Six + five = ?

The migration of professional sportspeople is a hot topic for sports administrators. Proponents of open leagues claim better skills are on display for the entertainment of fans. Critics maintain that foreign players hinder the development of, and restrict opportunities for, homegrown sportspeople.

Joseph Blatter, President of football’s international federation FIFA, has long advocated restrictions on foreign players within domestic football due to fears that the dilution of domestic leagues could harm international representative football. At FIFA’s recent congress in Sydney, delegates voted unanimously to explore the introduction of a “six plus five” rule for football, namely that of the 11 players to start a domestic match, at least six would have to be eligible to play for the national representative side. The proposed rule has been welcomed and castigated in equal measure. Much commentary has focused on compatibility with EU law.

Adverse precedents

UEFA spokesman William Gaillard said: “We are in favour of protecting locally trained players, but six plus five, or any form of quotas, simply cannot be implemented in Europe because it isn’t legal.” Sources within the EU have already fired warning shots, including that if FIFA introduced a quota rule, enforcement action would be taken against national associations. Blatter maintains that the rule is not contrary to EU law as it does not stop players joining clubs (they may have as many foreign players as they wish), or stop them playing in a given match (though as only three substitutions are permitted, this is questionable).

It may be that FIFA will highlight that eligibility for international representative competition is not dependent on nationality, per se. Although the two are closely linked, sports typically operate bespoke rules that include permitting non-citizens to obtain representative honours, typically through ancestry or residency. Yet the messages emanating from FIFA are not altogether clear, as Blatter has also spoken of his desire to see sport’s “specificity” recognised, to take it outwith the ordinary confines of EU law.

This type of rule has received previous judicial attention in the EU. German handball attempted a similar restriction, only to be defeated by Marus Kolpak’s challenge in the European Court (case C-438/00, reported at 2003/C146/07). Kolpak persuaded the ECJ that he was entitled to participate freely in the sport and earn his living, and that the league’s rules adversely impacted on his ability to do so as, although he was Slovakian, he was able to be lawfully employed in Germany for the purposes of playing professional handball, and entitled to avail himself of the principle of non-discrimination found in the associate agreement between the EU and Slovakia. This ruling and similar judgments on freedom of movement for EU workers will likely be at the heart of FIFA’s difficulty in introducing a quota rule.

Keen spectators

FIFA’s intention is to engage with the EU, in order that they may introduce a rule that achieves their objectives whilst being lawful. The progress of the proposed rule will be closely monitored by all sports. In rugby, for example, the Magners League participation agreement contains various restrictions on clubs fielding “overseas players”. So, for example, Glasgow Warriors cannot field more than two so-called overseas players in any one match; but players born and raised in countries such as Australia or New Zealand are not considered “foreign” if they are eligible to represent Scotland at international level.

At the time of the Kolpak judgment the English Cricket Board allowed teams to field only one overseas player, but there has since been a considerable influx of South African, Zimbabwean and West Indies players, now able to compete on equal terms once in receipt of a UK work permit. The ECB initially responded by introducing additional funding for teams, payable on the basis of the number of English-eligible players fielded in any one match, to encourage the development of homegrown players. This has not hampered so-called “Kolpak” players, and the ECB is presently lobbying the European Commission for change.

A soft approach based on funding may not influence professional sports where central funding from a governing body is not sizeable in comparison to other revenue streams. The football clubs of the SPL are largely self-sufficient commercial entities who do not rely heavily on monies from the SFA or elsewhere to finance their activities. The FAPL is similar, as are all other major European football nations. Should a quota be enacted, the impact is likely to be considerable. Of the matches played on the final day of the FAPL season, 22% of teams would have met the “six plus five” rule. In the SPL, the figure was 50%. FIFA’s dialogue with the EU will likely be informative and provide sport with considerable guidance on what may be achieved when drafting and implementing rules of this nature.