). An old-fashioned club vs country dispute will be inevitable, unless World Rugby steps in.
There is no express power in Regulation 9 for World Rugby to move the international test windows (except, it seems, the Rugby Championship and Southern Hemisphere Release Periods – see Regulations 9.8(b)(ii) & (c)(ii)). Nonetheless, World Rugby Regulation 24 states that any matters not provided for in the Regulations “shall be dealt with by the Council”. The World Rugby Council is made up of representatives of Unions and member Associations. Under Regulation 24, it has the power to vary Regulation 9 to allow the international season 2020 to be properly re-scheduled.
However, the Council sits only twice a year – ordinarily in April and November. It may be that this does not provide the opportunity to make sufficient amendments, given the evolving nature of the Coronavirus crisis. Thus, World Rugby Bye-Law 12 gives the World Rugby Executive Committee the power to make emergency decisions on such matters. World Rugby thus has sufficient powers to adjust the international release periods as required.
Of course, if such changes are made, this would be another spanner in the works as far as the clubs are concerned, given their own re-scheduling troubles (see Part I). There might be sufficient pressure from the club game, via Council delegates and Executive Committee members, to dissuade World Rugby from making these changes. It is unlikely to be an easy issue to resolve.
Conclusion
Much like the club game, international rugby has great financial concerns during this time. Commercial partners will want a return on their investment – or their money back – and all parties are desperately hoping for a return to sport, for sport’s sake.
Like the club game, international rugby has many legal and regulatory hurdles to overcome in the coming months, and creative solutions will be needed. Playing schedules are fixed in regulatory stone, that can only be re-shaped by those at the very top. Club and country are inevitably conflicted but, during these unprecedented times more than ever, it is essential that World Rugby shows leadership, and that the integrity of the sport at both levels of the game is upheld.
The Coronavirus is a global issue, and the rugby season’s novel complications will need a global solution. The Unions and the clubs must do their best to work together to co-ordinate a new schedule that works for everyone. History, though, has shown how difficult that can be – so World Rugby must lead the way. FIFA has published guidelines to deal with the legal consequences of the Coronavirus – it is hoped that World Rugby will do the same.