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Rules Based (Directly or Indirectly) on Nationality: ‘Quotas’ in Club Football

FIFA has periodically aired the idea of requiring that a certain number of players in a club side must be eligible for the international representative team in that country. A so-called ‘6 plus 5’ rule was suggested by FIFA in 2008, according to which six players in a team had to be eligible for the national team of the association in which the club was located. It has not been adopted by FIFA, even though as late as 2015 its then-President, Sepp Blatter, repeated his support for the idea.45

A major obstacle was and remains EU law. Direct discrimination on grounds of nationality in club football seems unsustainable under EU law unless the Court reconsiders its approach in Bosman. There is at least one flaw in the reasoning used in Bosman. As explained earlier, the Court was wrong to brush aside the argument that unlimited labour migration would not diminish the pool of players available to the national team. But even were the Court to change its mind and accept that the defence of national teams has a stronger foundation than it allowed in Bosman, it still seems probable that other factors weigh heavily against accepting nationality discrimination in club football. A club has historic connections with its locality, and this endures to some extent even in the case of high-profile clubs which have acquired the status of global brands. However, this does not apply to the players. The identity and origin of players does not matter in club football in the way that it matters in international representative football.

In consequence, since rules that tie clubs to select at least some players according to their nationality are not necessary for the organization of the sport, they fall foul of EU law as instances of direct discrimination on grounds of nationality. And it is orthodox that there is no scope to justify such direct discrimination, except in closely defined circumstances envisaged by the Treaty, which do not apply here.[1] [2] [3] [4] In exactly this vein, the Commission’s 2007 White Paper on Sport warns firmly against the reintroduction of nationality-based rules.47 It issues a reminder that ‘Discrimination on grounds of nationality is prohibited in the Treaties ... The Treaties also aim to abolish any discrimination based on nationality between workers of the Member States as regards employment, remuneration and other conditions of work and employment’ and, in a nod to Kolpak,4& adds that ‘Equal treatment also concerns citizens of States which have signed agreements with the EU that contain non-discrimination clauses, and who are legally employed in the territory of the Member States’.[5] [6] [7] [8] [9] [10] [11] The 2011 Communication on Sport is equally stern on this pointC0 It states that ‘the Treaty prohibits discrimination based on nationality and enshrines the principle of free movement of workers’ and that ‘rules entailing direct discrimination (such as quotas of players on the basis of nationality) are not compatible with EU lawT1 The 2011 Commission Staff Working Document, ‘Sport and Free Movement’ is cut from the same cloth:

Rules leading to direct discrimination on grounds of nationality are not compatible with EU law. The same is true for rules based on criteria directly linked to nationality. For example, rules establishing quotas of players in clubs based on eligibility to play for the national team of the country where the club is located, when the main criterion for such eligibility is nationality, are not compatible with EU law.52

The Commission has also taken this uncompromising view in answers to questions posed by MEPs.53 It will not accept quotas of the type proposed by FIFA. They violate EU law.

Heroic attempts have been made to find a way round the restrictions imposed by EU law on the ‘6 plus 5’ model. They are, however, typically an analytically mushy attempt to revive the concept of the ‘purely sporting’ rule and to claim defence of national identity, laced too by the frankly absurd claim that such a rule would not restrict access to the labour market because it applies only to the selection of players for individual games.54 This is utterly unpersuasive: it is in fact simply an attempt to re-fight Bosman. If there is any life left in the argument in defence of FIFA’s mooted ‘6 plus 5’ rule it might lie in the point that ‘sporting nationality’ is not necessarily congruent with passport-carrying nationality. The ‘6 plus 5’ rule would insist that six players be eligible for the national representative side of the country in which the club is based: this could feasibly discriminate against a player holding the passport of that country as much as a player who does not, where that first player happens to be ineligible to play football for the representative side in question, typically because he is qualified through birth or blood to play for and has played for another country. This is, to be precise, not direct discrimination based on nationality but rather direct discrimination based on, in short, ‘sporting nationality’, which is a distinct concept.55 There certainly are instances, some high-profile, of players holding a nationality which is not the same as that held for the purposes of international representative football.5[12] [13] [14] Most players would plainly hold parallel sporting and political nationality, but a minority would not. So, the argument would run, a requirement that a certain number of players in a club side are eligible for the international representative team in that country would be direct discrimination on the basis of footballing nationality and only indirectly discriminatory on the basis of nationality in the political sense. The crucial legal point in EU law is that indirect discrimination on grounds of nationality is capable of objective justification, whereas direct discrimination is much less generously treated. This opens up scope to press the virtue of the ‘6 plus 5’ rule as an expression of the discretionary power of sports governing bodies to promote youth training and to sustain national teams.57

