Home-grown Rules

A more promising approach is the adoption of rules that require that a certain minimum number of players in a team or in a squad who are registered as eligible to play in a particular competition shall have been produced through the training system that exists within the country in which the club is located. Such players are likely to have the nationality of the state in which a club is based, but this need not be so. There is no mandatory connection fixed on nationality. The point is to eliminate the direct discrimination based on nationality which taints FIFA’s ‘6 plus 5’ rule and instead to establish a system which, by distinguishing on the basis of training location, amounts only to indirect discrimination based on nationality. This opens up greater scope for justifying such rules as an expression of the specific character of sport.

There are such rules in football. They are commonly known as ‘home-grown’ rules. UEFA’s current system deems a player ‘home grown’ where registered with a club for three seasons between the ages of 15 and 21, so in fact a player can count as home-grown in State A having played all his football and received all his training up to the age of18 in State B.[1] [2] [3] However, the purpose of the current analysis is not to consider the arrangements in detail: their precise shape regularly changes in any event. The current concern is how to treat such rules as a matter of EU law: do they respect the terms of the conditional autonomy which EU grants to sport?

The aim of such rules is plainly to encourage investment in young talent with a view to sustaining the long-term supply of good quality players. So the scheme favours the ‘home-grown’, and it stops a club simply filling its team-sheet and its squad with fully developed mature players. This opens up room to argue that the rules are necessary to support the interest of encouraging investment in youth training, the matter of competitive balance between clubs, and the wider health of the national representative side.

No ruling of the Court of Justice deals directly with the compatibility of such rules with EU law. However, the Commission has accepted that ‘home-grown’ rules are potentially compatible with the Treaty. The Staff Working Document accompanying the 2007 White Paper merely mentions this as one of several important outstanding issues^1 but in May 2008 the Commission, publishing an independent study on the compatibility of the scheme with EU law, announced a firmer view. It considered the home-grown rule compatible with EU law in the light of its contribution to promoting balance in sporting competition and encouraging the training of young players.62

The 2008 study is disappointingly thin and descriptive. It does not deserve to command a high level of respect, for it is uncritically generous to the claims made on behalf of the lex sportiva. Nevertheless the Commission has stuck to its point of view. Its 2011 Communication on Sport is openly receptive to the ‘home-grown’ model.[4] [5] [6] [7] It notes that the Court’s case law is receptive to ‘the need to preserve certain specific characteristics of sport’, and adds that:

... rules which are indirectly discriminatory (such as quotas for locally trained players), or which hinder free movement of workers (compensation for recruitment and training of young players), may be considered compatible if they pursue a legitimate objective and insofar as they are necessary and proportionate to the achievement of such an objective.64

The accompanying 2011 Commission Staff Working Document, ‘Sport and Free Movement’ is even more precise in its guidance. It declares that:

... rules such as UEFA’s ‘home-grown players’ which aim to encourage the recruitment and training of young players and ensure the balance of competitions, can be compatible with EU free movement provisions (i) in so far as they are able to achieve efficiently those legitimate objectives, (ii) if there are no other measures available which can be less discriminating and (iii) if the rules in question do not go beyond what is necessary to the attainment of their objectives.65

It adds that the Commission ‘will nevertheless monitor the application of these rules closely on a case by case basis in order to verify that the criteria are met’.66 The insistence on case-by-case examination, rather than the adoption of any generalized exemption, is in line with the Court’s landmark ruling in Meca-Medina.67

It is of course the Court’s view, rather than the Commission’s, which is authoritative. But at least in principle, in accepting the virtues pursued, the Commission appears to be on solid ground. The ‘home-grown’ rules would be defended as means to promote balance in sporting competition (because richer clubs could not simply fill their squads with expensively purchased finished products) and as a device to encourage the training of young players. Both concerns have been recognized by the Court as legitimate in sport. Both Bosman6sand Bemad9 openly accept the legitimate concern of sport to promote youth training, albeit there in the context of the transfer system, rather than in the context of shaping quotas favouring locally trained players. Article 165 TFEU’s direction that the Union shall take ‘account of the specific nature of sport, its structures based on voluntary activity and its social and educational function’ frames the analysis advanced in support of the need for such rules, although, as explained in Chapter 7, it is not argued that this is any way a change of substance.

However, the case that the home-grown rule is compatible with EU law in the light of its contribution to promoting balance in sporting competition and encouraging the training of young players deserves a sceptical examination. The argument rooted in competitive balance is thin: rich clubs will plainly still acquire the best players while poorer clubs will find that the available pool of talent in which they can fish has been artificially diminished by the requirement to hire a defined number of ‘home-grown’ players. And it is far from clear that creating a protected class of ‘home-grown’ players, who will certainly enjoy higher wages than equally skilled non-qualifying players simply because clubs need to hit their quotas, is sensible as a means to improve the quality of training. Better, one might think, to open up the market so that young players have to sink or swim rather than enjoy artificial buoyancy because of where they happen to have been ‘grown’. Given these objections and given that there are other and plausibly more appropriate ways to achieve the objectives pursued by the home-grown rules, it is at least arguable that they are incompatible with EU law.

