'Foreign' football players

A. Spiteri writes:
The MFA currently restricts the number of non-Maltese players that can play on the field in any given football match. Can this be done under EU law? Since MFA is not the government, but a sports association, is it bound by EU law?

As I understand it, the MFA does not restrict the registration of foreign players as such and local football clubs can register as many players as they like from other EU countries.

However, MFA does appear to impose a requirement that a minimum of eight home-grown players must be playing on the field at any point in time during a football match.

Since home-grown players are obviously likely to be Maltese nationals, this means that, in practice, under current MFA rules, no more than three "foreign" players can play at any point in time during a football match.

In other words still, MFA appears to restrict the number of (non-Maltese) EU citizens in Maltese football.

The position under EU law in such a case is clear. Discrimination or restrictions based on the grounds of nationality of players who are EU citizens are illegal under EU law and cannot be retained.

Discrimination on the grounds of nationality is illegal both if it is direct as well as if it is indirect. In other words, even if the restrictions imposed do not blatantly exclude other EU citizens but do so indirectly they can still be challenged. This means that by allowing unlimited registration of EU players but then denying them the right to play on the field during any given match, one would still be discriminating against them.

This point was made clear by the European Court of Justice in the famous Bosman ruling which had a major impact on football rules. The judgement was - and perhaps remains - subject to much controversy. Many agree with it but many others disagree. Whichever way, it is the rule that must be followed.

The Bosman ruling is not a one-off judgment. It has been followed by other court judgements throughout the years and therefore the principle of non-discrimination that it applied to football and to sports in general continues to be followed.

Only a few days ago, in an opinion delivered last month, the Advocate General of the European Court of Justice reiterated the Bosman principle and stated that "it is apparent from the court's case law that article 39(2) (on free movement of workers) precludes the application of rules laid down by sports federations under which, in competition matches which they organise, sports clubs may field only a limited number of professional players who are nationals of other member states".

There is little room for interpretation in such a clear statement.

As to whether EU law applies to sports associations, such as MFA, the answer is in the affirmative. EU law applies to them too and must be respected by such entities too since they are not above the law.

This means that EU law must be applied not just by national authorities (governments) but also by national sports associations.

The European Court made this amply clear in a 2000 judgement involving basketball. The court held that EU law "provisions on freedom of movement for persons and freedom to provide services not only apply to the action of public authorities but extend also to rules of any other nature aimed at regulating gainful employment and the provision of services in a collective manner".

Significantly, it continued that "the abolition as between member states of obstacles to freedom of movement for persons and freedom to provide services would be compromised if the abolition of state barriers could be neutralised by obstacles resulting from the exercise of their legal autonomy by associations or organisations not governed by public law".

Clearly, however, it is incumbent upon national governments to ensure that EU law is respected by such associations. The European Commission would turn upon the national governments to ensure that this is done and it is national governments that are held to account. It is therefore the national government that would have to face the music if sports associations are found to be in breach of EU law.

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