Football Transfers After Brexit, vol. 2
On 1 December 2020 The FA released its updated Governing Body Endorsement (“GBE”) criteria to be applied to all players and coaches sought to be employed by football clubs in England once the Brexit implementation period ends on 31 December 2020. A previous Football Law article provided an explanation of (i) the Home Office’s points-based system (“PBS”) and The FA’s current (but soon to be outdated) GBE criteria – men’s players; (ii) how the same are applied to non-European Economic Area (“EEA”) nationals; and (iii) how following the end of the Brexit implementation period the same will be applied to EEA nationals. If you are unfamiliar with how The FA’s GBE works as part of the PBS it is recommended that you read that previous Football Law article.
Now that The FA has released its updated GBE criteria, an explanation of the same can be provided in this article in respect of the criteria applicable to men’s players. This article does not provide an explanation of The FA’s GBE criteria for women’s players, for which I apologise but which I have not yet had time to consider. Should there be sufficient interest in this article and/or requests for an article providing an explanation of The FA’s GBE criteria for women’s players, then I will write that article. (The FA has also provided GBE criteria in respect of men’s managers, women’s managers and other coaching positions in men’s football and women’s football, but they are also not explained in this article.)
GBE criteria – men’s players
The GBE criteria apply to any player who is not a citizen of the United Kingdom or Ireland, has not acquired permanent residence in the UK, or has not been granted pre-settled status or settled status under the EU Settlement Scheme.
There are two branches of criteria under the GBE criteria – men’s players (“GBE/MP”): (i) criteria applicable to all players (GBE/MP, para.31-39); and (ii) additional criteria applicable to youth players (players aged under 21 at the date of their application for GBE) (GBE/MP, para. 40-46).
Applying that criteria, a player will be granted a GBE if (i) they meet the ‘Auto Pass Percentage’ in respect of a ‘Player’s International Appearances’ (GBE M/P, para. 24 and 31); or (ii) achieve 15 or more points (GBE/MP, para. 25).
Auto Pass
A ‘Player’s International Appearances’ are determined in consideration of the ‘Available International Matches’, being the total number of matches played by a player’s national association in ‘Senior Competitive International Matches’ during the ‘International Reference Period’, minus the number of matches where the player was ‘Unavailable for Selection’. The ‘International Reference Period’ is the 24 months before the date of the application for GBE if the player is aged 21 and over, and the 12 months before the date of the application for GBE if the player is aged under 21. ‘Unavailable for Selection’ means that a player was unavailable to play due to injury or suspension, but does not include being an unused substitute (this meaning applies throughout the GBE/MP).
A player’s national association’s ‘International Friendlies’ will be considered if 30% or fewer of the national association’s matches during the ‘International Reference Period’ were ‘Senior Competitive International Matches’.
Whether the ‘Player’s International Appearances’ qualify as an ‘Auto Pass Percentage’ will also depend upon the ‘Aggregated FIFA World Ranking’ of the player’s national association. So, a player who plays for the Belgium national team (currently ranked no. 1) will achieve an ‘Auto Pass Percentage’ by playing as little as 30-39% of Belgium’s ‘Senior Competitive International Matches’. Comparatively, a player who plays for the Nigeria national team (currently ranked no. 35) or the Czech Republic national team (currently ranked no. 42) must have played at least 70-79% of Nigeria’s or Czech Republic’s ‘Senior Competitive International Matches’ to achieve an ‘Auto Pass Percentage’.
Table 1 of the GBE/MP identifies where a player will achieve an ‘Auto Pass Percentage’, and otherwise the number of points that will be achieved for the ‘Player’s International Appearances’:
15 points or more
Beyond achieving points for a ‘Player’s International Appearances’, a player can also achieve points for the following:
A ‘Player’s Domestic Minutes’ (GBE/MP, para. 32): these are determined in consideration of the ‘Available Domestic Minutes’, being the total number of minutes played by a player’s club in its domestic league competition during the ‘Reference Period’, minus the number of matches where the player was ‘Unavailable for Selection’. The ‘Reference Period’ is the 12 months before the date of the application for GBE.
