Editor’s note: Kester Mekenkamp is an LL.M. student in European Law
at Leiden University and an intern at the ASSER International Sports Law
Centre. This blog is, to a great extent, an excerpt of his forthcoming master
thesis.
On 24 November
2016, a claim was
lodged before a Zurich commercial court against FIFA’s transfer regulations by
a 17-year-old African football player.[1]
The culprit, according to the allegation: The provision on the protection of
minors, Article 19 of the Regulations
for the Status and Transfer of Players.[2]
The claimant and his parents dispute the validity of this measure, based on the
view that it discriminates between football players from the European Union and
those from third countries. Besides to Swiss cartel law, the claim is
substantiated on EU citizenship rights, free movement and competition law. Evidently,
it is difficult to assess the claim’s chance of success based on the sparse information
provided in the press.[3]
Be that as it may, it does provide for an ideal (and unexpected) opportunity to
delve into the fascinating subject of my master thesis on FIFA’s regulatory
system aimed at enhancing the protection of young football players and its
compatibility with EU law. This three-part blog shall therefore try to provide
an encompassing overview of the rule’s lifespan since its inception in 2001. This
first part will shed its light on the “birth” and “first years” of the provision,
thereby illustrating the relevant developments from 2001 till 2009. The heart
of this analysis is formed by two decisions of the Court of Arbitration for
Sport (“CAS”): The Acuña and FC Midtjylland case. The second part
shall subsequently cover the rule’s “adolescent years”, which span from 2009 to
the present. Therein, the major changes put forward in the 2009, 2015 and 2016
versions of the RSTP will be addressed, together with the important CAS
decisions concerning Article 19. The third, and final, part will constitute a
substantive assessment of the provision under EU Internal Market law.
The first years, from 2001 onwards[4]
The 2001
“Commission-condoned” FIFA transfer rules included for
the first time a section dedicated to the enhancement of the protection of
minors.[5]
An accompanying
circular by FIFA stipulated that the new transfer rules imposed strict
conditions “in order to provide a stable environment for the training and
education of players”.[6]
Moreover, stating that abuses frequent in the past had to be tackled, it seemed
to inaugurate a new era of safeguarding young footballers.[7]
The starting point of the new provision is a general prohibition for players under
the age of 18 (“minor”) to transfer internationally.[8]
The same principles apply to a so-called “first registration” of a minor who
requests to be registered in a country other than that of his nationality.[9]
An absolute transfer ban however was apparently deemed too radical.[10]
The prohibition was therefore made subject to two exceptions. Firstly, the
“parents-rule” allows for minors to transfer internationally when their family
moves to a country, in which the new club is located, for “reasons not related
to football”.[11] Secondly,
within the territory of the EU and EEA, players younger than 18 but above the
minimum working age can transfer internationally, given that their sporting and
academic education is guaranteed by the new training club.[12]
FIFA further stressed its intention to issue, together with UEFA, a code of
conduct guiding the national associations regarding these conditional
arrangements.[13]
However, this self-obligation was removed from the subsequent 2005 edition of
the RSTP.[14]
Only a year
after the introduction of the new rules, the first adaptations were made in
response to concerns raised by national associations.[15]
FIFA’s Players Status Committee (“PSC”, FIFA’s competent body adjudicating any
disputes on matters related to the protection of minors) decided to add a third
exception, which became known as the “50 + 50-rule”.[16]
Hereby it aimed at dealing with the case of players living close to national
borders where “cross-border traffic is a daily matter”.[17]
Those young players living within this 50 km range may attend a club of a
neighbouring association if that club is similarly situated within a 50 km
distance of the border, provided that these players remain living at home. The
two-part FIFA Circular is rather ambiguous in its explanation, stating on the
one hand that minors in this situation can solely “train” with the club situated
across the border,[18]
while on the
other hand introducing a full exception to the transfer ban (thereby permitting a
“complete” international transfer).[19]
This latter view is in accordance with the
regulations’ revision that entered into force on 1 July 2005.[20]
Next to adding the “50 + 50-rule”, the new article 19 RSTP slightly adjusted
and hence further clarified the first two exceptions. A minor can transfer
internationally only if his “parents” move to another country for reasons not
related to football, restricting the scope of the rule from “family” to “parents”.[21]
Moreover, with respect to the “EU and EEA-rule” it set the international
standard of 16 as the minimum age and spelled out several additional
requirements on the arrangements made by the recruiting club for the academic
education of the transferred player.[22]
These oblige the club to: “provide the player with an adequate football
education and/or training in line with the highest national standards”;
“guarantee an academic or vocational education which will allow the player to
pursue a career other than football”; “ensure that the player is looked after
in the best possible way” by arranging housing with optimal living standards;
and “provide its association with proof of compliance”.[23]
Importantly, paragraph 4 orders national associations to safeguard compliance
by clubs and paragraph 5 installs the PSC as the competent body to adjudicate
in this field.[24] Hence,
more explicit accountability and control was established concerning the
abidance with the rules on the protection of minors.
