8.10.16

International transfer of minors: What are the rules under Art. 19?


In 2016, Manchester City were reported to Fifa by Argentine club, Velez Sarsfield, following the move of Benjamin Garre from the Argentine side to the English side. Velez's president described the transfer as an attempted "trafficking" of a schoolboy which was an "immoral act".

In order to avoid the exploitation of minors, there are strict restrictions on clubs signing players who are under the age of 18 and who reside outside the European Union (it is yet to be seen how this will affect English and Scottish clubs, post Brexit). 


What is the rule? 


The rule can be found under Article 19 of the Fifa Regulations on the Status and Transfer of Players which state that the international transfer of players are permitted only if the player is over the age of 18, apart from 3 exceptions:-
  1. The transfer is caused by the moving of the player's parents due to work commitments (unrelated to football);
  2. The transfer is to a club within 50km of the border of the country, in question and;
  3. The transfer takes place within the territory of the European Union, of a player over the age of 16
In Manchester City's case, following the complaint, FIFA advised that there was no case to answer as Garre, although from Argentina, held an Italian passport. Velez has advised that they may still appeal this decision through the Court of Arbitration for Sport (CAS).

However, Barcelona, Real Madrid and Atletico Madrid have all received transfer bans recently for breaking this rule.


Barcelona


Barcelona were found to be in breach of Art. 19 of the Regulations, amongst others, in the case of 31 minor players and were handed a transfer ban for two consecutive transfer periods, together with a fine of CHF 450,000. The Federacion Canaria de Futbol also found themselves in trouble in relation to the context of the transfer and first registration of minor players. They, too, found themselves with a fine of CHF 500,000 and given one year to amend their regulatory framework.

Barcelona lodged an appeal with the CAS arguing that (1) they had considered that the players' registration with the Federacion Canaria de Futbol (FCF) had satisfied FIFA requirements; (2) the sanction they had received (a ban over two consecutive transfer windows) was disproportionate to the breach committed and incongruous (cited Midtjylland v FIFA) and (3) Barcelona's academy "La Masia" protected and educated its players at all times, therefore the club disagreed with FIFA's opinion that the minors, in question, were at risk. 

In relation to point 1, the CAS held that the FCF was not an association, only the Royal Spanish Football Federation had responsibility for the registration and transfer of minors. Barcelona were under an obligation not to transfer underage players unless the circumstances fell into one of three exceptions (described above). The burden of proof lies with Barcelona and they had failed to provide any evidence to suggest that one of the exceptions applied to any of the circumstances of the players concerned. Notwithstanding that, the CAS held that Barcelona had also breached Art.19-bis for failing to report the 31 minors who were attending La Masia to the Spanish FA. 

In relation to point 2, the CAS held that the punishment received by Barcelona was not disproportionate or harsh, in the circumstances. Indeed, FIFA could have expelled the club from a competition; relegate it to a lower division or deduct points, as had happened in other cases. Barcelona had submitted that the ban should relate to players under the age of 18 and not first team professional players. The CAS held that there was no support for that argument anywhere in the FIFA statutes and regulations and to do so would be to narrow the discretion of the governing body when applying sanctions. In considering the proportionality of punishments, the seriousness of the breach will be considered along with the need to deter clubs from a repeat performance and of course, the importance of the rule that the governing body is attempting to protect. Article 19, as discussed above, relates to the international transfer of minors which is considered a very serious issue for all national governing bodies and international sporting federations, regardless of the sport concerned. The rule is there to protect teenagers, mainly from impoverished areas of the world, from being lured away from their families and transported around the world in the hope that they will make a profit for club and agent. Many do not go on to become professional players and can find themselves abandoned in a foreign country with no family to lean on. 

In an attempt to reduce the sanction, Barcelona had cited the case of Midtjylland v FIFA whereby the club had received a warning only, for the transfer of 6 minors over an 8 month period. The CAS drew distinctions between Midtjylland and Barcelona's case stating that Barcelona had transferred 31 players in total in breach of FIFA regulations (albeit not all breached Art.19) and this occurred over a seven year period. 

In relation to point 3, aggravating factors, the FIFA disciplinary code (Art. 39.4) states: "The body shall take into account all relevant factors in the case and the degree of the offender's guilt when imposing the sanction." The Appeal decision from FIFA stated that it considered that the minors' integrity was at risk or in danger as a result of Barcelona's "careless and reckless behaviour". However, Barcelona argued that the players attending their academy were not in any danger nor was their football career. The players are nurtured and developed at all times. If players are not going to go onto professional football careers, alternatives are put in place for them. CAS agreed with that argument and therefore one aggravating factor, at least, was held to be unfounded in their opinion. You may think that would have had an impact on the sanction but it did not and the panel upheld the original FIFA punishment of a football transfer ban, across all levels, over two consecutive transfer windows. 