The amount of points that can be achieved by a ‘Player’s Domestic Minutes’ will also depend upon what ‘Band’ the player’s club’s league is in. There are six bands. For example, Band 1 comprises ‘the English Premier League, the Bundesliga, La Liga, Serie A and Ligue 1’. Band 2 comprises ‘the Portuguese Primeira Liga, Eredivisie, Belgian First Division A, the Turkish Super Lig and the English Championship’. Notably, the USA’s Major League Soccer is in Band 4, and the Chinese Super League is in Band 5. Table 2 of the GBE/MP identifies the number of points that will be achieved for a ‘Player’s Domestic Minutes’:
A ‘Player’s Continental Minutes’ (GBE/MP, para. 33): these are determined in consideration of the ‘Available Continental Minutes’, being the total number of minutes played by a player’s club in a ‘Continental Competition’ during the ‘Reference Period’, minus the number of matches where the player was ‘Unavailable for Selection’. A ‘Continental Competition’ means either a ‘Band 1 Continental Competition’, ‘Band 2 Continental Competition’, or a ‘Band 3 Continental Competition’. Again, the ‘Reference Period’ is the 12 months before the date of the application for GBE.
The amount of points that can be achieved by a ‘Player’s Continental Minutes’ will also depend upon what ‘Band’ the ‘Continental Competition’ is in. For example, Band 1 comprises the UEFA Champions League and the Copa Libertadores, and Band 2 comprises the UEFA Europa League and the Copa Sudamerica. Table 3 of the GBE/MP identifies the number of points that will be achieved for a ‘Player’s Continental Minutes’:
The ‘Final League Position of Player’s Last Club’ (GBE/MP, para. 34): this is determined in consideration of a player’s ‘Last Club’, meaning the club a player played for in the last full season before the date of the application for GBE, and that club’s final league position at the end of that last full season. A player can only achieve points for the ‘Final League Position of Player’s Last Club’ if (i) the player ‘appeared in the squad list for the Player’s Last Club for at least one match in its domestic league competition or a Continental Competition’; or (ii) the ‘Player’s Domestic Cup Minutes’ were at least 1% during the last full season before the date of the application for GBE. ‘Player’s Domestic Cup Minutes’ are determined in consideration of the ‘Available Domestic Cup Minutes’, being the total number of minutes played by a player’s club in a ‘Domestic Cup’, minus the number of matches where the player was ‘Unavailable for Selection’. ‘Domestic Cup’ means a cup competition which is open to a country’s top domestic division (e.g. the Premier League or La Liga) and provides a rout for qualification to a ‘Band 1 Continental Competition’ or a ‘Band 2 Continental Competition’ (e.g. in England, The FA Cup winner and the EFL Cup winner qualify for the UEFA Europa League group stage and qualifiers respectively). Further, the amount of points that can be achieved by a player for the ‘Final League Position of Player’s Last Club’ will also depend upon what ‘Band’ the player’s club’s league is in (as explained above).
Table 4 of the GBE/MP identifies the number of points that will be achieved for the ‘Final League Position of Player’s Last Club’. It should be noted that a player will not be able to double count (i.e. for being a title winner and for qualifying for a continental competition) but will only achieve the higher of the points he is eligible for (GBE/MP, para. 35). In this author’s opinion, this criterion appears to be a an easy way for a player to accumulate points considering the low threshold of appearances/minutes required, especially if the player is a fringe player for a successful club:
The ‘Continental Progression of Player’s Last Club’ (GBE/MP, para 36): this is determined in consideration of a player’s ‘Last Club’, meaning the club a player played for in the last full season before the date of the application for GBE, and that club’s ‘Continental Progression’ (which defines itself) at the end of that last full season. A player can only achieve points for the ‘Continental Progression of Player’s Last Club’ if (i) the player ‘appeared in the squad list for the Player’s Last Club for at least one match in its domestic league competition or a Continental Competition’; or (ii) the ‘Player’s Domestic Cup Minutes’ were at least 1% during the last full season before the date of the application for GBE (as explained above). Further, the amount of points that can be achieved by a player for the ‘Continental Progression of Player’s Last Club’ will also depend upon what ‘Band’ of ‘Continental Competition’ a player’s club is playing in (as explained above).
