Croatian Coach Slaven Bilic has supported the assertions of Steven Gerrard, Michel Platini, Sepp Blatter and the UK's Sports Minister Richard Caborn by saying that the only way to save the English National Team is to cut down on foreigners in the EPL.
<a href="
http://www.timesonline.co.uk/tol/sport/football/euro_2008/article2951268.ece"
target="_blank">The Slaven Bilic blue print to save English Football? Cut down on foreigners[/url]
David Pannick Queens Counsel puts forward the the EU Law basis for why it would be illegal and or at least likely to be challenged in the European Court, should UEFA, FIFA or The FA attempt to implement such a limitation.
Sports minister will lose his war against foreignersForeign stars will continue to shine in the premier league – it's simply the rules of the gameDavid Pannick QC
http://business.timesonline.co.uk/tol/business/law/columnists/david_pannick/article2947135.eceOne of the shortlisted entries for the Times’ competition to select a motto for Britain was “mathematically, we can still qualify”. Even before the England football team’s defeat by Croatia at Wembley last week ruled England out of Euro 2008, Gerry Sutcliffe, the Sports Minister, called for an inquiry into whether English football might do better if fewer foreign players were employed by Barclays Premier League Clubs. Steven Gerrard, the England captain, agreed. Defeat by Croatia is likely to promote more such suggestions. But an inquiry would be over well before the end of the first half. Any attempt to restrict the number of foreign footballers in this country would lead to Mr Sutcliffe watching a European final in the Court of Justice in Luxembourg, where we would face an inevitable and humiliating defeat by the European Commission linking up with European Union law.
As that great outside left George Orwell observed, serious sport is “war minus the shooting”. The Sports Minister’s proposal for a battle against foreign players lacks the accurate shots required from any skilful striker. Imposing quotas on the number of foreign players in club teams, or squads, would promote mediocrity. Arsène Wenger, manager of Arsenal FC, has rightly emphasised that spectators want to see the best players, and in any event you do not enhance the quality of English footballers by removing from them the incentive of needing to improve their performance in order to win a place in their club side. Artificial barriers conflict with the essence of sport, which is competition designed to identify the best. In any event, quotas would plainly be unlawful under European law.
In 1974 the European Court of Justice stated in Walrave and Koch v International Cyclists Union that sport is subject to European Community law “in so far as it constitutes an economic activity”. Therefore, sport must respect the right to free movement of workers and comply with the community law prohibition on nationality discrimination in the provision of goods and services. In 1976, in Dona v Mantero, the European Court explained that these principles apply to the rules of sporting organisations, as well as to national law.
In the Bosman case in 1995, the European Court declared unlawful the regulations of Uefa (the governing body of European football) that required football clubs playing in European tournaments to limit the number of players from other EU states selected for the team. The court explained that it was irrelevant that these regulations did not prevent the employment of players but only limited the extent to which clubs may field them in matches: “In so far as participation in such matches is the essential purpose of a professional player’s activity, a rule which restricts that participation obviously also restricts the chances of employment of the player concerned.” In the court’s view, there was no justification for the nationality discrimination.
The court repeated what it had previously stated: there is obviously an exception where players are selected for “matches between national teams from different countries”. Excluding foreign players from selection for the national team is plainly permitted as essential to the nature of the competition. But club tournaments are different. Nationality discrimination is prohibited in that context.
In The German Handball Federation v Kolpak in 2003 the European Court took these principles a stage farther, applying them not merely to nationals of other EU states, but also to citizens of those many other countries with which the EU has association agreements. Where a citizen of such a country is lawfully employed in an EU member state, a sports body may not discriminate against the employee on the ground of his nationality. So Mr Kolpak, a Slovak national lawfully employed by a German handball team, could not be subjected to rules that limited the number of foreigners playing for each club in matches in the domestic league. Finally, in the Meca-Medina case in 2006, the European Court decided that the rules of a sporting body – there the doping rules of the International Swimming Federation – must comply with EU competition law.
Sepp Blatter, the president of Fifa (the world governing body for football), has led an unsuccessful campaign for sport to be granted an exemption from EU law. And Uefa, even when 5-0 down, battles until the final whistle blows. It has introduced a rule recently that reserves places in club squads in European competition matches for “locally trained” players. That is unlikely to survive scrutiny by the European Commission and the European Court because of indirect nationality discrimination.
The Sports Minister should concentrate on finding ways to promote sport in schools and try to avoid scoring own goals.
The author is a practising barrister at Blackstone Chambers a Fellow of All Souls College, Oxford, and a season-ticket holder at Arsenal FC
