1At the end of 1995 the European Court of Justice (ECJ) delivered its historic ruling in the Bosman case.1 The two limbs of the Bosman ruling were based on what is now Article 39 of the EC Treaty establishing the rights of European Union (EU) nationals to work on a non-discriminatory basis in any Member State. First, the ECJ ruled that out-of-contract players, who were EU nationals, were entitled to negotiate their own contracts with new clubs within the EU without their current clubs being able to demand a transfer fee before a move to a new club could take place. In this context the transfer system constituted an unjustified restriction on rights of freedom of movement. Secondly, the so-called « 3+2 rule » then in place, under which teams could only play a maximum of 3 foreign players in a team plus a maximum of 2 foreign players who were able to be classified as assimilated players in that they had been registered in the relevant national association for at least 5 years, was declared to be an unlawful constraint on freedom of movement and was contrary to European discrimination law in so far as players from EU Member States were treated as foreigners.2

2The striking away of protectionist measures as a result of the ruling has had profound effects on the organisational and contractual dynamics of professional sports. The increased mobility of labour generated by the ruling has led to new patterns of migration on the part of professional sportsmen. However, Bosman has not been the end of the story. In the years since the ruling there has been a significant, actual and threatened increase in the legal regulation of professional sport, particularly in the world of professional football as it operates within the framework of the transfer system. Overall, there has been a continuing redrawing of the boundary between regulation through « sporting » rules and external legal regulation.

3The main issues of concern are the validity of transfer systems in their entirety and contractual dynamics, the prohibition of rules that offend EU discrimination law and the extent to which regulation of professional sports by sporting authorities should be subordinate to external legal regulation. These are all issues that have been subject to developments in and challenges posed by EU law. Furthermore, over the last few years, football and other European team sports have sought to re-introduce measures, which can be perceived to be new forms of protectionist nationality quotas. In football, UEFA has introduced the « home-grown player rule » whereby a certain number of members of a playing squad need to have been developed by their club or by another club in the same national association for at least three years between the age of 15 and 21. FIFA has promoted the so-called « 6+5 rule », where a team in each match would need to field at least 6 players who are eligible to play for the national team of the country of the club.3

4This article will examine the rationale of the UEFA rule and FIFA’s proposals both in sporting terms and their legality under EU Law. Two connected issues need to be stressed as part of this analysis. Firstly, there appears to be a « turf war » between these two football bodies as to the right to determine this is issue. Secondly, the authors want to be explicit about their belief that playing quotas are protectionist in nature and freedom of mobility of labour is a positive consequence of globalisation and has a redistributive effect of talent.

Legal Positions of Quotas

5Whilst, for now at least, change to the transfer system in the wake of Bosman appears to have been exhausted, the second limb of Bosman continues to generate controversy. The ongoing issue of contemporary concern is the attempt by footballing authorities to roll back the consequences of nationality quotas being rendered invalid. This discourse of the EU and sport has played itself out most obviously within professional football. The Bosman ruling did not require the abolition of the transfer system4 Rather, it required the modification of transfer rules to enable an out-of-contract player to move to another club without his current club being able to demand a transfer fee before releasing that player’s registration. Subsequently, the specific issue has been to what extent the transfer and registration system should be liberalised so as to facilitate player mobility on the one hand and to what extent contract stability should be perpetuated on the other.5 Whilst, for now at least, change to the transfer system in the wake of Bosman appears to have been exhausted, the second limb of Bosman continues to generate controversy. The ongoing issue of contemporary concern is the attempt by footballing authorities to roll back the consequences of nationality quotas being rendered invalid..

6In the years since the ruling was delivered clubs within EU Member States have had a wide number of nationalities to select a team from. There is an obvious interface here with the ongoing relaxation of transfer rules as required first by the Bosman ruling and more recently by the European Commission. Indeed the only real restrictions will be derived from a Member State’s immigration rules. For example European footballers, who are not nationals of EU Member States (and the EEA states of Liechtenstein, Iceland and Norway), and players from outside of Europe are still required to be in possession of a work permit if they are to play for a club in the Premier and Football Leagues. Similarly, the regulations of national sporting associations may still impose quotas on the fielding of foreign players. The latter position is widespread in Europe although it does not apply in the English Leagues.6

