Brexit: A Colossal Own Goal for English Football Fans?

Now into the 7th week of fixtures, the 2016/17 English Premier League (EPL) is well underway. Whilst it is still too early to pass judgement on how the teams may shape up, the first few weeks always offer an opportunity for fans to appraise the League’s new players; some have positively surprised, while others still have a record-breaking £89 million price-tag to live up to. Indeed, the spending in this year’s pre-season transfer window reached dizzying new heights, with EPL clubs splashing out a ridiculous, record-breaking £1.165 billion. However, given the changing dynamics of the UK, and its place in Europe, could we soon be seeing the end of such exuberant transfer windows?

I’m alluding of course to ‘Brexit’, an issue proving to encroach upon all intelligible topics, and football is no sacred exception. Indeed, some travelling fans recently decided to use the European Championship as a political platform to voice their opinion, echoing chants such as “F*** off, Europe, we’re all voting out” through the streets of Marseilles. But have fans of the English game unwittingly scored an own-goal by voting to withdraw from the European Union (EU)?

Whilst admittedly there is little consensus on exactly what Brexit could mean for England’s top flight of association football, there are those who fear that it could be detrimental. Many of the top pundits, managers and players have firmly declared themselves in the ‘Remain’ camp. Richard Scudamore, Executive Chairman of the EPL,  also weighed in, maintaining that to leave would be in conflict with the league’s commitment to ‘openness’ — a view that he claims is held by all 20 competing clubs.

In an interview with BBC Radio, Scudamore explained that seceding from the European Union “… doesn’t seem to sit very well when you travel the world like we do being welcomed because of the fact that we are open for business, open for discussion, and open for co-operation.” In short, by ‘openness’ Scudamore is referring to the multifaceted cosmopolitan nature of the PL. Last season, the PL was host to players from 64 different states, making it the most diverse of any of the top-flight European football leagues. Additionally, the EPL is the most watched league globally — and the wealthiest — with the global TV rights selling for over £8.3 billion from 2016 through to 2019.

It is precisely this global aspect that may suffer most in the fallout of Brexit. The financial consequences (such as the devalued British Pound) are the most immediate challenge for the EPL and its competitors, impacting amongst other factors, their financial competitiveness in the acquisition of new players (such as through transfer fees and player salaries).

However, of primary interest herein are the legal ramifications that will arise once withdrawal from the EU is finalised (this is an international law blog, after all). Again, the biggest impact of this is arguable on player-transfers. Traditionally there are a number of steps involved in the process of player-transfers between clubs. In most occasions, a player will still be under contract with a team, requiring a ‘transfer fee’ to be agreed upon between the buying and selling clubs, the negotiation of contractual terms between the player and suitor, and a successful medical. Finally, if a player is transferring to a club competing in a different nation, a work permit needs to be obtained — unless the transfer in question involves a player with EU citizenship moving to a club within an EU member state (or the European Economic Area; EEA).

The legal basis for this resides in Article 45 of the Treaty on the Functioning of the European Union (TFEU). The most pertinent sections are the first two, which secure the freedom of movement for workers within the Union, absent of any discrimination based on nationality.  Whilst there is no Treaty definition of what defines a ‘worker’, we can turn to EU case law for disambiguation. In Trojani v Centre public d’aide sociale de Bruxelles, the Grand Chamber judged that that ‘worker’ must be interpreted widely. It includes any person who pursues real and genuine activities which are not purely marginal or ancillary. Furthermore, a football player’s qualification for the purpose of Art 45 TFEU was solidified in the prominent Bosman Ruling  which amongst other assertions, maintained that football players shall be free to ply their trade at any of the domestic leagues in the EU and could not be restricted by quotas on the amount of foreign EU players (deemed discriminatory), as were historically set by domestic football associations.

Players from outside the EU have it tougher. Much tougher. In order for a non-EU footballer to secure a work permit, they must first receive a Governing Body Endorsement (GBE) from the Football Association (FA; England’s governing body of association football). The instances in which these endorsements are secured are primarily determined via the FA’s ‘Points Based System’ — which was this year further tightened. It assesses eligibility using the Official FIFA World Rankings of the player’s national team, and the percentage of international matches that the player is featured in over the past 24 months. The required percentage of appearances depends upon the national team’s ranking, and are as follows:

FIFA World Ranking

National Appearances Required (Previous 24 months)

1-10

30% or more

11-20

45% or more

21-30

60% or more

31-50

75% or more

Assuming, given Prime Minister Theresa May’s remarks (“brexit means brexit”), that England does not opt for a quasi-European open border model à la Switzerland, it is entirely plausible that these same standards could also apply to European players. And this would be monumental for the PL.

According to a BBC study, over 100 non-British EU or EEA footballers playing last season would not have automatically qualified for GBE as per the Points Based System. That’s out of 161. Two-thirds would not have qualified. This includes players such as Dimitri Payet, Anthony Martial, David de Gea, Juan Mata, N’Golo Kanté, Gerard Deulofeu (I cry at the prospect) and Simon Mignolet (good riddance). For the intrigued football fan, this comprehensive infographic will be of interest. For everyone else, we shall move on.

Whilst none of the aforementioned players are likely to be affected as retrospective action seems improbable, it is fair to assume that this will have a large impact on future player-transfers. The extent of this impact may be further exasperated if the FA decides to reinstate a quota on the amount of European players, which it will be soon be free to do, as per Article 45(2) TFEU (pertaining to discrimination based on nationality). This is not as far-fetched as it may sound. The FA’s main priority is the English national team (not the EPL), and now more so than ever, after England’s “desperately embarrassing” exit to Iceland at 2016 European Championship in France, they are coming under increasing pressure to address the national team’s, uhhh… inadequacies. A quota represents a potential mend, by ensuring that more money and attention in the EPL is afforded to the development of English starlets.

But this could be costly. The impact of such restrictions on European players is likely to unfold inequitably, with the lower- to mid-table teams being the most affect. Another fairytale like Leicester City F.C.’s 5000-to-1 title upset becomes even more unimaginable. The PL losing this charming unpredictability, as well as its competitiveness, would certainly hamper the league’s global appeal and its subsequent financial might. And when it comes to football, cash is almost invariably king — hence why some analysts fear the PL will be relegated from the forefront of club football.

So is Brexit an “own goal” for fans of English football? That depends on what team you’re backing; some believe that Brexit will shape up to be an important victory for the FA and England’s national side. And whilst this may read like an article prophesying the downfall (or “destruction”) of the PL, this is admittedly quite doomsday-ish and relatively unlikely.

But then, wasn’t Brexit?

 

Tim Nigg is a final-year Law & Society and Psychology student at the University of Western Australia, and Vice-President of the UWA International Law Club. He will also be in a lot of debt if Everton don’t get their finger out.

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