The English FA wants to cut down the number of foreign players in the Premier League but are the proposed rules opening the FA’s doors to legal challenge? Luca Ferrari, partner and global head of sports, and Libby Payne, associate at Withers, examine the new proposals and warn of stormy waters ahead.
Football stays at home
In March 2015 the English Football Association (‘FA’) announced proposals to tighten up the existing ‘home grown players’ rules that apply to the English Premier League. Ultimately this will make it harder for players from outside the UK to play in the Premier League and as such, the proposed new rules arguably contravene the EU principle of free movement of workers.
Change to the Premier League Rules
At present, the Premier League Rules state that out of a club squad of 25, a maximum of 17 players may be non-‘home grown’. To qualify as home grown a player must have been registered with a domestic club for three years before the age of 21. The proposed changes will see the maximum number of non-home grown players gradually reduced to a maximum of 13 out of 25. Further, to be home grown, a player will have to have been registered with a domestic club for three years before the age of 18. Finally, at least two home grown players will have to be ‘club grown’ – i.e. registered at the club for three years prior to their 18th birthday.
The current rules for the UEFA Champions League are similar to the existing Premier League Rules, although of the home grown players, no more than four may be trained by other clubs (i.e. registered for three seasons between the ages of 15 and 18). If the Premier League Rules were changed as suggested above, they would be far more restrictive than the existing UEFA rules.
As stated, the proposed rule change comprises two elements: it limits the number of non-home grown players a club may include in its squad; and it tightens the eligibility requirements which young people must meet to qualify as home grown players. While the first may make the headlines, it is the second of these changes that will have the greater repercussions. Here the FIFA Regulations on the Status and Transfer of Players are relevant. The Regulations prohibit transfers of U18s except in very limited circumstances. Crucially, ‘a transfer’ for these purposes includes registering an U18 with a club in a country of which the player is not a national. Although these rules are relaxed for those within the EU or EEA, they still preclude the transfer of a player under the age of 16, meaning even EU nationals will not be able to meet the new Premier League criteria unless they meet one of the other exceptions (i.e. living very close to the border, or a non-football related family move).
Freedom of movement of workers
These new rules would make it significantly harder for a non-English player to be considered ‘home grown’. The opportunities for overseas players to play in the Premier League may reduce as a result. On the face of it this offends against the free movement of workers within the EU.
As yet neither the existing Premier League or UEFA rules have been challenged, whether in the domestic courts or at European level. This may be because, when analysed, the impact of the existing rules has so far been relatively minor. However, the impact of the new rules may be much greater and might therefore invite a legal challenge.
To show that the new FA rules do not breach EU treaty rights vis the free movement of workers, it would be necessary to show that the rules are not discriminatory, are justified by imperative requirements in the general interest, are suitable for securing the objective they pursue and do not go beyond what is necessary to secure that objective.
Indirect discrimination
On initial inspection, the rule does not directly discriminate against non-English nationals, as there is no overt nationality requirement. However, as set out above, it would be very difficult, if not impossible, for most non-English nationals to meet the criteria and as such the rule is indirectly discriminatory.
Justification
The FA’s press release is clear that the rationale behind the rule change is ensuring that a greater number of English players are able to compete at first team level and therefore to increase the standard of the national side. The release notes that the number of English players playing in the Champions League is less than half that of Germany and Brazil and less than a third the number of Spanish players.
Previous cases involving freedom of movement in the sports sector have focussed on a number of legitimate aims, including providing a competitive balance between clubs and encouraging the training of young players. However, this rule is effectively designed to improve the standard of the national team. Arguments were put forward in the Bosman case about ensuring that there was a link between each club and its country, or ensuring a sufficient pool of nationally eligible players. However, both arguments were rejected. It therefore appears that it would be an uphill struggle for the FA to justify the rule in the courts.
Suitability
Even if the new rules were justified, the FA would then need to show that the change achieved the desired result. The FA admits that the current home grown players rule has not resulted in a significant increase in home grown players in Premier League clubs. In fact, the number has decreased at those clubs which are perennially in the top flight. Notwithstanding this, it is hard to argue that requiring no more than 13 non-home grown players in a squad wouldn’t make a difference – more home grown players on the pitch week-in-week-out is almost a mathematical certainty.
Whether the national side will benefit is a different matter – the outcome could simply be a glut of younger and less experienced domestic players replacing a significant number of overseas internationals, which could reduce the quality of the Premier league and be self-defeating. The FA is likely to have to provide some additional reasoning and evidence backing up its rationale.
Necessity
The FA will also need to show that the new rules are not unduly restrictive. This means demonstrating that there are not other, more proportionate ways of achieving the desired result. Here it would be necessary to take into account the fact that the new rule is so restrictive that it is barely possible for any non-English player to satisfy the home grown player criteria. Similarly, other interventions in the market at club level, such as rewarding clubs who deliver players to the national team, would need to be considered.
What next?
The effects of the UEFA home grown players rule and current Premier League rules have been well tolerated to date. This is perhaps unsurprising given their effect on the market place has been relatively modest. The new rules may change all that. It seems likely that the revised Premier League rules would be open to challenge, absent cogent arguments as to its effectiveness and necessity. If clubs feel that it will impact their competiveness, if not within the Premier League, but within European football, it is likely that there will be a challenge from that quarter, even if no individual players want to speak out. The FA consultation is currently underway and the outcome will therefore be viewed with interest.
Contact the writers of this article Luca Ferrari, partner and global head of sports, at ,moc.1734918147ediwd1734918147lrows1734918147rehti1734918147w@ira1734918147rref.1734918147acul1734918147 or Libby Payne, associate at Withers, at moc.e1734918147diwdl1734918147rowsr1734918147ehtiw1734918147@enya1734918147p.ybb1734918147il1734918147.