7In a range of professional team sports within the EU, the player squads have become increasingly cosmopolitan with newly emerging patterns of player migration developing. Professional sport is of course an employment sector that has historically involved complex patterns of international migration.7 In the last few years, a number of sports and in particular football, have moved to re-introduce player quotas. In April 2005, UEFA introduced its home grown players’ rule for European cup competitions and recommended that national associations adopt similar rules for their own domestic leagues.8 In May 2008, FIFA formally proposed a « 6+5 rule » based on a quota of six national players in any given team.9

8Although the UEFA policy, devised, predates the FIFA proposal we shall consider the two policies out of chronological order on the basis that, on the face of it, FIFA’s proposals are more problematic legally. The legal position on freedom of movement and sport needs to be clarified. The impact of Bosman has been established that as far as any restrictions in terms of nationality for EU nationals, they cannot be justified as being purely sporting rules and therefore not subject to the regulatory effect of Art.39 EC. This position has supported by two subsequent decisions of the ECJ. In Kolpak,10 a Slovakian goalkeeper for the German Handball club, TSV Ostringen eV Handball challenged the rules of the DHB, the German Handball Federation, which prohibited clubs from fielding more than 2 non-EU nationals. The ECJ was asked to give a preliminary ruling on whether, under Article 38 of the Europe Agreement between Slovakia and the EU, Slovakian workers were entitled to general equality of treatment with nationals of the relevant Member State. Applying its reasoning in Bosman, the ECJ ruled that nationals of third countries who were parties to Europe Agreements were entitled to be treated in the same way as national players for the purposes of a sport’s rules. In short, they could not be considered ineligible for team selection because there was already the specified quota of non-EU nationals selected for the game. Similarly, in Simutenkov,11 a case involving a Russian national playing professional football in Spain, the ECJ ruled that he was protected by a non-discriminatory provision contained in an agreement on partnership and cooperation signed between the EU and the Russian Federation in 1994.

Why are quotas back on the agenda?

9But first it is necessary to address the major question as to why there has been increasing concern from the football authorities over the impact of Bosman and the subsequent case law of the ECJ. The following can be identified as the perceived problems that European law has created for football.

10First, aggregation of playing talent within a small elite of clubs in European football, notably those who have been able to qualify for participation in the UEFA Champions League on a regular basis, has led to real challenge to the crucial sporting characteristic of unpredictability of outcome as a distortion of sporting competition and dominance of these clubs due to their control of the top playing talent whose nationality is largely irrelevant.

11Secondly, the freedom of movement provisions have led to the top talent from EU Member States moving to the economically powerful leagues in European football, notably England’s Premier League, Spain’s La Lira and Italy’s Serie A. This influx into the economically powerful leagues has resulted in diminished opportunities for young emerging indigenous talent within those Member States. This can be supported by research that demonstrates that foreign players made up 42.4 % of all players employed by English, Spanish, Italian, German and French clubs during the 2007-08 season - a 3.5 % increase over the previous season. In the English Premier League, the number of foreign players reached 59.5 %.12

12Thirdly, this migration has been at the expense of young domestic talent. Contrary to the view expressed by Attorney General Lenz in Bosman, that it was unlikely that the migration of foreign players would increase to the extent that the chances of domestic players would be seriously diminished,13 it is argued that, in fact, this is just what has occurred. It is also argued that young domestic players have also been unable or unwilling to move to other Member States in meaningful numbers as a balancing tendency to differing degrees in different countries.

13Fourthly, this migration has manifested itself in a smaller pool of eligible-players to pick for the national teams of Member States. Consequently national teams throughout Europe have been weakened. This is a widely held belief. However, one research study suggests that over a 30-year period from 1977 to 2007, the performance of the England national team has improved in the post-Bosman years.14

14Lastly, Member States from which playing talent has migrated are increasingly impoverished in terms of the performance of their club teams. Beyond the new dynamic that has emerged since Bosman within the EU, the Kolpak and Simutenkov cases have applied non-discrimination provisions to a wider range of countries beyond the EU’s borders. Moreover, Europe, as the powerhouse of world football, has also become a focus for migration patterns of player talent into Europe from around the world. Subject to any quota system operated by a particular football association and national immigration rules, significant foreign non-EU national players have been able to secure employment within European football leagues.

15This has both caused impoverishment in national leagues worldwide and impacted adversely upon national sides. It has also created exploitation and the trafficking of playing talent away from many, mainly developing, countries.15

16The above arguments are regarded as undermining the rationales of Bosman and subsequent cases and, essentially, the re-introduction of playing quotas in some guise is seen as righting the wrongs of the effects of the rulings. In the context of these arguments, what is the legality of FIFA’s and UEFA’s proposals for player-quotas.

