Transferring professional athletes to the US - HR Review

Assessing the transfer of Steven Gerrard and similarly situated athletes to the United States as early as Pelé's transfer to play for the New York Cosmos in 1975, a career move to the US has presented an appealing option for accomplished footballers who are late into their playing years.

With a slower pace of play and the promise of lucrative contracts as designated players with Major League Soccer (MLS) clubs in the US, the transfer of talented footballers continues with the imminent arrival of Steven Gerrard of Liverpool FC to the Los Angeles Galaxy. The Liverpool FC captain follows a number of other high profile players who left European leagues to play in the US, including David Beckham, Thierry Henry, and David Villa.

Non-US nationals, including athletes, are not permitted to simply relocate and undertake productive employment within the US. They require a visa. The most appropriate visa for Gerrard and others with extraordinary ability or achievement in athletics is the O-1A visa.

To qualify for an O-1A visa, an athlete must demonstrate extraordinary ability via sustained national or international acclaim. Factors considered in determining that an individual is worthy of an O-1A visa include receipt of a major internationally recognised award, membership in notable professional associations, high salary, and acting in a critical or essential capacity for organisations and establishments of a distinguished reputation.

For footballers and other athletes that possess Gerrard's level of accomplishment, meeting these criteria is rarely a challenge. Throughout his career with Liverpool FC and the England national football team, Gerrard amassed numerous individual and team awards from prominent media, professional associations, and athletic governing bodies, including: winning the UEFA Champions League (2005), being named UEFA Club Footballer of the Year (2005), and England Player of the Year Award (2007, 2012). Gerrard's remuneration from the Los Angeles Galaxy is estimated to be approximately £20 million over four years, and his services may be classified as both critical and essential to a football club of distinguished reputation.

The immigration filing process for athletes of extraordinary ability is comprised of three steps. First, the athlete's credentials must be submitted for a consultation with a relevant labour or management organisation. For footballers, a written consultation confirming extraordinary ability is required from the Major League Soccer Players Union.

Next, a petition must be filed by the employer, or its designated agent, requesting O-1A status. Upon filing, the maximum wait for a decision is normally fifteen calendar days when the petitioner opts for expedited premium processing.

Finally, the athlete is typically required to appear at a US embassy or consulate abroad to acquire the O-1A visa in his/her passport on the basis of an approved petition. Embassy interviews are commonly available in a matter of days and a visa is typically issued within a week of an interview. Total processing time from submitting for an advisory opinion to visa issuance is as few as 6 to 8 weeks under optimal conditions.

The O-1A visa issued to Gerrard will likely be valid for the maximum 3 year duration with the option to extend an additional one year at a time. There is no limit to the number of extensions that may be sought.

The most prominent challenge in transferring athletes to the US is demonstrating an extraordinary ability in their chosen field. For an individual with a storied career as captain of Liverpool FC, there is little doubt that Gerrard would meet the criteria as an individual of extraordinary ability. In contrast, less accomplished athletes with fewer awards, lower pay, and associated with less prominent clubs face greater challenges in demonstrating sustained national or international acclaim.

The other key consideration in assessing the ease of transferring footballers and other athletes to the US is past criminal behaviour. Gerrard has a December 2008 arrest on suspicion of assault for which he was ultimately acquitted while citing self-defence. An arrest of this nature may require Gerrard to submit relevant records and an explanation of the case to the US embassy issuing the O-1A visa. A prior arrest may result in a delay of days or weeks while additional security checks are performed. However, a simple assault, even if it had resulted in a conviction, is unlikely to bar an individual from acquiring an O-1A visa and entering the US.

In more serious cases, past criminality may result in a finding that an individual is inadmissible to the US and ineligible for an O-1A visa. Convictions or admissions that are commonly attributed to professional athletes, including illicit drug use and domestic violence are crimes that will typically result in a finding of inadmissibility to the US. Even in the absence of a criminal conviction, the treatment of such crimes is so stringent that admissions in unrelated matters (e.g. civil depositions) can potentially result in a finding of inadmissibility. When an individual is deemed inadmissible, there are often waivers available to overcome ineligibilities. Waivers typically require a demonstration that the individual has reformed and that his/her transfer stands to generate some positive economic or social benefit in the US.

While the former Liverpool F.C. captain must follow the same procedures as other applicants, his high level of accomplishment supports his eligibility for acquiring an O-1A visa. While a single arrest and acquittal on suspicion of assault may create minor delays in visa issuance, it is extremely unlikely to jeopardise a transfer to the MLS. While the process of securing an O-1A visa may take several weeks, the transfer of Gerrard is ultimately unlikely to prove particularly difficult either for him or his new employer.

William Diaz, Laura Devine Solicitors

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