1. Introduction

Spain have been disqualified from the Rugby World Cup for the second time consecutively after a World Rugby Judicial Committee (the “Panel”) found that they had fielded an ineligible player during qualifying…again.[1] The country’s hopes for France 2023 now hinge on an appeal to a World Rugby Appeal Committee.

The player at the heart of this case is Gavin van den Berg (the “Player”), a native South African prop, who the Federación Española de Rugby (the “FER”) claimed was eligible to play for Spain by virtue of his compliance with the three-year residency period in World Rugby Regulation 8 (“Regulation 8”).[2]

However, after a media article suggested that he had in fact not been resident in Spain for the requisite period, the Romanian Rugby Federation filed a complaint with World Rugby[3] and the matter was then referred to the Panel for adjudication.

Following a hearing in late April 2022, the Panel found that the Player was not eligible for Spain at the relevant times and imposed a five-point deduction in respect of each of the two games he had played in during the Rugby World Cup 2023 European qualifying competition (the “Qualifiers”), resulting in Spain’s disqualification (the “Decision”).

This article will explain and analyse the Decision and will consider the potential arguments on appeal. The eligibility and sanctioning issues shall be addressed separately, in turn.

2. Eligibility

2.1 Applicable Regulations

At the relevant time, Regulation 8.1 provided that a player:

[…] may only play for the senior fifteen-a-side National Representative Team […] of the Union of the country with which the Player has a genuine, close, credible and established national link in which:

[…]

(c) the Player has completed thirty-six consecutive months of Residence immediately preceding the time of playing; […]

The term “Residence” is defined as “the place or location in which the Player has their primary and permanent home”, and “Resident” is construed accordingly.[4]

Paragraph 14 of the Explanatory Guidelines on the Implementation of Regulation 8 (the “Guidelines”) states, insofar as is relevant, that:

In essence, Regulation 8.1(c) […] constitute[s] a sporting naturalization procedure, based on a geographical/presence test. As in any naturalisation process, a number of factors will influence the determination of what constitutes a Player’s permanent and primary home. Such factors include, but are not limited to, the actual time spent in a country and the purpose of any absences during the qualification period. By being Resident in a country for a period of [36] consecutive months immediately preceding the time of playing for a Union […] a Player is deemed to acquire a credible, close and established national link with a country or Union that entitles them to participate in sporting competitions for that Union.

Paragraph 16 of the Guidelines further provides that (emphasis added):

Short breaks in Residence, for example, for holidays, attending family/friends in other countries who may be ill etc., are unlikely to change the place/location of a Player’s primary and permanent home and are, therefore, unlikely to interrupt a Player’s period of Residence. By way of a guideline, however, as a minimum requirement, it is likely that, save in exceptional circumstances, at least 10 months actual physical presence of the Player in the country concerned throughout any qualifying year of the Residency period, will be required to demonstrate that the country is the place where the Player has their primary and permanent home.

The burden of proof is on a player and/or their Union to establish a player’s eligibility.[5]

2.2 Relevant Facts

The Player played for Spain in two matches during the Qualifiers, on 18 December 2021 and 5 February 2022, both times against the Netherlands.

As a South African national, the Player could only be eligible to play for Spain if he had been Resident in Spain for thirty-six consecutive months (i.e., three years).

Prior to the first of those matches, the FER sought confirmation from World Rugby that the player was eligible, as the stamps on his passport (a copy of which was sent to World Rugby) showed that he had been out of Spain for a total of 62 days during his first year of Residence (from December 2018 to December 2019). World Rugby confirmed “acting on the bona fides and accuracy of the advice from FER” that an absence of 62 days in one year would not breach Regulation 8 (per the Guidelines).[6]

However, following Romania’s complaint, it emerged that the Player had been outside of Spain for more than just 62 days and that the copy of the passport presented to the FER by the Player’s club (Alcobendas Rugby) had been falsified.[7]

Prior to the hearing, the FER accepted that the Player had actually been absent for 101 days and that there was, thus, a prima facie breach of Regulation 8. The evidence for this included the Player’s social media posts which included the hashtag “#saffatravellingeurope”.[8]