FIFA 6+5 Rule

17This proposal, agreed at the FIFA Congress in May 2008, essentially provides that at the beginning of each match, each club must field at least 6 players who are eligible to play for the national team of the country of the club.16 However, there are no restrictions proposed on the number of non-eligible players under contract with the club (although restrictions on size of squads that may be permitted in individual leagues will have to be taken into account).17 This restriction applies to the starting line-up of the team, and coaches will be able to modify the ratio of national players in the team during the game with up to 3 permitted substitutions all of whom can be non-eligible players.

18FIFA claims the proposal is needed for all the reasons already stated but additionally because ‘the universal development of football over the last century would not continue if there were increasing inequalities between continents, countries and protagonists in football’.18 There has been political support for FIFA’s proposal19 and significant support for it within the football family.20 However, most academic evaluation has been that within Europe such player quotas would clearly be contrary to Article 39 EC in terms of being a form of discrimination ruled unlawful by the ECJ decisions in Dona, Bosman, Kolpak and Simutenkov.21 An alternative analysis is presented by a FIFA commissioned report by the Institute for European Affairs (INEA).22 As with the partly-UEFA funded, Independent European Sport Review (the Arnaut Report),23 this form of report is now a recognised way of presenting a lobbying position on the development of the EU’s sports policy. However, unlike the Arnaut Report which was the culmination of significant consultation amongst a range of stakeholders in European sport and which provides a well-argued and constructed case for greater recognition of the ‘specificity of sport’ by the EU, the INEA report is somewhat more limited. Arguably, it provides a badly structured, repetitive and somewhat simplistic justification for the 6+5 proposal. Most football fans understand the significance of the « hand of God » in determining an outcome – it is not difficult to identify « the hand of FIFA » in the Report’s recommendations.

19Moreover, the philosophical basis of EU law on freedom of movement is that EU nationals are able to move between Member States irrespective of the perceived problems this causes for national economies or the job security of national workers. For non-EU nationals, on a global basis, the FIFA proposal underestimates the barrier to the international mobility of footballers erected by national immigration laws. In Britain, for example, work permits are effectively only available to top internationals from top national teams, and even where a player has a work permit he is still required to obtain a new one before he can transfer to another club.24 The idea that foreign players are swamping the English and other European Leagues seems a peculiarly European case of xenophobia.

20It should be noted that the international players union, the Fédération Internationale des Associations de Footballeurs Professionnels (FifPro), although supporting the sporting aims behind the FIFA proposal, accepts that, as professional players are employees, both national and EU law provisions will be infringed.25 The European Parliament and the European Commission have indicated clearly that they regard the 6+5 rule as directly discriminatory and contrary to Article 39.26

21One of the wider contextual issues to examine is why FIFA and particularly Sepp Blatter have put so much stock on the implementation of this policy. FIFA as an organisation has been much studied. It is one that lacks significant amount of transparency.27 It clearly has an interest in promoting international football and sees the 6+5 rule as a clear vehicle for this. The rhetoric of Blatter in a number of media releases on the FIFA web site is interesting to consider:

« We need to ask supporters around the world the following questions: are you in favour of a strong national team? Are you in favour of national team players playing for the top clubs in your country’s league? Are you in favour of youth players being trained and then getting access to the first team at their original club? Do you want players who have come through the youth system at a club to sign their first pro contact with that club? If you answer « yes » to all these questions, then like me you are in favour of the « 6+5 » rule. »

« Contrary to what may have been said, the 6+5 rule does not contravene the European Labour Law on the freedom of movement. Clubs will still be free to take on as many foreign players as they want. When a match kicks off however, they will have to have six players on the pitch who are eligible for the national team of the country in question. »

« The 4+4 or « home-grown rule » proposed by UEFA has one major shortcoming - it does not protect players who are eligible for the national team of the club in question. Under this system, the richest clubs would merely have to buy players at an even younger age than they are currently doing. Michel Platini is in favour of the « 6+5 » system, he just thinks that it will be difficult to implement. »

« We need to have solidarity and to help others in order to maintain a balance in football. Europe looks after its rich clubs well but needs to look after those that are less well off. The 6+5 rule will redress the balance in sporting terms and I can guarantee that continents like South America and Africa are behind us on this, as they are the suppliers for the big European clubs and they are suffering from the exodus of their players. The President of the CAF Issa Hayatou for example defended the 6+5 rule »

