Permit-to-play

Permit to play: Exploring the rules that govern non-EU footballer’s joining British clubs

Amongst the hype of transfers in football an often forgotten but arguably vital element to the movement of players between clubs is the application and granting of work permits. It is far from being the most glamorous side of the game but recent comments from the FA Chairman Greg Dyke has projected the matter into the public domain. It is therefore important that the facts involving work permits, applications and subsequent appeals are also readily available and have a sufficient level of clarity.

Background

A club wanting to purchase a player who is based outside of Europe and is not a citizen of the European Union have to settle a number of conditions for a work permit to be granted. Interestingly these rules are unique to football, further emphasising the need for sports law in today’s modern legal market. The conditions were agreed upon in a joint consultation between the Home Office and a number of football’s representative bodies such as the FA, the Premier League, the Football League, the Professional Footballers’ Association and the League Managers’ Association. The granting of work permits in football comes under Tiers 2 and 5 of the Home Office’s Points Based System.

Clubs act as sponsors for individual players being brought in however each club must be granted a license to sponsor beforehand. The conditions for a club to be granted a license are straightforward; the club must be a member of the Football League or Premier League. This license is valid for a period of 4 years once granted and is then up for renewal. The license gives clubs the facility to issue certificates of sponsorships to players. Any certificate issued to a player must then be submitted to the FA who will look at a set of criteria to decide whether the player should be awarded a permit. The role of the FA is that of an endorser for the player. Should a player fulfil certain conditions he will acquire a Governing Body Endorsement (‘GBE’) from the FA which gives him the right to play in competitive games for his club.

GBE-eligibility

To be eligible for a Governing Body Endorsement all of the following must be satisfied:

  1. The applicant’s club must be a member of the Premier League or Football League.
  2. The player must have played in a minimum of 75% of his home country’s senior competitive international fixtures.
  3. The player’s National Association must be at or above 70th place in the FIFA rankings.

Gaining a GBE is the hardest step in obtaining clearance to play. Let’s consider each condition separately

Applicant’s club must be a member of the Premier League or Football League

This is a somewhat self-explanatory condition and one that is nearly always fulfilled. It is however important to note that should a work permit be issued the player would not be allowed to go on loan to a club outside of these leagues. If a Conference side attempted to loan the player he would be prevented from taking part in any competitive matches for them.

Player must have played in a minimum of 75% of his home country’s senior competitive international fixtures

This is where the conditions begin to get more complex. The FA will look at the player’s international availability over the past two years from the date of application. If the player was eligible to take part in competitive international fixtures for the senior side during the past two years but was not picked for a single game then he would fail this condition. The next issue is determining what constitutes taking part in a game. A player who is an unused substitute in a game would not be able to count that game in his total number of matches. A player brought on as a substitute however would be able to count that particular game to his total.

Injuries and suspensions add another layer of complexity to this condition. If a player is injured or suspended and is therefore unable to take part in his national side’s fixtures then these games will not be used in determining whether the player has featured in 75% of the games. To put it simply if there were 20 competitive fixtures during the period of two years however the player was injured for 2 of these the player would need to feature in just 14 games rather than 15.

Finally the FA defines a senior competitive international match as one which takes place in the following:

  • FIFA World Cup finals/qualifying
  • FIFA Confederations Cup
  • Continental Cup finals/qualifying
  • UEFA European Championship finals/qualifying
  • CAF African Cup of Nations finals/qualifying
  • AFC Asia Nations Cup finals/qualifying
  • CONCACAF Gold Cup
  • CONCACAF Copa Caribe
  • UNCAF Nations Cup
  • CONMEBOL Copa America
  • OFC Nations Cup

It is worth noting that international friendlies do not count towards competitive matches and neither do appearances for youth and junior sides such as U21 fixtures. On a practical level this can cause issues for clubs who want to sign very young players who have shown considerable promise but have yet to play enough games for the senior side. This is perhaps best exemplified by Leicester City’s latest signing Andrej Kramarić who had only been picked for the senior Croatian side in August 2014 therefore failed this condition. The Andrej Kramarić case will be discussed in more detail since the player was ultimately granted a work permit but the point remains and needs to be considered.

Player’s National Association must be at or above 70th place in the FIFA rankings

This condition is designed to ensure that players being issued work permits are considered to be elite players. It wouldn’t be unfair to say players from countries such as San Marino and American Samoa aren’t really elite players, particularly considering some of the records of the lesser ranked countries.

It is possible players who play for countries who aren’t ranked 70th or above in the FIFA ranking at the time of application. If the player’s country has averaged a rank of 70th or above over a two year period then this condition will be fulfilled.

The-appeal-process

Should a player fail to obtain a GBE and therefore not receive a work permit his club can initiate an appeal process. An independent panel will be put together to determine whether the player in question is of the highest calibre and whether he will be able to contribute to the development of top level football.

The appeal process is considerably more subjective than the initial application. The club in question will have to present evidence to the panel in order to persuade them that this player is of the highest quality. Evidence can take the form of written, oral or video and the club will then be accountable for answering all questions from the panel. Typically evidence will come from a range of sources such as the club’s manager, coaches, scouts and members of the player’s national setup who will look to highlight the skill of the player, any exceptional circumstances that meant he failed the original conditions and their opinion on how he can contribute to the develop of English football. Once the presentation of evidence and questioning has concluded each individual member of the panel will privately vote on whether they believe an GBE should be given. A majority vote is required for a GBE to be obtained and regardless of the decision written reasons must be provided from the panel.

