It is often assumed that following the Bosman judgment, an athlete’s right not to be discriminated against on the grounds of their nationality only extends to EU nationals. However, in Case C-438/00 Deutscher Handballbund v Kolpak, Case C-265/03 Simutenkov and Case C-152/08 Kahveci, the European Court of Justice examined the extent to which non-discrimination provisions contained within association agreements concluded between the EU and non-EU states afforded individuals of non-EU states protection. In these cases the Court consistently held that non-EU sportsmen and women covered by such agreements should not be discriminated against in terms of working conditions, remuneration or dismissal when they are legally employed in the territory of the Member State.
For example, Simutenkov was a Russian footballer legally employed in Spain but classified as a non-EU player. His request to have his status changed to that of an EU national was rejected on the grounds that the rules of the Spanish Football Federation precluded the issuance of such licences to non-EU/EEA nationals. As only three non-EU players could participate in Primera División matches in the 2000/01 season, Mr Simutenkov was liable to suffer a detriment as a result of his non-EU status. A reference to the European Court was made and the Court found that the relevant provision of the EU / Russia Agreement offered Russian sportspersons protection from discrimination in terms of working conditions, remuneration or dismissal when legally employed in the territory of the EU.
The Court’s rulings only protect persons who are already engaged in the labour market. They do not alter entry requirements for non-nationals as these are still set by the Member States. Similarly, the rulings do not confer a right of free movement between the Member States to third country nationals. The prohibition on discriminatory working conditions only relates to circumstances in which the non-national is already legally employed within the member state.
Currently the EU has entered into a number of association agreements with non-EU states and some sports, such as English cricket, have expressed concern that non-EU players from states such as South Africa cannot be excluded from domestic club competition and this has a negative impact on the English cricket team as the pool of England qualified players shrinks. One response adopted in football is to introduce a ‘home-grown player rule’.