Playing away

Russian soccer player Igor Simutenkov (“IS”) won support for his claim to an unrestricted right of participation in Spanish soccer, under the same conditions as EU nationals, when the Advocate General issued her opinion in his ongoing dispute with the Spanish soccer authorities (C-265/03). Simutenkov contends that his opportunities to play for Spanish club Deportivo Tenerife had been restricted because of limits on non-EU players playing for Spanish clubs in domestic soccer.

The Advocate General, Christine Stix-Hakel, issued an opinion on 12 January 2005 stating that restrictions should not be placed on Russian players, as Russia has a partnership agreement with the EU, which bans discrimination in employment and is of direct effect. The Advocate General’s opinion is of course persuasive guidance for the European Court of Justice (“ECJ”), and is followed in approximately 80% of cases before the ECJ, suggesting it is likely that Simutenkov will ultimately be successful in his dispute. The case is similar to that of Kolpak (C-438/00) where the ECJ ruled in favour of the Slovenian professional handball player, who alleged that rules limiting participation based on nationality were discriminatory and contrary to an association agreement between Slovenia and the EU that prohibited discrimination in the context of employment.

If the opinion is followed in this case, an increase in the number of non-EU players freely competing in European sport is likely. Given that there are over 80 countries outside the EU who have similar association agreements with the EU, the decision will have far-reaching consequences. Restrictions on participation of lawfully employed professional sportspersons on the basis of nationality are likely to disappear.

UEFA will no doubt be keen to hear the decision of the ECJ in the Simutenkov case because of new rules to be introduced which require every club competing in the Champions League and UEFA Cup competitions to have four “home-grown” players in their 25 man squads from 2006 (being two from their own academy and two from that of another home country club), rising to eight by 2008 (being four and four from each category). “Home-grown” means a player who has been registered with the club for a minimum of three seasons between the ages of 15 and 21.

Home-grown players need not be nationals of the country where the club is based and so UEFA hope the laws on the free movement of workers and restraint of trade (as developed in sporting cases such as Bosman (C-515/93)) will not be infringed. However the plan is already facing criticism. The FA Premiership is reported to have opposed the new rules, whilst Arsenal FC vice chairman David Dein has denounced them as “unworkable and open to challenge”. The rules are indeed conducive to legal challenge. The principal arguments will focus on lack of opportunity. The challenge will be that players are lawfully employed but cannot participate in certain competitions because of restrictions in working conditions that limit the opportunity to play in UEFA competitions (similar to the issues that were discussed in the Simutenkov opinion referred to above). UEFA will argue that the rules of participation in their competitions do not restrict upon the basis of nationality and therefore are not unlawful.

UEFA would argue that the rules are designed to develop and promote young players, maintaining and fostering the link between grassroots football and the professional game and so, if anything, they constitute a necessary restriction. 

Any challenge will need to focus upon the impact of the rules and establish that there is some form of disproportionate impact based on nationality. Indeed at present, while a home-grown player may sometimes be from another country in the EU, it will rarely be a non-EU country (as generally speaking, non-EU nationals under the age of 21 face difficulty in obtaining work permits to obtain employment in the EU for the purpose of playing professional football, due to quotas and conditions such as appearances for national representative sides).

Even if a statable case were made out against the rules, it would be open to UEFA to try to justify the rules on the basis of a special “sporting exception”. However, the suggestion of applying such an exception was firmly rejected by the ECJ in the Bosman case, in respect of quotas of players based on nationality. If the new rules are challenged, the decision has the potential to shape significantly the future direction of European sport.