World Rugby Tours Agreement
Posted: Sat Aug 15, 2020 12:06 pm
As a service to forum members currently discussing post-covid possibilities for test rugby, I thought I might walk you through some provisions of the current agreement (i.e. contract) in a fair handed manner. The 2016 edition is here:
https://www.world.rugby/news/154981?lang=en
I have seen a few odd ideas bandied around about "rights" to this and that which seem to be based on a misunderstanding of what the legal relationship is.
It is important to note that the agreement contains a force majeure provision which includes epidemics, and there is a fair argument a pandemic is an epidemic on the ordinary meaning of the word*.
[*A pandemic is defined as “an epidemic occurring worldwide, or over a very wide area, crossing international boundaries and usually affecting a large number of people”]
On balance of probabilities, the Chinese Flu is an epidemic that was a circumstance not reasonably foreseeable when the agreement was agreed, and is beyond the control of all parties. As are its effects on matters such as visas and governmental travel and activity permissions.
The interesting thing you should note is that the standard form is supposed to be completed as a contract between the host and visiting Unions for each and every tour. This simplifies matters, because the document is not supposed to be an umbrella agreement that dictates terms that will apply to all tours. We know that in practice it is not, because for "extra games" outside tour windows, the hosting NH Unions have and do enter into revenue sharing agreements with the visiting SH Unions. (C.F NZ v England; Aust. v Wales in recent years.)
There are various clauses distributing the costs of airfares to and from the host country, and within the host country, and details about replacement players and the like. Those are found in and around clause 7, but importantly, not everything is paid for by the host union - as an example see:
There is a section about how many complimentary tickets the tourists get (clause 17) but if they sell them commercially they are to be ejected from the tour.
Clause 18.3(b) (hereinafter the "Haka clause") allows for cultural displays before kickoff.
I also note, with some interest, that if WR didn't demand adherence to this standard form, the parties could by agreement vary clause 18.4....
Those provisions are followed by a series of machinery clauses dealing with such matters as media conferences, broadcaster access, promotional activities, and the like.
When we get to clause 24, we find the force majeure rules.
Now, here is the funny thing. Nowhere in that agreement does the concept that the visiting team's union might get some revenue appear; it is a relic of amateur days where the visitors paid some of their own costs (including their airfares to and from).
There is no specific reason that a visiting union can not demand a variation of terms to share the revenue generated by the tour.
It would probably be a good thing if any discussion of this post was limited to rational debate about how the legal document should be construed, with more partisan and vitriolic argument saved for other threads.
https://www.world.rugby/news/154981?lang=en
I have seen a few odd ideas bandied around about "rights" to this and that which seem to be based on a misunderstanding of what the legal relationship is.
It is important to note that the agreement contains a force majeure provision which includes epidemics, and there is a fair argument a pandemic is an epidemic on the ordinary meaning of the word*.
[*A pandemic is defined as “an epidemic occurring worldwide, or over a very wide area, crossing international boundaries and usually affecting a large number of people”]
There is also reference to governmental prohibitions on visas and travel themselves being a force majeure.1.1 The following terms, where used in this Agreement, shall have the following meanings assigned to them:
.....
Event of Force Majeure means any circumstance(s) not reasonably foreseeable at the date of this Agreement arising from or attributable to acts, events, omissions or accidents which are beyond the reasonable control of the affected party including without limitation any strike or lock out or industrial action of whatever nature (which is not due to any party to this Agreement including any Tour Party Member or any associates, agents, representatives or employees or such party), accidental fire, storm or tempest, act of God, explosion, sabotage, flood, earthquakes, subsidence, epidemic or other natural physical disaster, structural damage, failure of power supplies, riot, crowd disorder, act of terrorism, war, civil commotion or any legislation, regulation, ruling or omissions (including failure to grant any necessary permissions) of any relevant government, court or any competent national or international authority;
On balance of probabilities, the Chinese Flu is an epidemic that was a circumstance not reasonably foreseeable when the agreement was agreed, and is beyond the control of all parties. As are its effects on matters such as visas and governmental travel and activity permissions.
