Our Employment law trainee, Gethin Bennett, takes a look at the controversial 'Gatland's Law' and what it means for rugby players.  

‘Gatland’s Law’ has become a dominant topic of debate shared by every rugby-led conversation in pubs across Wales and beyond. Within the last month or so, the Welsh Rugby Union (WRU) has announced that the rules behind Gatland’s Law, or the ‘Senior Selection Policy’, are due to change quite drastically. Many players hoping for an international spot may soon fall short of the newly imposed requirements.

What was the law previously?

From 2014, the WRU could select up to three players for the national team who played club rugby outside of the country. From next term, however, there is a new ’Sixty Cap’ policy. This doesn’t affect players already playing outside of the country on existing deals. However, Welsh players who have agreed deals going forward to play their club rugby abroad, will only be able to play test Welsh rugby if they have sixty or more caps under their belt.

The reality of this change means that many players who would otherwise be a dead-cert in the selection process for the national team, (with such names including Rhys Webb) will no longer be eligible. Foul play? Perhaps. This policy isn’t unique to Wales. You only have to look at New Zealand and Australia to see examples of a similar selection process.

Although the decision has provoked much-expected conversation in the realm of rugby politics, the employment law implications of these new rules are more of an afterthought. But it shouldn’t be ignored. A key question that rugby-loving employment lawyers ask themselves is: does this amount to discrimination?

In particular, does the policy lead to indirect age discrimination? Age is one of nine ‘protected characteristics’ covered by the Equality Act 2010. The Act makes it unlawful for an employer to discriminate indirectly against its employees by applying a provision, criterion, or practice that disadvantages employees of a particular age group without objective justification.

 Many young players in their early twenties will not be at the stage in their professional career where they have amassed ten caps, let alone sixty. There’s a valid argument, therefore, that the WRU has indirectly discriminated against its younger employees by putting in place a policy which puts them at a disadvantage.

But can the chiefs of Welsh rugby defend their decision? Maybe so. It could be argued that there’s a legitimate objective justification: the policy responds to a ‘real business need’.  Ultimately, the whole point of the policy is to try to retain grass-roots Welsh talent in Wales, and to prevent an overseas brain-drain.

In a very hypothetical employment tribunal scenario, the WRU may be able to show that Gatland’s Law is a proportionate means of achieving a legitimate aim. A WRU employment lawyer might say the policy is fair. It strikes the balance between keeping the Welsh rugby talent in Wales, without being too discriminatory.

A player who has lost out because of the law may point to it being too harsh. Despite the apparently legitimate aim, is the sixty-cap threshold a necessary and proportionate means of achieving it? Surely, they might say, there’s an alternative with lesser side effects?

Nevertheless, the issue of discrimination here may only be an academic one. After all, there would be many hurdles to face by anyone potentially bringing a claim for discrimination. One such hurdle relates to the identity of the employer. Aside from those who are employed under a central contract with the WRU, players may struggle to show that the WRU, as the policy-maker, is actually their employer.

Either way, many players would probably rather play a few seasons outside of Wales with a view to returning to the country to play internationally, than try to take on the WRU at tribunal and, in all likelihood, lose.

Perfectly legal, or illegally discriminatory? Perhaps one for the television match official…