What are the key legal issues facing an NFL London franchise? Part 2 – sporting visas, criminal convictions and EU lawRobert Tomback
Part 1 of this article set out the basis upon which a London franchise may be set up, with a focus on the tax implications of a NFL team based in London. However, in order to determine the true feasibility of a London franchise, the broader legal considerations will need to be addressed. Part 2 of this article will therefore explore the wider legal areas that will require careful analysis before we see the NFL make the leap from ad hoc visitors to calling London home.
So long as a player holds a current passport, international athletes coming to compete in the UK are admitted under a temporary working visa for 'sporting visitors'.1 For an athlete in the away team, who would visit the UK for a one off event, this temporary working visa would suffice in ensuring the player could travel to London and compete. However, for the London franchise team who would spend a significant duration of time in London and play a full home schedule, this option would no longer be viable, as the maximum stay permitted under a temporary visa is 26 weeks2
Players in the London franchise team would instead require a full Tier 2 (Sportsperson) working visa.3 However, for this to be granted, each player's application would need to be endorsed by its UK governing body. Herein lies a stumbling block, as the NFL does not currently have a UK governing body. In response to this problem, the NFL could negotiate with the government to establish its own governing body, working with Sport England in order to gain the required governance status. Alternatively, it has been suggested that a partnership be entered with the British American Football Association (BAFA).4 It is however, important to note that BAFA is not currently recognised by the Home Office and is instead affiliated to the European Federation of American Football so at best; a partnership with BAFA would only shorten the process in gaining recognition. Establishing a recognised governing body in the UK is not a simple process, and despite the bargaining power of the NFL, even the most optimistic football fan will appreciate that any negotiations would not simply be waved through. To add a further consideration, it is doubtful that the Home Office would permit a governing body to be set up without meaningful reassurances that a London franchise benefits the UK game as a whole.
Such reassurances could take the form that a minimum number of European players are included within the London franchise. This may seem like a draconian demand. However, assuming a governing body is successfully set up it would be well within its remit, in evaluating the suitability of each player's Tier 2 (Sportsperson) visa, to insist on being convinced that such a role could not have been filled by someone already settled in the UK.5 Throughout this process of gaining recognition, it is clear that the culture of football in the UK will have to evolve as well. For the London franchise to be truly successful, players will no longer be automatically enlisted from the US, but instead players already settled in the UK will become a viable option to the London franchise as well. To achieve this, The NFL will need to work with the broader UK sports infrastructure in order to promote football across all levels, engaging new participants and creating its own place within the UK sporting landscape.
Players with criminal convictions
The appalling video of Ray Rice, ex running back for the Baltimore Ravens, assaulting his then fiancée (now wife) in a lift was truly shocking. Sadly however, this is not the only recent example of an NFL player with a criminal conviction with 28 players having been arrested so far since the last Super Bowl.6 In terms of the London franchise, this becomes very important, as players who have a criminal conviction will quickly find that they may not be able to obtain the required visa to play in the UK.
For a player who has received a sentence of more than four years, they could indefinitely be refused a visa.7 Alternatively, for a player who had been sentenced to between one year and four years imprisonment, they would be denied a visa to the UK until ten years after finishing their sentence.8 Even for a player who is convicted of an offence and sentenced to less than 12 months imprisonment, they will still be subject to a mandatory refusal to enter the UK until five years has elapsed since the end of the sentence.9
The impact of these regulations is that in real terms, players such as Michael Vick, quarterback for the New York Jets, who was sentenced to 23 months in prison in 2007,10 would not be able to play in London. Of course these restrictions do not just apply to players. Whoever has a past criminal conviction, whether it be a player, coach or anyone else travelling with the team, could find themselves experiencing difficulties in obtaining a visa and entry to the UK.
In these circumstances it is plausible that the player in question and the National Football League Players Association (NFLPA ),11 who represents players' interests, would argue that they were being placed at an unfair disadvantage. The reason for this is that a player previously classed as an "unrestricted free agent"12 who is looking for a new club, would in reality be "restricted" as their criminal conviction means they would not be able to play for the London franchise. The impact of this would require player contracts to be reworded and for the Collective Bargaining Agreement (CBA )13 in place between the NFL and NFLPA to address the issue when next renegotiated.
