Posted on 12 April 2014.
My attempt at a disclaimer: While I am a barrister, Europe is not my home jurisdiction. I’ve spent limited time getting familiar with the applicable law and it’s entirely possible for me to have missed something. Corrections from those who know better are more than welcome.
A few resources to start us off:
What does Article 19 say?
Article 19 – Protection of minors
1. International transfers of players are only permitted if the player is over the age of 18.
2. The following three exceptions to this rule apply:
a) The player’s parents move to the country in which the new club is located for reasons not linked to football.
b) The transfer takes place within the territory of the European Union (EU) or European Economic Area (EEA) and the player is aged between 16 and 18. In this case, the new club must fulfil the following minimum obligations:
i. It shall provide the player with an adequate football education and/or training in line with the highest national standards.
ii. It shall guarantee the player an academic and/or school and/or vocational education and/or training, in addition to his football education and/or training, which will allow the player to pursue a career other than football should he cease playing professional football.
iii. It shall make all necessary arrangements to ensure that the player is looked after in the best possible way (optimum living standards with a host family or in club accommodation, appointment of a mentor at the club, etc.).
iv. It shall, on registration of such a player, provide the relevant association with proof that it is complying with the aforementioned obligations.
c) The player lives no further than 50km from a national border and the club with which the player wishes to be registered in the neighbouring association is also within 50km of that border. The maximum distance between the player’s domicile and the club’s headquarters shall be 100km. In such cases, the player must continue to live at home and the two associations concerned must give their explicit consent.
3. The conditions of this article shall also apply to any player who has never previously been registered with a club and is not a national of the country in which he wishes to be registered for the first time.
4. Every international transfer according to paragraph 2 and every first registration according to paragraph 3 is subject to the approval of the sub-committee appointed by the Players’ Status Committee for that purpose. The application for approval shall be submitted by the association that wishes to register the player. The former association shall be given the opportunity to submit its position. The sub-committee’s approval shall be obtained prior to any request from an association for an International Transfer Certificate and/or a first registration. Any violations of this provision will be sanctioned by the Disciplinary Committee in accordance with the FIFA Disciplinary Code. In addition to the association that failed to apply to the sub-committee, sanctions may also be imposed on the former association for issuing an International Transfer Certificate without the approval of the sub-committee, as well as on the clubs that reached an agreement for the transfer of a minor.
5. The procedures for applying to the sub-committee for a first registration and an international transfer of a minor are contained in Annexe 2 of these regulations.
So far, so straight-forward. International transfers of players under 18 are not permitted unless the player’s situation falls into one of three narrow exceptions. (As for how narrow those exceptions are, hold that thought.)
The process for any transfers that might fall under the exception seems to be the following:
1. The ‘destination’ FA (the FA of the club seeking to register the player) submits the proposed transfer for the approval of a FIFA sub-committee;
2. FIFA sub-committee examines the transfer and approves it under one of the exceptions;
3. ‘Destination’ FA requests an International Transfer Certificate (ITC) from the ‘home’ FA.
Any violations of this process could lead to sanctions not only for the club and the ‘destination’ FA, but also 1) the ‘home’ FA if they issue an ITC without sub-committee approval and 2) the transferring club.
Did Barca breach Article 19?
In short: yes. Undoubtedly. The Disciplinary Committee ruling implicates players signed between 2009 and 2013. Out of the players we know about, most are non-European, and quite a few moved to Barcelona without their parents. There’s simply no way they can fit within the exceptions.
However, Barca’s situation seems to be even more clear-cut than that.
We already covered how the approval process is supposed to work. This process became mandatory on 1 October 2009. One year after that, FIFA implemented the Transfer Matching System, and all applications for sub-committee approval went through the system.
From various bits and pieces in the Catalan press, it seems likely that Barca simply registered the players with the Catalan Federation, and the matter went no further. How this is possible, I’m not sure. But what we can infer from this is that Barca may have breached Article 19 as a result of not bothering with the process at all.
As for the defense put up by the club to the effect that Barca aren’t the intended target of Article 19 and are in fact an example for good youth development, forget it. Every club that gets pulled up for rule infringements says the same thing. We’re the good guys, you’re ruining kids’ lives, everybody else is doing it and you should go bother them instead, etc. This simply doesn’t fly.
Notably, in Midtjylland v FIFA, the Court of Arbitration for Sport (CAS) examined the question of whether the alleged inconsistent approach of FIFA in the application of Art 19 was a breach of the non-discrimination principle. It held that the Danish club could only assert its right to be treated in a way that was contrary to the Regulations where it could prove that FIFA had a constant practice of treating other clubs in a way contrary to the Regulations.
Without the legalese: Midtjylland can ask to be exempt from Article 19 if it can prove that FIFA makes constant exceptions for other clubs. Easy, right? We can all think of cases off the top of our heads.
Not so much. In that case, no such evidence was produced. FIFA’s response to the case of the Bayern player Midtjylland used as an example – as it would probably be if Barca complained about other clubs – was to shrug its shoulders and claim not to have examined the situation. If they don’t know about it, how could they have a constant practice of making exceptions?
