Blatter’s ‘6+5’ rule is not illegal…?

In November 2007 I wrote my first article for Sports Agent Blog (Blatter Seeks New Rules Regarding ‘Home-Grown’ Players). I shared my opinion on whether any ‘nationality restrictions’ in European soccer would be legal under European Union law. My conclusion was that such restrictions would most certainly be illegal.

Fifteen months on, and it would seem my conclusion has been heavily questioned. Despite not wanting to admit it, could I have been wrong? According to an independent report undertaken on behalf of FIFA, a proposed ‘6+5’ rule would not breach EU rules.

What is the ‘6+5’ rule? The rule establishes that at the beginning of a game, each team must field at least six players who would be eligible to play for the country in which that team plays. So for example, in each English Premier League game that Manchester United competes in, at least six of their starting eleven must be eligible to play for the England national team.

Under the EU rules on freedom of movement for workers, this would, on the face of it, represent an illegal restriction on the ability of EU citizens to move freely within the relevant industry/market. In essence, a soccer player who is an EU national might be restricted from plying his trade at a team because he is ineligible to play for the country in which that team is located. His place in the team might have to go to somebody who is eligible to play for that country. Thus, his right to freely move across the European Union might be restricted because of this rule. The EU rules on free movement were created to abolish and prevent such restrictions.

However, free movement rules can be circumvented where there is a legitimate justification behind the implementation of a restrictive provision such as the 6+5 rule. The Institute for European Affairs (INEA), which was the body responsible for FIFA’s independent report, has found that the rule does not conflict with EU law because it supports the creation and assurance of sporting competition:

“The 6+5 rule does not impinge on the core area of the right to freedom of movement. The rule is merely a rule of the game declared in the general interest of sport in order to improve the sporting balance between clubs and associations” said INEA.

The rule provides that there would be no limit on substitutions and no limit on the number of non-national players that teams can employ. However the team would be prohibited from fielding more than five non-nationals at the start of each game. So, whilst the rule may be indirectly discriminative, the report from INEA states that the rule “merely considers entitlement to play for the national team concerned, and any possible indirect discrimination can be defended on the basis of compelling reasons of general interest”.

INEA argues that, due to the completely open nature of the market at present, young talented players are discouraged from pursuing their dreams of playing soccer for their local teams because these teams are opting to recruit foreign players. These players normally come ready-trained and often represent a sound financial investment for the clubs.

There can be no doubt that an independent report such as this will assist FIFA in its quest to implement rules such as the 6+5 rule, however it must also be said that the report holds no legal standing. The ultimate decision makers are the European Commission and the European Government.

As determined, FIFA may be to bring these rules into operation, the EU commission is equally unwavering in its position to veto any such action. It is for this reason that I maintain my original conclusion that rules of this sort will not be sanctioned by the EU authorities; they remain illegal restrictions on the free movement of workers within the EU.