The Year 13 student is eligible to play for King's College, the Sports Tribunal has ruled. Photo / File
An Auckland student who moved to a new school is eligible to play for his first XV rugby team and should never have been caught up in a fraught dispute involving a principals’ code, a legal authority has ruled.
In a written decision released today, the Sports Tribunal of New Zealand said it was “in no doubt” that the Year 13 pupil should not have been caught up by the code signed by the principals of the 12 Auckland schools involved in the first XV (1A) rugby competition.
The code – designed primarily to stop schools poaching talented rugby players from one another – has been in place for several years, but is facing criticism from some quarters as a blunt instrument that risks catching out innocent students.
The Sports Tribunal said the student transferred from Mt Albert Grammar School (MAGs) to King’s College in early 2022 “for reasons relating to his personal wellbeing... which had nothing to do with rugby”.
His parents have been battling to have their son ruled eligible to play for the King’s first XV – they have sought media, political and legal help in what they see as an injustice.
Their son, under today’s ruling, is now eligible to play for the King’s first XV as early as this weekend, against St Peter’s.
The decision confirms the student was not in a first XV rugby programme at MAGs, having only played in the 15B and 1R teams.
He was, however, enrolled in the MAGs sports academy (rugby section) in his Year 9 and 10 years. The tribunal noted it would assume for the purposes of its decision, and without deciding, that the MAGs rugby academy was a “rugby development programme” for the purposes of the code.
“From an email exchange between MAGs and King’s in April 2023, being part of the documents provided to the tribunal, it appears that both schools then shared the view that [the student] was caught by the code because he had been involved in the rugby academy at MAGs,” says the tribunal.
“However, the chair of MAGs was subsequently reported in the New Zealand Herald as saying that this was not an issue for MAGs, and that it was ‘up to the King’s headmaster to determine whether the student could play first XV rugby’.”
The tribunal said the principals’ code lies at the heart of the dispute.
The code says anyone involved in a rugby development programme at one school cannot then move to another school and play first XV rugby. But the tribunal says the code does not define the meaning of a “rugby development programme”.
“That poses difficulties when trying to ascertain precisely what it means. For example, it is silent on the level of involvement that might be required. It is also curious that the reach of the code extends into Year 8, the year before secondary school.”
Thomas Ashley, a lawyer acting for the student, argued to the tribunal that his client had not been playing rugby at MAGs continuously and he was no longer in the academy by the time he moved to King’s. “By the time he moved to King’s he was not playing rugby at all,” says the tribunal decision.
The tribunal said the lack of any definition in the code of “rugby development programme” (RDP) meant it was open to MAGs to consider that the student’s involvement in the rugby academy meant he was involved in an RDP.
“However, the tribunal finds compelling Mr Ashley’s submission that for the Rugby Academy to be properly regarded as an RDP it must have contemplated continuous involvement on [the student’s] part.
“In this case, [the student] says that he dropped out of the MAGs rugby academy at the end of his Year 10, and it appears that two full rugby seasons passed (in years 11 and 12) before he even came into contention for anything, at either school, that might have been described as an RDP under the code. [The student] did not play rugby while at MAGs in year 12 and his rugby was interrupted by Covid in years 10 and 11.”
The tribunal also accepted Ashley’s argument that, as the code was designed to stop the poaching of top players from other schools, “it really should only apply to them”.
“It should not apply to players who dropped out of a school’s RDP and were not on any First XV ‘pathway’ long before they transferred schools. Any other view seems to the tribunal to be capable of producing unfair outcomes for some transferring students.”
The tribunal said it was conscious there appeared to be no discretion under the code to consider a student’s personal circumstances.
It said with closer scrutiny, “it would have been readily apparent that his transfer to Kings was for the sake of his personal wellbeing; it had nothing to do with rugby”.
Not considering the personal circumstances of a transferring student might put a school at risk of breaching the guiding principles of the 1A rugby competition.
“While the guiding principles do not create legal obligations, those subject to the rules are encouraged to observe them. The tribunal’s view is that it is difficult to think of any reason why they would not be observed.”
The tribunal says it does not see the decision as a precedent. Given it was an urgent application, it said, there was no time to seek the views of the other principals who were signatories to the 1A code.
“Accordingly, this decision is not intended to be binding in any way on the other schools in the 1A Rugby Competition, except to the extent that it decides that King’s is entitled to select [the student] in its First XV if it so chooses. The decision is not intended to create a precedent which binds the other schools in other cases involving different players.”
On Saturday, the board chair of another top Auckland school told the Herald his school “has made no decision in relation to this. We haven’t considered it”.
It had yet to even see the ruling. He said his school had only “one of 12 says in the matter”.
One source told the Herald on Saturday: “Some of the other schools have reacted very badly already with veiled threats to throw King’s out. I predict they will calm down when they realise this helps legitimise the 1A code, given it will interpret it rather than declare it illegal. The High Court would not be as kind.”
Editor-at-Large Shayne Currie is one of New Zealand’s most experienced senior journalists and media leaders. He has held executive and senior editorial roles at NZME including Managing Editor, NZ Herald Editor and Herald on Sunday Editor.
Forty-three South Island co-ed principals have asked the national body to intervene.