Should the player fail to obtain a GBE at this point then the club must wait 120 days before they can request the audience of another panel.

Criticism

The FA chairman Greg Dyke has been particularly critical of the appeal process and how it is not suitable in prevsering the desired balance of British, EU and non-EU players at clubs. His England Commission Report highlighted that “122 non-EU players have entered England under the GBE scheme since 2009. Nearly 50% didn’t meet the current criteria and came through an appeal process in which 79% of appellants have been successful[1]. The report goes on to state that 19% of these players were playing in the Football League[2]. Dyke argues that this is clearly not playing at the highest level and brings into question the standards set.

Leicester City’s recent signing of Andrej Kramarić has fuelled the debate surrounding work permits in British football further. Originally the player was destined for Chelsea who, knowing he would require a work permit, wanted to send the player on loan to their Belgian affiliate side Vitesse Arnhem. Belgium has considerably less stringent rules on non-EU nationals working in their country and his loan spell would allow him to spend enough time in Belgium to gain EU nationality therefore removing the need for a work permit. It is a luxury loophole that only clubs like Chelsea can afford and it is one that appears to make a mockery of the importance of work permits. Greg Dyke himself denounced it as a “bit of a farce[3].

Chelsea ultimately did not sign him as the player was unwilling to go on loan to Vitesse Arnhem which led to Leicester City completing their acquisition of him. With no affiliate club to send him on loan to though the club were forced to lodge an appeal since he failed the original conditions for a GBE to be obtained. The evidence presented included the Croatian national manager claiming that he would, in the future, be picking Kramarić regularly. This was apparently enough for the appeal panel to be convinced that the player was of an elite quality and therefore allowed to play for Leicester City.

It is rather amazing that work permits are handed out at the drop of a hat. Despite the evidence he has put forward during the appeal panel Kramarić’s national manager is under absolutely no obligation whatsoever to field Kramarić in a competitive game. This player could never play international football again and yet the FA considers him to be of an elite level.

The table below shows a number of players who originally failed to meet one of the conditions but were awarded a work permit following the appeal process. The appearances column relates the number of games the player played for the club who bought him. This data is correct as of 18th January 2015 and is taken from TransferMarkt. The players listed below either moved to the club on a permanent deal or on loan.

Name Nation Purchasing club Joined club Appearances Left club
Tadanari Lee Japan Southampton 13/01/12 14 16/01/14
Somen Tchoyi Cameroon West Bromwich Albion 20/08/10 47 01/07/12
Goran Popov Macedonia West Bromwich Albion 31/08/12 18 30/06/14
Luis Jiménez Chile West Ham United 01/07/09 12 01/12/09
David Pizarro Chile Manchester City 31/01/12 7 30/06/12
Mame Diouf Senegal Manchester United 17/07/09 9 28/01/12
Stefan Savić Montenegro Manchester City 06/07/11 21 31/08/12
Lacina Traoré Cote d’Ivoire Everton 24/01/14 4 30/06/14
André Santos Brazil Arsenal 31/08/11 33 19/07/13

It is important to note that the above data can only tell us so much. Football being as subjective as it is means a poor performance in one person’s eyes may not necessarily be as bad to another. The appeal process will always have this inherent problem but the above players, when looking at their lack of appearances, could be described as falling far short of being elite thus highlighting the issues with the work permit process currently.

proposals-to-tighten

It is possibly unfair to single out Kramarić who has yet to really be given a chance but in the context of an appeal process which has a 79% success rate there is a strong argument that the rules on work permits for footballers are far too lenient.

Greg Dyke’s report proposes that non-EU players would no longer be allowed to join Football League clubs to ensure the players coming through are not only of an elite standard but playing at the highest level possible in the Premier League. Clubs would also be banned from sending these players out on loan to any other clubs, regardless of the league they are in. Dyke also suggests that clubs would only be allowed to have a maximum of 2 non-EU players in their squad.

Further changes suggested by Dyke would see the subjective nature of the appeals process removed and a reduction from 75% to 30% of competitive international matches a player must participate in but restricting the cut-off point to countries ranked 50th or above in the FIFA rankings. Dyke did add that a player costing £10million or more would automatically be granted a work permit automatically. This last suggestion seems somewhat odd in the context of his previous proposals which all seem to tighten up the regulations. A £10million trigger will more likely act as an escape card rather than a deterrent for many football clubs. Greg Dyke and the FA have for a number of years called for more club trained youngsters to be brought into the best performing teams like Chelsea and Manchester City but these are the clubs who can afford to pay £10million to bring in the next big thing from Uruguay or Brazil.

Interestingly should these proposals be brought in and the appeal process scrapped there would still be a number of elite players left out in the cold. Had the proposals been in place at the time of these transfers then players like Oscar, Javier Hernandez and Phillipe Coutinho would all not have been able to gain a work permit.

Links


References

[1] Dyke, G. (2014). The FA Chairman’s England Commission Report. London: The FA, p.17.

[2] Dyke, G. (2014). The FA Chairman’s England Commission Report. London: The FA, p.17.

[3] Wallace, S. (2015). FA intends to close work permit loophole to protect English talent. The Independent.

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