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.

Majani, Felix

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 for at least three years between the age of 15 and 21. The UEFA rule does not contain any nationality conditions.

The only condition required for one to be considered a home grown player is that he or she must have been trained for a minimum period of three years between his 15th and 21st birthday with a club belonging to a UEFA association, regardless of his or her nationality.

This means that a young American footballer, or a young boy from Africa or south America who during his 15th and 21st birthday migrates to a club belonging to one of UEFA's 52 member associations and receives training at this club for 3 years or more prior to his 21st birthday will be considered a home-grown player for purposes of participating in UEFA's club competitions regardless of his nationality.

4.5. The meaning and catch behind the rule

What one can deduce from the definition accorded to a home-grown player is that this rule specifically targets foreign youngsters who migrate from their mother countries into the EU member states in search of a better future in football, and not the local players born in those EU countries.

It is hard for us to practically see under this rule for instance, how a talented English footballer who played football for his high school and university during his 15th and 21st birthday, but never played football for the academy of any English club during his days as a minor, cannot be allowed to participate in the UEFA club competitions (6) if he later on decides to turn professional at the age of 22 and signs, for example, with Manchester United. UEFA would certainly allow him to play, not as a home-grown player, but as a "foreigner" although technically speaking he is not.

4.6. Implementation

These rules have been implemented gradually in successive stages. It began with the inclusion of four 'home-grown players' out of 25 for the 2006/07 season, followed by six home-grown players for the 2007/08 season. The 2008/09 season should see the complete achievement of the rule, with clubs being required to field eight home-grown players out of their 25 players. Only applies to UEFA club competitions. UEFA has also asked its 52 member associations to consider applying the same rule for their domestic competitions

5. The FIFA 6+5 Rule

This rule was first proposed in February 2008. It seeks to compel all clubs to field, at any given match, a minimum of six local players who would otherwise be eligible to play for the national team of the country in which their club is domiciled.

FIFA intends to have this rule fully operational by 2010. Its first step towards attaining this goal occurred on 30 May 2008, when the rule received the required two thirds majority vote from the FIFA congress (7). It has no legal status as yet.

5.1. Objectives

Unlike the home-grown players rules which aims at ensuring the future of the national teams and their youth, the 6 + 5 rule targets the maintenance of competition and unpredictability of results at club level. It is presumed that the mandatory fielding by each club of a minimum number of local players will make the league more competitive, with there being less of the same teams dominating the trophy cabinets year in year out. (8) It intends to address concerns that Europe's top leagues are increasingly dominated by foreign players.

It however remains to be seen whether this rule will see the light of the day, having been strongly opposed by several European clubs, most of who comprise the now extinct G14 group of clubs. The European Union has also expressed its criticism of this proposed rule, terming it as unlawful and a violation of the freedom of work and movement guaranteed by EU laws. (9)

These are quotas. They are certainly open to question or intervention from the EU.

5.2. Why does the EU law intervene in sports?

Labour principles have a distinctively major effect on all sectors of the economy, to which football is no exception. The world of football has often tended to disconnect itself from the real world. The effects of labour policies are one of the ways through which we and the football authorities are constantly reminded that football is very much a part of the world we have created.

According to the EU, its intervention on purely sporting matters is justified on a number of grounds;

Firstly, the strong growth of economic activities attributed to sports as evidenced from the increase in salaries and transfer fees for professional sportsmen, the rise in the value of broadcasting rights as well as an increase in sponsorship and advertising costs has, to the EU'S attention, been accompanied by a transformation in the structure and behaviour of large professional clubs and their federations, which are now managed as large industrial organisations or services. This has justified EU intervention in order to protect its own provisions in as far as the practices of economic activities by institutions may infringe the treaty provisions.

Secondly, the release of the Bosman ruling alerted the political world as well as the general public that the sports fraternity and their rules were susceptible to scrutiny under EU laws, and in fact opened the gates for sportsmen to submit their disputes to the ECJ (10)

Under the European treaty, all member states have agreed to accord certain rights to citizens from member states who either work or visit their country in search for work. These rights include the freedom of work and movement among whose elements entail the guaranteeing by all member states, of equal treatment to all member states.

