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  • Writer's pictureMark O'Neill

Kolpak After Brexit: What Happens Next?

Updated: Mar 15, 2023

Now that Boris Johnson has 'got Brexit done' (sort of but that's for another time!), and that the UK is now in the transitional phase of leaving the European Union one of the effects on the British sporting landscape is that the Kolpak ruling will no longer apply. The England and Wales Cricket Board (ECB) have recently publicised guidance that says that Kolpak contracts lasting after December 31 2020, will be invalidated. So what will this mean for English domestic cricket, and also for those players affected by the ECB guidance?

What is Kolpak?

Kolpak relates to a European Court of Justice (ECJ) decision in 2003, when Maros Kolpak, a Slovakian handball player playing in German leagues won his case against the German Handball governing body, Deutscher Handballbund eV. Kolpak was released from his contract due to foreign player quota rules in place, and Kolpak challenged the German Handball Association, claiming that the rules treated him differently from German citizens, and placed an illegal restriction on his freedom of movement as a worker. The German Handball Association held that equality of treatment applied only to citizens of European Union countries (as per the Bosman Ruling) and not to non-EU citizens.

The ECJ disagreed and held that the citizens of countries which have applicable Association Agreements with the EU, and who are lawfully working within an EU country, have equal rights to work as EU citizens, and cannot have restrictions such as quotas placed upon them. An Association Agreement is a treaty between the EU, its Member States and a non-EU country that creates a framework for cooperation between them. Such agreements usually cover the development of political, trade, social, cultural and security links. At the time, countries who had Association Agreements with the EU include many European countries not in the EU, as well as the African, Caribbean and Pacific Group of States (ACP) which includes countries such as South Africa, Zimbabwe, Barbados and Jamaica.

Although the effect on sport was potentially broad, it has primarily affected cricket and rugby union the most. Since 2004, this has allowed cricketers from ACP countries to play as non-overseas players in English county cricket, but most give up their right to represent their home country. The most extreme example being a 2008 County Championship match between Leicestershire and Northamptonshire, 13 out of the 22 players were non-English.

At present, there are currently more than 20 Kolpak players in English county cricket, with the vast majority being South African and many of these being players in and around the South African international teams such as Duanne Olivier, Kyle Abbott and Vernon Philander. This has meant that South African cricket has felt the effect more than most.

What has the ECB Proposed?

The ECB has recently issued guidance to the 18 first-class counties stating that after 31 December 2020 Kolpak cricketers will no longer be classed as local players and will be registered as overseas players instead if counties wish to retain their registration. This includes those who have signed multi-year contracts which were scheduled to continue for the 2021 season and beyond, which appears to the main point of contention. To compensate for this, they have also proposed to allow two overseas players per team from 2021.

But this move could potentially be open to a legal challenge from affected players, possibly on the grounds of restraint of trade. Restraint of trade is where a clause in an agreement restricts the ability of a person or organisation to carry out their trade or business. It has been particularly relevant historically in sports law cases concerning access to competitions such as Greig v Insole, which held that bans imposed by the TCCB (the ECB's predecessor) on players who signed to take part in World Series Cricket, a rebel tournament organised by Kerry Packer, were unreasonable restraints of trade by forcing those players to breach one contract to uphold their obligations in another. So any contractual clause which negates the right of an athlete to compete is unlawful and voidable at the claimant's discretion.

To qualify as a restraint of trade, a claimant must show that the restraining clause goes further than necessary to protect a legitimate interest, as outlined in the leading case of Nordenfelt. So in the Kolpak example, it must be shown that being classed as an overseas player would affect the player's ability to compete in English domestic cricket. Now if the ECB had kept the quota of overseas players at one per team (in County Championship and One Day Cup matches), then the Kolpak players would have a reasonable case, but as they have opened up extra places for overseas players for these competitions then this would effectively mitigate this argument as they would still be able to compete, but just under a different status.

This is a sensible measure by the ECB, and should ward off potential challenges in these areas as claimants would not be able to demonstrate any kind of restraint on their ability to compete or carry out their sporting trade. In addition, the ECB would also be able to argue that the rules would potentially further encourage the greater use of local players and further their development, and such arguments can be powerful.

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