Here we see Barca’s problem. The argument the club has to make is essentially this: ‘yes, we broke the rules, but everybody’s been doing it for years’. The necessary implication of such an argument is that Barca behaved the way it did in reliance on FIFA’s unspoken policy of letting infringements go, and for FIFA to suddenly change its policy of indulgence is unfair. But that’s just an unspoken expectation of not being disciplined – the expectation doesn’t trump the rule itself. And Barca broke the rule.
Finally: the club’s statement doesn’t even deny the breach.
What could we have done differently to avoid this outcome?
I have a certain amount of sympathy for those in charge of Barca, faced with this complex and difficult situation. Having said that, I don’t believe their response to this fiasco meets a minimal standard of executive competence, a pattern which has sadly manifested itself over and over in the past few years.
The Midtjylland decision tells us that the 3 exceptions provided for in Article 19 are not exhaustive. This was confirmed in Bordeaux v FIFA, which also tells us something else that is very important. It’s possibly the most important fact in this whole stupid situation, and I’ve not seen anybody bring it up.
Here it is: the CAS found that if a club believed special circumstances justified the making of an exception in a certain case for reasons beyond those defined in Article 19, it may engage its FA to make an application in writing on its behalf to the FIFA sub-committee for the transfer to be approved.
I don’t work in sports law. It took me five minutes of Googling and a bit of help from a few French speakers to find that out. This, to me, raises three questions: 1) did the club know about this avenue? 2) if so, why didn’t they take it up? 3) if not, what were the people in charge doing?
This failure is concrete. The second is a bit more arguable, but bear with me. In or around February 2013, FIFA ordered Barca to stop selecting six of their youth players for breaches of Article 19.
If, for some godforsaken reason, Barca hadn’t known that they were in breach of Article 19 before that, they had to know after February 2013. They must also have known that there was no plausible denial of their breach. The question then becomes: what’s to be done about that?
The club did one thing that’s absolutely beyond reproach – they stopped selecting the players in question for official matches, as they had been told to do.
But a past breach doesn’t disappear when the infringement stops in the present. Someone who stops polluting a river when charged with illegally discharging waste still illegally discharged the waste.
Barca responded to its prior breach in the following way:
“On March 1 2013, President Rosell sent a letter to the FIFA Secretary General to propose substantial modifications to Article 19 of the Protection of Underage Players to make it more effective.”
Not to put too fine a point on it, but this is not the smartest approach. (If what I’ve read online is true, and the legal department weren’t even involved at this stage, that is simply inexcusable incompetence.) Quite aside from the dubious wisdom of lecturing FIFA on the greatness of La Masia, think of the best outcome from this letter – not just the best plausible outcome, but the best, period. That outcome is FIFA agreeing to maybe think about making some changes to its rules. Which, in fact, seems to have been the general gist of FIFA’s reply. Again: the damage was already done. A prospective amendment to the rules sometime in the future isn’t going to change that.
I can only hope that the club were in without prejudice communications with FIFA behind the scenes at the same time. By which I mean letters drafted by lawyers that took a more conciliatory tone and aimed to minimize the coming sanction. Because that’s what happens when you’re being investigated for a rule you broke – a sanction’s coming. Sensible commercial decision-makers manage risk. The best way to minimise the risk of a FIFA sanction would have been to reach some sort of compromise. Take a strong warning, a fine, something that won’t impact as heavily on the sporting project, and then figure out how to face the future.
Is the year long transfer ban an appropriate sanction?
Probably not. Here’s the ray of light Barca fans are looking for. It seems likely that Barca’s legal team will argue that the year-long transfer ban is a disproportionate sanction. And I’d say they’ve got a pretty good case.
The Midtjylland case is the only precedent I’m aware of. The Danish club were ‘issued with a strong warning’ for their infringement of Article 19, namely, registering 3 minor Nigerian players and applying for permits for a further 3. Yes, Barca’s breach was more severe, but there’s little justification for the punishment to be so much worse.
On the contrary, Barca could argue that there are mitigating circumstances in favour of a lesser sanction. Here’s where all the arguments about the merits of La Masia come in. The academy prides itself on an emphasis on welfare and personal development. If the rule is aimed at addressing exploitation, those arguments should have some weight.
What does all this mean in immediate, practical terms?
The reporting on this aspect of the case has been hilariously ineffectual and confusing. So let’s go back to the FIFA rules.
FIFA Disciplinary Code Art 124(2)
The appeal does not have a suspensive effect except with regard to orders to pay a sum of money.
The sanction will not be suspended when Barca lodges its appeal before the FIFA Appeal Committee. Let’s assume the hearing happens reasonably promptly. Here are the possibilities at this stage:
- Barca win at the Appeal Committee (where ‘win’ is defined as having the sanction reduced to a fine and/or a warning) and are able to sign players this summer. Predicting judgments is a fool’s game, but let’s just say I don’t think the odds are in our favour here.
- Barca lose at the Appeal Committee and immediately file an appeal before the CAS, along with an interim application to stay (delay) the sanction pending resolution of the appeal.
