Kicking off: World football body FIFA could set a dangerous precedent for race discrimination in UK employment law

Limiting the number of foreign players in an English Premier League team could set a dangerous precedent. Phil Boucher investigates.

When Arsenal Football Club won the English Premier League in 2004 it became the first team in 116 years of top-flight football to play a whole season without losing a game. Yet Arsenal’s Invincibles also achieved another record: winning the championship while regularly fielding just two English players – Sol Campbell and Ashley Cole. Only six English players appeared for Arsenal in a league match that season, with Justin Hoyte and David Bentley playing a single game each, and Martin Keown and Ray Parlour rarely venturing off the substitute’s bench.

Things have changed even more dramatically recently Arsenal’s current squad consists of 28 players, of which three are English. Of these, only Theo Walcott plays regularly, mostly as a substitute. The rest are drawn from such distant corners as Belarus, Togo and the Ivory Coast.

Yet it may not remain this way for long. In October, Sepp Blatter, president of the world football’s governing body FIFA, announced he wanted to take on the European Union and limit the number of foreign footballers playing for each club. Blatter believes football clubs should field no more than five non-nationals in their starting XIs, arguing that such a move would encourage the development of home-grown talent. “When you have 11 foreigners in a team, this is not good for the development of football, for the education of young players,” he says.

“Workers in Europe can circulate freely but footballers are not workers. You cannot consider a footballer like any normal worker because you need 11 to play a match – they are more artists than workers.”

Special exemptions

Blatter aims to have the EU rules in place by 2010. If he’s successful, it will affect a raft of EU and UK employment legislation and mean the Race Relations Act has to be amended to include a special exemption on the grounds of nationality in sport. Ultimately, it would challenge the egalitarian nature of all employment law across Europe.

“It is an incredibly dangerous thing,” says Stephen Gummer, head of employment at Beachcroft. “As soon as you say that discrimination is justifiable, where does it stop?”

Interestingly, European football has already put its own nationality-based quota system into operation. Two years ago the European governing body UEFA introduced a ‘home-grown player’ rule, which requires every team in the UEFA Cup or Champions League to include a minimum of two locally trained players in their squads. Chelsea was immediately unable to meet this constraint and was forced to leave two places blank in its 25-man Champion’s League squad. The fact is that European football already operates an employment policy based partly on nationality and Blatter simply wants to take it a step further.

“You can’t escape the fact that it’s indirect discrimination,” says Gummer’s colleague, solicitor Reza Tavassoli. “The law states that indirect discrimination is ‘applying a provision, criterion or practice’ that disadvantages a group on the grounds of their nationality. If you base your employment decisions on the basis of nationality in any way it constitutes race discrimination.”

Cleverly, UEFA has sidestepped this issue by not mentioning the word ‘nationality’ at any stage. But this hasn’t spared it the wrath of officials in Brussels who are investigating the legality of the ‘home-grown player’ quota.

Underlying Blatter and UEFA’s ideas is the belief that young footballers are being denied first team football by overseas players. They claim it is in football’s best interests to ensure that young boys can at least see a possibility of playing at the highest level or their ambition will wane.

Binding contracts

Unlike painters, writers or actors who contract their services to fulfil a particular brief, footballers sign binding employment contracts that require them to turn up at certain times and perform their duties to an acceptable level for their employer for a specified period. Fundamentally, their legal status is no different to a company salesman, city broker or admin clerk. So for the quota exemption to become realised, the football authorities first have to legally define the term ‘artist’. But accepting this alone would create huge problems.

“The ramifications of trying to exempt a particular group of employees are pretty horrendous,” says Audrey Williams, head of discrimination at Eversheds. “The definition of ‘artist’ within a sporting context would need to be an extremely carefully constructed sentence, or it may throw open the whole question of where you draw the line about who can or cannot be construed as an ‘artist’.”

Chances are Blatter isn’t aiming to elevate thousands of plumbers and accountants into the same legal status as Damien Hurst. Yet, the fundamental issue is that for his scheme to succeed, footballers first have to be raised above the status of employees. However, the problem is that this would lay the foundations for the hugely malevolent legal precedent that it’s reasonable to employ people purely on the basis of their nationality.

“Football has tried incredibly hard to shred the horrors of race relations in the 1970s,” says Gummer. “So to effectively let racism creep back in is something you simply can’t let happen. It is overriding social good.”

Yet Blatter’s idea may not be as dead in the water as it seems. While the EU treaty bans discrimination on grounds of nationality, this hasn’t been implemented into national legislation to the same degree as sexual and racial discrimination. So while it can be interpreted as applying, there is no EU directive to prevent the quotas. This, in turn, means it is challengeable at the EU court.

“It would need a narrow and precise exemption to succeed, yet it could be technically possible,” adds Williams.

The most likely scenario is that the language of Blatter’s quota idea is going to be gradually watered down once it hits the twin buffers of Brussels and Parliament and his definition of a ‘national player’ tweaked beyond all recognition. But even so, there still exists a possibility that professional football will be allowed to operate some kind of nationality-grounded quota system and set an alarming precedent for employment law across the EU.

“It has nothing to do with nationality – it is all to do with infringing talent,” adds Federation of European Employers secretary general Robin Chater. “If something is considered an art form it is even more vital that meritocracy fully applies.”

For the record: Aston Villa and West Ham, with seven and six first team English players respectively, are the only Premiership clubs to meet Blatter’s quota. Meanwhile, Arsenal, which would fail, stands at the top of the Premiership and sells out every game at its new, 60,000-seat Emirates Stadium.

When asked why he fields a non-British team, manager Arsene Wenger replied: “The purpose of a football club is to have a team that is as good as possible. Do you think I’m crazy enough to leave out world-class players just because they are English? Sport is competitive and competition is based on merit. It doesn’t matter where you are born. It matters who you are.”

Legal exemptions

A legal exemption is only generally allowed when there’s a genuine occupational reason for overriding employment law.

Stephen Gummer, explains “We had a case where a male doctor claimed for sex and race discrimination after a job advert was posted for a female, Bangladeshi doctor to work on women’s health in the east end of London. His case failed because the group would not deal with a non-Bangladeshi doctor or a man. So the only way a person could work in that sector was to be a female Bangladeshi doctor.”

A similar exemption applies to overseas job recruitment in countries where women are barred from certain positions.

“In this situation you can put some gender restrictions and limits within the recruitment process,” adds Audrey Williams.

Yet possibly the biggest exemption actually applies to sport. Section 44 of the Sex Discrimination Act 1975 states that sports can be segregated along gender lines when “the physical strength, stamina or physique of the average woman puts her at a disadvantage to the average man.”

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