Finally, under Article 81 of the EU Treaty, freedom of competition has been guaranteed within the community. Decisions or agreements between undertakings, or football associations which may either affect trade between the member states, or prevent, restrict or distort competition within the common market have been declared as null, void and incompatible.

Violation of these principles would definitely lead to intervention either from the EU or legal redress from the European Court of justice.

6. The Legal Consequences, Implications and Deficiencies of these Rules

6.1. The legal consequences and implications

In accordance with the ECJ ruling in the Bosman case, Article 39 of the EC precludes the application of restrictions by sports associations on the number of nationals from EU Member States participating in International or national club competitions is the cornerstone to this exclusion. The observation by Advocate General Lenz in the same case that rules limiting the employment of foreign players also infringed Article 81(1) EC by restricting the possibilities for the individual clubs to compete with each other by engaging players also confirm the unlikelihood of the FIFA 6+5 rule seeing the light of the day on grounds of competition law.

Legally speaking, the home-grown player's rule only allows players who have spent three years or more at the academy of their current club or at the academy of any club belonging to their national association to participate in UEFA Club competitions. On the other hand, FIFA' s 6 + 5 rule seeks to restrict clubs to field a maximum number of 5 foreign players at any given competition.

And so with these consequences and implications come deficiencies.

6.2. The legal deficiencies

Whereas on one hand the UEFA home-grown players rule has passed the EU test, it has by no means fully exonerated itself from possible legal challenges from players and stakeholders on the possibilities of it being contrary to the same EU laws. From the outset, both rules appear to be legally weak and vulnerable. Would be litigators need to ask themselves the following questions when interpreting the effects and comparisons of the home-grown players rule to the EU law:

- Are there any economic aspects attached to this rule? Are they sporting per se?

- Are these rules applicable to minors?-Are minors considered workers within the meaning of Article 39 of the EU treaty?

- Do these rules in any way discriminate between players?

- Do these rules infringe on the very rights to engage in sports as leisure as guaranteed under the EU, FIFA and UEFA laws?

- Do these rules infringe the EU guarantees on freedom of competition?

- What possible loopholes can be exposed while interpreting and applying these regulations?

Should the answers to the above questions can be to the affirmative, then it can certainly be said that the home-grown players rule is certainly contrary to EU laws.

6.3. The economic nexus between football and the home-grown players rule

EU case law is clear that sports is subject to EU laws in so far as it constitutes an economic aspect.

Although the provisions of the Treaty do not affect rules concerning questions which are of purely sporting interest and, as such, have nothing to do with economic activity, (11) the mere fact that a rule is purely sporting in nature does not have the effect of removing from the scope of the Treaty the person engaging in the activity governed by that rule or the body which has laid it down (12).

This is the situation facing the home-grown players rule. But in the words of UEFA's chief executive, Lars-Christer Olsson "the proposal (the homegrown players rule) is legal, because it is a sporting rule, not a restriction ..." from a legal perspective however, the rule is not purely sporting per se.

UEFA, FIFA, as well as the EU have always defined what does and does not amount to a sporting rule. In the words of FIFA and UEFA, sporting rules have purely to do with the playing rules. The laws concerning, for example, when a yellow card or a red card is to be issued, the number of minutes to be played in a match, the intervals, the number of points due for a win or a draw, or the determination of who the champions are on the basis of the number of goals scored over a season, or on head to head records between rival teams in case they are tied on points are certainly sporting rules.

The homegrown players rule bears certain features which are of an economic rather than a sporting nature. These features include;

- The establishment of academies by clubs.

- The education of minors by clubs.

In order to succeed under these rules and to be able to actively compete for the best young talents around, clubs will be forced to do two of the following things:

- To invest substantially towards the establishment of academies and to put up facilities of high standards.

- To oversee the education of the minors during their stay at the said academies.

There is no doubt that an economic aspect is linked to both these acts. There is also no doubt that minors will naturally be attracted to those clubs which shall have the best facilities and economic abilities to offer them good education. Eventually, this will lead to the maintenance of the status quo-with the richer clubs attracting all the best home-grown players in their countries, or with minors attached to poorer clubs moving to richer clubs within the same association under the lure of the present and future financial aspects (13). Almost certainly will the economic status between the rich and poor clubs be retained.

