Brexit and Football (Again..)
Brexit Podcast Transcript between Daniel Geey and Owen Jones
Recorded on 11 April 2019
DG: This is a chat between Daniel Geey of Sheridans Sports Team and Owen Jones, Head of the Immigration Team. What we wanted to do was just set out a short chat between us, bearing in mind obviously everything Brexit related and we’ve got one of the foremost experts on sports immigration here with us, Owen, to be able to talk through some particular elements. I think what I’d be quite keen to know about, I guess really, is number one, obviously bearing in mind we’re talking the morning after May’s extension at least up until 31st October, so a deal hopefully is more likely but then also there’s still the prospect of a no-deal scenario but I guess first is, for footballers, if we’re phrasing it and framing it in that perspective, what does a situation where a deal is struck with the EU mean for now, for the next window, for a transition period, etc.
OJ: Thanks Dan, so I think fundamentally what we’ve got to appreciate about Brexit is that, as and when a deal is struck, then a date when freedom of movement will end will become fixed. Understanding the future date of that cut off point, and the implications of it, will become very important for clubs, players and agents. As you say, after last night, the deadline for the UK to agree a deal with the EU has been pushed back until the 31st of October. This in turn means that we potentially have more chance of an exit deal being struck. If a deal is struck, of course, we’re going to have a transition period under which freedom of movement will in effect continue until 31 December 2020. So we’ll have a couple more transfer windows to go through if that deal happens before we’re saying for the first time, “look, you’re a European player, looking to come to the UK for the first time, actually we’re going to need to get some kind of work permit for you under whatever rules are in place at that time”.
So, for new EU players coming in, that cut off point is crucial as if they miss it then for the first time the parties will need to consider the visa rules in place in the same way as if it was a non-EU player being brought in; A big question will then become – is the same, restrictive, governing body endorsement system still in place come 1st January 2021?
I think there’s also issues we need to think about when it comes to the players who are already in the UK and what may apply to them and what actions they need to take but I think, let’s concentrate for a minute on the new players. Obviously we’ve got this inherent contradiction between the position of the Premier League and the clubs on one side,who want to keep the Premier League as ‘the best league in the world’ – with ready access to this pool of European talent versus, on the other side the interests of the FA and that section of the public who want to see English players given the best opportunity to flourish and a successful English National team. So, because of that the challenges presented by Brexit, what we reportedly had at the end of last year was discussions between the FA and the Premier League about removing the existing governing body endorsement system and replacing it with some kind of quota system that the clubs would have to abide by. The issue we’ve got with the governing body endorsement system at the moment is that it is the FA’s gift of whether or not to give an endorsement to a particular player and they will only do so based on very strict criteria chiefly around the number of international appearances made in a set period – and the fear is that actually if that system doesn’t change, we’re going to miss out on a heap of European talent because that GBE system is simply too strict.
DG: Agreed. I think the couple of questions when I’ve been speaking to quite a lot of fans and commentators and journalists generally have been is, if we take two distinct situations; let’s just say May pushes a deal through Parliament by, let’s say 1st August and then a two year transition period starts from 1st August, let’s say, for example, that in my understanding, means that freedom of movement will last for two more years, will end 1st August 2021 and after that point, a new system will have to be put in place for the UK’s position outside of the EU effectively, so before that cut off point, freedom of movement still is in place, any player wanting to come into the UK from Europe; is it your understanding that that will still be possible for any European player?
OJ: Yes, absolutely. If a deal is reached, the implementation period will be put in place and that will mean that freedom of movement continues, which allows a European player or player with a European passport to come into the UK, live and work here without requiring that work permit. It’s an interesting question, isn’t it? If we do a deal on 1st August this year, are we going to be looking at a two year transition period from that point or politically I suspect, will they to try to stick to the end of 2020, so 31st December 2020 I think will still be a more realistic cut off point – – but it’s all up for grabs isn’t it, and whatever date they pick, it will be that date that we need to focus on for the new set of rules coming in.And of course, when this new set of rules do come in, it’s the concept that instead of having a preferred status for European Nationals, we’ve got this level playing field approach, whereby a French National player is in the same boat as a Brazilian National player and both of them are needing a work permit. The chances are that if a quota system is introduced that might well alter the nationality base in the Premier League — we might actually see a greater number of players from outside Europe within the squads, and particularly non-EU young players, who can be very difficult to bring in under the existing GBE system.
DG: So, and correct me if I’m wrong at any point, does that mean that for the implementation period, however long or short that is, that the FIFA regulation in relation to not being able to sign under-eighteens, at that point where a deal is struck, we’ve then effectively, the UK is outside of the EU, and at that point, we can’t take advantage of that FIFA exemption?
OJ: That’s right, and as soon as the UK is no longer a member of the European Union, that’s when we will cease to be able to take advantage of the exemption within the FIFA regulations that allows the transfer of minor players within Europe. So you’re right, the implementation period is not going to be helpful to us in the context of signing under 18s; it’s only going to be in the context of mature players coming in to the UK where freedom of movement effectively continues.
DG: And then, stop me for asking all these annoying questions, apologies, but two more things that I had in mind; the first was, let’s just say a player is currently in the UK, but an EU National, and is thinking about whether to sign an extension to his deal or not, depending on still whether we’ve got deal/no-deal, implementation period/no implementation period, transition period or otherwise, presumably the first position is a player is unlikely to not be able to work in the UK, if he is currently here and he then signs an extension at some point in the future.