In early 2007, FIFA issued a
commentary on the RSTP in order to further clarify the separate provisions.[25]
It stipulated that the international transfer of minors should be subject to
stern restrictions in order to provide a stable environment for the player’s
training and education.[26]
Furthermore, “the term ‘parents’ has to be understood in a strict way”, a minor
therefore cannot live with a close relative in the country of the new club. The
document acknowledges that the “EU and EEA-rule” was adopted as to not
interfere with EU free movement law.[27]
National associations are once more reminded that they possess a vital role in
ensuring compliance, amongst other by carrying our on-spot investigations
regarding the mandatory educational arrangements if need be.[28]
The Acuña
case
These rules
have not operated in a vacuum. The real effect of the provisions on the
protection of minors has been shaped by the judicial practice of FIFA, through
the PSC, and first and foremost the Court of Arbitration for Sport (“CAS”, the
competent institution that deals with appeals contra FIFA’s internal
decisions).[29]
The first (published)
case before the CAS concerning a dispute on the provision’s content was Càdiz C.F. and Carlos Javier Acuña Caballero v. FIFA and Asociación Paraguaya de Fútbol.[30]
In January 2005, the 16-year-old Acuña Caballero represented his Paraguayan
club Olimpia in an international tournament for players under 20. His
successful performance led to foreign interest, and on 14 February 2005 he,
together with his family, left Paraguay for Cádiz, Spain.[31]
Three days later, Cádiz C.F. (a club meandering through the Spanish second and
third league) and the player signed an employment contract, and subsequently
Olimpia agreed to the transfer.[32]
However the Paraguayan football association refused to issue the compulsory
international transfer certificate (“ITC”), referring to Acuña Caballero’s age.[33]
The FIFA PSC decided upon the matter on 26 August 2005 by verifying whether the
requirements of the “parents-rule” of Article 19(2)(a) RSTP were observed. By
highlighting the apparent lack of intention to continue his education besides
football, as well as the fact that the mother’s employment contract commenced
much later than her son’s, the PSC found the case to be in total contradiction
with the letter and spirit of the exemption: “the mother would have followed
the player”[34],
instead of the other way round. The PSC noted that the protection of minors is
one of the fundamental principles of the RSTP, which requires the strict
application of Article 19, and consequently refused the request of the Spanish
association to register Acuña with Cádiz C.F.[35]
Both the club and the player appealed this decision before the CAS, after which
the tribunal organized a hearing of all parties concerned and several witnesses
in order to grasp the factual context of this international transfer.[36]
The CAS Panel swiftly countered the appellants’ views by stating that FIFA’s
rules limiting the international transfer of minors do not violate any
mandatory principle of public policy under Swiss law or any other national or
international law, insofar that “they pursue a legitimate objective, namely the
protection of young players from international transfers which could disrupt
their lives, particularly if, as often happens the football career eventually
fails or, anyways, is not as successful as expected and they are proportionate
to the objective sought, as they provide for some reasonable exceptions”.[37]
Subsequently it explained that, it had to be determined whether the move of the
mother was related to the transfer of her son, and ergo whether the exception of article 19(2)(a) was applicable? The
Panel found that “the players’ decision to move to Spain was made first”[38],
by emphasizing the inconsistencies in the appellants’ statements, and as a
result thereof doubting their truthfulness.[39]
Furthermore, the club’s submission stated that “from all the possibilities, the
offer made by CÁDIZ C.F. was the most suited to his parents’ wishes”, which