However, at the hearing, the Player (remarkably) revealed that he had in fact spent 127 days outside of Spain in that year (and 119 in his native South Africa).[9]

Further, the Panel noted that when he first arrived in Spain, the Player was living in a “club house” with other Alcobendas players[10] and, crucially, during the hearing, the Player accepted that it was only at the end of 2019 or start of 2020 that he started to make Spain his home.[11]

There was a suggestion that the Player had returned to South Africa due to his father’s ill health and that he had stayed longer there due to issues with his visa. However, the Player’s evidence at the hearing was contradictory, and there was a lack of clarity about his father’s medical issues. It was also noted that the Player had attended a wedding in South Africa during the relevant time, and that no evidence was submitted to support the submission regarding his visa.[12]

2.3 Eligibility Decision

The Panel considered first whether the Player had satisfied the residency requirement in Regulation 8.1 and, second, whether there were any exceptional circumstances in the terms of paragraphs 16 and 17 of the Guidelines.

Residency

As to the residency requirement, the Decision gives rise to some confusion. In places, it seems to suggest that, in order to comply with Regulation 8.1, a player must have had a “genuine, close, credible and established link with Spain” throughout the whole three-year period prior to selection in order to be eligible.[13]

However, that cannot be right. This would mean that a player must first become “naturalised” and then, subsequently, serve a three-year residency period, in order to be eligible. That would be at odds with the purpose of Regulation 8.1(c), itself a “sporting naturalization procedure”,[14] and with the wording of paragraph 14 of the Guidelines, which makes clear that a player acquires a “credible, close and established national link” by being Resident for the requisite period. It would also seem to conflict with established practices to date and would make eligibility almost impossible to determine.

Indeed, elsewhere in the Decision, the Panel focuses on the question of whether the Player was “Resident” in Spain for thirty-six consecutive months by considering whether Spain was the Player’s “primary and permanent home” during that period.[15] This is a different, albeit related, question and is the appropriate test to apply here, given the definition of “Residence”.

It seems that this confusion may have been caused by the manner in which the FER presented its case.[16]

Nonetheless, the Panel was clear that the Player could not have been Resident in Spain until late 2019, at the earliest, as the Player had accepted that it was not until then that he considered Spain to be his permanent home. Faced with such a frank (and surprising) concession, the Panel had no choice but to find the Player ineligible at the time he played for Spain in December 2021.

Whilst this was the “clinching”[17] point, the Panel also pointed to the Player’s absence from Spain for over a third of the first relevant year (including 119 days in South Africa); the “Saffa” social media references; the lack of any evidence to support the FER’s submissions regarding the Player’s severance of ties with South Africa and growth of ties with Spain;[18] and the fact that the Player did not initially have “any permanency of a physical place of residence” as undermining his compliance with the Regulation 8.1 criteria.[19]

The FER is reportedly “irked” by the Panel’s “subjective” interpretation of a player’s “home” and has pointed to Irish and Scottish-naturalised players whose public comments it considers cast doubt upon their Residency. For example, Scotland’s Pierre Schoeman has spoken of finding it “tough being away from home” during his first year in Scotland.[20]

Whilst this author has some sympathy for the FER, given that Residency is a somewhat subjective concept influenced by “a number of factors”[21] and that migrant workers are always likely to identify strongly with their native country, even if they have made another country their primary and permanent home for the relevant period, the Player’s explicit concession that Spain was not his permanent home until late 2019 undermined any argument to the contrary.

In any event, the Player’s absence from Spain during the first relevant year meant that, unless there were exceptional circumstances, he did not meet the thirty-six consecutive month requirement.

Exceptional circumstances

Whilst the Panel’s decision on the Residency issue was determinative, it nonetheless considered the exceptional circumstances argument – i.e., that the Player’s 127-day absence in the first relevant year did not effectively interrupt his thirty-six consecutive months of residency.

However, this was given short thrift, owing to the lack of cogent evidence regarding his trip to South Africa, as noted above.

