The Scottish Rugby Union is welcoming the recent announcement by the Westminster Immigration Minister Des Browne intimating that the Working Holidaymaker visa scheme has reverted to its previous prohibition on playing professional sport thus avoiding a potentially huge influx of foreign players into the game.

The previous relaxation to the Working Holidaymaker scheme announced by the Minister’s predecessor Beverley Hughes in August 2003 opened the door to professional rugby in the UK for non-international standard players from the Commonwealth.

This, in itself, was a significant change but not one that would have raised any great difficulty given uniform restrictions across the Home Unions and in the Celtic League and ERC competition rules limiting to two the number of “non-Europeans” who can play in a match.

However when this change was combined with the non-discrimination aspect of a ruling by the European Court of Justice, the so called “Kolpak” ruling, and the very likely consequence that this same ruling would apply to all other countries which have an Association Agreement with the EU, there were potential problems.

Marius Kolpak was a Slovakian professional handball player resident in Germany who it was ruled by the ECJ, could not be discriminated against in pursuing his profession because of the Association Agreement between the EU and Slovakia. He therefore could not be subject to any restriction applied by his sport on “non-Europeans”.

If, because of the impact of the Kolpak ruling, rugby playing working holidaymakers from countries which have Association Agreements with the EU were not to be discriminated against by being subject to any “non-European” limit, the potential problem was huge.

Scottish Rugby was faced with a potentially unlimited influx of non-international players with working holidaymaker visas from rugby playing Cotonou Agreement countries – a similar agreement involving African, Caribbean and South Pacific countries as Slovakia’s with the EU. The worst case scenario was that of a club fielding an entire team of South Africans, Samoans, Tongans and Fijians all of whom might have had to be classed as “European” players.
Furthermore, it has been suggested that Australia and New Zealand might soon have Association Agreements with the EU which clearly would have further exacerbated the problem.

The RFU, WRU and ECB took an early view that because of Kolpak, working holidaymakers from Cotonou Agreement countries would have to be classed as “European” players. After careful consideration, the SRU took an alternative stronger stance based on the difference between someone pursuing his professional career compared to someone in the UK on an extended holiday who is allowed to work to support himself while here.

The ECJ ruling on Kolpak was made on the basis that Kolpak could not be restricted in the exercise of his profession in Germany and it was the SRU’s view that the impact of the non-discrimination aspect of the ECJ ruling should be relevant only to any similar person’s main professional activity, not to a holidaymaker.

Representations were made accordingly in June 2004 to the Minister emphasising also our belief that our stance would help in preserving the development of the game in Scotland (and indeed the rest of the UK were other bodies to adopt the same position). Representations had also been made to the IRB regarding the potential damage to rugby in such as the South Seas Islands’ Unions due to their loss of far more players to the UK.

The stance adopted was not without risk. Some legal opinion was that the Union’s view was open to challenge and certainly a test case might have caused the Union to review its position but none was forthcoming.

The Minister’s announcement to re-introduce the prohibition on working holidaymakers playing professional sport has addressed our concerns and is very much welcomed.

This article was posted on 3-Mar-2005, 10:30 by Hugh Barrow.