The Heineken Champions Cup final is due to be held on Saturday 11 May at St James' Park, Newcastle between Leinster and Saracens. We explore why a combination of an international treaty and Champions Cup rules may cause Leinster's James Lowe to miss out on selection.
The Cotonou Agreement and its impact on European rugby
The Heineken Champions Cup is the main professional rugby competition played in Europe. Section 3.7 of the playing rules state that each club is permitted a maximum of two 'non-European players' in each match squad. 'Non-European' in this context would usually refer to players from outside the European Economic Area (EEA). However, players who come from certain countries outside of the EEA are not subject to this rule due to an international treaty entered into between the EU and a group of African, Caribbean and Pacific states (the Cotonou Agreement). This treaty binds these countries to the EU and its aims are to develop integration into the global economy for these states.
A European Court of Justice ruling (Kolpak ruling) in 2003 held that citizens of countries which have signed EU Association Agreements, such as the Cotonou Agreement, have the same right to freedom of work and movement within the EU as EU citizens. Therefore, the Cotonou Agreement establishes that South African and Pacific Island rugby players are exempt from the two non–EEA player restriction and are not subject to these eligibility restrictions as a result.
In Ireland, the effect of this rule is often seen when Leinster play. Unfortunately for James Lowe, Jameson Gibson Park (both New Zealanders) and Scott Fardy (an Australian), New Zealand and Australia are not party to the Cotonou Agreement. It is therefore a common occurrence that one of these players must be omitted from Leinster match day squads due to the fact that only two non-EEA players can be selected. For example, James Lowe was omitted from the match day squad for the Champions Cup final in 2018 against Racing 92 and may miss out on selection in this year's Champions Cup final against Saracens.
While the exact effect of Brexit remains to be seen, European Professional Club Rugby, the organiser of the Heineken Champions Cup, will likely have to change these rules as British rugby players will become non-EEA players after Brexit, and therefore many clubs will be in breach of the current rule.
There may also be wider consequences regarding the free movement of players generally. At present, non-EU nationals are subject to entry requirements when entering England. This may hinder EU nationals if post-Brexit players who intend to play in England are treated in the same way as current non-EU nationals. A further dilemma which may arise is that EU law will no longer be applicable in Britain, and therefore the Kolpak ruling will cease to apply causing any South African or Pacific Island players to be considered as non–EEA players.