The Panel also dismissed an interesting argument by the FER that the Player’s presence in any part of the Schengen area should be deemed actual physical presence in Spain for the purposes of Regulation 8 (presumably, given the principle of free movement). The Panel, sensibly, held that this could not be right, as other countries in the Schengen area have their own Unions, and it would sit at odds with the wording of Regulation 8.

3. Sanction

As regards sanctioning, Regulation 8.5 makes clear that breaches of Regulation 8 are a “strict liability offence”. It does therefore not need to be proven that a Union was at fault or otherwise intended to field an ineligible player for an alleged breach to be established.

Thus, having found the Player ineligible, the Panel upheld the charge against the FER, that it had fielded an ineligible player in two Qualifiers.[22]

Regulation 8.5 further provides for a minimum fixed fine of £25,000 for Unions not on the World Rugby Council, save in exceptional circumstances, and that other sanctions may be imposed additionally.

The Panel held that:[23]

… [the] FER has not been able to provide clear and undisputable evidence that truly exceptional circumstances exist and nor has it been able to provide clear and undisputable evidence that it has taken all necessary steps to comply with Regulation 8. […] in particular, and as discussed during the course of the hearing, the Committee’s concern was in the failure to approach the Player himself.

The Panel thus imposed the minimum fixed fine. It also activated a further £50,000 fine which had been suspended for a period of five years when the FER was found to have breached Regulation 8 in 2018.[24]

As noted in the above quotation, the Panel had found that, whilst some efforts were made to ensure the Player’s eligibility (for example, reviewing the documentation provided by his club), there was:[25]

one glaring omission from them, namely an interview of the player under scrutiny (or any other form of direct questioning of the Player), covering such vital matters as whether the criteria to meet Residency in Spain actually had been fulfilled and as to the extent of, and reasons for, breaks in his actual physical presence in Spain. […] it is pertinent to observe that had such an interview been carried out here with this Player by the FER it is almost certain, given the recall and the honesty of the Player when giving evidence, that this situation, and the consequences which follow from it, would have been avoided. In that sense, the FER is the author of its own misfortune.

The Panel further described the FER’s approach to its enquiries as demonstrating “wilful blindness”, and noted that, by relying solely on the Player’s (falsified) passport, it had also ignored the effects of the Schengen Agreement (which allows free movement between certain countries in Europe). It found the passport tampering by the Player’s club to be “irrelevant, except that it does point up the lack of any FER inquiry of the Player”.[26] Though World Rugby had commended the FER for setting up an Eligibility Commission to tackle these issues,[27] the Panel found that it had been ineffective here.

The Panel also considered the FER’s track record on eligibility to be an “aggravating factor”.[28] It pointed to the case which saw Spain disqualified from qualifying for the Rugby World Cup 2019 (the “RWCQ 2019 Case”) as well as a retrospective eligibility ruling by the World Rugby Regulations Committee (the “Regulations Committee”) in 2020 regarding Spanish winger John Wessel Bell, in which the panel had warned the FER about the need to take greater care in relation to eligibility matters.

Against this background, and by placing reliance on the Judicial and Appeal Committee decisions in the RWCQ 2019 Case, the Panel held:[29]

The two matches played here were RWCQ qualifying matches and we see no reason why we should not, and consistency would dictate that we should, apply the same sort of sanction in terms of penalty as was applied in the RWCQ 2019 case.

[…] trying to take the least punitive approach possible in these unfortunate circumstances, the [Panel] resolved to impose just the minimum fixed fine and not a greater fine which might well have been justified. In addition, the [Panel], cognisant of the precedent cases placed in front of it, pursuant to R 8.5.3 and R 19.4.1(b) imposed the “standard” (maximum) deduction of competition points for each of the two matches where the ineligible Player had been selected and played, a total of 10 points (5 for each match).

