It is a stark choice but one that is faced by an increasing number of professional rugby union players around the world.

Many of the top rugby nations have adopted explicit rules around the selection of players based abroad for the national team and others utilise similar, albeit unwritten, “guidelines” in order to maintain the strength of their domestic rugby clubs and teams.  As financial muscle in the game increases, pay packets for players also increase and clubs understandably want to attract the best players to boost their squads.  Therefore, where a top player is attracted to a club in a different country, he is potentially putting his international career at risk depending which nation he represents.

This is by no means a new issue.  New Zealand have adopted a policy of only picking players based in New Zealand for many years.  At times, this has been questioned, although their recent dominance over the international arena would suggest that they certainly have not been adversely affected by ignoring players outside the country.  However, to a greater or less extent, Australia, England, Ireland, Wales and Argentina follow a similar school of thought and none of these can boast the dominance that the All Blacks can.

The point has hit the headlines again this week as Wales have publicly changed their selection policy – which looks to have already claimed its first high profile casualty.  To recap, over the last few years, Wales adopted what was commonly dubbed ‘Gatland’s law’.  Effectively, this meant that only a specified number of Welsh qualified players based abroad (who had rejected deals in Wales) could be selected to play for the national side.  It was introduced to try to prevent player drain to England and France where stronger financial deals were on the table.  A total selection ban on players abroad would have cut out high profile players like Leigh Halfpenny, George North and Taulupe Faletau and so Gatland’s law was the compromise.

Now they have changed direction and decided to adopt the system used by the Australians.  Effectively, the policy going forward will mean that most players based abroad can only be selected for Wales if they have more than 60 international caps (with some exceptions depending on when deals were signed).  Halfpenny has now returned to Wales, but the policy change means that North and Faletau are both safe in the knowledge that they can be selected for Wales.  The current first choice out-half, Dan Biggar, is due to cross the border to Northampton next season and currently has 56 caps so would be confident of having passed 60 by that time.

However, his half-back partner, Rhys Webb looks to have been caught out.  It was announced earlier in the month, prior to the policy change, that Webb would moveto the French club Toulon at the end of the season and that Toulon would allow him to continue playing for Wales.  Unfortunately for Webb, he only has 28 caps for his country and so will not have passed the 60 cap threshold by the time of his move and it therefore looks like his Wales career will be on hold during his time at Toulon.

It is reported that Webb did not know his move would impact his international career and the confusion appears to stretch wider.  The national coach Warren Gatland appears to think Webb has the ability to walk away from whatever deal has been agreed with Toulon, while the Toulon owner Mourad Boudjellal insists (perhaps unsurprisingly) that the deal is binding.

It is an unfortunate position for the player if he genuinely did not know his international career was at stake.  While the choice between international career and financial security is a tough one, it is at least a choice.  Under the old Gatland’s law, Webb was still putting international selection at risk but he still had a chance whereas now there appears to be none.

With regards the contractual position of the Toulon deal, it will depend on the nature of the agreement made between Webb and Toulon as to whether it is binding or whether Webb can walk away.  If binding, there is likely to be little that Webb and/or the union can do short of agreeing compensation to be paid to Toulon to pull out of the deal.  For the moment, it seems Webb is sticking with the Toulon move.

However, could there be an employment law angle to this?  This is a policy put in place by the Welsh union that requires a player based outside of Wales to have 60 caps in order to be considered for selection.  If we take a rough estimate of 10 international matches played by Wales per year, then a player would need to play for at least 6 years before having the requisite number of caps – let’s not even touch the Pandora’s box of the likelihood of injury making that longer!

This means it is almost impossible for, say, a 23 year old to meet the threshold number of caps and so it is likely that anyone around that age must remain playing in Wales in order to play international rugby.  In employment law terms, this looks something like indirect discrimination based on age – a policy applied to everyone but has the effect of disadvantaging younger people.

Having said that, there would be a number of points to side-step before such a claim could succeed.  Firstly, does the hypothetical claimant have the right to bring a discrimination claim against the Welsh union?  If they are a capped international, almost certainly yes as an employee/worker of the union.  Then, there would be the usual litigation risk of proving that it is indeed discrimination.

Even then assuming indirect discrimination is found, such discrimination can be defended if it is a proportionate means of achieving a legitimate aim – in other words objective justification for the policy.  The Welsh union would argue it is necessary to protect the strength of the domestic regions and the general strength of the Welsh game, which may or may not be a successful argument.  Although why the possibility of players with more than 60 caps leaving the Welsh domestic game is deemed fine by the Welsh union is hard to see – why is 60 the magic number of caps?  Why not 50?

In reality, it is unlikely that an argument like this will be attempted.  A player suing their own union and losing is probably in a worse position than one who plays in France for a few years but then returns.  However, a case like this does highlight that the best intentions can have unintended legal consequences