Post-Brexit Premier League

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As the scheduled ‘leave date’ of 29 March 2019 approaches, Brexit remains the most debated subject in Europe with heated debates ongoing both in Parliament and between the Cabinet and other members of the EU. While the terms of the UK’s exit from the EU remains uncertain, a key question stands out for football clubs and fans alike, what effect will Brexit have on the Premier League and English football?

In order to understand the effect Brexit could have, it must be first understood how the EU has shaped the history of English football over the past 25 years through principles enforced by the Court of Justice of the European Union (CJEU).

Free movement of players

Players who are citizens of the EU are at present able to move freely between and reside in Member States in accordance with the principles of the freedom of movement of works and freedom to provide services. Clubs are not able to place restrictions on the grounds of nationality unless such restrictions can be justified on the basis of a legitimate objective and that such restrictions are proportionate. As an example, associations are allowed to set deadlines for transfers of players in team sports.

UEFA have previously been found by the CJEU to have both directly and indirectly discriminated against players from a Member State, most notably in the case of Bosman.[1] In 1990, Jean-Marc Bosman reached the end of his contract with Belgian side RFC Liege at the age of 25 when he was offered an improved contract with French side Dunkirk. Despite Bosman’s contract expiring, RFC Liege demanded a fee from Dunkirk for the transfer which, before the ruling, was allowed under UEFA rules.

The deal ultimately fell through due to Dunkirk being unable able to afford RFC Liege’s demand and led Bosman to a five year legal battle with the Belgian FA, RFC Liege and UEFA which resulted in the CJEU ruling in Bosman’s favour, agreeing that a requirement for a transfer fee to be demanded after the expiry of a player’s contract constituted an indirect obstacle to that player’s free movement rights across the EU.

The decision was monumental for the history of European football allowing legendary players such as Edgar Davids, Patrick Kluivert and Michael Ballack to transfer between clubs for free at the end of their contracts. The change also placed players in a stronger position when negotiating their new contract as, post-Bosman, clubs can lose a player at the end of the contract without a transfer fee to compensate their loss.

When Bosman beat foreign player quotas

The Bosman ruling was also historic in prohibiting UEFA’s ‘foreign player’ quota which provided for no more than three ‘foreign players’ and two ‘assimilated’ players to be fielded by a team participating in a UEFA club competition. Assimilated players were defined as foreign players that had played for five years in the country in question, three of which in the youth team; although interestingly UEFA ruled Welsh and Scottish players were also foreigners to English sides.

This example of direct discrimination imposed by UEFA led to difficult decisions for managers in the early 90s; for instance, Sir Alex Ferguson was forced to replace Peter Schmeichel in a 1994 Manchester United Champions League clash with Barcelona, resulting in a 4-0 defeat. Ferguson’s team would later return to the Nou Camp 5 years later to win the Champions League (post-Bosman) fielding a team of eight ‘foreign’ players previously prohibited by UEFA, including Schmeichel.

Since Bosman, no Premier League side has started XI English players and there are certainly many cases where no English player has been named in a Premier League club’s starting XI.

The Newcastle United connection

CJEU rulings have also been instrumental for the future of youth development in European football, especially a ruling closer to home relating to Newcastle United player, Olivier Bernard.[2] The French national trained with Lyon until 2000 when he was offered a professional contract with the club. Bernard instead opted to sign his first professional contract with Newcastle United. However, at the time of his signing, the national governing body, Fédération Française de Football, required its youth players (‘joueurs espoirs’) to sign their first professional contract at the club they had previously trained with, otherwise the training club could claim compensation from the player in question (rather than his new employer, in contrast to Bosman). The national rule did not, however, specify how the damages were to be assessed.

Lyon therefore pursued both Bernard and Newcastle United for compensation, specifically the remuneration Bernard would have received over one year if he had signed with Lyon as a professional. The CJEU held the FFF’s rule restricted free movement of workers (specifically Article 45 Treaty on the Functioning of the European Union) in that a player would be less attracted to moving away from a club he had trained with due to the risk of being sued for damages. In addition, while it held that a rule encouraging the recruitment and training of younger players could in principle be justified, the compensation recoverable should be limited to training costs only, which Lyon’s claim went far beyond in terms of proportionality.