EU law: free movement and competition
Interaction with the draft
Unlike for example in the Barclays Premier League or Aviva Premiership, teams in the NFL are not relegated or promoted and so to avoid any dominance and promote competition, the NFL utilises its draft system. The draft system sets out the mechanics by which to recruit new players from Colleges with each team being allocated a position in the drafting order in reverse to their previous year's success. The team positioned last will therefore get the first pick in the draft; in order to improve the team by recruiting the highest ranked College player.14
In looking at how the London franchise would take part in the draft, it is of interest to note that as things stand, the draft system would appear, on the surface, to be contrary to EU legislation.15 The rational for this being that the draft system would curtail a player's right to choose where to play. When drafted by a team, a player either accepts the team or is forced to withdraw from the draft and wait until the following year to be drafted; illustrating the lack of freedom a player has to choose where to ply his trade.16
As evidenced by British born Osi Umenyiora, outside linebacker for the Atlanta Falcons, there are already UK and EU players within the NFL. This is not something that the NFL has specifically addressed to date, however in considering a London franchise, it is important to note that the NFL would need to engage with legislation surrounding the free movement of workers more widely,17 in order to ascertain how this would impact upon the draft system. As yet, how such discussions would play out is unknown. However, it is suggested that at the forefront of the agenda would be balancing the crucial importance of the draft whilst ensuring that a London franchise would not unduly distort the ability of players to play for a team of their choice.
In assessing the extent the draft would need to accommodate UK or EU legislation, the key factor in question would be how a London team is structured. It could be that the London franchise plays the role of the 'home team' in all respects and is truly based in London. Alternatively, it could be that the London franchise is for all real purposes based on the east coast of the US, say in Florida and simply flies into London eight times a year to play home games. If this latter system is used, there is fair argument to question if anything other than minimal consideration will be required to EU legislation, as in essence this structure already exists with teams flying into London three times a year. The only difference being that a London franchise would mean the number of games played in London is increased to eight. Whether the European Commission would tolerate such a strategy is unknown and whether any formal complaint would be brought is as yet untested. What however is certain; is that the approach adopted by the NFL will come under intense scrutiny and require justification.
Nonetheless, with a fully involved London franchise and more British players making the NFL, questions surrounding how US antitrust and labour laws would interact with UK legislation would still need to be addressed, especially in ensuring the draft system remains effective.
The interaction between US antitrust laws and labour laws within the UK
As with competition law in the UK, antitrust law under US law is designed to prevent monopolisation and foster a competitive and efficient marketplace.18 What is unique about the NFL, as opposed to UK sports is that as much as 60% of total revenue is generated centrally19 and distributed evenly amongst the franchises. As is therefore evident, the NFL teams share certain common interests and business objectives, requiring an extent of cooperation and agreement amongst teams which is fundamentally in principle anti-competitive.
At first glance, it appears that the NFL is operating in contradiction to the Sherman Act of 1890,20 which is the most prominent federal US antitrust law,21 outlawing 'every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations'.22 It is clear that for the NFL to operate in its collaborative manner, a number of exemptions to antitrust laws would need to be granted, enabling it the ability of sharing between the franchises revenue from broadcasting and marketing arrangements. Such exemptions are provided to the NFL and include for example, Title 15 ss1291 of the United States Code which exempts the NFL from antitrust laws which would otherwise not permit the league to share broadcasting rights.23 For a London franchise to take root and flourish, it is therefore essential that the London franchise is offered the same exemptions through the NFL as other teams are, despite being based in a different country.
In terms of operating under antitrust exemptions, the Norris-La Guardia Act of 1932 is particularly significant, as it permits employees to organise themselves as a collective bargaining unit.24 This exemption therefore protects the CBA from attack under antitrust law enabling it to act as a revenue sharing deal between the Union and the employer, in this instance the NFL and NFLPA.25 In contrast to the UK model where the club has an individual contract with the player resulting in their ownership of the player, the CBA creates ownership by team owners that instead derives through the league itself. This structure of ownership is designed to ensure that the NFL remains competitive without the emergence of dominant teams.