Here’s the relevant FIFA rule for appeals to CAS:
FIFA Statutes Art 67(4)
The appeal shall not have a suspensive effect. The appropriate FIFA body or, alternatively, CAS may order the appeal to have a suspensive effect.
Keep in mind that it takes about four months from the lodging of an appeal at CAS to the decision being handed down. If Barca fail at the FIFA Appeal Committee, the club probably needs to succeed in its application to CAS for stay if any transfers are going to be happening this summer.
In order to succeed in such an application, Barca need to demonstrate that 1) irreparable harm will be done to Barca if the ban is not stayed; 2) the ultimate appeal is likely to succeed and that 3) the interests of Barca in having the ban stayed outweigh the interests of FIFA in having the ban in place.
There are a few precedents for CAS granting such applications to clubs like Roma and Chelsea. On balance, looking at the criteria, I think Barca have a very good chance of having the ban stayed before the CAS appeal is decided. Which would at least solve the immediate problem and allow the crucial process of team rebuilding to begin.
What’s the likely outcome on appeal?
“The Panel stresses, first, that the task of the CAS is not to revise the content of the applicable rules but only to apply them. Second, it must be ascribed to the Appellants, especially the Club, the responsibility for not having taken into consideration the clear rules, however strict, set by FIFA with regard to the protection of minors…” – Cadiz v FIFA
As previously stated, I don’t see Barca winning the argument on breach. It will be very difficult for a judicial body to buy Barca’s argument, if Barca’s argument is that it broke the rules but should be exempt from them because it is an exemplary institution.
If you’re tempted to throw EU law at me at this point, hold your fire. I’ll address the point fully in the next section, but for now just note that CAS has consistently rejected arguments against Article 19 based on EU law.
On the other hand, I can easily see Barca winning the disproportionate punishment argument and having the sanction reduced to either a lesser ban or just a fine/warning.
What can we do to preserve the current youth system?
Even the best case scenario leaves Barca with problems for the future. If the rules don’t change, the club faces the prospect of changing its vision for La Masia. A system based on educating players from a very young age would necessarily have to exclude non-Spanish players under the current rules. (I assume this would also apply to other European clubs with similar practices, especially if Barca isn’t successful in getting the ban lifted.) Personally, I think that’s a shame for talented kids from countries with fewer resources for player development.
One of the suggestions I’ve seen in the past week is that a challenge could be mounted against Article 19 under EU law. Let’s go back to the FIFA rules for this one:
FIFA Statutes Art 68(2)
Recourse to ordinary courts of law is prohibited unless specifically provided for in the FIFA regulations. Recourse to ordinary courts of law for all types of provisional measures is also prohibited.
What this means is that Barca can’t go anywhere but CAS, and that body has been dismissive of any attempts to use international law against Article 19. For example, in the Cadiz case, CAS came to the conclusion that FIFA rules governing the transfer of youth players did not violate any mandatory principle of public policy under Swiss or international law, as the rules were in pursuit of a legitimate objective and proportionate to the objective sought. This ruling was endorsed in Midtjylland.
Without the legalese: Article 19 is fine because it exists to protect young players from exploitation, and the restrictions are tempered by providing reasonable exceptions to the rule. (For another example of how the legitimate/proportional test works, I wrote an article about the Bernard case that covers it.)
By the way, just in case you think this rule exists only to persecute Barca, regulation of the youth player market is actually pretty important. Read this and this and this.
The other possibility I’ve seen mentioned is one of the kids suing in the European courts, which takes the matter outside sporting justice entirely.
In 1995, the Bosman case before the European Court of Justice established that sport was subject to EU law only so far as it constituted an economic activity, including the activities of professional footballers in gainful employment. The right being invoked here and by the appellants in the Cadiz and Midtjylland cases is the right of freedom of movement for workers.
Keep in mind that Article 19 was drafted to comply with EU law. The second exception in Article 19 was actually added by FIFA pursuant to an agreement with the European Commission in 2001 so as to not run afoul of the right of freedom of movement. That exception only applies to players over the age of 16.
There’s an obvious problem with applying this right to very young players. They’re not workers. (Midtjyjlland touches on this.) La Masia players are not legally employed by Barcelona. In fact, they’re not allowed to sign professional contracts until they’re 16. So the right is an awkward fit at best.
Even if an European court ruled that the right of freedom of movement did apply to young players, it could still find Article 19 to be a valid restriction on the right because the rule exists in pursuit of a legitimate objective and is proportionate to the objective sought, just as CAS did.
So if legal avenues are unlikely to work, what can the club do?
Here are two ideas off the top of my head. One, in Midtjylland FIFA told CAS that a further limited exception to Article 19 existed for the purposes of development programs agreed between a national FA and a club. For example, Barca could sign an agreement with, say, the Korean FA to bring kids over. They would have to make guarantees as to education, but that shouldn’t be a problem at La Masia. I’m sure there would be pitfalls, but it’s a possibility worth exploring.
Two, Barca needs to get together with other clubs who run similar academy programs and lobby FIFA in an organised fashion. Maybe through the European Club Association, if there’s enough interest. It would be a lot more effective than being a lone voice in the wilderness, complaining about the dark hand of conspiracies.