Nationality Discrimination in Community Law: An Assessment of UEFA Regulations Governing Player Eligibility for European Club Competitions (The Home-Grown Player Rule)

Abstract

The Treaty establishing the European Community has amongst its foundational aims the purpose of an ‘ever closer union’, to be achieved inter alia by precluding nationality as a legitimate regulatory consideration within the internal market. The Court has interpreted Treaty derogations from this principle restrictively and has at times considered even entirely non-discriminatory measures as falling foul of Treaty fundamental freedoms because of their restrictive effects on trade. In sport, the judgment of the European Court of Justice in Bosman made clear that sport was not special in this respect. Nationality restrictions in sport, when not related to its limited and possibly dated case law regarding national team sports were not beyond the scope of Treaty prohibitions on discrimination. Non-discriminatory but excessively restrictive trading practices such as the disputed transfer system in Bosman were also not exempt from the Treaty and required justification despite an absence of discriminatory effects. Since Bosman, the Union of European Football Associations (UEFA) has argued that although commercial football is no longer organised with reference to nationality and does not require nationality rules for the sake of maintaining such market divisions, other considerations should permit the imposition of rules that closely correlate with nationality. By introducing its home-grown player rules UEFA seeks to require in certain circumstances preferential treatment of players with local links by training or residence. We examine whether the home-grown players rule is in principle justifiable under the Treaty given its relationship with nationality discrimination and if so, whether the reasons put forward are capable of constituting such justification, suitable for the aims stated by UEFA and proportionate.