The FA's policy on non EU football players and possible implications following Brexit

Virtually everybody has been following this World Cup. It’s caught the attention of people young and old, up and down the country and around the globe .  And whilst this competition has had even the most casual of football fans talking about it, domestic football clubs will have been following the competition not only for entertainment value, but also to snap up new talent. English football clubs are keen to sign the best talent across the world in order to stay competitive in both domestic and continental leagues and competitions.   At present, citizens of EU member states have the right to move freely around the European Union for employment purposes. Both the Home Office and the FA must comply with the free movement protections guaranteed by the EU. As a result, every footballer with citizenship in one of the EU member states may work in the EU without needing a work permit. However, every non-European Union footballer must successfully apply for a GBE (Governing Body Endorsement) with the FA before the Home Office will consider issuing a work permit. The requirements The FA will grant endorsement for a work permit to elite football players who are internationally established at the highest level.  In order to qualify for this, the person must:

• Make a significant contribution to the development of their sport in the UK and must base themselves in the UK;
• Be from outside the EEA and Switzerland.

When assessing an application for automatic endorsement, the FA will apply the following criteria in deciding whether a player is ‘elite’ and ‘internationally established at the highest level’ and whether they are likely to make a significant contribution to the development of football in the UK:

• The applicant must be joining a club in the Premier League or Football League;
• The applicant must have participated in a minimum set percentage of their home country’s senior competitive international matches during the two years (or one year if under 21) preceding the date of application. The percentage is based upon the following:
• International Team Ranked 1-10, must have appeared in 30% of matches;
• International Team Ranked 11-20, must have appeared in 45% of matches;
• International Team Ranked 21-30, must have appeared in 60% of matches; and
• International Team Tanked 31-50, must have appeared in 75% of matches.

The Rankings above are based on the official FIFA World Rankings. If a player fails to meet the above FA requirements for automatic endorsement, the football club can appeal under the FA appeals process to the Exceptions Panel.  The criteria for the Exceptions Panel is split into ‘Objective Criteria’ and ‘Subjective Criteria’. Objective Criteria The Objective criteria are split further into two parts as demonstrated in the tables below.  Players need 4 or more points from Part A or 5 or more from Parts A and B together.  The panel will not duplicate points across Part A and B and granting endorsement is always subject to the panel’s discretion even if points are met.

PART A CRITERIAPOINTS AVAILABLETransfer fee being paid for the player is above the 75th percentile of all Premier League transfers in the previous season3 pointsTransfer fee being paid for the player is between 50th and 75th percentile of all Premier League transfers in the previous season2 pointsThe wages being paid to the player are above the 75th percentile of the top 30 earners at each Premier League club in the previous season3 pointsThe wages being paid to the player are between the 50th and 75th percentile of the top 30 earners at each Premier League club in the previous season2 pointsThe player is being purchased from a club in one of the Top Leagues and the player has played at least 30% of the available minutes in that league.1 pointPrior to the application the player’s club has featured in the group stages of the Champions League, Europa League or Copa Libertadores de America in the last 12 months and the player has featured in 30% of the available minutes1 point

PART B CRITERIAPOINTS AVAILABLETransfer fee being paid for the player is within 20% of the 50th percentile of all Premier League transfers in the previous season1 pointA free transfer, but a virtual transfer value ascribed by the Exceptions Panel that is within 20% of the 50th percentile of all Premier League transfers in the previous season1 pointThe wages being paid to the player are within 20% of the 50th percentile of the top 30 earners at each Premier League club in the previous season1 pointThe player is being purchased from a Secondary League club and the player has played in 30% of the minutes played by the club1 pointThe player’s current club has played in the final qualification rounds of the Champions League, Europa League or Copa Libertadores within 12 months prior to the application, with the player featuring in 30% of the minutes played by the club1 pointThe player participated in a prescribed lower percentage (Secondary Percentage) of competitive international matches within the previous 24-month period; or the player’s international side was a semi-finalist in the Asian Cup, or African Cup of Nations in the 12 months preceding the application.  If this was the case, but the nation held an average ranking outside of the top 60 during the 24-month period, then the player must have participated in 75% of the matches during that reference period.1 point

The specific values that must be relied on to calculate whether the player meets the relevant criteria above is provided by the FA to the Premier League and Football League prior to each season and remains in force for the duration of that season. For those interested in further reading, or to understand the definitions of some of the terms in the tables above, the FA publishes the regulations on its website.

Subjective Criteria

Examples of matters which the Exceptions Panel may consider when conducting the subjective review include but are not limited to:

• If applicable, the fact that the player satisfies or partially satisfies some of the automatic criteria for a Governing Body Endorsement, as well as the extent to which the player exceeds or falls short of these criteria.
• The reasons why the automatic criteria were not met.
• Against which objective criteria (whether Part A or Part B objective criteria) points have been scored and how many points have been scored.
• The extent to which the player exceeds either the Part A or Part B objective criteria that he has met or falls short of either the Part A or Part B objective criteria he does not meet.

If a player scores 4 points or more by reference to the Part A objective criteria or a Cumulative Total Score of 5 points of more under the Part A and Part B objective criteria, the Exceptions Panel may grant endorsement, but is under no obligation to do so. The Panel is entitled to consider, as part of its subjective review, any other circumstances or facts which it deems to be relevant in its absolute discretion in deciding whether to recommend that endorsement is awarded. Potential changes to the regulations following Brexit One of the main concerns of the FA is England’s success at the international level, and therefore, it has a vested interest in ensuring that young English players have the opportunity to develop and thrive in the Premier League.  This is in direct competition with Premier League clubs’ focus on building the strongest possible squads, regardless of nationality, and a very delicate balance is struck with the current regulatory system. The current work permit regulations were put in place with the knowledge that EU players would continue to move freely into English clubs and therefore were specifically enacted to exclude all but the best non-EU players in order to, theoretically, provide more opportunities for young English players. If EU players are no longer afforded free movement to work in the UK, it is reasonable to expect that the FA’s endorsement policy would be adjusted to reflect this development. However, it would be interesting to see how the FA will adjust its restrictions on recruitment of players in contrast to the current work permit system. It is difficult to speculate at this stage as to how exactly the FA would alter the regulations, but there are a few areas that seem nearly certain. Firstly, it is very unlikely that new regulations would be applied retrospectively, and footballers already competing in the UK should be able to keep their work permit.  Additionally, it is unfathomable that truly world class EU players would ever find difficulty securing an endorsement from the FA. Secondly, the football authorities will be mindful that alterations to the work permit regulations (making it more restrictive for EU players to join clubs in the UK) would benefit the top-tier EU clubs considerably, as there would be less competition for the services of those players.  The restriction of EU players is also likely to have a detrimental affect on the English Premier League from a commercial standpoint.  With a more restrictive approach to European talent, we’re likely to see a decline in the standard of football in the Premier League. It is therefore likely that there will be considerable pressure from UK clubs on the Home Office and the FA to make the necessary concessions to allow for such recruitment to be as unfettered as possible. If you would like to speak to an immigration lawyer about work permits for sportspeople, call Latitude Law on 0300 131 6767 .