By Dan Chapman
In this article I consider the topic of work permits for footballers, an increasingly important issue and one which Full Contact are frequently being asked to advise upon.
We have recently seen the opening of England’s new training HQ, St George’s Park which is being dubbed the ‘Oxbridge of football’ with state-of-the-art facilities geared towards making homegrown English football talent better. It remains to be seen whether world class facilities will breed world class talent, and with a 10 year plan for improvement, managers in the English football leagues will still look overseas to boost their squads; regardless of the immigration barriers. At Full Contact we are increasingly being asked to advise clubs, players and their agents as to whether or not a player is able to obtain a work permit and we are often surprised at the lack of knowledge that the game has on a subject which is so linked to obvious financial riches.
It is particularly common for managers of lower league clubs to look to foreign players with cheaper transfer fees than homegrown talent. And of course, the FA Premier League, which was once made up of players from the home nations with few foreign players coming mainly from Europe, is now one of the most cosmopolitan football leagues in the world. However, those players coming from countries outside the European Union to play in England must follow work permit rules established by the Football Association and by the immigration laws of the United Kingdom. This process can sometimes prove a problematic barrier as the rules can vary depending on different factors.
It is the responsibility of the football club wishing to sign an overseas player from outside the EU to see that the player will be able to work in this country without breaching immigration control. Failure to follow the correct procedures could lead to the prosecution of the club and its officials for a variety of offences.
If the club is registered as a Tier 2 Sponsor (as some of the bigger clubs are) then it may be able to issue the player with a Certificate of Sponsorship assuming the necessary criteria are met. However that is only half the battle as to travel and work here the player still needs to obtain the appropriate permission as a Tier 2 (Sportsperson). This is the route adopted by many clubs although it is always worthwhile to consider other options to ensure that exceptional talent does not slip through the net in view of the stringent criteria the club and the prospective player will have to meet before the player can come to the United Kingdom to work.
The ‘Tier 2 (Sportsperson) ’ Criteria – Traditional Route
To issue a Certificate of Sponsorship the club will need to obtain an endorsement for the player from the appropriate governing body for his sport confirming that the player is internationally established as a player or coach at the highest level, and will make a significant contribution to the development of football at the highest level in the UK. As a result Certificates of Sponsorship can usually only be issued to international football players of the “highest calibre” who are considered able to make a significant contribution to the development of the game of football in the United Kingdom at the highest level. The current rules define a player as automatically being of the highest calibre provided:
(1) they have played for their country in at least 75% of its competitive A team matches in the two years preceding the application; and
(2) the player’s country must be at or above 70th place in the official FIFA world rankings.
There are some issues to consider here. Firstly, the 75% rule means that a player must have played in 75% of games of which he has been available for selection. If a player has been injured, this will be taken into consideration when assessing the application and the applicant must provide evidence of the extent and length of the injury and impact on their playing prospects. Suspensions will also be taken into consideration in the same way. To be considered to have ‘played’ in 75% of games, the player needs only to have been selected for the squad.
Secondly, “competitive A team matches” refer to competitive senior international matches including, but not exclusively: World Cup Finals and Qualifying group games, UEFA European Championships and Qualifiers and other Cups and Competitions specific to other nations. We can advise on games which will be considered competitive for this purpose.
Finally, the 70th place criterion is not as straightforward as it may first appear. The player’s national team must be at or above 70th place in the official FIFA world rankings when averaged over the two years preceding the date of the application. Therefore, it is helpful to be ahead of the game in this respect – not only predicting when a country is rising up the rankings, but when they become eligible due to their average ranking position. At Full Contact we have recently advised a club on a particular nation that we are aware will soon qualify with an average top 70 ranking, which has given that club the opportunity to source players from that country well before any other club is aware that it might be a possibility. Any club wishing to take on a new international talent must be able to provide written confirmation of the player’s international appearance record in the previous two years, highlighting competitive A matches. If the player meets the criteria and an application is granted, the permit will be given for the length of the player’s contract, up to a maximum of five years.
Where players do not qualify under the above criteria which presume he is of the “highest calibre” it is still possible to seek a work permit premised on the player having exceptional ability and potential to contribute to English football. Such applications are still rare, often as a club is not prepared to take the risk, uncertainty and expense involved, but at Full Contact we do believe that in certain cases it is worth considering the merit of such an application. If a club in the UK had have been seeking a work permit for Leo Messi prior to him obtaining sufficient caps for Argentina to qualify we are confident that we could have obtained that work permit!
Where a Tier 2 work permit is not obtainable a number of clubs choose to turn to the alternative options available.
(1) Purchase and Loan
This model has been used by the likes of Arsenal when purchasing Carlos Vela and Wellington Silva. Essentially, the club is able to purchase a player and register him, making him a paid player of the club. The club then loan the player to a club in an EU country with less stringent immigration laws. Once the player is on loan, it is hoped he will develop into a national player thus satisfying the criterion of the traditional route above (or become qualified under (2) below).
(2) Dual Citizenship and Family Connections
It is always important to investigate whether a player can actually obtain EU/UK citizenship via family connections. It is amazing how many Brazilians, for example, do not realise that due to family connections they can obtain Portuguese nationality. Once they have that, they have freedom within the EU.
If the player’s spouse is an EU Citizen who is planning to come to the United Kingdom to work this may give the player the right to accompany them to the United Kingdom and work.
(3) High Net Worth Players
This is a more novel, and certainly less common model which only a few clubs are aware of. If an individual has more than £1million to ‘invest’ in the UK he can obtain entry clearance for an initial period of at least 3 years. Applicants may rely on their own money as well as money that they own jointly with their spouse or partner or even on money owned by their spouse or partner outright. Further permission to remain in the United Kingdom can be granted after the initial period and this route can ultimately lead to settlement.
Any club, player or agent who wishes to have bespoke and detailed advice about an immigration issue should contact Dan Chapman. Full Contact’s parent law firm contains a partner who specialises in immigration matters, and we are thus well placed to use our combined expertise of sports law, football agency and immigration to provide pragmatic and thorough advice. Don’t be a club that misses out on a Messi-esque opportunity!
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The spearhead and Senior Partner of Full Contact, Dan is an experienced solicitor and advocate, with a specialist background in employment law and sports.
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