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"Spain have cited Ireland, Scotland and New Zealand's use of foreign-born players as evidence of inconsistency in World Rugby's eligibility regulations as part of their appeal against a second consecutive World Cup exclusion for fielding an unqualified player.
Telegraph Sport can reveal that Irish backs James Lowe and Bundee Aki; Scottish prop Pierre Schoeman; and the Tongan-born scrum-half on the cusp of a first All Blacks cap, Folau Fakatava, have all been named as evidence in Spain’s appeal against their World Cup disqualification for fielding an ineligible player, Gavin van den Berg. The Federación Española de Rugby submitted its appeal to World Rugby on Thursday night.
The FER has been left incensed by the decision of a judicial committee to disqualify it from a second successive World Cup for fielding an ineligible player, Van den Berg, a South African-born prop who was deemed to have represented Spain without fulfilling the requisite residency criteria following a hearing last month. Van den Berg's passport was found to have been tampered without his knowledge by his club, Alcobendas, who were relegated out of the Spanish top division last Thursday and fined €30,000.
Spain’s punishment was a 10-point deduction, five for each of Van den Berg’s appearances against the Netherlands in consecutive years of the Rugby Europe Championship. They were also fined £25,000, but the points deduction allowed Romania and Portugal to overtake them in the Rugby Europe Championship standings, therefore ending Spain’s World Cup involvement.
The Spanish appeal against their disqualification focuses on Guideline 15 in the verdict of Van den Berg's initial hearing, in which the judicial committee stated that international teams “must be able to demonstrate the country in which [a player] has been Resident was, genuinely, the country that the Player treated as his home and is clearly the country in which the Player has his primary and permanent home”.
During his World Rugby hearing, Van den Berg was asked how long he had considered Spain as his “permanent primary home”. Despite having played there for three years, he admitted that he had only felt at home in the country for two. The judiciary committee noted Van den Berg's "refreshing honesty in [admitting] it was not until the end of the 2019 year and then to the start of 2020 that he came to regard and decided that Spain was to be his permanent home." The committee also stated that an Instagram post in which Van den Berg had referred to himself as a 'Saffa' was "not insignificant".
While Guideline 15 was not the principle reason for the committee deeming Van den Berg as ineligible to represent Spain, Telegraph Sport understands that the presence of the sentimental, subjective concept of "home" in World Rugby's official verdict has irked Spanish officials, leading them to present what they feel are valid eligibility inconsistencies to the sport's governing body.
In an interview published in The Scotsman newspaper earlier this month, South Africa-born Schoeman admitted that it felt “tough being away from home” during his “first year” in Scotland.
Having moved to Scotland in 2018, and qualified on residency grounds three years later because of an administrative loophole introduced because of Covid, Schoeman made his debut against Tonga last October. The loosehead has now won nine caps, having been selected by Gregor Townsend for all four fixtures of last autumn and becoming a mainstay of the Six Nations campaign.
In a 2016 interview with the Irish Times, cited in the Spanish appeal, Ireland's Aki said: “I actually do not know [who I’ll play for].
“I don’t think about it in terms of countries...Yes, my ambition is still to play international rugby. When the time comes, when the time is right for me, the coaches and the international team will come I hope.
“I have enjoyed Irish culture and stuff but it is wrong for me to say I am Irish."
Since his 2017 debut, the New Zealand-born centre has won 37 caps for Ireland, as well as starting the final Test of last year's British and Irish Lions tour to South Africa. Aki qualified after completing a three-year residency period.
Lowe, meanwhile, made his debut for Ireland in 2020 and has won 12 caps under head coach Andy Farrell. In a 2019 interview with The42, however, the New Zealand-born wing said that it was "weird that [he] could be Irish, isn’t it?", branding World Rugby’s eligibility laws as “stupid” and “weird”. Lowe qualified after completing a three-year residency period and his testimony has also been cited in the Spanish appeal.
Tonga-born Fakatava, who, despite living in New Zealand since the age of 16 was only cleared to represent the All Blacks by World Rugby this month due to an anomaly in the regulations, told Stuff earlier this year: "It would be good to have a crack at [playing for New Zealand].
"I’ll just keep doing what I’m doing, and learn from the best [Aaron Smith], and if the opportunities come I’ll take it. If not, then I’ll have to play for Tonga."
Folau Fakatava has been hotly tipped to succeed Aaron Smith as New Zealand's next scrum-half Credit: GETTY IMAGES
Taking Guideline 15 at face value, therefore, and drawing parallels with Van den Berg's case, there is ambiguity as to whether these players felt at "home" in their adopted countries during their periods of residency qualification.
The FER has also stated in its appeal that the wider findings of World Rugby's judicial committee were incorrect. The panel concluded that no sanction should be imposed on Van den Berg despite the fact that "the Player did breach [the regulation] as charged – he knew, or ought reasonably to have known, that he was not eligible to play". The committee also cited "the FER’s failures in its responsibilities, by not informing, educating and interrogating the Player". Both of these conclusions are contested by the FER as is the severity of the punishment. Spanish officials expect an appeal hearing to take place in mid-June.
When approached by Telegraph Sport, World Rugby stated that it did not wish to comment due to the ongoing appeal process."
