Last week, the news broke that rugby union may be the next sport to experience the disruption of a breakaway league.
Reports suggest that plans are afoot for a new global franchise competition akin to the Indian Premier League, Formula One or LIV Golf, which would target the top 200 players in the world, offering them better salaries to play fewer matches in a globe-trotting series held in major stadia across the world.
The concept would involve both men’s and women’s competitions and would aim not to interfere with the game’s international test calendar, allowing players to continue playing for their countries.
Unlike football’s European Super League, the breakaway league would not see existing professional clubs leaving their existing competitions. Instead, it would involve players breaking off to join new franchises, specifically created to form part of the breakaway competition.
There will be plenty of arguments for and against the idea, and the financial implications on both sides of the debate will be significant, but this article will focus on the potential legal ramifications.
There would be a number of legal hurdles to overcome in setting up a such a breakaway league, but chief among them would be:
- Would World Rugby sanction the competition, and would their authorisation be required?
- Would players remain eligible to play international rugby if they joined the breakaway league?
- What would happen to players’ existing contracts?
World Rugby authorisation
Some reports have suggested that World Rugby would need to sanction the breakaway league if players were to remain eligible to play international rugby.
However, there does not appear to be any legal basis in World Rugby’s regulations for requiring such pre-authorisation.
World Rugby’s regulations require pre-authorisation to be obtained for international matches – i.e., matches between the national representative teams of World Rugby Member Unions – and require Unions to pre-authorise certain matches played by their member clubs. However, the proposed breakaway league would create new entities not affiliated to any Union and would therefore be outside of World Rugby’s sphere of control.
This is in contrast to football’s breakaway European Super League, where clubs subject to the regulatory control of UEFA and FIFA sought to organise a new competition without UEFA / FIFA’s prior approval and were subsequently threatened with severe sanctions. As matters stand, World Rugby would not have any jurisdiction over the proposed breakaway league.
Indeed, World Rugby’s Bye-Laws recognise that rugby union may be played outside of its jurisdiction. To explain: Bye-Law 6 governs the process of becoming a member of World Rugby. Membership is open to any national rugby union, provided that it complies with the relevant membership criteria. Such criteria include conforming with World Rugby’s regulations (including, in particular, its WADA-compliant anti-doping regulations) and the Laws of the Game. This therefore suggests that it is permissible for rugby union to be played in accordance with World Rugby’s rules and regulations, without World Rugby’s prior approval.
To the extent pre-authorisation may be required, it would need to be subject to “transparent, objective, non-discriminatory and proportionate” criteria and “detailed procedural rules” in order to comply with EU competition law (which applies to World Rugby as a body headquartered and operating within the EU). This follows from the recent ruling of the Court of Justice of the EU (“CJEU”) on the European Super League.[1] At present, no such criteria or procedural rules exist.
Nevertheless, it will likely be necessary for any breakaway league to materially comply with World Rugby’s regulations concerning the safety and integrity of the Game, as well as the Laws of the Game, for insurance purposes, and to ensure that players remain eligible for international rugby (see below).
Eligibility for international rugby
Whilst a breakaway league could, itself, be outside of World Rugby’s jurisdiction, any players playing in such a competition would be within World Rugby’s jurisdiction, to the extent that they wish to play international rugby for their country.
At present, there does not appear to be anything in World Rugby’s regulations which would preclude a player participating in any breakaway league from playing for their country. However, any player wishing to play international rugby would have to comply with World Rugby’s regulations, including, for example, in relation to anti-doping and anti-corruption. Accordingly, any breakaway league would likely need to ensure compliance with such regulations, in order to ensure that its players remain eligible for international rugby.
However, because international rugby is under the jurisdiction of World Rugby, international eligibility / selection criteria might become a tool for World Rugby (and/or its Member Unions) to oppose the breakaway league. For example, they may seek to introduce a rule to the effect that only players playing in competitions pre-authorised by World Rugby or a Member Union will be eligible for international rugby. Indeed, some Unions, such as England, Ireland and New Zealand, effectively operate on this basis already (as they have policies under which players playing for clubs outside of their national leagues will not be eligible for international selection).