Post-Brexit possibilities

Ultimately, the overall effect of Brexit on football in Britain will depend on the terms of the EU withdrawal deal and to what extent such terms restrict the free movement of workers, the freedom to provide services and the overall binding power of CJEU judgements.

These terms will dictate The FA and Premier League’s ability to change their immigration rules. Removing Premier League clubs’ ability to transfer players freely within the EEA and manage their teams ‘quota free’ could be argued as a hindrance to the quality and commercial viability of the Premier League. Others have asserted that it presents an opportunity for home-grown talent. The latter view is advanced by Crystal Palace chairman Steve Parish, who believes post-Brexit “we in English football can draw up whatever immigration rules we want[3].

What nexit?

In anticipation of Brexit, the UK Government has asked the Premier League and The FA to put together a joint proposal dealing with player visas after Brexit.[4] The FA has considered publicly in a statement from Martin Glenn a number of options; broadly:

  1. a global free market, no restrictions on players from anywhere in the world but keeping the current limit of 17 non-home-grown players in a 25-man squad – certainly an attractive option for clubs;

 

  1. take existing rules for imports of non-EEA players and apply them to everyone (the “no deal” option) – the ultimate effect of which would lead to a reduction of European players in the Premier League, after a transition period;

 

  1. allow imports of players from around the world, not just Europe, but restrict the quota on ‘non-home-grown players’ in Premier League squads from the current 17 to 13 – a measure which aims to preserve the quality of non-home-grown players but which also seeks to provide opportunity for young English talent.

The number of non-home-grown players in the Premier League grew from 210 to 260 between 2010/11 and 2017/18, potentially reaching the maximum of 340 (17 at each of the 20 clubs) within the next five years.[5]

The Premier League has contended there is no evidence that stronger quotas will benefit national teams, demonstrated by the recent success of England’s U-17, U-20 and male senior teams in their respective recent World Cups.[6] England manager Gareth Southgate has also suggested that quotas will not make a difference but instead clubs should review their youth development.

Further complications for U18s

The effects of Brexit complicate matters further for players under 18 years old who, under current FIFA rules, cannot be sold to overseas clubs with the exception of countries in the European Economic Area (EEA). This allowed players such as Paul Pogba and Cesc Fabregas to be transferred to Premier League teams while being under the age of 18.

Following Brexit, Premier League clubs and British players will be classified as non-EEA and therefore these restrictions could apply, although it is unclear at the time of writing whether Premier League clubs and British players will be classed as non-EEA in March or indeed at the end of any transition period.[7]

If the current quota remains and U18 players’ ability to transfer within the EEA is removed, an undesirable position could exist for British home-grown players struggling to reach the first team but had previously been able to transfer abroad (such as England international, Jadon Sancho, who signed with Borussia Dortmund aged 17 and has featured prominently for the club in the Bundesliga).

The FA has confirmed it sees option 3 as both increasing playing opportunities for young English players while ensuring that the Premier League remains the best competition in the world.  Whatever the outcome of these ongoing discussions, it will be interesting to see how football will, at the government’s request, “sort it out for itself”[8], while remaining mindful of the legal ramifications set down by Bosman and Bernard.

To learn more, contact John Devine on 0191 211 7905 or email [email protected] or contact George Smith on 0191 211 7853 or email [email protected]

[1] C-415/93 Bosman [1995] ECR I-4921

[2] C-325/08 Olympique Lyonnais v Bernard and Newcastle United [2010] ECR I-2177

[3] https://www.thetimes.co.uk/edition/sport/brexit-can-make-england-and-the-premier-league-stronger-35xq5rwnc

[4] https://www.bloomberg.com/news/articles/2018-09-19/football-gets-busy-with-brexit

[5] https://www.thetimes.co.uk/article/brexit-quotas-will-give-our-young-talent-hope-fqzfs90jf

[6] https://www.mirror.co.uk/sport/football/news/premier-league-respond-fa-plans-13625027

[7] https://www.telegraph.co.uk/football/2018/11/19/english-youngsters-like-jadon-sancho-could-denied-foreign-moves/

[8] https://www.thetimes.co.uk/article/brexit-quotas-will-give-our-young-talent-hope-fqzfs90jf