The effect of this sanction was to disqualify Spain from RWC 2023, and the Panel warned that any future transgressions might result in suspension from World Rugby tournaments or even from World Rugby membership.[30]

Notwithstanding that the Player, too, had breached Regulation 8, the Panel declined to impose any sanction on him, given the FER’s failure to educate him on the relevant rules.[31]

4. Appeal

A party to World Rugby disciplinary proceedings may appeal only on the grounds that the decision:[32]

(a)     was in error (either as to central factual findings or in law); or

(b)     in the interests of justice should be overturned; or

(c)     the sanction imposed was manifestly excessive or wrong in principle; and/or

(d)     the sanction imposed was unduly lenient.

Unless it is necessary in the interests of justice, an appeal hearing will not be a full re-hearing of the case but rather a review of the first instance decision.[33] In those circumstances, as the Appeal Committee in the RWCQ 2019 Case held (emphasis added):[34]

When considering evidential assessments, factual findings and the exercise of a judicial discretion in the context of an appeal by way of review, an Appeal Committee must be accorded what has long been described accurately as a “significant margin of appreciation”. Accordingly, such evidential assessments and factual findings should only be disturbed if they are clearly wrong or wrong principles have been applied. That threshold is high and deliberately so.

When assessing whether a sanction is manifestly excessive or wrong in principle the same margin of appreciation applies. Further, manifestly excessive means what it says: it is not simply too much or too long but manifestly so.

Therefore, unless the appeal is heard de novo, any appeal will face an uphill battle.

In light of this margin of appreciation, and the Player’s evidence at the hearing, as noted above, it seems very unlikely that an Appeal Committee would overturn the Panel’s findings on the Residency issue, although clarity would be welcome on the proper interpretation of Regulation 8.

The focus of the FER’s appeal will therefore likely be on the sanction, and ground (c) above.

In this regard, the FER might challenge the Panel’s imposition of what it described as the ““standard” (maximum)” sanction, despite only imposing the minimum fine and despite the comments in the RWCQ 2019 Case that a points deduction is not a “default” sanction for fielding an ineligible player.[35]

It might further be argued that the Panel was wrong simply to follow the decisions in the RWCQ 2019 Case without more. For example, the decisions in that case referred to a number of previous ineligibility cases where 5-point deductions were imposed but did not refer to cases in which a different approach had been adopted.[36] Most notably, they omitted reference to the “Grannygate” case from 2000, concerning Scotland and Wales, in which no points deductions or other sporting sanctions were imposed. This author’s view of the RWCQ 2019 Case at the time was that the sanctions imposed were harsh.

There have also been a number of ineligibility cases involving Premiership clubs which have resulted in sanctions of only one to two points,[37] while Saracens received only a fine after fielding an ineligible player in the Champions Cup in 2020.[38] Similarly, in English football, the FA, EFL and Premier League have tended only to impose financial penalties for eligibility issues.[39]

It would thus be arguable that a points sanction was “wrong in principle”, though the other cases in which such sanctions have been imposed would be a significant hurdle. The FER might further argue that a points deduction was inappropriate here because the sanction affects the players of the national team just as much as the federation, despite the players themselves bearing no fault for what happened. Given that a federation’s responsibilities extend beyond merely operating the men’s national team, and that the relevant failings were at administrative level, it might be argued that a sporting sanction is not appropriate.

Turning to the arguably excessive and/or disproportionate nature of the sanction imposed,[40] the FER will likely point to the devastating effect that it will have on the sport in Spain. Disqualification from RWC 2023 could set the sport back years, at a time when it has been developing faster than ever. It will also point to the effect on the innocent players and, perhaps, even the fans. They will all suffer as a result of this sanction.

There is also the question of the effect of the FER’s breach on the integrity of the competition. The Player played as a substitute for 22 and 34 minutes, respectively, in Spain’s 52-7 and 43-0 wins over the Netherlands, coming on when Spain already had significant leads.

Whilst it was held in the RWC 2019 Case that it would be “invidious to attempt any meaningful assessment of a player’s impact” on any match,[41] given the Netherlands’ -366 points difference during the Qualifiers, during which their only ‘win’ came as a result of Russia’s disqualification, it is overwhelmingly likely that the Player’s presence/absence would have made no difference to the result. Indeed, and with respect to the Netherlands’ team, it is overwhelmingly likely that Spain would have won these matches even with only 14 men. In such circumstances, is the sanction not disproportionate?