Table 5 of the GBE/MP identifies the number of points that will be achieved for the ‘Continental Progression of Player’s Last Club’. It should be noted that a player will not be able to double count (i.e. for reaching a final of a continental competition and for having reached the semi-finals) but will only achieve the higher of the points he is eligible for (GBE/MP, para. 37). In this author’s opinion, this criterion again appears to be a an easy way for a player to accumulate points considering the low threshold of appearances/minutes required, especially if the player is a fringe player for a successful club:
The ‘League Quality of Player’s Current Club’ (GBE/MP, para. 38): this is determined in consideration of a player’s ‘Current Club’, which has a different meaning depending upon the timing of the application for GBE. ‘Current Club’ will be a player’s ‘Last Club’, meaning the club a player played for in the last full season before the date of the application for GBE, unless the application for GBE is mid-season, in which case it will be the club the player is playing for at the time of the mid-season GBE application. A player can only achieve points for the ‘League Quality of Player’s Current Club’ if (i) the player ‘appeared in the squad list for the Player’s Last Club for at least one match in its domestic league competition or a Continental Competition’; or (ii) the ‘Player’s Domestic Cup Minutes’ were at least 1% during the last full season before the date of the application for GBE (as explained above). It is this author’s opinion that ‘Last Club’ as referred to in that point (i) should be replaced with ‘Current Club’, otherwise there appears to be inconsistency in this criterion.
The amount of points that can be achieved by a player for the ‘League Quality of Player’s Current Club’ will also depend upon what ‘Band’ a player’s club’s league is in (as explained above). A further factor to consider for this criterion is that if a player has been loaned to a club in a lower band than his parent club but has made a first team appearance for his parent club during the ‘Reference Period’ (as explained above), he shall be granted the higher points he would have been eligible for if his parent club was his ‘Current Club’ (GBE/MP, para. 39).
Table 6 of the GBE/MP identifies the number of points that will be achieved for the ‘League Quality of Player’s Current Club’. In this author’s opinion, this criterion yet again appears to be a an easy way for a player to accumulate points considering the low threshold of appearances/minutes required, especially if the player is a fringe player for a successful club:
Youth players
Beyond those criteria, if the player is a youth player (a player aged under 21 at the date of their application for GBE) then they can also achieve points for the following:
‘Youth International Appearances’ (GBE/MP, para. 40): a youth player can achieve the higher of: (i) 7 points if they have appeared in at least 30% of the youth player’s national association’s ‘Band 1 Youth Internationals; or (ii) 5 points if they have appeared in at least 30% of the youth player’s national association’s ‘Band 2 Youth Internationals’. A youth player’s ‘Youth International Appearances’ are determined in consideration of the ‘Available Band 1 Youth Internationals’ or ‘Available Band 2 Youth Internationals’, being the total number of ‘Band 1 Internationals’ and ‘Band 2 Internationals’ played by a youth player’s national association during the ‘Reference Period’, minus the number of matches where the youth player was ‘Unavailable for Selection’:
‘Band 1 Youth Internationals’ means any match played by a youth player’s national association in specified tournaments, which include the FIFA U20 and U17 World Cup Finals, specified FIFA Confederations’ youth tournaments, the Olympic Games, and the Toulon Tournament.
‘Band 2 Youth Internationals’ means any match played in order to qualify for ‘Band 1 Youth Internationals’ or ‘any other competitive match’ played by a youth player’s national association’s U17-U23 team. ‘Reference Period’ is the 12 months before the date of the application for GBE.
‘Youth – Debut’ (GBE/MP, para. 41): a youth player can achieve points if they made their first appearance for the senior team of a club in Band 1 to Band 6 in its domestic league competition during the ‘Reference Period’. Table 7 of the GBE/MP identifies the number of points that can be achieved by a youth player for ‘Youth – Debut’. In this author’s opinion, this criterion appears to be an easy way for a youth player to accumulate points considering that the mere making of an appearance on the pitch – for however long – will mean that the youth player can achieve points under this criterion, albeit not many. It should be noted that a youth player will be unable to achieve points under this criterion if they are eligible to achieve points under GBE/MP, para. 34: ‘Final League Position of Player’s Last Club’ (GBE/MP, para. 42).
