So could someone with better legal knowledge than me explain how on earth this rule isn't going to fall down at the first legal challenge to the EU? I mean, how exactly can it possibly not constitute indirect discrimination?

Sure, you're not selecting English players over other EU nationalities directly - but English players have a pretty big advantage in qualifying for this rule.

Let's say, for example, Chelsea decide to sign another world class goalie to compete with Cech. Chelsea can then only keep one of Hilario or Turnbull to comply with the 25-man squad, and they choose Turnbull to be #3 because he's home-grown and ditch Hilario. How, when Hilario is clearly the better 'keeper, would he not then immediately have a case against Chelsea and/or UEFA for indirect discrimination? This just seems so amazingly obvious to me that I can't quite believe the rule has got in the first place - could someone explain what the fuck I'm missing here?

It's not based on nationality; it's based on how long the player has been in the country and at what age he arrived.

I know that, hence it's indirect discrimination not direct discrimination. An English player has a much better chance of having been in England a long time. It's still illegal as far as I can see.

Good luck convincing the ECJ of that argument.

Native English speakers have better chances of being hired as English teachers, too.

Speaking perfect English is a vital part of the job description for an English teacher. The same can't be said of footballers, hence why one is discrimination and the other isn't.

People who are raised in England also have better chances of being hired as apprentices for any trade you would care to consider.

Trust me, there is no case to answer here.

Seven Saxon Kings wrote:
Let's say, for example, Chelsea decide to sign another world class goalie to compete with Cech. Chelsea can then only keep one of Hilario or Turnbull to comply with the 25-man squad, and they choose Turnbull to be #3 because he's home-grown and ditch Hilario. How, when Hilario is clearly the better 'keeper, would he not then immediately have a case against Chelsea and/or UEFA for indirect discrimination?

But only 8 of the 25 have to be homegrown, and there is no provision that this is distributed equally over specific positions. So it would never come down to a straight choice between Turnbull and Hilario. It might come to a choice between Hilario being in or, say, Yuri Zhrikov (Chelsea are quite hard to do this with as they have only named a squad of 19 over-21s), in which case whoever gets the nod would have been assessed as the better player, rather than based on their nationality.

ursus arctos wrote:
Good luck convincing the ECJ of that argument.


Restraint of trade under the free movement of workers under the EU. They can arguably restrict the number of Europeans, but with work permits it seems like it might be a successful argument. Or am I off track?

You're in the station forecourt with Seven Saxon Kings.

UEFA has had a similar rule for its competition for a couple of years. It's clearly legal with respect to freedom of movement.

I think you will find I am actually by the big slurpee machine, praying for some bizarre way my team's player pokemon (gotta catch em all) habits might work out.

Will the "Kolpak" ruling have any effect? Not heard it mentioned in football circles.

If anything, I thought the EU legislation means that it won't be strict enough, given that Fabregas would qualify as a "home-grown" player. Considering that most English goalkeepers have squeezed out of first teams to an extent not seen with other national teams, you should be grateful if Chelsea have to play Turnbull more often.

Just looked at an interesting legal paper on this here: www2.warwick.ac.uk/fac/soc/law/elj/eslj/...2/miettinen_parrish/

Far from suggesting that I'm 'in the station forecourt' it suggests that

UEFA’s introduction of the rule has been justified with reference to considerations which in Bosman did not serve to justify the 3+2 rule. Unlike the 3+2 rule and FIFA’? s proposed 6+5 rule which constitute direct nationality discrimination, the notion of home-grown players is structured by reference to residence and other requirements which appear to indirectly favour nationals of the home state and thereby constitute indirect discrimination. The legal significance of this is that whatever doubts one might harbour regarding the justifiability of directly discriminatory rules, it is clear that indirectly discriminatory rules are in principle capable of objective justification beyond the limited Treaty grounds.

It does go on to explain how UEFA could get away with it:

rules designed to preserve competitive balance in football, encourage youth development and protect national teams are legitimate objectives which the EU should permit as defences to the adoption of restrictions on free movement in sport. The issue rests on whether UEFA’s home-grown player rule amounts to an appropriate and proportionate means of achieving these objectives and whether it genuinely seeks to achieve these rather than prohibited economic aims.

However

Some of the analysis presented above suggests that the two proposed regimes are neither fit for purpose nor proportionate.

As for this:

People who are raised in England also have better chances of being hired as apprentices for any trade you would care to consider

Not only is that a debateable fact to begin with when millions of EU citizens are working in the UK, it's still illegal to discriminate if someone born elsewhere in the EU can do the job better.

Richard Parrish - one of the authors of the paper you reference - is a neo-liberal by inclination, who has a problem with regulation of sport (he'd rather there was as little as possible).

That's a reasonably interesting piece, but as I'm sure you know, legal academics tend to specialise in making arguments that courts never adopt (and the authors in this case are still sitting on the fence). And as NHH points out, Parrish has a bit of previous in this regard.

I can assure you on the basis of personal experience that UEFA took very sophisticated legal advice on the question before they implemented their version of the rule, and I honestly believe that if there was any real chance of a challenge succeeding, then one would have been brought by now.