It is however important to note that a by-product of the CBA is that it creates financial limitations on teams which in turn sets minimum player salaries which will affect a player's contractual freedom.26 Player's contractual freedom is however integral to EU law,27 meaning that before the introduction of a London franchise, discussions will be required to ensure these principles are maintained, while still ensuring the CBA operates to its fullest extent. As part of any such negotiations, and in assessing bargaining power, it is interesting to note that although a London franchise would benefit the UK, it is hard to see how the EU as a whole would actually benefit.
Despite these implications of the CBA, for the London franchise to flourish it is essential it can be accommodated within this system as it is the CBA which sets out the grounds governing the operational relationship between the NFLPA and the NFL.28 With the CBA taking centre stage and other exemptions to antitrust laws prevalent, it would be easy to believe that the league as a collective has too much power over teams to the extent that it would be able to block a team from moving cities. This may appear extreme, but this is exactly what happened in baseball where Major League Baseball (MLB) was sued after preventing the Oakland Athletics from relocating to San Jose,29 the claim being that the MLB was violating antitrust rules. Due to the antitrust exemptions available to the MLB, it was ruled that antitrust regulations were not in fact being breached and the MLB was subsequently entitled to block the Oakland Athletics move.30
In comparison to the MLB, the NFL was successfully sued by the owner of the Oakland Raiders back in 1982 on antitrust grounds when the NFL attempted to block the Raiders move to Los Angeles. This demonstrates that although the NFL has a number of antitrust exemptions available to it, it does not have the same degree of flexibility as other leagues such as the MLB.31
For an EU country to accommodate a US based sport tensions would evidently arise regarding the NFL's antitrust and labour law features, especially to the extent that the NFL is permitted exemptions under antitrust regulations. With careful planning however there is a belief that the NFL can mitigate such pressures by showing consideration to EU legal principles.32 The freedom of movement for workers within the EU would need protecting, whilst the CBA could be managed through sensitive renegotiations in order to address the change in working conditions and employment terms players would face. In achieving this, the NFL would be able to operate a London franchise on the same terms as all other teams and continue utilising the draft system and CBA which is essential to making the London franchise viable.
Where there's a will, there's a way
Buoyed by the success of the 2014 International Series, those football fans looking forward to welcoming a home team to British shores in the immediate future are going to be disappointed. It is easy to get caught up in the razz-ma-tazz spectacle of the NFL but in analysing the future of a London franchise, a dose of sobriety and realism is firmly required. There are significant practical barriers to the introduction of a London franchise and moreover, it is uncertain how the NFL will respond to the serious legal hurdles which would need to be resolved leading to questions as to the ultimate viability of a London Franchise.
What however is certain, is that the UK has definitely developed a taste for football and with games at Wembley already scheduled until 2016, this taste could soon develop into an insatiable thirst. The NFL certainly appears committed to making London a home and many would contest it is a question of when not if London gets a franchise. As the old adage goes, 'Where there's a will, there's a way' and in terms of will, it appears the NFL has this in abundance. History may still determine that the 2014/15 season left its true legacy for being the tipping point in the NFL's ambition to call London home.
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- Tags: American Football | England | Governance | National Football League (NFL) | NFL Players Association (NFLPA) | Norris-La Guardia Act 1932 | Regulation | Sherman Act 1980 | Treaty on the Functioning of the European Union | UK Immigration Rules | United States of America (USA)
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About the Author
Rob is a dedicated Sports Lawyer working within the Mishcon de Reya Sports Group. He has wide experience across a range of sports, providing litigious, commercial and regulatory advice to clients. He acts for a range of governing bodies, clubs, players and agents and has represented clients in cases before the Court of Arbitration for Sport and other international sports decision making federations, as well as at domestic arbitral and disciplinary hearings. Rob was named as a Sport Industry NextGen Leader, an initiative 'to identify tomorrow’s sports leaders and celebrate the rising stars of the sports industry'. Rob is the only practicing lawyer to receive this accolade.