Such measures have been adopted previously by international federations seeking to quash, or control, the threat of breakaway competitions, most notably in ice skating.
In 2014, a breakaway competition was created for speed skating. The International Skating Union’s (ISU) rules provided that skaters may only participate in events pre-authorised by the ISU / its member federations and that any skater participating in a non-authorised event may banned from participating in ISU events for a number of years, if not for life.
The skaters challenged these rules at the EU Commission on competition law grounds and the matter subsequently reached the CJEU. The first instance court held that a pre-authorisation system may be legitimate, in the interests of the effective organisation of sport and the maintenance of sporting integrity, but only if there are criteria which are “clearly defined, transparent, non-discriminatory, reviewable and capable of ensuring the organisers of events effective access to the relevant market”.[2] The lack of such criteria rendered the rules unlawful. Further, it held that the rules banning the breakaway skaters from ISU competitions were disproportionate and therefore illegal.[3]
This decision was upheld on appeal[4] and is consistent with the recent CJEU ruling on the European Super League, discussed above.
If rugby’s breakaway league respects World Rugby’s international windows (as is its stated intention), and World Rugby’s regulations regarding the safety and integrity of the game, this author would struggle to see how any World Rugby ban on breakaway players playing international rugby could be legal (even if suitably transparent, objective and non-discriminatory rules were to be introduced).
Whilst the subjectivity of selection decisions in a team sport such as rugby might make this principle difficult to enforce at national level, overt non-selection policies such as those held by England, Ireland and New Zealand would also be open to challenge, on the same basis. This author has previously written in detail on this subject (see England Rugby’s Overseas Player Rule – A Restraint of Trade?).
Some might argue that the issue of solidarity would warrant some form of limitation being placed on players’ ability to participate in a breakaway league – i.e., the concern that clubs / Unions have invested in the development of these players but will not see a return on that investment, which would be re-invested in the development of the game. However, given that most Unions generate the majority of their revenues from international rugby (which a breakaway league would not disturb), and that top players’ salaries threaten to render most club rugby competitions unsustainable, this argument is not all that persuasive. A training compensation mechanism might be seen as a compromise.
Players’ existing contracts
A further, obvious challenge for any breakaway competition would be that many of the game’s top players are currently under contract with their professional club and/or their national union, and many of these contracts may yet have several years left to run.
Of course, any player who is out of contract (i.e., a free agent) would be free to sign up to play for any new team of their choosing. But players who are under contract could not simply walk away from existing deals. If they did, they could be sued for breach of contract, may be liable to pay damages and could even be subjected to an injunction stopping them from joining the breakaway league, for the duration of their existing contract.
The new league (or its franchises) may also be exposed to legal risk, as any attempts to lure players away from existing contracts may amount to ‘inducing a breach of contract’, which would itself give rise to claims for damages.
The breakaway league’s strategy will therefore likely be to sign up players who will be free agents when the new competition starts (reportedly, in 2026), and to offer clubs/unions financial compensation in order to secure the early release of contracted players.
However, the latter will likely be easier said than done, as one would imagine that clubs and unions will be reluctant to let their players go, given the commercial threat posed to them by such a rival competition. Money often talks, but the total cost of the buy-out could be huge for a pool of more than 200 players.
Article by Ben Cisneros. Ben is an Associate at Morgan Sports Law with a dedicated rugby practice and experience advising on competition law issues within the sport. This article reflects only the author’s personal views. Please email ben.cisneros@morgansl.com with any legal or media enquiries.
References
[1] Case C‑333/21 European Superleague v. FIFA & UEFA at para. 151
[2] Case T‑93/18 International Skating Union v. Commission at paras. 88, 118 and 129
[3] Case T‑93/18 International Skating Union v. Commission at paras. 92-93
[4] Case C‑124/21 P International Skating Union v. Commission