The debate concerning the quota on foreign players within domestic competitions continues to stoke the fire of potential litigation between UEFA and the European Union institutions, writes law postgraduate Duncan McHardy in a special article for this page. Sepp Blatter and UEFA seek to protect the existence and competitive value of the game by compelling European clubs to adhere to their social responsibility of developing ‘locally-trained’ players. Nonetheless, the Institutions are faced with a dilemma in yielding to a regulation, which seemingly contravenes fundamental aspects of European Community law. Despite the neutral phrasing of the regulation, which operates ‘irrespective of nationality’, it may be deemed unlawful under Community discrimination provisions. Significantly, an Internal Market committee of the European Parliament held that ‘It is quite obvious that most of the home-grown players would be nationals of the specific state and not foreigners’. The regulation would ‘indirectly discriminate (against) foreigners, making it more difficult for foreign players to transfer to a country where they were not trained and educated’.
It may well be suggested that the committee has not done their research and recognised the adverse ramifications as a result of the Bosman ruling. The football authorities cannot simply act in accordance with Community law and watch idly at the demise of the industry. However, as a result of the UK Presidency of the European Union in 2005, the Independent European Sport Review 2006 was published offering a comprehensive assessment of the existing status of sport in Europe. It was held that ‘the purpose and nature of this rule is such that it would qualify for an exemption under EU competition law’.
The Review provides a critical analysis of the financial disparities that exist between professional football clubs as a concurrent factor influencing the recruitment of foreign players. It emphasises that ‘such a system which promotes education and training and competitive balance should be seen as compatible with Community law’. However, particular reference is made for the Nice Declaration of 2000, which identifies the unique characteristics of sport. Although the Declaration is not legally binding, it provides added support for UEFA’s regulation. Training policies for young sportsmen and women are the lifeblood of sport. Sports federations, where appropriate in tandem with the public authorities, are justified in taking the action needed to preserve the training capacity of clubs affiliated to them and to ensure the quality of such training.
It must be remembered that the Institutions were willing to grant an element of leniency with the transfer windows. This harmonised the purchase power of clubs between two allotted periods per year, preventing the buying of players anytime during the season, which added stability to the market. Ironically the decision in Bosman sought the free movement of players, yet the windows represented a fundamental restriction. It may be suggested that to tolerate UEFA’s quota on foreign players would create, in the words of D McAuley writing in the ECLR, ‘an exemption for sport…[that] not only puts the supremacy of contract law at risk but also creates a dangerous precedence for other sectors of society to exploit’.
However, in considering the existing conditions of professional football in Europe, it is undeniable that something should be done to address the imbalance. This situation illustrates the paradox and incompatible nature of the European football market and Community law. Moreover, it underlines the disjointed relationship between the European Union institutions and UEFA. UEFA has not intentionally violated Community law, but administered governance as they see appropriate to combat negative market trends.
It is evident that there is a desperate need to reconcile the two parties. However, the fundamental obligation rests with European clubs that will be progressively burdened with the incremental effect of the regulation should they choose to neglect their youth-training policies.
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