Before the Bosman case was decided, national and sub-national sports governing bodies were able to preserve the national character of their leagues by rules that limited the number of foreign players who could be fielded by clubs.
These rules (it was argued) also assisted the international representative game by giving greater opportunities to ‘home grown’ players. As is well known, the European Court of Justice in Bosman was not impressed by these arguments and insisted that Community nationals should be free to work where they pleased. However, this reasoning did not preclude national representative teams from being made up solely of nationals.
The outcome of Bosman has been to transfer power from the governing bodies to the clubs and (in particular) their employees. Hence the intense and so far unsuccessful lobbying by FIFA and others for an exemption for sport from the rigours of EU law.
In May, in the Kolpak case, the European Court of Justice has gone a step further and decreed that nationals of the vast number of countries who have signed association agreements with the EU shall have free movement rights within the EU once they have obtained a valid work permit. This means that nationals of virtually every country other than those in Asia, Central and South America, the United States, Canada, Japan, Australia and New Zealand will not count as part of a ‘non-EU’ quota once they have a work permit.
Although the ruling could lead eventually to a reduction in player salaries across the board, the immediate consequences will vary. It will certainly be important in European football – although the ease with which South Americans and francophone Africans can qualify for Spanish, Portuguese, Italian and French passports means that quotas are not so important in practice.
On the other hand, for sports that are based on the primacy of the international representative game between countries (the so called Empire sports) the effect is going to be quite radical -particularly since these sports are being financed by an increasing number of international matches.
The governing bodies of these sports will doubtless join FIFA and others in pressing for an exemption for sport from the forthcoming EU Treaty. But this faces significant opposition with even its major proponent (France) having recently stripped its governing bodies of their TV rights monopoly to give it to the club associations.
The governing bodies could try to get their clubs to agree quotas amongst themselves. However, such arrangements will be legally unenforceable. Thirdly, they could try to block the initial issuing of work permits – but governments like a sport to speak with one voice and clubs are bound to oppose this.
Finally, the governing bodies could seek to contract all the players themselves in the professional game and use this monopoly to curtail the opportunities of players who do not qualify for the national side. Even if they could win this battle with their current employers, competition law would prevent governing bodies from banning alternative leagues that are privately financed.
If protection for ‘home grown’ players is impossible, and the national identity of national leagues is to be further watered down, other solutions may be investigated. Making national representative qualification depend solely on the accident of birth makes little sense in a mobile world.
Are we therefore moving to a situation where international qualification could depend upon where you ply your trade? Tony Banks’ suggestion that this should happen was much derided when he made it several years ago. After the Kolpak case, this prospect no longer looks beyond the bounds of possibility.