UEFA v The European Community: Attempts of the Governing Body of European Soccer to Circumvent EU Freedom of Movement and Antidiscrimination Labor Law

I. BACKGROUND: EUROPEAN SOCCER AND EUROPEAN UNION FREE MOVEMENT OF WORKERS LAW The United European Football Association ("UEFA") is the governing body responsible for regulating soccer throughout Europe. UEFA, working closely with the globally-oriented FA©dA©ration Internationale de Football Association ("FIFA"),1 promulgates rules and regulations regarding all aspects of the play of soccer within Europe.2 Regulation under both FIFA and UEFA extends to rules of play, rules of player transfer, rules of contract and arbitration, and rules of player eligibility. UEFA has authority to regulate competition on both the European national and club team levels. National teams represent European countries in international competition, whereas club teams compete within one country's private league in a manner similar to competition in the NFL or the NBA. The best club teams from each country's private league also compete against one another in the UEFA Cup and UEFA Champions League. These interleague competitions showcase the best private teams in European soccer and do not take place under color of any national flag.3 The propriety of selecting players based on nationality when composing a national team is not an area of dispute-it is at the private, club team level that nationality selection issues arise. In DonA v Mantero, the Court of Justice of the European Communities ("ECJ") recognized that international sports competition, in which countries are represented by their national teams, does not fall within the category of economic activity regulated by the Treaty Establishing the European Community ("EC Treaty").4 Because EU antidiscrimination labor law under the EC Treaty applies only to economic activity, nonnationals can be excluded from national teams without violating EU free movement regulations.5 Freedom of movement under the EC Treaty "entailfs] the abolition of any discrimination based on nationality between workers of the Member States as regards employment" by prohibiting barriers on free movement of EU workers between EU nations.6 The free movement regulations were enacted for economic reasons-"to free up the labour market with migrant workers who were regarded as 'human capital' or factors of production within the common market."7 Because club sports within nations qualify as economic in nature, free movement and antidiscrimination requirements apply to club team player selection.8 Prior to 1991, UEFA mandated that club teams could only have two noncitizens on their starting lineup (not including assimilated foreigners).9 In 1991, as a result of negotiations between UEFA and the European Commission, this rule was relaxed. UEFA implemented new quotas for club teams: three players on each team's starting lineup had to be citizens of the country in which the club was located and two could be foreigners that had lived in the country for a certain number of years. This policy became known as the "3+2 Rule."10 In Union Royale Belge des SociA©tA©s de Football Association ASBL v Bosman, however, the ECJ held these nationality quotas to be in violation of the EC freedom of movement requirement.11 UEFA reluctantly complied with the ECJ opinion and revoked its nationality quotas.12 Because there is no longer a nationality quota, and because premier club teams have their pick of the best players in Europe, many national club teams are now composed primarily of foreign players.13 In England, for example, two of the most popular club teams (Arsenal and Chelsea) typically start each game with only two or three English players out of eleven.14 UEFA leaders believe that the low number of domestic players has a negative impact on both fan morale and the development of high-quality national players.15 UEFA has therefore proposed a new rule ("Homegrown Rule") under which club teams will be required to employ a specific number of players (the current proposal is four) that have been trained within the club's development program, as well as a specific number (again four) who have been trained by any club within the national league. …