Sports Q&A - How might Brexit affect sports immigration?
28 November 2018
As things stand, the UK will leave the EU on 29 March 2019. The UK will adopt a new immigration system post-Brexit, under which free movement of European nationals and their family members will cease. There will be a period of transition until the end of 2020, during which free movement will continue, and a new “settlement scheme” will be rolled out for European migrants. Free movement will end completely from January 2021. All British businesses will be affected by these changes. However, Brexit poses some particular challenges to the sports sector.
Youth footballer transfers
FIFA transfer rules prohibit the international transfer of footballers under the age of 18. One exception to this rule is where the transfer is within the EU. For example, Arsenal signed Cesc Fabregas and Hector Bellerin from Barcelona under this exemption. However, the UK will not be a member of the EU after 29 March 2019. As a result, we can presume that the benefit of this exemption will simply fall away for British clubs on that date. Might this influence how clubs do business in the January 2019 transfer window…?
The implementation of a new immigration system after 2020 may mean that European players will have to obtain a “governing body endorsement” (GBE) to transfer to an English club, as is currently the position for non-European players. A GBE is currently only issued in respect of “elite players”. This usually involves showing that they have international caps or a high market value.
In recent weeks, the FA has proposed a cut in the number of foreign players allowed in Premier League squads post-Brexit. From the proposals, it seems that if a player has a contract, he will be granted a GBE and given permission to play in England. This is different to the current system, which requires clubs to show the player is “elite”. The Premier League certainly wants its clubs to have the ability to sign players from anywhere in the world without restrictions on quality or qualification. It will be interesting to see how these proposals move forward, which may potentially put football clubs at odds with other employers in the UK (which can only recruit foreign workers if they meet salary and qualification thresholds).
Rugby and cricket quotas
Away from football, a new immigration system may also affect quotas in rugby and cricket. In 2003, the European Court of Justice (ECJ) said that citizens of countries that have signed EU Association Agreements have the same right to free movement in the EU as Europeans. Therefore, restrictions on their right to work (such as quotas on foreign players) would be unlawful. This is the “Kolpak” loophole that has allowed many rugby and cricket clubs to sign players from countries such as South Africa, Tonga, Fiji and Samoa. However, following the end of the Brexit transition period, free movement – and presumably Kolpak – will end in the UK. It will be interesting to see how the RFU and ECB approach foreign quotas in a post-free movement UK.
At the time of writing, there is still considerable uncertainty about how (or even whether) the UK will leave the EU. It is a bold person who confidently predicts where the dust will settle. In the meantime, sports professionals and organisations will continue to monitor every twist and turn, eager to see how Brexit may affect the British sporting landscape.
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With Brexit scheduled for 29 March 2019, there will be both long and short term legal implications for UK and international businesses.