And because minors are not legally required to enter into professional contracts with clubs, these rules are almost likely to give rise to cases of "unilateral termination of contract by minors", who will move from club to club in search of the best educational and training offers. Here, the economy is still playing its part.

This is the clearest explanation de-linking the home-grown players rule from a "sporting rule" and linking it to the economic aspects of sports. It is difficult to see how this rule cannot be challenged as not being purely sporting, and therefore exempt from the EU laws as claimed by UEFA.

6.4. The home-grown players rules equate minors to workers

Article 39 of the EU treaty accords freedom of movement to workers. Under EU laws, minors, who are normally children aged 18 years and below are not considered as workers.

Therefore, in restricting the right and freedom, for example of a 17 year old minor to play in UEFA club competitions because he has not met the criteria established by the home-grown players rules, UEFA have in effect considered the said minor to be a worker, who is not entitled to "work" by representing his club in UEFA competitions unless he fulfils the criteria fixed by UEFA.

The European Court of Justice has interpreted the concept of worker as encompassing a person who (i) undertakes genuine and effective work (ii) under the direction of someone else (iii) for which he is paid (14).

Minors do not fall under the scope of labourers and are not gainfully employed and therefore ought to be excluded from the EU sporting rule exceptions to the freedom of movement of workers. There seems to be no reason why any aggrieved minor who wishes to play in the UEFA Club competitions cannot challenge the validity of these rules under the EU laws.

6.5. Sports as leisure within the meaning of EU, FIFA and UEFA laws

It is apparent from the 6+5 rule and the home-grown players rules respectively that;

Only 5 professional foreign players shall be eligible to enjoy the sport and to take part in a match at any given time in any European League.

Only minors who spend more than 3 years training at the academy of any club shall reap the benefits of having played the sport as a past time during their youthful days, by being eligible to participate in UEFA club competitions as and when they mature.

One of the objectives FIFA and UEFA have and stipulate in their statutes is to ensure the creation of football as a past time and leisure sport which must be played and enjoyed by anyone, in particular minors, without any limitations.

Under Article 2(a) of the FIFA statute, the objectives of FIFA are "to improve the game of football constantly and promote it globally in the light of its unifying, educational, cultural and humanitarian values, particularly through youth and development programmes;

Similar provisions are contained in Article 2(1b) of the UEFA statute which aims at promoting football in Europe in a spirit of peace, understanding and fair play, without any discrimination on account of politics, gender, religion, race or any other reason;

One might ask himself whether a closer interpretation of both the 6+5 rule and the home-grown players rule cannot be said to be contrary to the promotion of football among the youth as intended by both FIFA and UEFA.

Whereas these rules might well promote football within a country, they might not do it "globally and in the light of unifying". an instant look at the home-grown player's rule gives an impression that only a limited group of youth will be privileged enough to secure places at academies for periods stretching 3 years and over, given the limited finances some clubs might be faced with when taking a risk in retaining and educating these youngsters over these years.

Moreover, the EU laws advocate for the promotion and facilitation of access to education, vocational training and sport among the youth.

Under Article 165(1) (ex Article 149 TEC) of the treaty, the union is entitled to "contribute to the development of quality education by encouraging the development of youth exchanges. ... and encouraging the participation of young people in democratic life in Europe. While doing this, the union endeavours to "facilitate access to vocational training and encourage mobility of instructors and trainees and particularly young people" (15)

It is evident from these wordings that the EU intends to accord access to sporting facilities to the youth of its member states. This is further backed by the provisions of the white paper on sport, which recognise the importance of access to sports among the youth for the social and health benefits it imparts into them in as far as in enhances social interaction and fends off diseases such as obesity.

Both the home-grown players rule and the 6+5 rule do not directly conflict with these regulations on access to sports. However, it is not difficult to see why professional players and current minors who are EU member states and who are not lucky enough to meet the home-grown players rule criteria cannot claim their rights either before the Court of Arbitration for Sport, or the ECJ to enjoy and engage in the sports as a pastime, in particular at UEFA club level as guaranteed by UEFA, FIFA and the EU.

7. Article 39 and the Homegrown Player's Rule

7.1. Indirect discrimination among players

Article 39 precludes the application of rules laid down by sporting associations under which football clubs may field only a limited number of professional players who are nationals of other Member States (16). Such rules are contrary to the principle prohibiting discrimination on the basis of nationality. The only exception applies to matches which are purely of sporting rather than economic nature, such as competitions between national teams.