The interesting thing you should note is that the standard form is supposed to be completed as a contract between the host and visiting Unions for each and every tour. This simplifies matters, because the document is not supposed to be an umbrella agreement that dictates terms that will apply to all tours. We know that in practice it is not, because for "extra games" outside tour windows, the hosting NH Unions have and do enter into revenue sharing agreements with the visiting SH Unions. (C.F NZ v England; Aust. v Wales in recent years.)
There are various clauses distributing the costs of airfares to and from the host country, and within the host country, and details about replacement players and the like. Those are found in and around clause 7, but importantly, not everything is paid for by the host union - as an example see:
So it is not so simple as saying the host union pays all expenses - they do not.7.3.2 Expenses for room service or the serving of meals and beverages outside the agreed table d’hôte full board provision shall (as between the Parties to this Agreement) be paid by the Visiting Union unless authorised by the Liaison Officer as being payable by the Host Union. Any such charges must be settled by the Visiting Union or at its discretion by individual Members of the Tour Party before leaving each hotel and it shall be the Visiting Unions Manager’s responsibility to ensure that this is done.
7.3.3 Telephonic charges, internet charges, pay-TV charges, fax, or other such charges shall be paid by the individual concerned. Any such charges must be settled by the individual members of the Tour Party before leaving each hotel and it shall be the Manager's responsibility to ensure that this is done.
There is a section about how many complimentary tickets the tourists get (clause 17) but if they sell them commercially they are to be ejected from the tour.
Clause 18.3(b) (hereinafter the "Haka clause") allows for cultural displays before kickoff.
I also note, with some interest, that if WR didn't demand adherence to this standard form, the parties could by agreement vary clause 18.4....
I am guessing WRU sought a variation from NZRU (as it was then) for their centenary match... which NZR wasn't happy with.18.4 For any cultural ceremony and/or Team challenge (which for the avoidance of doubt may only be performed by the 22 players selected for the Match), the Team performing the ceremony and/or issuing the challenge must not cross the 10 metre line on its half of the pitch. The Union receiving the challenge shall not cross the 10 metre line on its half of the pitch
Those provisions are followed by a series of machinery clauses dealing with such matters as media conferences, broadcaster access, promotional activities, and the like.
When we get to clause 24, we find the force majeure rules.
I rather imagine that back before June, the proposed NH tourists' CEOs sent an email (see clause 28.7(a)) pointing out that whatever might have been arranged was now impossible. If anything had been signed about November, then a politely written email mentioning covid travel restrictions, non-availability of visas and border closures would suffice. The period probably doesn't matter because it seems unlikely tour agreements will have been signed for 2021 or 2022 yet.24.1 If and to the extent that either Party is prevented or delayed by an Event of Force Majeure from performing any or all of its obligations under this Agreement it shall promptly notify the other Party in writing, specifying the nature, cause and consequences or likely consequences of the Event of Force Majeure together with such evidence verifying the Event of Force Majeure as it can reasonably give and the period for which it estimates that the Event of Force Majeure will continue.
24.2 In the event that either Party is prevented from complying with any or all of its obligations under this Agreement by an Event of Force Majeure the non-performance or failure of the relevant Party’s obligations shall not be deemed to be a breach of this Agreement save where the Party or Parties is/are prevented from complying with its or their obligations by the Force Majeure event has/have failed to use its/their best endeavours to comply with its/their obligations and/or minimise the impact of the Force Majeure event in which circumstances the relevant Party or Parties (as the case may be) shall be deemed to be in breach of this Agreement. In the event that this Agreement cannot be substantially performed or its obligations substantially fulfilled for a continuous period of two months then the defaulting Party or either Party (if both are affected) may terminate this Agreement by notice in writing at the end of that period.
Now, here is the funny thing. Nowhere in that agreement does the concept that the visiting team's union might get some revenue appear; it is a relic of amateur days where the visitors paid some of their own costs (including their airfares to and from).
There is no specific reason that a visiting union can not demand a variation of terms to share the revenue generated by the tour.
It would probably be a good thing if any discussion of this post was limited to rational debate about how the legal document should be construed, with more partisan and vitriolic argument saved for other threads.