22The announcement or perhaps it is best characterized as a murmur that was made on the 9^th June 2010 at the pre-World Cup FIFA Congress in South Africa, that the 6+5 rule was to be looked at again and for the time being deferred. There is no record of this on the FIFA web site and the only record is brief mentions in the media.28

UEFA’s home grown player rule

23In comparison to FIFA’s proposal, both FIFPro and the European Commission have indicated some approval for UEFA’s rules on home grown players, though FIFPro has emphasized the need to protect young players, including those from Africa, in that the rule could have the unintended consequence of an influx of trainee players between 14 and 16 into the major European leagues.29 Alternatively Miettinen and Parrish have argued that the UEFA rules may offend EU law in that they cannot be justified by reference to normal principles ‘on the grounds that they are disproportionate, unfit for the purposes they are relied upon or pursue economic as well as legitimate and justifiable non-economic objectives.’30

24The UEFA plan was first proposed in 2005. The rule requires clubs participating in the Champions League and the UEFA (now Europa) Cup to have a minimum number of home grown players, i.e. players who, regardless of their nationality, have been trained by their club or by another club in the same national association for at least three years between the age of 15 and 21. This was set at 4 players in a maximum squad of 25 in the first season of application - 2006/2007. This rose to 8 out of the maximum squad of 25 players in the 2008-2009 season.31

25The perceived legitimacy of this policy has led to a number of domestic leagues introducing similar restrictions to their playing squads. In England, the Football League introduced restrictions, which started in the 2009-2010 season, which require 4 players in match day squad to have been registered by a domestic club for 3 years before their 21^st birthday.32 In fact, for most Football League clubs this will merely be reflecting the status quo that has existed for many years with clubs already complying with this requirement. The Premier League has imposed similar restrictions in season 2010-2011.33

Turf War between UEFA and FIFA

26These two policies have been in competition within Europe. UEFA have seen home grown player rule as creating « a better balance in domestic competitions, preventing clubs from simply ‘hoarding » players in squads and creating a system whereby homegrown players would be given a greater opportunity to play regularly - thereby ensuring a large reservoir of talent for national teams as a result’.34 This rhetoric has been about creating a better and more ‘level playing field’ within European competitions.

27The European Champions League has arguably become the premier world football competition. Any challenge to its integrity in terms of a misbalance in competition between the big clubs and the rest would not be in the interests of UEFA. FIFA’s justification for the « 6+5 rule has been put lined above. The underlying narrative has been the need to strengthen national teams and international competition and most notably the FIFA World Cup.

28The turf war between FIFA and UEFA has long been recognized. Sugden, Tomlinson and Darby suggest that, « the contest for the control of world football has been particularly keen between the incumbent FIFA administration and representatives of the most potent continental confederation, UEFA. »35 Europe, and specifically the economically powerful western and southern European leagues, is clearly the powerhouse of world football. So it is not surprising that UEFA is the one football confederation that can challenge FIFA hegemony over the world game. Indeed, FIFA is increasingly having to placate those countries which Wallerstein identifies in his typology of economic power, as those on the periphery (e.g. North Africa, eastern Europe) and the external arena (e.g. most of Africa).36 Countries in these regions have gained considerable influence within the football family as far as policy making and the 6+5 rule can be seen as attempting to influence migration patterns of players away from these countries by imposing restriction on the economically powerful leagues in Europe, the footballing core of the world.

29As far as these two competing policies, victory seems to be undoubtedly with UEFA, whose more minimalist policy has been actively introduced in a number of leagues around Europe.

Unintended Consequences of Player Quotas

30The focus is now therefore expressly on the UEFA policy. As detailed above, although cogent arguments in support of the home grown player rule have been developed, ultimately they do constitute a political response by different vested interests to the perceived problem of foreign players

31« flooding into » European and national territories. Hence, the authors’ view that the reality of the « home grown player » rule, like the 6+5 rule, is that it is protectionist in nature. Most fundamentally, even if the rule is seen as justifiable in political and footballing contexts, it still has to satisfy the legal requirement of proportionality, and the above arguments fail to take into account that there are alternative ways of securing the legitimate interests of professional football.

32As well as the issue of proportionality, it is also necessary to take into account the unintended effect the home grown player rule could have on the supply and trafficking of young players from developing countries, particularly Africa, largely carried out by un-licensed agents and outside of regulatory frameworks.37 As things stand, FIFA has estimated that there are around half a million transfers of minors in football per year.38 This is movement of young people on a significant if not exceptional scale and the home grown player rule could exacerbate the problem. The rule may be designed to encourage the development of young local talent, but in practice it could lead to abuse of the notion of who a home grown player actually is.