Although it is difficult to state with any certainty that the 'homegrown players' rule does not lead to indirect discrimination on the basis of nationality, the potential risk of this cannot be discounted. This is because young players attending a training centre at a club in a Member State tend to be from that Member State as opposed to other EU countries. The chances of having home-grown players who have not been born in the countries in whose academies they are playing for are therefore very remote.

In the era when the EU is tightening its laws on under age labour and with FIFA acting tough on the transfer of minors (17), it is even difficult to see how any minor born outside the league(s) of any home grown player training club can acquire home-grown players' status, let alone migrate.

The irony behind this however, is the fact that both FIFA and the EU do have laws through which the spirit for which football was created as a past time and leisure sport must be played and enjoyed by anyone and in particular by minors without any limitations.

Whereas FIFA strictly prohibits discrimination of any kind against a country, private person or group of people on account of ethnic origin, gender, language, religion, politics or any other reason., UEFA on the other hand lists the promotion of football in Europe in a spirit of peace, understanding and fair play, without any discrimination on account of politics, gender, religion, race or any other reason as one of its objectives (18).

The EU could not have made this spirit more clearer than it did in its answer to a question forwarded to its commission when it categorically stated that "the Commission is of the opinion that the rule of a sporting association which limits the number of amateur players having the nationality of other Member States who may be fielded in a match is also contrary to Community law, and notably to Article 7(2) of Council Regulation (EEC) No 1612/68 of 15 October 1968 on freedom of movement for workers within the Community. That provision states that Community workers are to be granted the same social and tax advantages as national workers. The Court, in the case of Commission v France (1996) ECR I-1307 ruled that the provision applies to leisure activities and it is indisputable that practising sport as an amateur is a leisure activity" (19)

This is by far the EU's stance on the rights of minors to freely move within the community in fulfilment of their pastime activities without discrimination of any kind. and as highlighted by the commission itself on 28 July 2002, "Article 13 of the EC Treaty establishing the European Community enables the Council to take appropriate action to combat discrimination on a range of grounds, including age ... unless it is objectively and reasonably justified by a legitimate aim and if the means of achieving that aim are appropriate and necessary", on the basis of this article and on Council Directive 2000/78/EC of 27 November 2000 (20). This is one avenue through which the illegality of the home-grown player's rule can be challenged.

7.2. Absence of justifications of public order, public safety or public health

Despite having a potentially inhibitive element on the freedom of movement, albeit indirectly, none of the exceptions to the freedom of movement guaranteed under article 39(3) of the EU Treaty qualify and/or justify the application of the home-grown or 6+5 rule.

It is difficult to see how free access of footballers or minors into the European labour market could affect public order, public safety or public health.

8. Article 81 and the Rules' Infringement on the Freedom of Competition

FIFA's main objective under the 6+5 rule is to restore and ensure equal competition among clubs competing in national leagues. There is a belief that the bigger clubs, through their money, are "buying" success through importing foreign players at the expense of the poorer clubs which are unable to compete with them and therefore, competition can only be restored on the field through restricting the ability of these powerful clubs either to acquire, nurture or field as many foreign players as they wished.

Question marks can be pointed at how limiting the number of foreign players to 5 in a match cannot be said to be anti competitive from both a sporting point of view as well as a legal point of view.

From the perspective of a sporting spirit, it is a well known fact that competition is enhanced when the best are accorded the chance to weigh each other out at the highest possible level. This would certainly enable those who are yet to hit their peak to learn from the best and to become better. This is what sporting competition is all about.

Competition in the legal sense has also been recognised in sports. Article 81 of the EU treaty declares as incompatible and void within the common market, all agreements between undertakings, decisions by associations of undertakings and concerted practices which may affect trade between member states or have as their objects, or effects, the prevention, restriction or distortion of competition within the common market.

One would struggle to find reasons as to why the minimum 3 year home grown player training requirement cannot be seen as restrictive, and why limiting the number of foreign players in any particular match to five cannot be seen as preventing or distorting competition within the meaning of Article 81 (21). This distortion, restriction and/or prevention of competition as deducible from the home-grown and 6 + 5 rules may take place in two key forms of the competition market, namely;

The contest market-this is where the performances of the clubs and players are exploited in the sporting contest. Limiting the number of foreign players certainly does not enable players within the EU market to exploit their sporting abilities to the maximum. Neither does home-grown rule limiting clubs to field only foreign players who have spent 3 years or more in their academies in any way enhance the standards of competition within the UEFA competitions.