In 2013 the Commission published an independent study into the effects of the home-grown rule applied by UEFA. It was prepared by a team from the University of Liverpool and Edge Hill University and appeared under the names of Murray Dalziel, Paul Downward, Richard Parrish, Geoff Pearson, and Anna Semens.[8] [9] [10] This is a thoroughly impressive piece of work: detailed, thoughtful, and fully referenced. It is an important contribution because it seeks to initiate an examination of the rules in the light of an empirical investigation into their effects. This, then, is to push EU sports law and policy towards an evidence-based foundation rather than one based on loose references to common sense7i and Kevin Keegan/2

The rules which provide the background to the examination are those introduced by UEFA to govern European club football competitions with effect from the 2006—07 season. Under that scheme all qualifying teams must operate a quota of at least eight home-grown players in their squad of twenty-five. Four of the eight players must have been registered with the club for a period, continuous or non-continuous, of three entire seasons or of thirty-six months whilst between the ages of 15 and 21. The others may qualify under the same criteria where they have been trained by another club in the same association. It is explicitly provided that nationality is not relevant. And, as the Report notes, this model has been adopted in some other sports too.

The study found that the rules had exerted negligible effect—positive or negative. It argues that although the aims—to improve competitive balance and to induce the training and development of young players—are in themselves compatible with EU law, in the light of the Court’s case law and now with reference to Article 165 TFEU, the absence of any adequately compelling evidence that these ends are in fact advanced other than to a very modest degree should lead to a healthy preliminary scepticism that the scheme is compatible with EU law. Nearly all clubs interviewed suggested that the scheme had either ‘no impact’ or ‘little impact’ upon their strategies for the training and development of players.[11] [12] Only four clubs interviewed, a small minority, identified any real impact/4 The claimed capacity of the rule to sustain the quality of the national representative side is particularly hard to substantiate. And there are identified negative aspects of the rule, such as the inducement to poach qualifying young players from other clubs in order to hit the quota.75

Even if small benefits can be identified, the Report advances good arguments that there are other equally effective ways to attain these objectives which impose a less restrictive effect on the mobility of players. In this area the point is always to justify just why obligations should be placed on players as employees where ‘normal’ employees would not be so burdened. So one could envisage club licensing schemes as a means to require the maintenance of youth training, financial inducements so to do, revenue sharing, and so on. If these are equally apt to achieve the stated aims, the condemnation of the home-grown rules as incompatible with EU law seems inevitable. The Report makes the argument that where faced with a choice to intervene in football between measures affecting clubs and measures affecting players, then, all other things being equal, the presumption should be in favour of the use of the former over the latter. The latter are more likely to affect the rights of workers, including free movement rights, and so should be viewed more sceptically. Nothing in the Court’s case law explicitly supports this view, but it is an elegant and convincing way to understand the protection and priorities embedded in EU law. And it acts as a valuable corrective to the often unexplained tendency to assume that footballers are inevitably vulnerable to treatment that would not be meted out to ordinary employees. The Report is spot on when it notes that it is common, but simply not acceptable, for such treatment to be defended as historically rooted in sport, nor should the relatively high level of remuneration of some professional athletes count as a reason to load burdens on them when the aims in view can be achieved at least as well by addressing the clubs or federations. So, the Report declares with persuasive vigour, ‘labour market restrictions should be considered the last resort and it is recommended that the institutions of the EU adopt this approach as their foundation principle when assessing measures that may conflict with the freedoms of athletes’/6

The Report concludes that the rules cannot be described as compatible with EU free movement law until the viability of less restrictive alternatives has been examined, particularly those that do not carry discriminatory effects and are not located within the labour market. This seems thoroughly persuasive. The Report recommends that a further analysis should be conducted in three years’ time by UEFA in

75 ibid 100-101.

order to assess whether effects pertinent to the pursuit of competitive balance have been maintained, improved further, or have declined; whether a closer connection between the rule and improvements in youth development can be identified; and whether less restrictive alternatives can deliver more substantial improvements to competitive balance and the quality of youth development. The bottom line assumption is that ‘if less restrictive alternatives are able to achieve more substantial improvements in competitive balance and the quality of youth development, the proportionality of the Rule will not have been made out and the Rule should be removed from the UEFA Regulations’.[13] [14] The ends may be lawful, but the means used are not.