lead the Panel to believe that in fact the clubs’ offer for her son made the
mother look for a suitable job in Cádiz.[40]
As such, the Panel established that the appellants could not benefit from the
exception, since it concluded that Acuña’s family moved “for reasons linked to
football”.[41]
The Acuña case exhibits a strict application
of the rule. This strict application, although being in line with FIFA’s
policy, lead to a disadvantageous outcome for the minor in question.[42]
As argued by the player, his life in Paraguay meant living alone in a small
apartment at his agent’s house and only seeing his mother two or three times a
year.[43]
The move to Spain allowed him to live with his mother and was therefore
positive for both his career and his family. The CAS Panel addressed this
matter by stating that “the task of the CAS is not to revise the content of the
applicable rules but only to apply them”.[44]
Moreover, it stressed that any adverse consequences in relation to the refusal
to allow the player to be registered with the club were the result of the
appellants own actions. The Panel finally put forward that the player would not
have to face the adverse consequence for long as he would turn 18 in a couple
of months.[45]
The FC
Midtjylland case
The next
confrontation followed suit: the case of FC Midtjylland.[46]
The Danish Superligaen club came in
FIFA’s crosshairs through a FIFPro complaint concerning the signing of six
young Nigerians.[47] These
players were registered as amateurs and played for Midtjylland’s youth teams.
Additionally, they were granted short-term residence permits as students,
excluding the right to work, and enrolled in the Danish educational program.[48]
The FIFA PSC emphasized that Article 19 RSTP on the protection of minors, being
one of the principles included in the FIFA/UEFA and European Commission
agreement and “one of the pillars of the regulations”, is applicable to both
amateur and professional players.[49]
Thereto, only a strict, consistent and systematically implemented interdiction
subject to very limited exceptions could stop the abuse and maltreatment of
many young players. The PSC hence warned the Danish Football Association (DBU)
and FC Midtjylland, and subsequently refused the registration of the players.[50]
The CAS Panel
addressed four main issues in relation to what had been brought to the fore in
the parties’ submissions concerning Article 19 RSTP:
1. Is it
applicable to both professional and amateur minor players?
2. What are the
exceptions and are any of these applicable?
3. Does the
application of the provision “contradict any mandatory provision of public
policy or any of the provisions of EC Law”? Is there a breach of the
non-discrimination principle, following the alleged inconsistent approach of
FIFA?[51]
In short, the
Panel answered the first question in the affirmative, based on a textual
approach together with taking due notice of the intended objective as “to apply
Art. 19 of the RSTP restrictively to professional players only could result in
obviating protection of young amateur players from the risk of abuse and ill
treatment”.[52] As to
the second question, it was noted that the codified exceptions provided in
Article 19(2) RSTP were not applicable to the case at hand. Nevertheless, the
Panel regarded this list not to be exhaustive and allowed for two additional
exceptions relating to students: first, “where the players concerned could
establish without any doubt that the reason for relocation to another country was
related to their studies, and not to their activity as football players”, and
second, “where the association of origin and the new club of the players
concerned have signed an agreement within the scope of a development program
for young players under certain strict conditions (agreement on the academic
and/or school education, authorization granted for a limited period of time)”.[53]
Yet, neither of these additional exceptions applied here.[54]
The third issue was related to appellant’s Cotonou
