23 Aug 21

For decades, British football clubs have benefitted from the free movement of European Union (EU) nationals, allowing them to sign players from across Europe. This principle provided teams with a substantial talent pool to choose from with a reduced administrative burden. However, the end of free movement following Brexit has substantially restricted the ability of British clubs to sign European players. With the summer transfer window now open, this article looks at the way in which Brexit has changed the English transfer market.

The Rules The Immigration Act, which came into effect on 1 January 2021, ended the automatic right of EU nationals to work in the UK, introducing in its place a new, points-based immigration system.  Now, EU nationals are treated in the same way as non-EU nationals and, as such, footballers must obtain a sponsor licence and a “T2 Sportspersons” or Tier 5 visa from the UK Home Office. Applicants must demonstrate that they are elite professionals, recognised by their sports governing body as being at the highest level internationally and that their proposed employment will develop football in the UK at the highest level. On 1 December 2020, The Home Office approved the revised entry requirements for foreign football players post-Brexit, which emerged in the form of Governing Body Endorsement (“GBE”) regulations, created by The FA in conjunction with the Premier League and the EFL. These requirements were reviewed in June 2021 ahead of the summer transfer window and can be found in full here. This article concerns the most recent rules and criteria published by The FA. All clubs are required to obtain a GBE before the player in question is allowed to undertake any form of employment duties. Although a club can still register a player without (or prior to) obtaining a GBE, the player will not be permitted to kick a ball for that club, including training and participation in non-competitive matches, until the GBE has been obtained. GBE Criteria   The FA will grant a GBE if the player earns at least 15 points from certain criteria, including:
  • the number of international appearances made in the previous 24 months;
  • the quality of the selling club based on their league, league position and progression in continental tournaments; and
  • the number of club appearances (including domestic league and continental competitions).
The above criteria are set out in tabular format and can be accessed / downloaded here. A player that makes a certain percentage of senior international appearances for a national team ranked in the top 50 teams by FIFA (on a sliding scale based on ranking) will automatically be granted a GBE regardless of the other metrics (the “Auto-Pass Rule”). In the January transfer window of the 2020/2021 season, Aston Villa FC completed the signing of French footballer, Morgan Sanson, from Olympique de Marseille for an undisclosed fee. Although Sanson had represented France at youth level, he had not done so at senior level. Therefore, he did not benefit from the Auto-Pass Rule. Instead, he earned enough points (17, in fact) to obtain a GBE by virtue of the fact that Olympique de Marseille (a “Band 1” club) finished second in Ligue 1 (a “Band 1” competition) in the previous season (2019/20). GBE Criteria for Women and Youth Players The new rules governing the award of GBEs for professional women footballers and youth level players operate on the same principles but include a handful of differences. For example, players must reach at least 24 points in the women’s game to be granted a GBE and, unlike their male counterparts, cannot accrue points based on the continental progression of their club in the previous season. There are only 2 “bands” of clubs in women’s football (as opposed to 6 for men) and players can choose either a 24- or 12-month reference period when taking into account international appearances. For youth players – those under the age of 21 at the time an application is made – the same criteria broadly apply, but points may also be earned if the player has made his senior debut in his club’s domestic league. The rules prevent the double-counting of points for players who have made appearances for both the senior side and youth side during the course of the same season. Whilst the aim of clubs to ultimately attract the very best talent remains the same, it seems that the new rules will make transfer market activity much more challenging and may require a re-think from clubs if they are to make the new system work for them and their ambitions. GBE Criteria for Managers Managers must also obtain a sponsor licence, visa and a GBE before commencing employment with a Premier League or EFL club. A manager will only be granted a GBE if:
  • he/she will have ultimate (but not necessarily sole) responsibility and decision-making authority for the first team and first team selection of the applicant club;
  • he/she holds a UEFA professional licence/diploma or equivalent;
  • the applicant club does not already have an existing manager; and
  • he/she has managed a club in Europe’s top professional leagues or an international team with a FIFA ranking of 50 or above for either a cumulative total of at least 36 months or a consecutive total of at least 24 months.
Impact The introduction of these new rules, at a time where clubs continue to feel the financial effects from Covid-19, means that we are unlikely to see the full impact of the new rules over the next couple of transfer windows. However, clubs at the top end of the English pyramid are not expected to be as significantly impacted simply because their elite transfer targets are likely to benefit from the Auto-Pass Rule (or accrue enough points by virtue of playing for Europe’s top clubs). Foreign, selling clubs aware of the rules may demand higher prices for elite players. Clubs with less financial clout that conduct their transfer business by signing lesser-known European players from some of Europe’s lower leagues (in particular at Championship level), will likely be negatively affected by the new rules, both by the reduced talent pool and extra administrative burden. Those clubs will need to dedicate greater resources to planning and obtaining both GBEs and applications for work. We may also see more loan moves to “friendly” clubs across Europe to facilitate the building-up of points to eventually obtain a GBE to play in England. English football may experience an influx of players from non-European leagues, such as those in South America.  The top divisions in Brazil, Argentina and Mexico, for example, are all “Band 3” leagues. A player who has won one of these competitions with his club last season will have accrued 12 points in doing so. The player would then only need to have played 40% of the total domestic minutes for their club that season to reach the required 15 points. Alternatively, from a more positive perspective, English clubs look set to take advantage of the changes, affording greater opportunities to rely on products of their own academies rather than looking externally. In a similar vein, clubs may choose to invest in home-grown talent by signing British-born players or those that already have the right to play professionally in English football. Conclusion The scope of the pre-existing GBE requirements already faced by British clubs has been expanded to cover EU nationals who no longer benefit from an automatic right to work in the UK.  The goal of these rules, however, has remained constant, namely, to attract elite professionals who will contribute to the development of the English game at the highest level. The full impact of the rules is unlikely to be felt in the short-term, however, clubs will have to adapt to the greater administrative burden and potentially higher costs of future transfers. The team at Onside Law have significant experience advising clubs and players in all aspects of transactional and commercial work, including advising in relation to GBE regulations and work permits.   Written by George Cottle, Associate.
Football Transfers in the Post-Brexit Era