The Incentives to Seek a Reformed System That Would be Tied to the Origins of Players
Governing bodies in sport were and remain thoroughly grumpy about the intrusion of EU law into practices which engage discrimination on the basis of nationality. Sepp Blatter’s disdain for a club in England with a squad containing nineteen nationalities is entirely typical.
The Court yielded to the lex sportiva in the matter of nationality discrimination in international representative football. It refused to do the same in relation to club football. It is here that EU law in general and the Court in particular is most vulnerable to the accusation that it claims to know the needs of sport better than its governing bodies, and in circumstances where there is no explicit constitutional mandate on which to base the EU’s chosen direction. This, the criticism holds, is the arrogance of EU law. And yet the point is that the model of conditional autonomy under EU law, shaped by the Court, leaves space for governing bodies to explain just why their practices are necessary elements in the structure of the sport. The real problem is not that the Court brushes aside the legitimate claims of sports bodies: the real problem is the thin arguments advanced in favour of the status quo by those sports bodies. This is a recurrent theme of this book. As explained, the Court’s reasoning in Bosman was unpersuasive on one dimension alone, that associated with the incorrect claim that what a state loses by accepting incoming workers it gains as a result of its own workers migrating to other Member States, but otherwise it was full and careful. The Court’s rejection of the claim that the origin of players is relevant to the identity of clubs places EU law’s assumptions about the vice of nationality discrimination ahead of the claims to autonomy and expertise expressed through the lex sportiva, but, as explained previously, the Court’s analysis seems more persuasive and in tune with the attitudes and expectations of fans than that pressed on it by UEFA and other sports bodies.
Governing bodies in football have not given up.
In principle, as previous chapters have shown, EU internal market law dictates only what may not be done, not what shall be done. In reality the Court seems to have left very little scope for doing anything at club level that smacks of discrimination on grounds of nationality. However, governing bodies have continued to search for an adapted system. The two principal motivations typically advanced in support of rules that restrict the freedom of clubs to select players irrespective of their background are the encouragement of youth training and sustaining the vitality of the national representative teams without falling foul of EU law. The main argument would be that the financial implications of failure (most obviously, relegation) felt by such clubs are so severe that they tend to acquire fully trained players rather than developing younger players, and that rules limiting the hiring of foreign players would be a justified response to this peril. The point is to find a justification for rules that will satisfy the Court, in accordance with the model of conditional autonomy enjoyed by sporting bodies under EU law.
There are two principal models: a renovated system based on nationality, which is highly unlikely to survive examination conducted pursuant to EU law, and one based on the location in which a player is trained, the so-called ‘home-grown’ system, which has more chance of meeting the demands placed on sporting autonomy by EU law. These are considered in turn.