THE IRFU could be forced into a climb down on its controversial Player Succession Strategy with a leading barrister claiming that the union's new policy is illegal on the grounds of discrimination.
The directives, to be introduced for the 2013/14 season, require only one non-Irish eligible (NIE) player in each of the 15 positions across Munster, Leinster and Ulster; all NIE contracts to be position specific; only Irish eligible injury replacement players and, from 2013/14, no contract renewals for NIE players or new NIE players contracted for that same position.
Tim O'Connor, a barrister specialising in rugby cases, says stipulations within the policy cannot be upheld under European law.
"It's a royal mess," said O'Connor, "and certainly unlawful. For people like Lifeimi Mafi, Doug Howlett and Isa Nacewa, who are no longer classed as non-EU players because they have Irish (and therefore EU) citizen children, they get the benefit of EU Treaty rights and therefore cannot be discriminated against on contracts.
"The reason for this goes back to two European cases, one called Kolpak, the other called Zambrano. Kolpak was a Slovak handball player. At the time, Slovakia wasn't a member of the EU, but had an accession agreement, so he was treated as being on the same footing as members.
"The German Handball Federation wanted to limit the number of non-German players in their league to develop more players for their national set-up, so they limited how many non-German players could sign. Kolpak got caught in the cross-fire, took the case and won.
"Were Nacewa or Howlett to be denied a new contract not on the basis of their play, but because of this IRFU stance, you could see how they could go straight in, saying: 'This is exactly the same as Kolpak, we have EU Treaty rights, we're being messed around, and they can't do this'.
"That's even more the case when you consider Irish rugby's particular situation, where it covers two EU states, Ireland and the United Kingdom. Cross-border freedom of movement is pretty much sacred in EU law, so if, for example, Mafi was offered a contract in Ulster when Munster signed a non-Irish 12, the IRFU would be preventing cross-border movement of a worker with EU Treaty rights and a citizen dependent -- which got shot down in Zambrano."
O'Connor also cited the Jean-Marc Bosman ruling on freedom of movement as a reason why the IRFU directives were not permissible under EU law.
"The Bosman ruling established that it was unlawful under EU law to restrict players from another EU country from playing in the competitions -- including in Ireland, the provinces playing under the IRFU -- on the grounds of nationality," said O'Connor.
"And then Kolpak extended it; and Zambrano extended it further. So, if, for example, Munster get refused a new contract for BJ Botha and want to sign Welsh tight-head Adam Jones instead, there is no way IRFU regulations would be able prevent it, because they are unlawful.
"What this policy does is set up the potential for a huge legal fight in Irish rugby," O'Connor concluded.
The motivation behind the IRFU's policy is to provide the national side with two suitably experienced, Irish-qualified players in all 15 positions.
This week's Ireland squad announcements underlined the need for such a move, with the lack of experienced props the primary concern. While senior props Mike Ross, Cian Healy (both Leinster) and Tom Court (Ulster) have been starting regularly for their provinces, Ireland coach Declan Kidney had to turn to two props, Stephen Archer and Ronan Loughney, for his Wolfhounds squad who have not been guaranteed starters with Munster and Connacht.
However, there is ambiguity surrounding the policy, such as deciding who gets first choice on an NIE player in a given position. This opens up the union to accusations of favouritism if one province were to be permitted to sign a player in a particular position over the other two.
The fairest solution to this could be the American draft system, where first choice is based on where the team finished the previous season.
Another issue is the decree where NIE players have to be position specific. With players such as Nacewa and Ulster's Ruan Pienaar carrying the ability to play in a number of positions, there should be leeway granted here if, for example, squad resources were reduced due to injury.
Since the policy was announced just before Christmas, Munster, Leinster and Ulster, the three affected provinces, have all voiced their objections to the moves and are scheduling a collective response to the union after a planned discussion next week.
The legal ramifications regarding discrimination on the basis of player movement will undoubtedly strengthen the calls for a rethink by the IRFU. Irish rugby will undoubtedly benefit from controlling its use of overseas players in a manner that will promote the national side, but the IRFU's recruitment policy may have to be readdressed to find the best, workable way to achieve this. The IRFU said they would not comment on any details of the Player Succession Strategy as discussions are ongoing.