Agreement argument.[55]
The Panel agreed that the non-discrimination rights are conferred by article
13(3) of the Cotonou Agreement to “Workers of ACP countries legally employed in
its territory”.[56]
Nonetheless, the Nigerian players in question are to be considered as
“students”, not as “workers” legally employed in Denmark, which means they fall
outside the scope of this provision.[57]
The Panel moreover dismissed, based on that same reasoning, the appellant’s
claim founded on the Simutenkov[58]
case in their attempt for the “EU and EEA-rule” of Article 19(2)(b) RSTP to be
applicable.[59] The
Panel furthermore stressed with regard to this third question that agreements
between the EU and third countries that prohibit discrimination in working
conditions are clearly limited in scope to foreigners “legally employed in the
Member States” and do not concern access to the employment market.[60]
It also endorsed the Acuña case in
that the FIFA rules limiting the international transfer of minor players “do
not violate any mandatory principle of public policy and do not constitute any
restriction to the fundamental rights that would have to be considered as not
admissible”.[61] Lastly
on the fourth issue, in reaction to the appellant’s allegation that FIFA’s
approach was inconsistent and favoured bigger clubs (by reference to Bayern
München’s registering a minor player from South America), the CAS solely
pointed at the general principle “that no one can claim for equal treatment by
referring to someone else who has adopted an illegal conduct, without sanction
(nemini dolus alienus prodesse debet)”.[62]
Concluding, FC Midtjylland was found to have breached Article 19 RSTP as the
CAS favoured a strict interpretation, yet simultaneously, it allowed for two
additional implicit exceptions for students.
Around this
point in time, the European Commission’s attention was also drawn to the protection
of minors in sport. In its white paper on
sport, it pointed at “children who are
not selected for competitions and abandoned in a foreign country, often falling
in this way in an irregular position which fosters their further exploitation”.[63]
Even though it makes reference to neither of the two abovementioned cases, this
explicit consideration by the Commission, emphasizing the importance of
protecting minors, could be seen as an indirect endorsement, prima facie, of the strict
interpretation of Article 19 RSTP by CAS.
The next,
second, part of this blog series shall aim to cover the rule’s “adolescent
years”, which span from 2009 to the present. The major changes put forward in
the 2009, 2015 and 2016 versions of the RSTP will be addressed. Furthermore, important
CAS decisions concerning Article 19, Muhic,
Vada I and II, FC Barcelona, RFEF, and the FIFA decisions relating to
Real and Atlético Madrid, will be at the centre of the attention.
[1] CNN, 24
November 2016, “FIFA: African footballer, 17, takes
world governing body to court”
[2] Article 19 FIFA RSTP (2016)
[3] Eurosport, 24
November, “FIFA faces lawsuit over rules
banning transfer of minors”
[4] The text of
this blog contribution is part of my forthcoming thesis, which shall be
submitted in order to complete my master’s degree in European Law at Leiden
University.
[5] Art. 12 FIFA RSTP 2001.
[6] FIFA Circular no. 769,
24 August 2001.
[7] N. St. Cyr Clarke, “The beauty and the beast: Taming the
ugly side of the people’s game”, 2011 CJEL, P. 627.
[8] Art. 12(1) FIFA RSTP 2001.
[9] Art. 12(2) FIFA RSTP 2001.
[10] Press
release EU Commission, IP/01/29, 14 February 2001.
[11] Art. 12(1)(a) FIFA RSTP 2001.
[12] Art. 12(1)(b) FIFA RSTP 2001.
[13] FIFA
Circular no. 769, 24 August 2001.
[14] F. de Weger, “The Jurisprudence of the
FIFA Dispute Resolution Chamber”, 2nd edition, Asser Press (2016), p. 14.
[15] FIFA
Circular no. 801, 28 March 2002.
[16] Supra at 14, pp. 36-37.
[17] Supra at 15.
[18] Ibid.
[19] New Art. 12(1)(c) FIFA RSTP 2001 in FIFA
Circular no. 801, 28 March 2002, “Amendments to the FIFA Regulations for the
Status and Transfer of Players”.
[20] Art. 19(2)(c) FIFA
RSTP 2005.
