Source: SMG Insight
Written originally for The Journal of The Law Society of Scotland, with Bruce Caldow

On 23 June 2016, the British public voted to leave the European Union. Negotiations as to how this will take place commenced in June 2017. Two potential outcomes have been mooted, defined as either a “hard” or “soft” Brexit, the former being leaving the EU with no deal whatsoever and the latter likely to include a free movement arrangement and a free trade deal. 

A recent House of Lords paper highlighted the potential impact Brexit may have on professional sport. EU membership impacts professional sport in various ways. Freedoms of movement to live and work across all EU member states (article 45, Treaty of the Functioning of the European Union (TFEU)), of establishment (article 49 TFEU) and to provide services (article 56 TFEU), allow professional athletes (whether employed or self-employed) and those who work within sport such as managers, coaches, administrative staff, instructors, agents, doctors, physiotherapists and stable staff, to work freely across the EU without discrimination. Whether this provides or restricts opportunity depends on one’s viewpoint, but irrespective, this open playing field has become the accepted norm. Similarly, the influence of the Court of Justice of the European Union (CJEU) on UK sport has been remarkable in many ways, primarily recognising rights of sportspersons in seminal cases such as that of Bosman (C-415/93), Kolpak (C-438/00) and Meca-Medina (C-519/04).

Who benefits and how?

The commercial value generated by sport, and Brexit’s potential impact, focus most greatly on football. EU or EEA players presently move freely as one; Kolpak allows persons from a country with an associate EU trade agreement to travel and work freely; South American and African players become EU players through accession rights with Portugal and France. Otherwise, a work permit system requires the highest standards, endorsement from the relevant association and registration via a UK Home Office system, which can be difficult to meet.

A recent BBC study identified 332 players currently playing professionally in the UK who would not have met endorsement requirements, playing only via freedom of movement rights. No proposals exist to soften the work permit regime. Should this continue, UEFA Financial Fair Play Rules (unaffected by Brexit) will ensure that only the wealthy clubs will stand a chance of securing top talent via work permits. This, in turn, will hinder further competitive balance within leagues and maintain the status quo, unless a revolution occurs in generating home grown talent. FIFA’s article 19 of the Regulations on the Status and Transfer of Players will also impact more greatly, as any under-19 player will not be able to transfer cross-border (at present an exception operates within the EU/EEA).

Concerns arise in cricket and regarding foreign player quotas, with the Kolpak ruling helping more than 6% of professional cricketers in the UK. A soft Brexit may help footballers apply Kolpak in their favour to move to foreign shores; cricketers may be less likely to seek to apply those principles. Rugby is also subject to foreign player quotas, limiting foreign players’ involvement in the match-day 23 for cross-border competitions; however, like in cricket, the Kolpak ruling assists. At least 72 players were able to play for British clubs last season as a result of the Kolpak ruling.

Sporting goods

Horses are “goods” for sporting purposes. Various EU directives concern genealogical identification, movement, trade, breeding, production and quarantine of horses, with an EU-maintained database helping the UK horseracing industry to flourish. The Racing Post recently estimated that between England and Ireland alone, 10,000 horses move annually to breed or race, in a trade valued beyond £300 million. The prospect of eyewatering tariffs, restricting races to home grown talent, stable staff and trainers, will undoubtedly dilute the product of live racing. Hard Brexit would require veterinary clearance checks, temporary admission documents and border control inspections in only three border inspection posts approved to deal with horse importation.

Professional target shooters also benefit from the free movement of goods, with a European firearms pass under a special directive. Shooters freely cross EU borders without prior consent to attend competitions. Post-Brexit, our shooting stars, such as the McIntosh family, may face significant burdens and restrictions on travel and practising their sport. 

Hard Brexit is a loss

Sport is inherent in British society and is a significant contributor to the UK economy. A hard Brexit will inevitably destroy the present fabric of professional sport in the UK and have significant consequences, mostly in the form of disadvantage to sports people and those who work in sport. Governing body rules and regulations will require an overhaul, not merely in the UK, but beyond.

IMPORTANT: This post is not intended to be a legal briefing, it is not intended to be a statement of the law and no action should be taken in reliance on it without specific legal advice.

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