OJ: Yes, absolutely right; anybody in the UK working before what was originally the 29th March cut off point – and which has now been pushed down the road; before whatever cut off point that is decided upon, any player already playing in the UK will be able to have what they call a ‘pathway to settlement’ and the idea of that is that any player already plying their trade in the Premier League, the Championship or the Football League will be able to make an application to obtain either indefinite leave to remain (‘settled status’) or temporary leave to remain (what they’re calling ‘pre-settled status’).
I guess, in terms of, certainly when we speak to agents and players, I think it’s in their interests to make that application sooner rather than later. This ‘EU Settlement Scheme’ is open now in full and we’re helping people with it. And why would you want to do it? You’d do it because it would set in stone your rights in the UK, particularly if you’ve already been here for five years and give you greater security and marketability going forward. Where it gets more difficult is if you’re an EU player who’s only been in the UK for, say two years. In that scenario you will make an application and get pre-settled status. But thinking about your future, it may become relevant for you – do I leave the Premier League, do I maybe even go on loan to a French club, say, because having a break of more than six months of your stay in the UK will prevent that player from ever obtaining the full ‘settled status’. So they’re going to need to be aware of the decisions they make in terms of their career path and where they want to earn their money.
DG: The next one that I’ve been thinking about is, post implementation period, so whichever date in the end that we leave the EU and after the transition period, for non-UK footballers, i.e. for European and for rest of worlds, do we have any idea about what type of system will be in place? I think I know the answer but that seems like quite an obvious question that we don’t seem to have too much visibility on right now.
OJ: We don’t, do we? I mean, we’re relying on rumours to some extent, I think. Obviously at the moment we’ve got the GBE system which I think everyone recognises will not be fit for purpose if we want to keep the same number of European players coming in in the future, so that needs to be changed. Now are they going to come to a wholesale route and branch reform of that and introduce quotas and that certainly is the tack that the FA, I believe, have suggested to the Premier League and the idea of that would be instead of it being the gift of the FA to decide which players get work permits, it would then be in the gift of the clubs to manage their own squads and have so many non-UK players in those squads .The numbers that we’re talking about at the moment is having at least thirteen UK Nationals in a 25 man squad . And we can debate the rights and wrongs of that and whether that will properly protect the English game; will it protect the English game more than now or will it be actually a step back?
DG: And then the last thing that I was thinking about obviously is the no-deal scenarios, so what happens come 31st October, if I’ve got that date right, which seems to be Halloween without making any particular Halloween puns, and what happens on 1st November if no deal has been agreed, no withdrawal agreement has been agreed and the EU decides that they’ve had enough and/or the UK decides it’s had enough and leaves without a deal in place. What might that actually mean for sportsmen, but specifically players?
OJ: Again, even with a no deal scenario, which I agree seems slightly less likely now than it did a couple of weeks ago. However, the spectre of no deal is still out there and we can’t entirely write it off.. All players already in the UK before that no-deal cut off point, again they will be able to remain and they will keep that pathway through to settlement, so they’re ok, they need to do something, but they’re ok to stay here and play for as long as they like. What it would affect though is the new players from Europe coming in to the Premier League or the Football League after that 31st October date, for example. In a no deal scenario there will be no implementation period and what the Government announced back in February this year was that there’s going to be a new immigration category which gets immigration lawyers like myself excited and it’s called EU Temporary Leave to Remain. The idea of this category is that actually it’s not going to be a case of the drawbridge being pulled up for all EU workers on the 1st November; it will be a question of actually they’re still welcome to come in and they can live and work in the UK for up to three months, if they want to stay for longer than three months, they’ll need to make an application and they’ll be given a three year visa to stay, so that might come as a surprise to the British public who think that actually we’ve immediately stopped European workers coming in in the event of a no-deal.
Obviously that’s then got an impact on the individuals and the clubs and the kind of deals that they’re negotiating. Is the club willing to offer a five year deal to a player in that boat who might only have a thirty-six month visa and of course, what are the rules going to be at the end of those thirty-six months -how easy will it be for the clubs to actually sponsor those players in the long-term? Are they going to be above or below the grade for being sponsored?
DG: I think that’s really useful. Anything else particularly that you would like to talk about? I think what we’ve tried to discuss is, what happens in the event of a deal, at particular times that that deal happens in the implementation period; what leaving the EU means for under-eighteen players or the recruitment of eighteen to sixteen players, and then the no-deal scenario.
I think what’s interesting that I don’t think a lot of people have adequately understood, I think myself included to an extent, is this idea that ultimately an EU worker will still be able to potentially gain a three year visa and the interesting element about the work visa is that clubs host no-deal run a risk of entering into a deal/employment contract with any player for more than three years because they may be on the hook for an employment perspective to pay that player for the fourth or fifth year of the contract but they may have no certainty and don’t have any certainty at the moment that that player would actually have the right to be able to work in the UK presumably.
OJ: That’s exactly right and I think that’s going to need some careful drafting Dan from your pen and agents out there to try and cover off the situation of what if the rules in three years’ time are so strict that the club is not in a position to sponsor the EU player, meaning that they have no right to play for the club in the UK. What we’ve obviously got to avoid creating financial burdens and also looking after both the player and the club and finding that balance between the two. I think that’s really interesting stuff.
Obviously that’s only in the event of a no-deal. If we’re doing a deal, then we’re much more thinking about the implementation period and what happens in the long-term after the end of that implementation period – I think that’s going to be interesting to see as the negotiations between the FA and the Premier League continue; what system will we find ourselves in on the 1st January 2021.
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