By Dan Chapman
What does Brexit really mean for Football? Will the UK’s departure from the EU create a recruitment or immigration crisis for our domestic game?
Perhaps wishing to erase from our memories the failings of our national team at Euro 2016, many commentators have been quick post Brexit to focus again on our domestic game and to consider what leaving the EU may mean for the Premier League, Football League and beyond.
Some have been quick to speculate that a host of top players might face deportation! Whilst that view is somewhat premature, for reasons discussed below, there is no doubt that the issue is one that football clubs can not ignore. Under current rules, if a football player is an EU passport holder he is entitled to play football in this country (just as any EU worker is entitled to accept employment) whereas a non-EU passport holder requires a work permit. The work permit criteria that the FA have established in conjunction with the Home Office are stringent and, to summarise that system simplistically, requires a player to be an established and top-class international or have other exceptional circumstances that would allow an appeals panel to grant a work permit. There was an example of this only this week – Liverpool’s manager Jurgen Klopp personally appeared at an appeal hearing in order to assist Marko Grujic obtaining a work permit (as he otherwise did not meet the criteria having appeared for the Serbian national team on only 3 occasions and of course he is not an EU citizen).
If post Brexit, the FA simply said that all non-UK passport holders would now require a work permit on the existing criteria system, then clubs would no longer be able to recruit players of the calibre of N’Golo Kante and Dimitri Payet. When Leicester signed Kante he was not an established French international and nor was Payet when West Ham signed him – so they would not have qualified for a work permit, unless they could in Klopp/Grujic style persuade an appeal hearing of their exceptional circumstances. Payet might have had a chance on appeal as he was by then on the fringes of the French national side and had already made his debut, but Kante would have had little chance. He had been nowhere near the national side at the point Leicester signed him (and indeed most clubs in France did not consider him a top player) and it was thought he was far more likely to represent Mali than he was France.
However, the likes of Payet and Kante were able to come to the Premier League because their freedom of movement granted by their EU passport permitted it. Manchester United, incredibly, might not have been able to sign Anthony Martial! Inevitably the focus is on the Premier League but at a level where their financial clout might afford them other recruitment solutions, the potential impact on the Football League (and even non-league) could be just as substantial. A cursory review of most Football League squads will reveal a clutch of EU passport holders who would have no chance at all of ever obtaining a work permit – Charlton last season were fielding up to 10 players who would have been in this situation.
Will the FA take the strict approach post Brexit? Theoretically they could although one suspects they will fall into line with at least the ethos of other worker rights that are negotiated as part of Brexit. Assuming for one moment, however, that we did end up with a strict work permit regime (on the current criteria) then there is no doubt that the recruitment policy of not just Premier League clubs, but many in the Football League, would be drastically altered. Supporters of the English national side may of course say for the better – since the inevitable impact would be that starting XI’s throughout the country would again be mostly made up of UK footballers, sprinkled with the odd world-class international who was eligible for a work permit. Given the unfortunate (or perhaps fortunate?) timing of England’s Euro 2016 demise coinciding with Brexit, will the FA take the opportunity to try and boost the flagging national side’s fortunes by taking a hard line on the migration of footballers? Ultimately, money tends to talk in most things football and the powerful lobbying of the Premier League clubs will play a significant role in the stance the FA take so I suspect it unlikely. The top Premier League clubs – given their need to ensure competitiveness in Champions League football – are going to fight tooth and nail to ensure their recruitment of players can continue as unfettered as possible. It is not just at first team level either – most top Premier League clubs boast academies full of young French, Spanish, Dutch and other such teenagers. These players can enter the UK by virtue of their passports and would rarely if ever qualify for a work permit.
Whilst the writer does believe it is theoretically possible that we could end up with the hard line work permit outcome, it does ignore not just the reality of the power of the Premier League clubs but one other fundamental reality. It is most unlikely that some form of freedom of movement will not be maintained for EEA workers and, from the early noises that we are hearing from the corridors of power in domestic football let alone the more general Brexit negotiations, I predict that a tiered approach to football player immigration will prevail. UK players will, of course, have the most freedom to contract with any football club of their choosing. Players from an EEA country will be given entry either absolutely or subject to a far more relaxed work permit criteria and the more stringent work permit criteria I have alluded to would remain in place for non-EEA players. Work permit criteria for EEA players could be as relaxed as the FA wanted to make it – unless the Home Office changed their current stance of deferring the establishment of work permit criteria for footballers to them.
Another area of interest, which has received far less coverage, is the impact upon managers. With only 6 UK managers in the Premier League, anything other than freedom of movement being granted to EEA citizens would create havoc – whilst there is a work permit system in place for managers which the likes of Mourinho would be able to qualify under even if his Portuguese passport no longer availed him, managers such as Swansea’s Guidolin, Middlesbrough’s Karanka and Southampton’s Puel would face an uncertain future. One suspects that many UK football managers in the lower leagues desperate for an opportunity to join the top table will be salivating at the prospect.
Clearly though, we are very much in a wait and see period. The FA will fall under a lot of pressure to confirm their plans as soon as possible and certainly as soon as it becomes clear what negotiations the UK government have had with other EEA countries. If they are to introduce a new (albeit I suspect relaxed) work permit process for EEA players then clubs will want to have as much time as possible to prepare for this, such is the impact on their recruitment (and sales) of players. Not knowing whether a player who is approaching the latter stages of his contract is even eligible to be retained presents huge logistical problems for football clubs. But perhaps no more than for any employer who relies on a significant migrant work-force. They all need guidance, as soon as possible. Guidance that no one wants to give ; I note that putative Tory leader Theresa May has already refused to rule out deportation of EU nationals living in the UK (the relevant principle for footballers already here) amid fears of an influx of migrants. She stated “if we made the promise you could just see a huge influx … of EU nationals who would all want to come here whilst they have that chance.” I guess the same could be said of EU footballers.
I still however consider that, no matter what ‘sit on the fence’ guidance we receive, the predictions of player deportations are somewhat exaggerated. As a general comment I would be surprised if any new working restrictions have retrospective effect no matter what the likes of Theresa May might fear, so it would most probably be the case that any player could remain until the expiry of his current employment contract (although if a club had a player contracted who would not be eligible to remain upon its expiry, the value of that player will reduce hugely). If that is right, expect to see lots of long-term contracts issued to those EU players in the short-term future. It may even be the case that the government negotiates for any EU worker who commenced employment prior to the UK leaving the EU formally to be granted the permanent right to continue to work here (and would it be possible to crystallise that right as at the date of the Brexit vote, to avoid the fear of May’s influx?). At the very least, I would still predict that the majority of football players would remain as eligible to carry on working under whatever new EEA/relaxed work permit system was put in to place. If there is to be a significant impact, I suspect it will be lower down the Football Leagues.
There is no doubt however that football clubs will be following Brexit negotiations keenly and taking as much advice as they can get. Whilst there is no immediate short term impact (as we wait at least two years to leave the EU in any event) there is, assuming my prediction is correct, going to be a major overhaul of the FA’s work permit regulations. If the government’s priority is to benefit from tariff free EEA trade, degrees of free movement concessions are inevitable – that is certainly going to be the hope which the Premier League and Football League clubs will be clinging on to!
The above article is an edited version of an article by Dan Chapman, published in the New European newspaper on 8th July 2016.
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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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