The supply market-this is where the clubs buy and sell players. (22). Competition is about buying and selling and as long as these sales and purchases are made within the legal limits of competition, there is no reason why clubs should be limited in the number of players they can field after having made such purchases.

One might argue that the home-grown rule is inherent, and probably proportionate to the objectives of ensuring competition and the sustainable development of national teams, and thereby exempt from the provisions of Article 81 on a sporting basis. However, the extent to which the imposition, most likely on minors who migrate, of a minimum number of 3 uninterrupted years of stay in a foreign country in order to be eligible to participate in European competitions for their future clubs, seems to be a rather long period which is disproportional and does not justify the intended objectives.

As a matter of fact, the ECJ in Meca Medina rejected the notion that certain sporting rules may fall outside the scope of Articles 81 and 82 of the EC if they are based on "purely sporting considerations" and do not relate to economic activity, holding that the specific requirements of Articles 81 and 82 EC need to be examined for each and every sporting rule.

One of UEFA's objectives under Article 2 b (e) of its statute is "to prevent all methods or practices which might jeopardise the regularity of matches or competitions or give rise to the abuse of football". It is questionable whether limiting the number of foreign players in a match, or requiring players to fulfil a minimum number of 3 years in a club in order to b eligible to play in UEFA club competitions actually jeopardizes or promotes competition in the positive or negative, or even an abuse of football in as far as it curtails the human rights to engage in the sport of their choice for leisure and without limitations.

They appear to not only restrain the players but also to restrain the abilities of clubs to engage in the market competition for both players and "trophies"

9. The Loopholes, Advantages and Disadvantages of These Rules

9.1. Advantages and disadvantages

One advantage perceivable from the home-grown players rules is quite clear-the development and career of minors as tomorrow's footballers receiving education and training at academies has certainly be secured as they stand greater chances of being signed or retained by their clubs once it is known that they have undergone the 3 year training period.

Smaller clubs might stand a slightly higher chance of competing against the bigger clubs if the so called bigger clubs are only allowed to field the five best foreign players they have under the 6 + 5 rule-in a way creating competition.

To the contrary, the 6 + 5 rule appears to overlook the fact that the bigger clubs shall always remain bigger. Given their financial power, their name and historical fame, clubs like Real Madrid, Manchester United, AC Milan and Bayern Munich shall always attract the best local talents in their respective countries, and will always lure or "tap" the local players playing for the smaller clubs in their leagues.

Added to this is the fact that these big clubs shall always be on the forefront when it comes to signing the best foreign talents situated in the rest of the world. Eventually, we shall have a situation whereby the squads of the so called big clubs shall be comprised of the best local players around as well as the best foreign players up for grabs.

This is exactly what is happening at Manchester United and Chelsea. The so called smaller clubs shall still continue in their struggle to compete against the bigger ones on the field. Therefore, the same "competition imbalance" sought to be cured by the 6 + 5 rule shall remain-if not become greater.

9.2. The cracks

Under the home-grown players rule, what would happen for instance if the following THREE situations were to occur:

A club comprised purely of foreign players none of whom have been trained locally wins its national league and qualifies for the following season's UEFA Champions league competition in accordance with the UCL qualifying regulations. During the close season, it does not buy any home-grown player. Will it be prohibited from participating in the UEFA Champion's league? Or:

A club begins its Champion's league season with the required number of home-grown players, but in the course of the competition, it loses one or two of its home-grown players or even all of them due to injury suspension or otherwise, and is therefore unable to raise the minimum number of 8 players out of their 25 for their next champion's league match. Given the fact that it can only replace an injured goalkeeper with a new non home-grown goalkeeper (23) and the fact a home-grown player can only be replaced with another home-grown player, Will that club be allowed to play in that match with a list short on the required number of home grown players? Or;

An English player (as highlighted earlier) signs his first professional contract with Manchester United age of 22 and happens to have never gone to the academy of any English football club during his 15th and 21st birthday.