33FIFA has recently modified its transfer regulations so that young players under-18 can now move to a club in a different region or country as long as the family relocates to it for non-football reasons, such as a parent changing jobs.39 There is evidence that in the past, parents have in fact been provided with « manufactured » jobs by clubs in the local area.40 The new regulation does require a sub-committee of the FIFA Players’ Status Committee to vet all transfers of minors,41 but it can be anticipated that new circumventions of the system will be devised. Thus, it is at least feasible that clubs will manipulate the nature of the home grown player, and the UEFA rule will contribute to rather than prevent exploitative trafficking.

34Arguably the weakest argument for the UEFA rule, and indeed FIFA’s 6+5 rule, is the view that it will increase the number of players eligible for national teams by increasing the pool of national talent. The best clubs will always recruit the best national players and there should always be sufficient numbers of these to provide the squads for international competitions.

35As Advocate General Lenz observed, the fortunes of the Scottish team are hardly affected by the fact that their best players often to choose to play in the English Premier League. Indeed, as he also commented, the importing of foreign internationals into a domestic league has a tendency to improve the skills of domestic players rather than have a negative impact on their development.42 Moreover, any player, whether or not a national of the country where the club is located, can become a « home grown player » after playing in a domestic league for a three year period between the ages of 15 and 21.43

Conclusions

36In terms of improving competitive balance in professional football, as made clear in Bosman, redistribution of income provides the most effective and fairest way of ensuring that the vast sums of money secured by large clubs are shared with their smaller brethren.44 This both increases the potential for competitive balance and provides income for the development and enhancement of youth academies and the establishment of national scouting networks. Rather than preventing clubs from fielding foreign players is it not much better to encourage the provision of the requisite financial and physical resources for the identification and development of young local talent?

37It may be the case at present for it to be commercially more attractive to attract youth talent from other clubs who are classified as « home grown » rather than investing in potentially costly infrastructure. Indeed, in the context of post-Bosman transfer systems, youth academies are increasingly seen as not commercially viable.45 This is because once a player has reached the age of 23 or 24 and is out of contract, free agency applies with no right for a transfer fee or compensation from the former employing club. This is despite the money that club may have invested in training that player in his youth. However, in this regard it could be possible for clubs to enter into a collective agreement with one another to reserve a share of the income from broadcasting rights and the like for clubs that agree to invest in youth academies. Such an agreement would also meet the aspirations of football fans who, typically, enjoy seeing their club field a mixture of international stars and players with local connections and thus a genuine commitment to the club.

38Other possibilities that may constitute a more proportionate response to solve the perceived problems in football include salary caps; though these have rejected by FIFPro and operate artificially to restrict the income that professional players can earn. It may be only the big stars who can become millionaires through playing the « beautiful game », but this is a dream that many young footballers from working class backgrounds have and why should it be denied to them. Such restrictions do not exist in other parts of the entertainment industry such as music and acting so why should they in professional sport.46 FIFPro has suggested as an alternative that there be a cap on transfer fees.47 This seems rather more attractive: it will contribute to the restoration of competitive balance and prevent the richer clubs gazumping attempts by smaller clubs to sign star players. Admittedly, it will reduce the signing on fee that such players will earn but this is preferable to a permanent restriction on their incomes. Also of course Urfa’s « Financial Fair Play Plan » is designed to equalize the financial muscle of clubs around Europe.48

39Alternatively, if playing quotas continue to be seen as the way ahead, it is suggested that a more effective way for them to be embedded is through the process of a social dialogue between the partner organizations in football. Under EU social law, FIFPro has agreements with both FIFA and UEFA for social dialogue and thus there is the possibility that a collective agreement regulating football could be entered into in the future that might or might not include playing quotas.49

40The focus on regulating financial resources is considered to be a fairer and less discriminatory than those discussed in this article concerning quotas on labour. Essentially the debate in professional football in terms of producing a fairer distribution of resources and promoting the inherent sporting values of unpredictability of outcome and sporting competition is about « what type of intervention » should be devised into the free market. Where should this intervention lay between the models of what Stefan Szymanski terms, « football capitalism »50 or should we favour « football socialism » and a more explicit model of intervention, somewhat ironically the model that exists for professional sport in North America. As authors we believe that restrictions on freedom of movement of football playing talent are not only questionable in terms of legality within Europe (and as Europe is the powerhouse of the game the impact is likely to be worldwide) but also very much in political terms and the rights of individuals to practice their playing talent irrespective of national boundaries.