Legal Implications of Brexit for Football

By in Governance, People & Places

Tuesday 5th September

Sam Georgevic – Student on the Mishcon De Reya Sports Law Academy

Introduction

What was most surprising about the January transfer window, with Theresa May predicted to trigger Article 50 later this month, was the lack of transfers which were completed before the deadline. Once the PM does signal the UK’s removal from the European Union, the legal status of European footballers, just like any other EU migrant, remains in the balance. Britain’s attempts to curtail immigration have come at the expense of having access to the free market. Limiting immigration inevitably has adverse effects on EU footballers coming into the UK. Speculation in recent weeks over whether no deal would be preferable to a bad deal, would suggest that there would be no system put in place to deal with EU employees. With this proving to be an unlikely scenario, it is likely that the Premier League will decide to adopt a default position of utilising the prolonged work permit structure used for non-EU nationals which would become applicable for EU players. Even if May managed to secure the preferred Government imitative of a ‘Hard Brexit’, the opportunities available to EU employees would not be offered in a sector by sector approach as this would be too difficult to micro-manage.

The Football Association’s rules on non-European Economic Area (EEA) players in the UK

From the beginning of the 2015/16 season, the Football Association changed its rules on the work permit system of non-EEA players  in a bid to reduce the amount of ‘sub-elite foreigners.’  Once Britain has left the EU, EU nationals will be subject to the following criteria:

Players coming into the English leagues would need to be:

  • “internationally established at the highest level”; and
  • “whose employment will make a significant contribution to the development of their sport at the highest level”.

Eligibility would be based on appearances for respective national teams. This also depends on a national team’s ranking:

Official FIFA Ranking Required % of international matches over previous 24 months
FIFA 1-10 30% and above
FIFA 11-20 45% and above
FIFA 21-30 60% and above
FIFA 31-50 75% and above[1]  

If the player does not satisfy these stipulations, they are able to appeal through the Exceptions Panel which awards points based on salary and transfer fees. This panel is supposed to be far more stringent than the previous panel which accepted the majority of appeals. Through this system, the FA hopes to cut ‘sub-elite foreigners’ by 50%.

Implications of the quota system

Post Brexit, theoretically the Football Association have the ability to discriminate according to nationality as this stipulation falls under EU law. Therefore, a quota system limiting the number of European nationals within a team could be brought in for English clubs. It is likely that the Premier League will not want to jeopardise the quality of their league and therefore they will not be inclined to initiate their own quota system discriminating on nationality. However, a quota system discriminating on nationality could certainly appear in the FA Cup and Football League. Due to the requirement for players to satisfy the aforementioned eligibility criteria, this would further entrench the divide between the ‘oligopoleague’ of the Premier League and the rest of the Football League who are not able to attract the same level of talent. Having said this, for those who argue about the importance of nurturing home talent, the lesser quality European players who are dotted throughout the Football League have played a more significant role in preventing local talent from rising through the ranks than the higher-quality Europeans playing in the Premier League. Therefore, positive developments may be induced.

Implications of other EU stipulations which no longer apply

Bosman and the free transfer ruling:

  1. when a European footballer came to the end of his contract he was free to sign for any European club he wished and that it was illegal for the club he had played for to hold on to his playing registration; and
  2. as foreigner quotas were in operation in European competitions, such quotas which allowed for a limit of three “foreign” players in a team squad were also illegal.

After the infamous Bosman case in 1995, we saw the eradication of quotas from European competitions. With Britain exiting the EU, question marks will be raised whether the Bosman case which ensured the free movement of players at the termination of the contractual date, still applies under UK law. Nevertheless, EU law is likely to remain applicable, particularly when one of the parties involved in the negotiations derives from an EU member state. Therefore, it seems unlikely that new regulations would be enforced as this has been the status quo for quite some time.

With England currently a member of the EEA, Premier League teams are able to benefit from signing young talent who have long received their first professional contracts from the age of 16. Players such as Bellerin and Pogba have been able to benefit from the provision of coming from a member of the EEA, to train with clubs prior to the age of 16. This will also see the end of British clubs gaining preferential treatment of having foreign players satisfy the ‘home-grown’ ruling, if they trained with the team from the ages of 15-21.

FIFA Regulations on the Status and Transfer of Players

Article 19 permits the “transfers of minors between the age of 16 and 18 within the EU or EEA”.

Rather than paying a set transfer fee to the European clubs where the player has previously trained, clubs have merely received training compensation following a transfer. When Britain no longer is a member of the EEA, players will not be able to benefit from this provision as players will only be able to be signed from the age of 18 years old, thus requiring a transfer fee rather than training compensation. This creates significant practical issues on a football club’s recruitment but also means a greater focus on sourcing domestic talent.

What lies in store for the future?

Ultimately, the type of qualitative and quantitative criteria for particular industries as to the rights of EU nationals, remains speculative as we still have not triggered Article 50, let alone commenced negotiations with the European Union. Nonetheless, with a system needing to be put in place once the 2-year window of negotiations has ended, it is likely that the structure suited for non-EEA workers will become applicable. The administrative hassle of tackling each sport on a case by case basis will prove to be a disproportionate burden.

With only around 31% of the Premier League players being British, it is safe to say that both EU and non-EU nationals have aided to make the Premier League arguably the best league in the world. However, one of the unintended consequences of Brexit has a greater competitive advantage for UK players. With a greater reduction of non-UK players, the standard of English football may see a significant drop.

 

This article was written by a student of the Mishcon Sports Law Academy and as such does not necessarily represent the view of Mishcon de Reya or its partners/employees.  The Mishcon Sports Law Academy is part of the firm’s graduate recruitment process. It is open to aspiring lawyers who are able to attend a series of evening seminars in London.

Please see www.mishcongraduates.com for more information or to apply.