For further information concerning the Barcelona case, see Lombardi Associates' case analysis here: http://lombardi-football.com/wp-content/uploads/2015/09/CAS-FC-Barcelona-transfer-ban.pdf


Real Madrid and Atletico Madrid



In early 2016, Real Madrid received a transfer ban which was initially delayed following appeals, which Fifa ultimately rejected. The club is now facing a transfer ban for the next two windows, along with a fine of CHF 360,000, and has vowed to lodge an appeal with CAS. However, there are no precedents in previous cases to CAS on which RM can rely on. Whilst full details behind the ban have not been released, it is understood that the breaches took place between 2005 and 2014 and concerned up to 50 players including Zinedine Zidane's children. In appealing to CAS, it is likely that RM will defend the allegations on the basis that none of the minor players concerned were in any danger. They will likely refer to their renowned academy as well as their education programme but this argument, as explained above, did Barcelona no favours in reducing their sanction and it is difficult to see how RM will escape punishment, especially given the alleged 10 year period in which the breaches occurred and the number of minors involved. However, in relation to Zidane's children, it is likely that RM will contest Fifa's findings as it is reported that Zidane's children have all been living in Madrid since 2011, prior to any involvement with the Club. The above arguments will likely be put forward in defence of any aggravating factors under FIFA's Art. 39.4 of its Disciplinary Code, however, given Barcelona's experience it is unclear as to whether the CAS is bound to take into account aggravating/mitigating factors when considering a sanction.

Atletico Madrid will also present their case to the CAS following a one year transfer ban for breach of Article 19. The precise details of the breach have not yet been released but it is understood that there is a breach of Articles 5, 9, 19 and 19-bis as well as annexes 2 and 3 of the Regulations on the Status and Transfer of Players, which concern 50 of the club's minor players. The club's breaches also cover a 7-8 year period. Again like Barcelona, the numerous breaches of regulations will do Atletico no favours. In determining whether Barcelona's sanction was reasonable, the CAS drew distinctions between the number of breaches of regulations committed by Barcelona compared to that of the case cited Midtjylland v FIFA, when forming their conclusion.

That said, the decisions following the CAS appeal, of both clubs, will be much awaited in order to shed some further clarification on what weight, if any, mitigating factors, such as the educational benefits of the academies, will have on any final decision from the CAS, when arguing for a reduction in sanctions.

**Update**


On  20 December 2016, The Court of Arbitration for Sport (CAS) issued its decision in the arbitration procedure between Real Madrid and the FIFA.

The appeal of the Spanish club was partially upheld. As a consequence, the decision rendered by the FIFA on 8 April 2016 was set aside and replaced by a CAS decision in which the following elements of the FIFA decision were modified: Real Madrid CF is banned from registering any new players, either nationally or internationally, for one entire transfer period (previously two)Real Madrid CF is ordered to pay a fine to FIFA of CHF 240,000 (previously CHF 360,000). Finally, the reprimand imposed by FIFA is maintained. The CAS decision means that Real Madrid can sign players again as of Summer 2017.

The reasoned award, which will be notified to the parties in early 2017, will set out the reasons for the Sole Arbitrator’s decision. In essence, the Sole Arbitrator found that some of the rule violations alleged by FIFA could be upheld, but not all of them. Considering that the infractions committed by Real Madrid CF were less serious and less numerous than argued by the FIFA judiciary bodies, the Sole Arbitrator ruled that the sanctions imposed on Real Madrid CF had to be reduced.

The CAS decision had some scratching their heads as to why Barcelona didn't get off the hook, almost one year earlier when they too pitched up at the CAS to appeal their sanctions in relation to the transfer of minors.

Whilst the full decision is awaited, there have been suggestions as to why Real Madrid's final outcome was less severe. Those are as follows:-

  • FIFA repeatedly warned Barcelona about their breaches of the transfer of minors rules, however, those warnings were ignored. In direct contrast to that, Real Madrid are noted to have immediately made efforts to amend their policy for the signing of minors.
  • Barcelona had more cases of players whose purchase had been highlighted, as in breach of the rules, than that of Real Madrid. 
  • There was an element of involvement of the Catalan Football Federation, in the Barcelona case, who failed to report the purchase of players properly to the Spanish Football Federation (that too resulted in a fine for the federation). However, in the Real Madrid case, the Madrid Football Federation reported in the correct manner to the Spanish Football Federation.
  • The arbitrary panel differed in both cases: In the Barcelona case, the panel consisted of 3 individuals but in the Real Madrid case, parties opted for a sole arbitrator in order to speed up the process.

The full decision is awaited and expected in early 2017, when further details will come to light.

IMPORTANT: This post is not intended to be a legal briefing, it is not intended to be a statement of the law and no action should be taken in reliance on it without specific legal advice.

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