A New Post-Brexit System for The Transfer of EU Players
In a joint statement released last week, the Football Association (“FA”), the Premier League and the Football League (together, the “Stakeholders”) confirmed the Home Office approved points-based system that will apply to all overseas players, including EU nationals, hoping to join an English club from January 2021 onwards.
Following the end of the Brexit transition period, players from the EU will be subject to the requirement to earn Governing Body Endorsement (“GBE”) for the first time. The FA has published updated GBE criteria for men’s players for the 2020/21 season (“New Criteria”) in time for the January transfer window.
The New Criteria
A player must secure a GBE from the FA in order for the new club to be able to sponsor the player under a Tier 2 or Tier 5 visa. Such a visa will give the player the right to work in the UK. In accordance with the New Criteria, players can achieve a GBE through two routes:
The Auto Pass Percentage route
This is based on the percentage of international appearances made by the player in the relevant period (2 years prior to the GBE application for a non-youth player). In general, the percentage threshold will increase the lower the FIFA World Ranking of the player’s national association. For example, a player will achieve an Auto Pass if he plays in just 30% of his national team’s matches if that team is ranked 1-10 in the world. However, if the team is ranked 31-50, the Auto Pass percentage threshold is 70%. If the national team is ranked 51+ an Auto Pass is not available, even if the player plays in 100% of the matches.
The 15 points route
If a player fails to meet the Auto Pass requirements, the FA will grant a player a GBE if he earns 15 points. Players can earn points based on the following:
the percentage of minutes played for his current club in domestic league and continental competition fixtures;
the quality of the player’s current club based on the ‘band’ of the domestic league;
final league position;
progression of the player’s current club in continental competition; and
international appearances (if the player’s percentage of appearances is not sufficient for an Auto Pass, points are available on a sliding scale).
The New Criteria provides tables detailing the sliding scales of points available. The general pattern is the higher the rank of the competition in question, the more points are available to the player. Similarly to international appearances, if the competition is in the top band then the player will achieve more points for fewer minutes played. As an example, a player playing in La Liga will achieve 6 points if he appears in just 30% of domestic minutes, but a player playing in the Greek Superleague will need to have played in 90% of domestic minutes to achieve 6 points.
If a player misses out on the 15 points by a fine margin (i.e. if he achieves 10-14 points), the buying club may make an application to an Exceptions Panel but will need to evidence exceptional circumstances. The New Criteria make clear that the Exceptions Panel is not available during the January 2021 transfer window.
In the case of a player under the age of 21 at the date of the GBE application, if the two routes above are missed, the player will have another opportunity to earn a GBE if they achieve 10-14 points but also earn 15 points based on additional youth player criteria. In such circumstances, the FA, the PFA and the relevant league will decide by majority whether to grant a GBE to the youth player. It should be noted that, as announced in the joint statement, the number of overseas U21 players a Premier League club can sign will be capped at three in the January transfer window and six per season thereafter.
Changes to the Criteria
The criteria in place last season, which applied to non-EU overseas players, also included an automatic route to a GBE based on a relevant percentage of international appearances. The percentage thresholds in the New Criteria are similar to those from last season although there has been a slight lowering of requirements in respect of certain FIFA rankings (previously the required percentage was 45% for a ranking of 11-20 (it is now 40%) and 75% for 31-50 (it is now 70%).
Under the old system, if players did not meet the international appearances automatic criteria, there was no 15-point route to a GBE as now available under the New Criteria. Instead, if a player missed the requisite international appearances percentage, a buying club could request an Exceptions Panel to consider the player’s experience and value under discretionary criteria. In such circumstances, the Exceptions Panel carried out a mixed objective and subjective review. The objective-subjective review process has been removed from the New Criteria and replaced with the more detailed points-based system described above. This represents a front-loading of objective criteria with a GBE automatically available to a player achieving 15 points – under the New Criteria no subjective analysis from an Exceptions Panel is required. One likely effect is a reduction in the number of cases brought before the Exceptions Panel. From the summer transfer window onwards (note there is no Exceptions Panel available in January 2021), the Exceptions Panel will only come into play if a club makes an exceptional application to it as a result of a player’s near-miss of the 15 points.
Another change from the old system is the removal of criteria previously considered by the Exceptions Panel at the objective review stage based on the value of the transfer fee and the level of wages to be paid to the player by the applicant club. In the context of Covid-19, financial rationality is firmly on the agenda and dropping these criteria may well play a small part to assist clubs in that respect, as there will be no points to be earned from hiking up transfer fees and wages.
The New Criteria states that there will be a review soon after the January transfer window and ahead of the summer 2021 window. The Stakeholders will be keen to ensure that the New Criteria work to achieve their joint stated objectives of “allowing access to the best players and future talent for clubs, as well as safeguarding England teams, by ensuring opportunities for homegrown players”. This can be a difficult balancing act and the number of points on offer and thresholds set may need to be increased or decreased in future based on the numbers and quality of overseas footballing talent joining English clubs under the New Criteria.
The Transfer of Minors
The basic position under the FIFA Regulations on the Status and Transfer of Players (“FIFA RSTP”) is that international transfers of players are only allowed if the player is over 18 years old. However, English clubs benefited from an exception under the FIFA RSTP that allowed the transfer of players aged 16-18 (on the fulfillment of certain minimum obligations) if the transfer was within the territory of the European Union or European Economic Area. At the end of the Brexit transition period, that exemption will no longer apply, with the result that overseas players under the age of 18 cannot be transferred to English clubs. Given that the definition of an international transfer under the FIFA RSTP is “the movement of the registration of a player from one association to another association”, the concern was that players aged 16-18 could no longer move between the member associations within the United Kingdom. However, last week the FIFA Council passed a regulatory amendment to provide clarity on this issue and “to avoid situations in which minors would be unable to transfer within the same state”. Players aged 16-18 will be allowed to transfer between associations of the same state, meaning that, for example, a 17-year-old player at a Scottish academy will still be able to join a Premier League club.