The most recent clash between Rugby League and Union, centred on New Zealand born winger Denny Solomona, came to a head last week when, on 13 December, Solomona formally announced his retirement from Rugby League (leaving club Castleford two years before the expiry of his contract) for a move to Union club Sale Sharks on a three-year deal. Castleford reacted immediately, issuing an official statement from Chief Executive Steve Gill, in which it revealed that it had issued proceedings against both Solomona and Castleford in the High Court:
“We look after our players and fully expect our players to respect their contractual commitments. Sadly and with regret Solomona has done the polar opposite and effectively and unilaterally walked away from the remaining 2 years on his contract.
“In August this year we made it very clear to Solomona & to Sale Sharks that there was an unbreakable contract in place until the end of season 2018 with no basis whatsoever for either ourselves or Solomona to depart from each other’s mutual obligations.”
Gill went on to confirm that “…on the back of losing the player in the circumstances described and now announced by Sale Sharks we confirm that today we have issued Proceedings out of the High Court in Leeds…”
The dispute has prompted various news outlets to compare Solomona to the once relatively obscure Belgian midfielder, Jean-Marc Bosman.
Readers will no doubt recall the seminal 1995 Bosman ruling in which the European Court of Justice declared that the football transfer system at the time (which prohibited a player moving to a new club on expiry of his contract unless the new club paid a transfer fee) contravened the free movement principles enshrined in EU law. Though some have questioned the extent of its impact (warning that “it is often – misleadingly – credited for all the ills and wrongs of football”) the Bosman decision rippled through the footballing world, altering a fundamental aspect of the ability of players to move between clubs and adjusting the bargaining power between player and club in respect of end-of-contract transfers.
20 years on, is rugby on the cusp of its very own Bosman moment?
On its face, the comparison between Bosman and Solomona is irresistible. The basic issues are similar in that they centre on the freedom of a player to move to a new team. Yet there are some important differences which should be borne in mind.
The present Solomona case is, first and foremost (at least in its current setting), a contractual and tortious dispute. According to its official statement, Castleford’s claims are (a) against Solomona for breach of contract, and (b) against Sale for inducing Solomona’s breach of contract. The court is being asked to consider a specific set of facts and a specific contract, rather than a set of sporting rules (as in Bosman). It remains to be seen whether Solomona will bring a counterclaim or defence which engages restraint of trade or EU law principles in a way that might have a wider impact on rugby player contracts.
Second, Solomona relates to a move between two different (albeit related) sports – Rugby League and Rugby Union – which are regulated by two separate governance structures (Union is governed nationally by the RFU and internationally by World Rugby, and League is governed nationally by the RFL and internationally by the Ruby League International Federation). The interplay, and relationship between, the clubs in the Solomona scenario is therefore fundamentally different than those in the Bosman scenario. This arguably reduces the extent to which the courts will need to consider deference to sporting autonomy in the absence of a single sporting body with clear jurisdiction over the dispute.
That said, as the BBC has reported, the Solomona dispute has, in some respects, served to bring to a head 120 years of League-Union tension, founded on “at times, hostility, sometimes distrust, and always a mutual incomprehension”. Moreover, the so-called “retirement loophole” is an issue within rugby more generally (Solomona is not the only player who appears to be utilising this “loophole”). Indeed, there have been calls from some corners for the establishment of a global independent arbitration body (akin to FIFA) capable of dealing with these types of disputes. It is also possible that, subject to the outcome of the Solomona High Court proceedings, clubs will seek to increase the restrictions on players or at least to redefine the concept of retirement to catch these types of move. The practicalities of doing so may, however, prove complex as clubs and governing bodies will need to avoid exposing themselves to challenges based on restraint of trade and EU competition law and free movement principles.
Solomona could yet prove to be a Bosman-type catalyst in rugby but this will ultimately depend on the chain of reactions set into motion by the outcome of the contractual dispute and, more broadly, the current attention on the spate of “retirement loophole” moves. Whatever the outcome, this will be one to watch.