‘Youth – Final League Position’ (GBE/MP, para. 43): a youth player can achieve points in respect of their ‘Last Club’, meaning the club a youth player played for in the last full season before the date of the application for GBE, and that club’s final league position at the end of that last full season. Table 8 of the GBE/MP identifies the number of points that can be achieved by a youth player for ‘Youth – Final League Position’.
It should be noted that a youth player will be unable to achieve points under this criterion if (i) they are eligible to achieve points under GBE/MP, para. 34: ‘Final League Position of Player’s Last Club’; and (ii) they have played in fewer than 30% of the ‘Youth Player’s UEFA Youth League Minutes’, ‘Youth Player’s CONMEBOL U20 Libertadores Minutes’, ‘Youth Player’s Youth Competition Minutes’ or ‘Youth Player’s B Team Minutes’ (GBE/MP, para. 43(a)-(b)). In respect of each of the competitions’ minutes considered under GBE/MP, para. 43(b), these are determined by reference to the ‘Available’ minutes for each competition. The ‘Available’ minutes means the total number of minutes played in those competitions by a player’s ‘Last Club’, meaning the club a player played for in the last full season before the date of the application for GBE, minus the number of matches where the player was ‘Unavailable for Selection’.
‘Youth – Continental Progression’ (GBE/MP, para. 44): a youth player can achieve points in respect of their ‘Last Club’, meaning the club a player played for in the last full season before the date of the application for GBE, and that club’s ‘Continental Progression’ at the end of that last full season. Table 9 of the GBE/MP identifies the number of points that can be achieved by a youth player for ‘Youth – Continental Progression’.
It should be noted that a youth player will be unable to achieve points under this criterion if (i) they are eligible to achieve points under GBE/MP, para. 36: ‘Continental Progression of Player’s Last Club’; and (ii) they have played in fewer than 30% of the ‘Youth Player’s UEFA Youth League Minutes’, ‘Youth Player’s CONMEBOL U20 Libertadores Minutes’, ‘Youth Player’s Youth Competition Minutes’ or ‘Youth Player’s B Team Minutes’ (as explained above) (GBE/MP, para. 44(a)-(b)).
‘Youth – League Quality of Player’s Current Club’ (GBE/MP, para. 45): a youth player can achieve points in respect of their ‘Current Club’. ‘Current Club’ will be a player’s ‘Last Club’, meaning the club a youth player played for in the last full season before the date of the application for GBE, unless the application for GBE is mid-season, in which case it will be the club the youth player is playing for at the time of the mid-season GBE application.
The amount of points that can be achieved by a youth player for the ‘League Quality of Player’s Current Club’ will also depend upon what ‘Band’ a youth player’s club’s league is in (as explained above). Interestingly, there is no provision in this criterion for consideration of a youth player’s parent club if the youth player has been out on loan (compare with GBE/MP, para. 39). Table 10 of the GBE/MP identifies the number of points that will be achieved for ‘Youth – League Quality of Player’s Current Club’.
It should be noted that a youth player will be unable to achieve points under this criterion if (i) they are eligible to achieve points under GBE/MP, para. 38: ‘League Quality of Player’s Current Club’; and (ii) they have played in fewer than 30% of the ‘Youth Player’s UEFA Youth League Minutes’, ‘Youth Player’s CONMEBOL U20 Libertadores Minutes’ or ‘Youth Player’s B Team Minutes’ (as explained above but note that ‘Youth Player’s Youth Competition Minutes’ is not part of this criterion) (GBE/MP, para. 45(a)-(b)). There are significant points to be achieved by a youth player under this criterion should they qualify:
‘Youth – League Quality of Player’s Current Club’ (GBE/MP, para. 46): this criterion mirrors that seen under GBE/MP, para. 45 save that a youth player’s inability to achieve points under this criterion is if (i) they are eligible to achieve points under GBE/MP, para. 38: ‘League Quality of Player’s Current Club’; and (ii) they have played in fewer than 30% of the ‘Youth Player’s Youth Competition Minutes’. Table 11 of the GBE/MP identifies the number of points that will be achieved for ‘Youth – League Quality of Player’s Current Club’ under GBE/MP, para. 46.
