One step forward, two hops backwards: quotas-the return: an excavation into the legal deficiencies of the FIFA 6+5 rule and the UEFA home-grown players rule in the eyes of the European union law.

• Author: Majani, Felix
• Position: ARTICLES - Report

1. Introduction

   Football has for a long time claimed its specificity and exemption from the so called ordinary legislations. It has since time immemorial adopted certain customs; lex sportiva, such as the payment of transfer fees by one club to the other for the signing of players, transfer windows and protected periods among other features.

   It is, was and most likely will be clearly understandable that football is a specific sport. The specificity around which the regulations governing football have been built along three key pillars:

   The need for clubs to maintain their financial stability; The economic importance of football as a means of livelihood for those who play and run it as a profession; The need for football to fulfil its objectives as s social and recreational activity. The future and survival of football is dependent on how well it shall be able to self regulate itself in a manner which appreciates and encompasses these three pillars in one.

   The EU has been quick to acknowledge and respect this specificity as evidenced in its white paper on sports and in the judgments delivered by the ECJ whose general principles are that sports is subject to the EU laws in as far as it constitutes an economic activity.

   Whereas the football authorities (FIFA and UEFA) have been quick to enact legislations aimed at securing the future of the sport, it has to be said that a majority of these regulations have been directed towards those who are privileged enough to force their entry into the sport as a profession, either as players or clubs, and not towards the vast majority of clubs and players who engage in the sport as a recreational activity, perhaps with one eye set on turning it into a profession.

   1.1. History of quotas

   Before 1995, UEFA and European football leagues maintained a widespread practice of limiting the number of other EU nationals in a team to three players plus two others who were considered assimilated because they had played in their country for an un interrupted period of five years. This was called the three plus five rule.

   It was however not until 1995 when these disparities were reviewed to the effect that players ceased to become the club's "property", with foreigners, more importantly, being free to play in any national league matches without any limitations. There became greater freedom of work and movement for players, at least within the EU territory.

   These were the consequences of the landmark ruling in the case of ASBL v. Jean-Marc Bosman Case C 415/93, ASBL v. Jean-Marc Bosman, ECR I-4921, which laid to rest the established minimum quotas and restrictions on the number of EU foreign players who were eligible to feature in certain UEFA competitions and European leagues.

   This ruling sent out a clear message that sports and football were subject to the EU laws in as far as they constituted an economic activity. Only when the rules in issue related to the laws of the game i.e. the playing laws would the EU not interfere.

2. Motives and Objects for the Research

   2.1. Modern day anti labour restrictions from football's governing bodies

   Despite this EU intervention and the Bosman ruling, modern day restrictions continue to engulf football. The FIFA transfer windows, transfer fees among other regulations are just but an example.

   However, it is the two latest attempts by FIFA and UEFA aimed at restricting the number of foreigners eligible to feature for any particular team, or the ability of minors to play the sport for recreation while keeping in mind the future potential benefits they could secure from it which draw our attention as to how compatible these attempts are with EU laws. Whether or not the recent FIFA and UEFA 6+5 and home-grown player's rules can be seen as giant steps towards re directing football into the pre Bosman era are questions to be answered herein.

   2.2. Questions

   We must therefore ask ourselves several questions when trying to interpret the full meaning, impact and legal deficiencies of these rules.

   Just what are these rules, and do they go against the fundamental provisions of the EU which guarantee freedom of movement, work, the protection against discrimination in employment and the freedom of competition between EU sports members?

   Do these rules curtail the basic societal rights guaranteed by both the EU and football association's laws of engaging in sports as a tool of recreation? To what extent can they be challenged as being contrary to EU legislation? What are its effects, and do they have a future in sports in as far as the EU is concerned?

   Are they quotas?

3. Background to the FIFA 6+5 and UEFA Homegrown Players Rules

   European football has over the past decade in the post Bosman era, experienced an influx of foreign players playing in the major leagues in England (1), Spain, Italy, Germany and France. Clubs have continued to employ and field imports from South America, Africa and other European countries at "the expense" of the local players (2).