This possibility cannot be conclusively ruled out. Nothing quite like it has ever reached the Court. But footballing nationality is tantamount to ‘ordinary’ nationality and the gap between the two concepts, though admittedly observable on occasion, is so slender that probably no distinction should be made. And in Bosman the Court saw no difficulty in treating the ‘3 plus 2’ rule as a case of direct discrimination based on nationality. Early in the judgment it noted that the rules defined nationality in relation to whether the player can be qualified to play in a country’s national representative team5[15] but thereafter it simply treated the matter as discrimination based on nationality, ignoring any issue of footballing nationality. Even if the argument that this is indirect discrimination were accepted, and room were thereby created to argue that the rules are objectively justified, it is far from clear that the argument would succeed. This is considered more fully later, in connection with a more orthodox type of indirect discrimination, that arising where restrictions are imposed with reference to the place where the player has been trained. Even there, as will be shown, the argument is not easily made. The fact, however, that the case supporting a certain degree of action in favour of local players may be made in relation to home-grown rules is probably fatal to the claim that discrimination in favour of ‘sporting nationals’ of the relevant country should be permitted, because it offers a less restrictive means to achieve the end in view.

FIFA has abandoned interest in the ‘6 plus 5’ rule, at least for the time being. The major clubs would certainly not welcome its resurrection. As a matter of EU law the correct view seems to be that such a system of discrimination would be unlawful.5[16] It goes beyond the zone of conditional autonomy granted to sport by EU law.

  • [1] ‘Sepp Blatter Urges Europe to Back His 6 plus 5 Local Talent Rule’ Associated Press (New York,13 August 2015) accessed 29 November 2016.
  • [2] 46 eg TFEU, Art 45(4) a narrowly interpreted provision concerning employment in the publicservice.
  • [3] White Paper on Sport, COM (2007) 391, 11 July 2007, available via accessed 29 November 2016. See Ch 6.5.
  • [4] 48 Kolpak (n 27).
  • [5] White Paper on Sport (n 47) 14—15, section 4.2.
  • [6] Commission Communication of January 2011, ‘Developing the European Dimension inSport’ COM (2011) 12, available via accessed 29November 2016. See Ch 6.11.
  • [7] ibid para 4.3.
  • [8] 52 Staff Working Document, ‘Sport and Free Movement’, SEC (2011) 6, p 5. The document isavailable via accessed 29 November 2016.
  • [9] eg E-4038/08 Parliamentary Question, WQ by De Rossa [2009] OJ C40; P-5529/09 ParliamentaryQuestion, WG by Papastamkos [2011] OJ C10E.
  • [10] Institute of European Affairs, ‘Expert Opinion on the Compatibility of the 6+5 rule withEuropean Community Law’ (2009).
  • [11] cfJ Guillaume, ‘L’autonomie de la nationalite sportive’ (2011) 138 Journal du droit international 313.
  • [12] 2 The UK provides a particularly odd example; there are four football nationalities in a singleMember State. But other examples with the necessary cross-border element exist: UK nationals haveplayed for Ireland, for example.
  • [13] 57 See U Battis, A Ingold, and K Kuhnert, ‘Zur Vereinbarkeit der 6+5 Spielregel der FIFA mit demUnionsrecht’ (2010) 45 Europarecht 3, which also draws on TFEU, Art 165 to argue for EU law toshow greater respect for the cultural character of sport.
  • [14] 58 Bosman (n 5) para 25.
  • [15] 55 See also S Gardiner and R Welch, ‘Bosman—There and Back Again’ (2011) 17 ELJ 828;S Gardiner and R Welch, ‘Nationality Based Playing Quotas and the International Transfer SystemPost-Bosman’ in A Duval and B Van Rompuy (eds), The Legacy of Bosman: Revisiting the Relationship
  • [16] between EU Law and Sport (TMC Asser/Springer 2016) ch 4.
 
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