Thirdly, and most crucially, the FER may seek to dispute the Panel’s findings in relation to their level of fault (which was deemed to be high – “wilful blindness“), to further undermine the severity of the punishment. It will likely emphasise the effect of the falsified passport, and might note that, but for the falsification, none of this would have happened.

Further, and significantly, since the Decision, disciplinary proceedings have been opened against the Player by the FER’s disciplinary committee following a complaint by the national team manager, José Manuel Pérez Corchado.[42] The complaint alleges that, in effect, the Player misled the Panel because he had been made aware of the requirements of Regulation 8 and had explicitly confirmed his compliance with the criteria.

Mr Corchado claims that he discussed the eligibility criteria with the Player on two separate occasions prior to his first match for the national team, the first allegedly evidenced by WhatsApp screenshots and the second witnessed by another member of the national team staff.

Later, after the press reports of his ineligibility emerged, Mr Corchado says the Player again told him, in the presence of another player, that the information provided about his time in Spain was correct.

The complaint concludes (free translation):

I personally took it upon myself to impress upon Gavin the importance of Regulation 8 and I made sure, on several occasions, that he was aware of its content. In addition, in the wake of leaks and rumours, I asked him repeatedly about his comings and goings from Spain and about any other issues that might cast doubt on his eligibility. He always told me that he was eligible and that everything he had declared was correct and that there would be no problems. Therefore, Gavin was fully aware of the eligibility rule and more specifically that to play for Spain he could never leave for more than 60 days per year since his arrival to Burgos in 2018.

This is significant new evidence, which was not put before the Panel and which conflicts with its findings. If accepted as true, it could lead to the reversal of the Panel’s conclusions on FER’s degree of fault and could land the Player in very hot water. It may also provide grounds for the points deduction to be disapplied.

However, questions will be asked as to why Mr Corchado’s evidence was not adduced at first instance. Indeed, Regulation 20.8.6(c) provides that:

new or additional evidence not offered before the Judicial Committee […] shall only be considered by the Appeal Committee […] where the party offering such evidence establishes that it was not, on reasonable enquiry, available at the time of the proceedings before the Judicial Committee […]

The Appeal Committee will thus require a very good explanation as to why it should allow the evidence to be introduced at this stage.

However, if the evidence is admitted, it may give grounds for the appeal to be heard de novo (at least in relation to the sanctioning issue), as it goes to the heart of several of the Panel’s conclusions and will need to be put to the Player directly. In a de novo appeal, the margin of appreciation referred to above would not apply, so the Appeal Committee would have unfettered discretion as to the sanction.

5. Conclusion

The van den Berg case is a regrettable one, which none of its actors come out of particularly well. Indeed, the emergence of a crucial piece of evidence so late in the day perhaps sums up the sorry affair and raises more questions than answers.

However, regardless of the outcome of the appeal, the Decision serves as a reminder for Unions of the importance of complying with Regulation 8, and of the steps that need to be taken in order to protect against liability. The Panel were at pains to emphasise the need to resolve any potential eligibility issues prior to a player’s selection, repeatedly referring to the role of the Regulations Committee in adjudicating on such issues ahead of time.[43]

The somewhat woolly test for determining a player’s “primary and permanent home” in Regulation 8 means that Unions would be well-advised to seek a ruling from the Regulations Committee whenever they select a player on residency grounds, and to take specialist legal advice, if necessary.

The case also serves as a reminder for Unions, Players, and Clubs under World Rugby’s jurisdiction of the importance of first instance proceedings before a Judicial Committee. Given the limited nature of the appeals process, it is crucial to present one’s case as comprehensively as possible first time around. An appeal is not merely a second bite of the cherry.

Nonetheless, there are also learnings for World Rugby. The Panel recommended it creates a template interrogatory to be used by Unions to obtain answers from players on all potential eligibility issues. It is hoped that World Rugby will take note, particularly in the interests of under-resourced ‘Tier 2’ Unions. It ought also to publish the eligibility rulings of its Regulations Committee.

