Nothing quite emphasises the influence that European Union law has had over the sporting world like the story of an unremarkable midfielder from Belgian football team Standard Liege. Jean-Marc Bosman’s legal victory at the European Court of Justice, against a club which refused to let him leave, forced a huge shake-up in football employment relations and ended a system that now seems extraordinary, where clubs still held a player’s registration after a contract ended.
In the 20 years since that ruling the EU has, through the Lisbon Treaty, fostered and promoted co-operation between member states. Perhaps most notably, the court and the European Commission have played a key role in the reform and regulation of professional sport, particularly football. The UK referendum result raises real questions over the impact of Brexit. Does the Bosman ruling unravel? Could UK competitors struggle to participate in European events? Will teams have to purge their playing rosters?
Brian Cookson, the boss of world cycling body the UCI, has already expressed concern about the ramifications for sports that rely on the ease with which competitors and teams operate around Europe. As with everything else in the chaotic aftermath, we start with a waiting game as politicians play cat and mouse over the withdrawal process.
There may be movement towards a scenario in which the UK retains access to the single market and agrees to accept current rules, including free movement. But right now, while battle lines are being drawn, we’re still burdened with the possibility of the most stark outcome – that the UK exits with no trade deal with the EU. That would mean that the rules protecting the free movement of workers and protecting them from discrimination cease to apply. Professional sports people with an EU nationality would no longer be able, automatically, to enter the UK to take up employment. In principle, they would be treated in the same way as any other foreign national seeking to take up employment in the UK.
It would also mean that sports regulators like the Football Association would no longer be prevented by EU law from discriminating against EU nationals. They could be included in quotas or limits on the number of foreign players in a team or squad.
The FA recently indicated that it wanted to redress the balance between English and overseas players and, in co-operation with the Home Office make it more difficult for players from outside of the EU to obtain a visa. Were the most stark version of Brexit to materialise, these rules would also apply to citizens of EU member states.
More than that, sports regulators might well choose to impose nationality quotas in domestic competitions. And so we could get the “3+2” rule outlawed in the EU under Bosman, where teams can only field three “foreign” players and two “assimilated” players. Or we might consider the “6+5” rule proposed by FIFA, which calls for at least six domestic nationals on the field.
These changes would have an impact, most obviously, on professional football. Many of the EU nationals playing throughout British leagues would not meet the criteria presently demanded of citizens of non-EU states. This is not necessarily problematic at the elite end; the rules are, in effect, an agreement between the Football Association and the Home Office, and could be relaxed relatively easily. This would likely have a much greater impact in the lower leagues where it is unlikely players would be regarded as meeting any relaxed work permit threshold.
Perhaps an even greater impact would be felt in other sports such as cricket and rugby. Many players at the top level – often Australian or South African – have been able to take advantage of joint-nationality of an EU member state to ply their trade in the UK. Take New Zealand cricketer James Franklin, who is able to play for Middlesex without a visa thanks to his Irish passport.
Such effects could be dramatic for how your favourite team shapes up. But although EU law could cease to impact sport in the UK directly, its indirect influence will be felt whatever the post-Brexit relationship with the EU. The rules for the employment and transfer of professional footballers are effectively the result of a negotiation by FIFA with the European Commission – presently the subject of a competition law complaint to the commission by the players’ union, FIFPro. Were new rules to take effect following the complaint, these would be adopted on a global scale.
In other words, EU laws will have an indirect influence in the UK. Similarly, European football’s governing body UEFA has rules on “home grown” players and financial fair play measures designed to stop owners pumping cash into clubs to buy success. Both are effectively negotiated with and, ultimately, approved by the commission as “compliant” with EU law, and will still apply to clubs taking part in European club competitions.
Some direct impact will linger. Whatever is negotiated by the UK, any economic activities taking place within the territories of the EU – such as the sale of broadcasting rights into EU member states and, perhaps, ticket sales for major sporting events – will still engage EU law.
The reality is that, whatever the nature of the relationship between the UK and the EU going forward, EU law will have a role in British sport. That may be overt, should membership of the single market be retained, or more subtle and indirect – filtered through sporting regulations – should ties be severed. And so, we may see the dynamics and constitution of our teams change, but EU law is such a powerful force in the way that global sport is regulated, that regardless of the UK’s membership status, we can expect its influence to remain.