Inn the Field of Play - March 2016: Brexit, Bosman and Brady

Professional football in the UK has undoubtedly been enriched by an influx of European talent to the Premier League (PL). Cantona, Bergkamp, Zola, Henry, Ronaldo, Wenger, Mourinho - the list is endless. However in the in/out referendum on 23 June, the UK will consider its position within the European Union (EU) and decide whether it should remain a member of the EU or leave. This month, we take an objective look at the potential outcomes for the PL should the UK decide to stay or go.

Economic impact

Of all the arguments, such as security or sovereignty, it is difficult to look beyond the economic impact of immigration as being at the very heart of this debate to leave (Brexit) or remain. The economic impact argument is neatly embodied by the competing interests of the Football Association (FA) and the PL. Arguably the FA would view leaving the EU as an opening to boost opportunities for home grown talent which would, in turn, enhance the national team. Against this, the PL could argue that leaving the EU would restrict the free movement of European players and managers to the UK who have undeniably heightened the global appeal of the PL. On the one hand, leaving the EU would allow the UK to set its own policy on migration and work permits to suit the economy and the national game. This would, of course, be of benefit to the FA who could exert more influence in nurturing its domestic talent alongside only the very best, selected foreign imports. On the other hand, leaving the EU could mean a significant reduction in the amount of foreign players which could easily translate into a loss of international sponsorship and broadcasting rights to competitors like Germany and Spain. Naturally, this is something that the PL would want to avoid.

Bosman Ruling

So, what caused the EU, a supranational body which manages the European single market, to become so involved in the intricacies of professional football? The answer is found in the 'Bosman ruling' in 1995 which was a European Court of Justice (ECJ) decision concerning the freedom of movement for workers, freedom of association and the direct effect of Article 39 of the Treaty establishing the European Community (the EC Treaty). In summary, Jean-Marc Bosman was a professional footballer in the Belgian first division for RFC Liege and sought to be transferred to Dunkerque, a French first division team, following the expiration of his contract. The clubs could not agree a transfer fee and, despite being out of contract, RFC Liege refused to release him to continue his career elsewhere. Bosman's innovative lawyer, Jean-Louis Dupont, took the case to the ECJ.

The ECJ held that the football industry placed a restriction on the free movement of workers which was prohibited by Article 39 of the EC Treaty. Subsequently, Bosman and many other EU footballers were given the right to a free transfer at the end of their contracts on the condition that they were transferring from a club within one EU Association to a club within another EU Association. Significantly, the ECJ also prohibited domestic football leagues in EU member states from imposing quotas on foreign players if it served to discriminate against nationals of EU states. This seminal case has transformed the way UK professional football clubs operate because, as an EU Member, the UK cannot restrict the free movement of EU players across borders or at the end of their contracts.

UK work visa requirements

The Bosman section above outlines the prevailing conditions if the UK was to remain in the EU. It would appear that some PL clubs would be happy to keep the status quo. Indeed West Ham United's vice-chairman, Karren Brady, wrote an open letter to the chairmen of every senior professional club in the UK where she expressed concerns that "cutting ourselves off from Europe would have devastating consequences". Her concerns are largely based on the possibility of leaving the EU and losing the 'free movement of workers' principle.

What are the current UK work visa requirements for footballers? From the start of season 2015-16, a new system for assessing the eligibility of foreign players for UK work visas was introduced by the FA with the support of the Home Office. The new requirements state that non EU/EEA (European Economic Area) players will have to meet a minimum percentage of international matches played for their country over the previous 24 month period, as determined by that country's FIFA world ranking. Players that meet the criteria are automatically granted a work permit. If a player does not meet the requirements, they will be able to put an application through an "exceptions panel". The overall expectation is that should the UK leave the EU, these new requirements would cause a significant reduction in the number of EU players in the PL. For example, a player such as Brady's own French midfielder Dimitri Payet would fail to meet the requirement for an automatic work permit because, although he has performed brilliantly for West Ham United this season, he has failed to reach the requisite number of matches for the French national team. This is not lost on Brady who concludes that "two thirds of European stars in England would not meet automatic non-EU visa criteria and therefore might be forced to leave".

Long term consequences

Even if there is a 'Brexit', it may be that things will remain largely the same within the sport. After all, there have always been exceptions to immigration rules for talented individuals and it would seem unlikely that the Government would want to interfere with the dynamic of a hugely successful multi-national PL. It may well be that, post Brexit, the new FA work permit rules are not extended to EU players. However, remaining in the EU could provide the PL with added influence when it comes to negotiating the next round of selling its broadcasting rights especially if EU players continue to come to the UK and perform to a high standard. There remains a real debate for the country on the long term consequences of leaving or staying in the EU and this applies, in equal measure, to professional football in the UK. Finally, it is worth noting that football is not the only sport that will be affected and it is easy to see how similar issues might arise in other sports where talent moves to and from the UK, including in particular rugby union.

If you require further information on anything covered in this briefing please contact Udo Onwere  or your usual contact at the firm on 020 3375 7000. Further information can also be found on the Sports page on our website.

This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.

© Farrer & Co LLP, March 2016