It's also worth looking at the question of what the damages would be here. Even accepting the premise that the rule results in indirect discrimination that somehow violates the Treaty, the rule doesn't prevent clubs from employing players; it only prevents them from playing in European competition or the Premiership. As dglh indicates, Man City still have 35+ players under contract, all of whom are being paid their full contractual wage. The best argument for damages that I can see would be grounded in "being denied" win or appearance bonuses, but that interjects yet another element of attenuation and uncertainty to a claim that already has a lot of issues (in my view, of course).

As far as the apprenticeship point goes, your entire argument is grounded on indirect discrimination, not the direct variety that you're referencing now.

Also in Hilario's case, as well as still receiving his basic salary, he would still be eligible to receive win/appearance/clean sheet bonuses by going out on loan.

The only real case would be a player suggesting that the only reason that a club didn't sign him was because he would take them either over the 25 man limit, or the 17 non-home grown player limit, which would be nigh on impossible to prove.

the rule doesn't prevent clubs from employing players; it only prevents them from playing in European competition or the Premiership.

That's like saying I can't do certain tasks at my job because I'm not Swedish and haven't lived in Sweden long enough. Sure, I can still be employed, but I am precluded from certain tasks due to my background.

It's bollocks and the EU will throw it out.

ursus arctos wrote:
People who are raised in England also have better chances of being hired as apprentices for any trade you would care to consider.

Well, yes, in practise it can be advantageous when being hired to have a knowledge of the local market, a network of potential customers, good understanding of the language, etc. But that's judged on a case by case basis, with each candidate being taken on their merits. Nowhere in the regulations for the various trades is there a rule that says that X% of persons have to have lived in the UK for X number of years or have British nationality in order to carry out their trade. Such a rule would be struck down. I don't see why football should be any different.

What is the difference between this and the maximum 3 foreigners rule that the EU threw out with the Bosman ruling? It's the same indirect discrimination, just with different percentages and slightly different definitions on what a foreigner is (residence time requirements instead of nationality, which is just as anti-free movement).

Janik wrote:
But only 8 of the 25 have to be homegrown, and there is no provision that this is distributed equally over specific positions.

The distinction is that a maximum of 17 can be non-homegrown. Only eight clubs named squads containing 25 players (meaning that the other 12 clubs did not have to name 8 homegrown players), Arsenal for example have only named seven.

ursus arctos wrote:
It's also worth looking at the question of what the damages would be here. Even accepting the premise that the rule results in indirect discrimination that somehow violates the Treaty, the rule doesn't prevent clubs from employing players; it only prevents them from playing in European competition or the Premiership.

It doesn't prevent them playing in European Competetions - a club could name a different 25 players for European Competition, compared to the one they name for the Premiership.

Bryaniesta wrote:
That's like saying I can't do certain tasks at my job because I'm not Swedish and haven't lived in Sweden long enough. Sure, I can still be employed, but I am precluded from certain tasks due to my background.

Well, for one, it doesn't say that you cannot do the job because you are not a specific nationality. Cesc Fabregas is considered Home Grown (there are 22 different nationality of player considered "Home Grown"), whereas England International and British Citizen Owen Hargreaves is not considered homegrown, because he didn't spend three years before the age of 21 attached to an English or Welsh club.

It's bollocks and the EU will throw it out.

But the EU will only be able to throw it out if it discriminates against a EU citizen in favour of another EU citizen based purely on their nationality.

Excluding players on loan until January with no recall, or players out with a long term injury, there are thirteen players over 21 who have been excluded from their club's squad lists. They are:

Riga Mustapha (Bolton Wanderers) *
Pascal Zuberbuhler (Fulham) $
Robert Milsom (Fulham) +
Charles Itandje (Liverpool) *
Jordy Brouwer (Liverpool) *
David Gonzalez (Manchester City)
Kelvin Etuhu (Manchester City) +
Andrew Davies (Stoke City) +
Luke Moore (West Bromwich Albion) +
Luke Daniels (West Bromwich Albion) +
Peter Kurucz (West Ham United)
Michael Kightly (Wolverhampton Wanderers) +
Matthew Hill (Wolverhampton Wanderers) +

* indicates players who have been included, despite their club not filling their 25 Squad List - these players would have no case to take to the EU.

$ indicates players who aren't EU citizens, so would have no case.

+ indicates players who are English and homegrown, and therefore cannot have been prejudiced on basis of nationality

That leaves Gonzalez and Kurucz - both goalkeepers, but in both players' cases, neither can say that they have been excluded on Homegrown/Non-homegrown status, as the respective clubs only have 13 and 15 non-homegrown players registered out of their possible 17. In fact, as no club has more than 15 non-homegrown players, it's not really a case that any club has to answer right now.

Well, for one, it doesn't say that you cannot do the job because you are not a specific nationality. Cesc Fabregas is considered Home Grown (there are 22 different nationality of player considered "Home Grown"), whereas England International and British Citizen Owen Hargreaves is not considered homegrown, because he didn't spend three years before the age of 21 attached to an English or Welsh club.

No, but it would be like saying I can't do a certain job at my work because I didn't live in Sweden long enough at a certain age. It's just as in contradiction with free movement and the Maastricht Treaty as discriminating based on nationality. I don't think the EU will have any problems throwing it out.

UEFA have tried this before and failed. They do this charade every few years to make us all think they care. When they fail they blame the EU. If UEFA really cared then they'd make try and make the distribution of TV money fairer, increase accessibility to the Champions League for smaller nations and consider introducing wage limits. But they don't really care about football, do they...