Roger Welch

Nationality and protectionism in football: why are FIFA’s ‘6+5 rule’ and UEFA’s ‘home-grown player rule’ on the agenda?

Over the last few years, football and other European team sports have sought to reintroduce measures that can be identified as being in the guise of nationality quotas and are protectionist in nature. In football, UEFA has introduced the ‘home-grown player rule’; FIFA initially promoted and then recently decided to apply a moratorium on introducing the so-called ‘6 + 5 rule’. Both of these measures will be examined as to their rationale in sporting terms and their legality under European Union (EU) law in the wake of the Bosman ruling. There also appears to be a ‘turf war’ between UEFA and FIFA as to the right to govern football with regards to this measure. The authors have always argued that it is in the interest of footballers and fans to have full international freedom of movement and that protectionist measures such as playing quotas are an anathema to the good of the game.

Nationality Based Playing Quotas and the International Transfer System Post-Bosman

The European Court’s ruling in the Bosman case resulted in the removal of post-contract restrictions on players moving to new clubs and the abolition of nationality quotas in so far as they impacted on players with EU nationality. This chapter charts the response to the Bosman ruling within football, with respect to the current FIFA rules on international transfers, and the continuing use of player quotas for non-EU players. The central focus of the chapter is the reintroduction of player quotas within Europe as a result of UEFA’s ‘home grown player rule’. We also discuss the proposal by FIFA for a 6 + 5 rule which, if ever implemented, would apply throughout the world. Our central contentions are that both the FIFA and UEFA rules on player quotas are incompatible with EU law, as is the current FIFA transfer system. The chapter concludes by suggesting that the best mechanism for resolving these issues lies in the adoption of the methodology of reflexive legal regulation using the method of EU social law as a paradigm.

Nationality quotas in European football

At the end of 1995, the European Court of Justice (ECJ) delivered its historic ruling in the Bosman case. The two limbs of the Bosman ruling were based on what is now Article 45 of the Treaty on the Functioning of the European Union (TFEU), also known as the Lisbon 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 three foreign players in a team plus a maximum of two 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 insofar as players from EU Member States were treated as foreigners. The 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. However, 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.