The findings of the Report have provoked neither litigation nor Commission intervention. Doubtless this is in part a reflection of the relatively closed world in which sporting autonomy is practised. Were the home-grown rules to be attacked as restrictions on free movement and distortions of competition within the EU, the best chance to defend them would probably lie in a claim that they fall within the sporting margin of appreciation considered in Chapter 7.4. In line with the aforementioned Report, it seems much easier to show that the home-grown rule is exerting an effect on buying policies than it is to show that it is encouraging a higher level of investment in youth training. The richer clubs have an obvious incentive to acquire players who meet the home-grown requirements to ensure they meet their quota/8 The causal link to encouraging training of home-grown players in the first place is harder to establish: this is exactly the finding of the Report. And the effect of such a rule is certainly to increase the wages commanded by the home-grown player, because the system makes it harder to replace him as it restricts the supply of players who qualify. Defence of the system as a contribution to the specific nature of sport, in particular the concern to encourage an emphasis on youth training, would require production of empirical evidence of such benefits that is currently lacking. Were the scheme challenged, it is doubtless the case that sporting bodies would seek such evidence, while also pleading for a zone of autonomy within which their choices would be subjected to EU law in principle but within which in practice they would be granted a large measure of discretion in determining the ‘specific nature of sport’ mandated by Article 165 TFEU. This sporting margin of appreciation, considered in Chapter 7.4, draws on two strands of the Court’s case law: that which yields public authorities in the Member States a discretion in resolving cases pitting trade integration against sensitive social and cultural choices made under national law, especially where an EU legislative solution is constitutionally or politically improbable,79 and also that permitting the EU’s own institutions a broad discretion in matters that entail complex assessment and a readiness to intervene only where action is manifestly inappropriate.80 Sporting autonomy would try to take shelter under this formula. Its chances are increased where the percentage of players that must be home-grown is kept relatively small: in 2014 the Commission took the view that rules in Spanish basketball were unduly restrictive because they reserved between 40 and 88 per cent of jobs available in basketball teams to players meeting criteria associated with local training.81

The strength of the claim to autonomy would be improved where the social dialogue is well developed and infuses the choices made, so that the scheme is representative of all affected interests, not just the ‘top-down’ rule-makers. Article 165 TFEU’s reference to the promotion of ‘openness’ could be given concrete shape through the adoption of a more lenient review of the necessity of sporting practices which appear to interfere with the internal market in circumstances where the procedures through which such practices are made are genuinely open to all affected parties, including players. This is, admittedly, an issue that could strain the governance arrangements within football. There is evidence that some larger clubs are not at all in agreement with the worth of home-grown rules. Their commitment to the health of the national team is ambiguous at best: and home-grown rules simply reduce the pool of talent within which they are able to fish and cause an artificial inflation in the costs of labour that complies with the home-grown rules.82

  • [1] For UEFA’s own explanation, see accessed29 November 2016.
  • [2] Staff Working Document, ‘The EU and Sport: Background and Context’, 76, available via accessed 29 November 2016.
  • [3] 62 IP/08/807, 28 May 2008: the report (by INEUM Consulting) is available at accessed 29 November 2016.
  • [4] Commission Communication ofJanuary 2011 (n 50). 64 ibid 11.
  • [5] 65 ‘Sport and Free Movement’ (n 52) 4. 66 ibid 4.
  • [6] 67 Meca-Medina (n 3). See Ch 5. 68 Bosman (n 5).
  • [7] 69 CaseC-325/08 Olympique Lyonnais v Olivier Bernard, Newcastle United [2010] I-2177.
  • [8] European Commission, Study on the Assessment of UEFA’s ‘Home Grown Player Rule’Negotiated Procedure EAC/07/2012 (2013) accessed 29 November 2016. For a summary and an explanation, see P Downward, R Parrish, G Pearson, and A Semens, An Assessment of the Compatibility ofUEFA’s Home Grown Player Rule with Article 45 TFEU’ (2014) 39 EL Rev 493.
  • [9] 71 AG Warner in Walrave and Koch (n 1), see Ch 4.
  • [10] 72 AG Lenz in Bosman (n 5), see Ch 4.
  • [11] European Commission, 2013 Study (n 70) 68.
  • [12] ibid 71: the clubs are not named, for reasons of confidentiality.76 ibid 7; see also 106-107, 111.
  • [13] ibid 8, 112. For similar scepticism concerning the compatibility of the system with EU law, seeGardiner and Welch (2016) (n 59); L Freeburn, ‘European Football’s Home-Grown Players Rules andNationality Discrimination under the European Community Treaty’ (2009—10) 20 Marquette Sports Law Review 177.
  • [14] eg ‘Cresswell on City’s Radar as Hierarchy Bows to Demands of Home Rule’ The Times (London,15 April 2015) 64: ‘Manchester City have identified Aaron Cresswell, the West Ham United left back,as a potential transfer target in their attempt to bolster the number of home-grown players in theirsquad as part of a planned reshape this summer.’
 
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