   The second edition of the Annual Review of the European Football Players' Labour Market revealed a decrease in the number of homegrown players and an increase in the number of foreign players. as at 27 September 2007, home-grown players represented 24.3% of the total number of 2,744 footballers employed by the 98 clubs of the five top European leagues in England, France, Spain, Italy and Germany. (3) The influx of foreign players meant that clubs risked losing their national identity.

   FIFA expressed its concern over the dominance of certain competitions like the English Premier League and the UEFA Champion's League by English clubs (4), attributing their success to the high number of foreign players fielded by their teams. This has been claimed to reduce the competitive level of club competitions and increasing the predictability of results.

   The national football teams of these countries have "suffered". England's failure to qualify for the Euro 2008 championships opened a can of debate over whether the influx of foreigners was to blame for what was viewed as a national disaster. Critics observed that England's youth football system was suffering as a result of foreign imports, with the youth facing little or no chance of playing top class football as a result of clubs turning to foreign and well finished foreigner players for instant success.

   It was felt that time had come for legal interventions to be made. UEFA had already foreseen this crisis, and in 2005, reacted by introducing the so called "home-grown players rules". It was however not until England's failure that FIFA decided to follow suit with its 6+5 Rule.

4. The UEFA Homegrown Players Rule

   4.1. Legal status

   This rule has roots from Article 17.08 of the UEFA Champions League Regulations (UCL Regulations) which reads:

   "No club may have more than 25 players on List a during the season. as a minimum, places 18 to 25 on List a (eight places) are reserved exclusively for "locally trained players" and no club may have more than four "association-trained players" listed in places 18 to 25 on List A. List a must specify the eight players who qualify as being "locally trained", as well as whether they are "club-trained" or "association-trained". The possible combinations that enable clubs to comply with the List a requirements are set out in Annex VIII. Under Article 17.09-A "locally trained player" is either a "club-trained player" or an "association trained player". Under Article 17.10 a "club-trained player" is a player who, between the age of 15 (or the start of the season during which he turns 15) and 21 (or the end of the season during which he turns 21), and irrespective of his nationality and age, has been registered with his current club for a period, continuous or not, of three entire seasons (i.e. a period starting with the first official match of the relevant national championship and ending with the last official match of that relevant national championship) or of 36 months. This rule was introduced on 21 April 2005. Under it, UEFA requires the squads of all clubs participating in the Champions League and the UEFA Cup to have a minimum number of home-grown players, i.e. players who, regardless of their nationality, have been trained by their club or by another club in the same national association for at least three years between the age of 15 and 21. This is a minimum of eight home-grown players to be included out of the entire twenty five man squad to be drafted by clubs for all UEFA club competitions.

   Despite having received EU backing, question marks still linger as to the compatibility of this rule with the EU law, and the possible avenues for challenging it, particularly with regard to competition and discrimination.

   4.2. Objectives of the rule

   The main aim behind UEFA's 'home-grown players' rule is to promote and protect the quality training of young footballers within the EU and to consolidate the balance in competitions. It aims at encouraging clubs to invest in training and setting up football academies for young children rather than spending their investments on employing footballers from foreign countries. The idea is to have the national football teams of all UEFA member countries served with a flowing degree of talent from their clubs' academies. The rule also aims at preserving club's identification with their towns/cities and regions of ori-gin (5).

   4.3. Scope

   The homegrown players rule only applies to UEFA club competitions-the Champion's League and the UEFA Cup. They do not apply to domestic competitions, although UEFA has encouraged its members to adopt the rule in their own competitions. These rules apply in favour of all home grown players trained by clubs in whose national association they are playing for.

   4.4. Who is a homegrown player?

   Home-grown players have been defined by UEFA as players who, regardless of their nationality or age, have been trained by their club or by another club in the national association...