It is worth noting with regard to the first two questions that in accordance with Article 17 of the UCL Regulations, the home-grown player's rule only concerns the eligibility of players to participate in the UEFA Club competitions, which eligibility does not affect the eligibility of clubs to participate in UEFA competitions. It has not been expressly provided for under Article 1.04 that clubs can only be admitted into the UEFA Club competitions if they meet the requirements of the home-grown player's rule. If quoted, Article 1.04 reads:

"To be eligible to participate in the competition, a club must fulfil the following criteria:

- it must have qualified for the competition on sporting merit;

- it must have obtained a licence issued by the national association concerned in accordance with the applicable national club licensing regulations as accredited by UEFA in accordance with the UEFA club licensing manual (version 2.0);

- it must agree to comply with the rules aimed at ensuring the integrity of the competition as defined in Article 2;

- it must not be or have been involved in any activity aimed at arranging or influencing the outcome of a match at national or International level;

- it must confirm in writing that the club itself, as well as its players and officials, agree to respect the statutes, regulations, directives and decisions of UEFA;

- it must confirm writing that the club itself, as well as its players and officials, agree to recognise the jurisdiction of the Court of Arbitration for Sport in Lausanne as defined in the relevant provisions of the UEFA Statutes;

- it must fill in the official entry form, which must reach the UEFA administration by 2 June 2008 together with all other documents which the UEFA administration deems necessary for ascertaining compliance with the admission criteria"

UEFA only requires these clubs not to have "more than 25 players on their list A, of which 8 must be locally trained players" (24) and that that any club which fields a player whose name neither appears on list a or B or who is otherwise ineligible to play shall bear the legal consequences (25).

Once a club has fulfilled these admission requirements and has submitted its list of home-grown players to UEFA, it is then entitled to participate in that competition, regardless of what happens to any of their home-grown players in the course of the competition. as a matter of fact, the UCL Regulations do not provide for the exclusion from competition, of any club which fails to include the minimum number of home-grown player's in any given match after having been admitted to the competition.

This creates an interesting legal scenario where clubs could question the grounds under which UEFA could exclude or sanction them for being unable to comply with the home-grown player's rules as a result of circumstances beyond their control.

With regard to the third question, it is clear that aforementioned player is not a home-grown player within the meaning of the homegrown player's definition because his nationality is not taken into account. Does this mean that in the eyes of UEFA he will be considered as a foreigner and that Manchester United will be required to include him among the list of its foreign players for purposes of UEFA Club competitions? These are key questions which are likely to raise potential suits before UEFA and FIFA's legal bodies and ultimately before the CAS.

10. Conclusion and Recommendations

Sport provides citizens with opportunities to interact and join social networks; it aids citizens of the EU member states, and the world at large to develop relations with other members of the society. It constitutes a tool for reaching out to the underprivileged or groups that are at risk of, or which are experiencing discrimination. The home-grown players rules were invoked in the wake when some EU Member States had began using sport as a tool for social protection and inclusion.

It is, therefore, all the more important to promote an inclusive approach to sport. all residents of the European Union should have access to sport, regardless of their background. The specific needs of under-represented groups need to be addressed. Sport should play a role in promoting gender equality and in the integration of people with disabilities.

Football is a social sport which can be played by all-the young, the old, the foreigners, the locals, the rich and those who are not rich enough to join academies, or to establish clubs which offer training and education to the young. It is therefore paramount that its laws must give preference and recognition to the practical situations facing the society.

Both rules were, or are being adopted through intense negotiation with the EU, perhaps an indication that they may well fall short of the EU treaty provisions on labour, competition and freedom of work. It appears difficult for one to see the FIFA 6+5 Rule seeing the light of the day. It is simply contrary to the EU provisions on free movement of workers. Voices have been raised from the EU warning FIFA of this intended rule.

Perhaps a through review of both legislations is required. Whether or not their justifications outweigh the need for free sport is questionable. and as evidenced in the loopholes particularly within the homegrown player's rules, it is only a matter of time before sleeves are folded and the balls are set rolling at the Court of Arbitration for Sport and the ECJ.

(1) as at May 2008, the number of EU foreign players who had played in the English premier league since its inception in 1992 stood at a staggering 617 players.