Depending on the points scored by a youth player, the GBE/MP also include an additional hurdle for a youth player to overcome. If a youth player achieves between 10 and 14 points in accordance with the criteria applicable to all players but achieves 15 or more points in accordance with the criteria applicable to youth players only, then a decision will need to be made as to whether the youth player ‘is of sufficient quality to be awarded a GBE’ (GBE/PM, para. 27). The FA and the ‘Relevant Interested Parties’ – being a representative of (i) the league in which the youth player will play if the application for GBE is successful; and (ii) the Professional Footballers’ Association – will have an absolute discretion when making this decision.
Further, it should be noted that The FA’s statement made along with the release of its updated GBE criteria stated that ‘[in]the Premier League, the number of overseas U21 players a club can sign will be limited to three in the January transfer window and six per season moving forwards’. This restriction on Premier League clubs is not stated in the GBE/MP, nor it is yet stated in the Premier League’s Rules (see the Premier League Handbook). It is anticipated that this restriction, when introduced, will be included in the Premier League’s Rules, Section U.
In respect of youth players, and in addition to the GBE/MP, it should also be noted that following the end of the Brexit implementation period on 31 December 2020, England (and the United Kingdom generally) will no longer be able to sign EEA nationals and non-EEA nationals aged between 16-18 (FIFA’s Regulations on the Status and Transfers of Players, article 19(1)). However, on 4 December 2020 FIFA announced that this prohibition will not apply to players aged between 16-18 transferring from one United Kingdom state to another (e.g. Northern Ireland to England).
Exceptions Panels
In a previous Football Law article, it was explained that an Exceptions Panel could be appointed to consider discretionary criteria under The FA’s current (but soon to be outdated) GBE criteria. As also explained in that previous Football Law article, and which has now been confirmed by the GBE/MP, Exceptions Panels are to be removed and will be unavailable after the January 2021 transfer window. Of course, the GBE/MP also identify that discretionary criteria no longer exist.
While an Exceptions Panel will still be available during the January 2021 transfer window, such availability is only for consideration of a club making an applications that ‘exceptional circumstances [have] prevented the Player from achieving 15 points’ (GBE/MP, para. 47) and where: (i) a player is not a youth player and has achieved between 10 and 14 points; or (ii) the player is a youth player and has achieved between 10 and 14 points under the criteria applicable to all players, and between 10 and 14 points under the criteria applicable to youth players only (GBE/MP, para. 26).
Such applications are also subject to an initial vetting process by the chair of the Exceptions Panel, who will decide whether the application should be considered by an Exceptions Panel (GBE/MP, para. 47).
There is no definition of ‘exceptional circumstances’, which in this author’s opinion seems right, as the ability to define ‘exceptional circumstances’ makes them somewhat unexceptional. However, the lack of definition makes it difficult to assess the prospects of success in making an application. It may be, for example, that a player who would have achieved a greater number of international appearances but for the COVID-19 pandemic – and therefore a greater number of points under the GBE/MP – is minded to make an application that ‘exceptional circumstances’ have prevented the player from achieving 15 points. It is interesting that ‘exceptional circumstances’ are in respect of achieving 15 points only, rather than the auto-pass criteria, which the above hypothetical application could equally apply to.
Conclusion
The GBE/MP is notably more systematic than The FA’s current (but soon to be outdated) GBE criteria, reflecting the UK Government’s immigration policy. The GBE/MP is more focused on the quality and achievement of the player, rather than allowing the economic weight of a club signing a player having a potentially determinative impact upon whether a player is granted a GBE.
Further, The GBE/MP now makes it easier than before for clubs to sign players that are non-EEA nationals, so there is at least one group of beneficiaries if one is focusing on EEA nationals now also being subject to the UK’s immigration process. Additionally, the removal of discretionary criteria of transfer fees and wages will remove, to a degree, disproportionate transfer fees and wages being paid for players in certain circumstances.
In addition to the explanation of the GBE/MP provided in this article, I recommend listening to this discussion between Sean Scott and Stephen O’Flaherty for LawInSport, and reading this article by Philip Buckingham, Laurie Whitwell and Matt Slater for The Athletic.
4 December 2020