However, this author might go further. Given the recent extension of the Regulation 8 Residency period to five years and the subjectivities involved in assessing Residency, might it be time for World Rugby to replace the Residency requirement with a nationality/citizenship requirement? This would shift the burden for assessing a player’s connection to a particular country from the Unions and/or World Rugby to national governments, eliminating the difficulties that continue to plague the game, and bring the rest of the game in line with the eligibility criteria applicable to Olympic Sevens. Of course, for Unions sharing a common nationality (for example, England, Scotland and Wales), there would need to be an additional residency requirement.[44]

For now, though, all eyes will be on the Appeal Committee, in whose hands Spain’s Rugby World Cup fate now lies.

Article by Ben Cisneros. Ben is a Trainee Solicitor at Morgan Sports Law who regularly acts in rugby disciplinary proceedings, though this article reflects only the author’s personal views. Please email ben.cisneros@morgansl.com for any legal or media enquiries. 

This article was updated on 10 June 2022, to acknowledge the issue of common nationality.

References

[1] See FRR and FER v. World Rugby (2018)

[2] As the Player first represented Spain in December 2021, the relevant period was three years, as opposed to the longer five-year period, which came into effect on 1 January 2022.

[3] Pursuant to World Rugby Regulation 19.2.4

[4] See World Rugby Regulation 1.1

[5] See paragraph 15 of the Guidelines

[6] See paras. 23-25 of the Decision

[7] The club seemingly did so to benefit from domestic rules regarding Spanish-qualified players.

[8] See para. 26 of the Decision

[9] See para. 27 of the Decision

[10] See para. 41 of the Decision

[11] See para. 43 of the Decision

[12] See para. 50 of the Decision

[13] See, for example, paras. 3, 13, and 40 of the Decision

[14] See para. 14 of the Guidelines

[15] See, for example, paras. 27, 44 and 49 of the Decision

[16] At para. 40 of the Decision, the Panel noted that the FER asked it to consider whether:

the Player (a) had “a genuine, close, credible and established” national link with Spain (R 8.1); and (b) that the 101/127-day break in residency during 2018-19 was “in exceptional circumstances” (Guideline 16).

[17] See para. 43 of the Decision

[18] See para. 17 of the Guidelines

[19] See para. 41 of the Decision

[20] See here

[21] See para. 14 of the Guidelines

[22] See para. 53 of the Decision

[23] See para. 55 of the Decision

[24] See paras. 52-55 of the Judicial Committee’s decision in World Rugby v. FER and FRR (2018)

[25] See para. 22 of the Decision

[26] See para. 24 of the Decision

[27] See para. 21 of the Decision

[28] See para. 58 of the Decision

[29] See para. 55 of the Decision

[30] See para. 62 of the Decision

[31] See para. 54 of the Decision

[32] See World Rugby Regulation 20.8.5

[33] See World Rugby Regulation 20.8.4

[34] See paras. 43-44 of the Appeal Committee’s decision in FER and FRR v. World Rugby (2018). See also Regulation 20.8.6.

[35] See FER and FRR v. World Rugby (2018) at para. 55

[36] See World Rugby v. FER and FRR (2018) at para. 48 and FER and FRR v. World Rugby (2018) at para. 52

[37] See, for example: Gloucester (2015), Exeter (2011), Sale Sharks (2009), Bristol (2008) and London Irish (2000).

[38] See EPCR v. Saracens (2020)

[39] See, for example: Liverpool (2019), Gillingham (2016), Sunderland (2014), Bradford City (2012)

[40] It is a principle of English law that any disciplinary sanction must be proportionate and, in this author’s view, the criteria in Regulation 20.8.5 must be construed accordingly.

[41] See FER and FRR v. World Rugby (2018) at para. 55(c)

[42] See here

[43] See, for example, paras. 17 and 48 of the Decision

[44] In this respect, see, for example, FIFA’s international eligibility rules.