[21] Art. 19(2)(a) FIFA RSTP 2005.
[22] Art. 19(2)(b) FIFA RSTP 2005.
[23] C. Lembo, “FIFA
Transfer Regulations and UEFA Player Eligibility Rules: Major Changes In
European Football And The Negative Effect On Minors”, Emory Int'l L. Rev
2005, p. 557.
[24] Art. 19(4) and 19(5) FIFA RSTP 2005.
[25] FIFA
Circular no. 1075, 18 January 2007.
[26] Commentary
on the Status and Transfer of Players,
p. 58.
[27] Ibid, p. 59.
[28] Ibid, p. 59.
[29] For more information see A. Duval, “The FIFA
Regulations on the Status and Transfer of Players: Transnational Law-Making in
the Shadow of Bosman” in A. Duval and B. Van Rompuy (Eds.) “The Legacy of
Bosman”, Asser Press (2016), pp. 81-116; A. Duval “The
Court of Arbitration for Sport and EU Law. Chronicle of an Encounter”, MJ 2015, pp. 224-256.
[30] CAS 2005/A/955 Càdiz C.F., SAD v FIFA
and Asociación Paraguaya de Fútbol and CAS 2005/A/956 Carlos Javier Acuña
Caballero v/FIFA and Asociación Paraguaya de Fútbol.
[31] Ibid, para. 2.5.
[32] Ibid, paras. 2.6-2.7.
[33] Ibid, para. 2.10.
[34] Ibid, para. 2.16.
[35] Ibid, para. 2.17.
[36] Ibid, paras. 3.6-3.17.
[37] Ibid, para. 7.2.
[38] Ibid, para. 7.3.1.
[39] Ibid, paras. 7.3.2-7.3.5;
Especially the circumstances surrounding the mother’s search for a job, the agreement
between her and her employer, and the reasons why she decided to take up work
in Cádiz while, being a cook, she could have worked anywhere in Spain, did not
assist to their case.
[40] Ibid, para. 7.3.6.
[41] Ibid, para. 7.3.8.
[42] FIFA Circular no. 801, 28 March 2002.
[43] Supra at 30, para. 3.3.5 and 3.11.
[44] Ibid, para. 7.3.10.
[45] Ibid, para. 7.3.10.
[46] CAS 2008/A/1485 FC Midtjylland A/S v.
Féderation Internationale de Football Association.
[47] A. Wild, “Young
Football Players: Protection of Minors” in “CAS and Football: Landmark
Cases”, Asser Press (2012), p. 249.
[48] Ibid, p. 250.
[49] Supra at 46, p. 3.
[50] Ibid, p. 4.
[51] Ibid, para. 10.
[52] Ibid, para. 15.
[53] Ibid, paras. 19-21.
[54] Ibid, para. 22.
[55] The
Cotonou agreement between the EU and certain African, Caribbean and Pacific
States, including Nigeria;
Ibid, paras. 30-31.
[56] Supra at 46, para. 35.
[57] Ibid, para. 36.
[58] Case
C-265/03 Simutenkov v Ministerio de Educación y Cultura and RFEFl [2005] ECR I-2579, Therein the ECJ ruled that non-EU/EEA sportsmen
can challenge nationality clauses if: they are legally employed in a host EU
Member State and “can rely upon a directly effective equal treatment provision
included in an international agreement establishing a partnership between the
EU and their country of origin, regardless of whether accession to the EU is
envisaged or not”, see S. Van den Bogaert, “From Bosman to Bernard” in J.
Anderson (Ed.), “Leading Cases in Sports Law”, T.M.C. Asser Press (2013), p.
104.
[59] Supra at 46, para. 40.
[60] Ibid, para. 41.
[61] Ibid, para. 45; Supra at 30, para. 7.2.
[62] Supra at 46, paras. 47-49.
[63] The
White Paper on Sport (COM 2007) 391 final,
point 4.5; European Parliament, Report on the on the future of professional
football in Europe (2006/2130(INI)), p. 25.