Once, it was very popular in the Polish Ekstraklasa to hire Africans and Brazilians. An excellent example is Pogoń Szczecin whose basic team, in a match with Amika Wronki in 2006, had no fewer than 10 Brazilians. Leaving aside the issue of whether or not it is justified for foreigners to take part in national competitions, are there any limits set by the law regarding this type of procedure?

How is this regulated in the provisions of PZPS [Polish Volleyball Federation], PZPN [Polish Football Federation] and PZPR [Polish Handball Federation]?

The Rules of PlusLiga and Women’s Volleyball League are quite restrictive about the definition of a “foreigner” on the court. According to their provisions, a foreign player is considered to be not only a player with a foreign passport, but also a Polish player who has the citizenship of another country and participates in the competition on the basis of a certificate issued by FIVB at the consent of the relevant national federation associated in FIVB (other than PZPS). The regulatory provisions of PZPS are limited to the statement that none of the teams may have fewer than 3 Polish players. A Polish player is defined as a player who has only Polish citizenship.

A foreign player, as defined by the regulatory provisions of PZPN means a player who has the citizenship of the country from outside the European Union, the European Economic Area or the European Free Trade Association. In the football Ekstraklasa, in the season of 2017/2018 and the following seasons, there are no restrictions as to the number of foreigners entitled to play. However, in first title Ekstraklasa matches, a team may not have more than 2 foreign players.

The Polish Handball Federation does not treat as foreigners players from the European Union, from the states-signatories of the EU accession treaty, from the EEA member states and players who are holders of the Pole’s Card. Only players from outside those territories are treated as foreign players. According to the provisions of PZPR, in individual competitions, maximum 3 foreign players may play as members of a given team.

And what does ECJ say to that?

For the first time, the Court of Justice of the EU spoke about football players in the context of free movement of workers in its judgement in the matter of Walrave (C-36-74) dated 12 December 1974. In that judgement, the Court paid special attention to the economic aspect. The prohibition of discrimination on grounds of nationality applies in the situation when a player undertakes a business activity the main purpose of which is money earning. In the event that he plays in a national representation, the main factor is of a sports and not economic character. Therefore, according to ECJ, the above prohibition does not affect the composition of the national team.

In the famous case of Bosman (C-415/93), the Court, in its judgement of 15 December 1995, stated that the scope of free movement of workers also extends to professional players. Internal regulations in member states which limit whether the percentage or number of hired foreigners do not apply to citizens of other member states.[1] The Court decided that this provision also applies in the situation of hiring players by football clubs.

What is very important in the context of the discussed issue is the judgements of the Court in the matter of Nihat Kahveci (C- 152/08) and Simutenkov (C-265/03). In those matters, the Court relied on the rules concerning co-operation between Member States of the European Community with Turkey and Russian Federation. In consequence, it stated that a professional player with Russian citizenship (Simutenkov) and Turkish citizenship (Kahveci), who is legally hired by a club having a registered office in a member state, may not be subject to the provision concerning the limitation of the number of players from foreign countries which are not parties to the EEA treaty.

Summary

Limits concerning the hiring of foreigners by Polish sports clubs are not excessively restrictive, in particular in the event of citizens of member states of the European Union. This means that clubs may look for sports talents anywhere where they consider this to be appropriate. The question is whether this will not be to the detriment of the national team whose members may only be players with the Polish citizenship?

The author of the article is Maciej Grzesiuk, an attorney-at-law at GWW.

[1] L. Mitrus, Commentary to Art. 45, [in:] D. Miąsik (ed.), N. Półtorak (ed.), A. Wróbel (ed.), Treaty on Functioning of the European Union. Commentary. Volume I (Arts. 1-89) , LEX 2012