(2) Chelsea fc became the first British club to field non English players in their starting eleven during a Barclays premier league match against Southampton fc on 26 December 1999. Six years later, Arsenal, under French coach Arsene Wenger became the first team to name a squad of 16 foreign players for a match.

(3) www.fifa.com/worldfootball/releases/newsid=594883.html

(4) The top 4 English clubs-Manchester united, Chelsea, arsenal and Liverpool have featured in the finals of the last 3 editions of the champions league since the 2005-6 season, and have won it on two occasions. The 2007-8 final was an all English affair between Manchester United and Chelsea. The same teams have for the past 6 years finished in the top 4 positions in the English premier league, with the exception of the 2005 season.

(5) "There are many reasons for wanting to do so, not least a desire to encourage clubs to invest in the training of young local players and to give them a way into first-team football with their clubs, which all too often succumb to the temptation of looking elsewhere for players who are already fully fledged. It is also a matter of preserving the supporters' attachment to 'their' club." UEFA Chief Executive Lars-Christer Olsson

(6) Because he has not undergone training at the academy of Manchester united or of any English football club for a minimum of 3 years during his 15th and 21st birthday.

(7) Interestingly, a number of members from the African and south American confederations whose football has vastly benefited outside the 6+5 rule voted in favour of this rule, which could well have repercussions on the standards of their national teams.

(8) "There is a growing sporting and economic inequality, especially among clubs. There is a decrease of competitiveness. Many clubs do not play to be champions, but to finish fourth, fifth, sixth or even not to be relegated. Something is wrong here. This does not match with the philosophy of our game. We need to try to correct this" FIFA president Sepp Blatter's words at the FIFA congress" "... 'I can only start my season to fight to be fifth or sixth or seventh. It is impossible for me to go into the final four" former Newcastle united manager Kevin Keegan.

(9) "Compared with the '6+5' plan proposed by FIFA, which is incompatible with EU law, the Commission considers that UEFA has opted for an approach which seems to comply with the principle of free movement of workers while promoting the training of young European players "EU Press release of 28 May2008,see europa.eu/rapid/pressReleasesAction.do?reference=IP/08/807&format=HTML&aged= 0&language=EN&guiLanguage=en

(10) For further reading on the need for EU intervention, see the 26th annual EC conference report on International anti trust law and policy, ec.europa.eu/co mm/competition/speeches/text/sp1999-019_en.pdf

(11) See Walrave v Koch, ECJ Case 36/74, paragraph 8.

(12) See David Meca Medina & Igor Majcen v commission of european communities & republic of Finland, Case C-519/04 P. C-191/97 Deliege [2000] ECR I-2549; C-176/96 Lehtonen and Castors Braine [2000] ECR I-2681.

(13) In the course of their training and education, the minors will almost certainly keep a future eye of the money they are likely to earn immediately they sign their first Professional contract. They would off course go for the club which is likely to offer them the best financial terms.

(14) ec.europa.eu/employment_social/free_movement/index_en.htm

(15) Art 166 (2) (ex art 150)

(16) The same prohibition was expressed in the Bosman case.

(17) Article 19 of the FIFA regulations on the status and transfer of players prohibits the transfer of players below the age of 18.

(18) See Article 3 of the FIFA Statute and Article 2(1, b) of the UEFA Statute respectively.

(19) See http://www.sportslaw.nl/(Asser International sports law centre-publication section, subsection "European union law"

(20) See the Commission's answer to the written question E-2133/02 by Bartho Pronk (PPE-DE), 12 September 2002, http://www.sportslaw.nl/

(21) In the Deliege case, the ECJ confirmed that the selection rules applied by a judoka federation to authorise the participation of professional or semi-professional athletes in an International sport competition inevitably limit the number of participants.

(22) See "sport and competition law at EU level" by Prof Michelle Colucci, www.europa.eu, www.info@colucci.eu

(23) Under Article 17.20 of the UCL Regulations the new goalkeeper need not be a locally trained player. Under Article 17.19, an injured home-grown player can only be replaced by another.

(24) See Article 17.08 UCL Regulations

(25) See Article 17.03 UCL Regulations.

by Felix Majani *

* Lawyer and postgraduate in International Sports Law, Instituto Superior de Derecho y Economia (ISDE), Madrid, Spain.