*Sharun Salvi
Introduction
The footballing industry is currently valued at over $30B [1], and it follows a simple rule - better players lead to better results. The prodigious boom in commercialization and revenue in sport has meant that clubs’ appetite for young emerging stars has snowballed. The past three decades have witnessed a spectacular rise in the number of minors registered, and to put this in perspective, Chelsea FC currently has over 400 youth players as part of their feeder system and has almost 40 first team U-21s on loan [2]. Clubs have come up with the design of feeder clubs and organizations, which have raised questions of minors’ rights and safety. The trend of focusing on the commercial aspect over humanitarian concerns has exposed young athletes to emotional harm, human trafficking and financial exploitation. In lieu of this, FIFA came up with the controversial Article 19 to protect minors from detrimental injury.
Today, 15 years later and after advancements in communication and surveillance technology and increased awareness, how relevant is this regulation?
Understanding the legislation- A legal primer
FIFA succinctly lays down the regulations for the international transfers of players in the ‘Regulations for Status and Transfers of Players, 2005’ (RSTP) [3]. Article 19 has 5 important provisos that elucidate the legality of transfers.
Article 19(1) of the RSTP states, “International transfers of players are only permitted if the player is over the age of 18”. While this prima facie might seem elementary, FIFA does lay down certain exceptions to this rule.
Article 19(2) gives 3 exceptions that are strictly scrutinised by the authorities in all cases: -
19(2)(a) states that an international transfer may be allowed if the player's parents move to the country for non-footballing reasons and the minor follows them but not the other way around.
19(2)(b) states that international transfers between European Union territories or European Economic Area territories are allowed. The minor is not less than 16, and the new club fulfils all the requirements in the provision.
Article 19(3)(c), often referred to as the ‘border rule’, states that an international transfer between 2 neighbouring countries will go through if the minor lives within 50km from the country's border.
It is pertinent to note that these exceptions are not exhaustive and include transfers for refugees and humanitarian reasons.[4]
The intent behind the reforms
FIFA revised the RSTP (2001) in 2005 to add Article 19. The Court for Arbitration for Sport (CAS) in 2008 interpreted the exceptions giving it a stricter liability and closed all loopholes regarding the professionality of players in FC Midtjylland A/S v. FIFA [5]. The overly strict nature of this regulation is because FIFA’s priority has always been its players' safety, which was forced by a surge in cases relating to youth player trafficking. European clubs often scouted amateur athletes from countries in Africa or South America, giving them trial opportunities and families were promised large sums of money on selection, but these athletes often ended up on the streets. Countries with lower literacy rates and poorer standings in the socio-economic strata often fell prey to such schemes. Article 19 aims to end such illicit practices and protect players from the hands of nefarious clubs.
The role of international jurisdiction
In its previous judgements, CAS ruled that the regulations violate any international laws or fundamental foreign laws. Clubs have often found it challenging to overturn sanctions because of the delicate nature of the matters and since FIFA often has a convincing and well-founded legal basis to further its claims. The strict enforcement means that superclubs such as Barcelona, Real Madrid and Atlético Madrid often find themselves in precarious positions and could potentially end up in hot water if they aren’t careful.
While interpreting these laws, FIFA follows strict adherence to Swiss Law and does not entertain pleas based on local treaties and doctrines but cases pertaining to and in violation of the fundamental laws of a country are the exceptions that are considered. Thus, in the eyes of the law, a person is deemed to be a minor until they attain 18 even if the age of majority is lower in a country (e.g., Brazils age to contract is 16). In FC Midtjylland A/S v. FIFA, CAS held that the Cotonou Agreement was a part of European Community Law. Still, EC Law does not have the requisite standing to overturn Article 19 and provisions of foreign laws can overturn CAS laws only if they violate fundamental rights.
The EU Exception – Is it violative?
Article 19 has received high criticism from clubs and athletes who believed that they were denied deserving opportunities and introducing preferential treatment based on nationality.
Despite the call for the safety of minors, FIFA allows transfers within the European Union and European Economic Area territory under the age of 18. Players belonging to the EU/EEA countries or players simply holding citizenships are allowed to be transferred to or within Europe. This is because not allowing so would contravene the agreement of free movement and occupation of the EU. In 2001, FIFA and the EU agreed [6] to allow such bending of the rules but only on a territorial basis. The Valentin Vada case changed this and allowed movement for minors holding citizenships but not belonging to EU countries as well.
The FC Girondins de Bordeaux v FIFA (Valentin Vada) [7] case allowed for a more liberal interpretation. CAS, through this judgement, allowed for minors holding dual citizenships or European ancestry to move freely. This paved the way for the likes of Lionel Messi (Spanish ancestry) and Christian Pulisic (Croatian citizenship) to move to Europe at age of 16 and become established stars.
This rule puts athletes not holding an EU/EEA citizenship in an invidious position. CAS in Club Atlético Velez Sarsfield v. The Football Association Ltd [8] said that such an interpretation leads to ‘unequal treatment’ of athletes and did point out that there is no apparent justification for FIFA to apply such differential treatment.
Bypassing Article 19 – The Atlético Madrid ruling
Clubs have evolved with the changing regulations and some are even two steps ahead. A recurrent technique used to bypass such regulations is called ‘parking players’. This refers to the widespread system of shuffling players through ‘sister clubs’ or smaller beneficiary clubs until they are eligible to play for the first team. This can often be seen in the youth academies of big clubs such as Real Madrid and Chelsea. Atlético got themselves sanctioned while attempting something similar.
In 2016, Atlético Madrid was charged with 201 breaches of 19(1) and 19(3) for ‘parking’ a staggering amount of 221 minors over 7 years. Atlético attempted to register players with a third party called ATMadrileño, which here acted as a feeder organisation. In their defence, they contested, that being a Spanish sporting organisation, they were bound by the Spanish FA laws and Royal Decrees and thus legally registered the players. FIFA referred to the FC Midtjylland judgment, shooting down their local laws case and sending them a massive 2 transfer window ban until January 2018. [9]
Conclusion
Over the past 15 years, FIFA has shown that it will err on the side of caution and deny opportunities to deserving talent if it means shutting down the illicit market for minors. While such safety measures are necessary for a globalised sport, the regulations do seem to have been rendered obsolete. The constant calls for criticism over their discriminatory and violative nature and the controversial EU exception provide food for thought that certain reforms need the hour. Clubs will continue to find loopholes, and though ‘parking players’ is common parlance in the modern-day, it is prima facie immoral. This trial-and-error method will continue as clubs go one up and become smarter. 15 years ago, times were different; with the advent of faster and better communication and an acute media coverage of the private lives of every little athlete, this rule, rather than fulfilling its purpose, acts more as a deterrent for many.
The author understands that the legislations made in 2005 were the need of the hour and the intent behind it is irreproachable, but a financial stability-based reform must be made. We can point to despondent narratives of young players being denied opportunities to pursue their dreams, and this can probably be scaled down by creating an equal footing for all athletes worldwide. Instead of penalising clubs that will continue to find ways to circumvent the legislation, focusing on making the law more inclusive for non-EU athletes through a reasonable financial stability regulation involving a thorough background check of every athlete could help them get better opportunities in their prime.
*The author is a law scholar from NALSAR University of Law, Hyderabad.
(The image used here is for representational purposes only)
Bibliography
1. Ajadi, Theo, et al. “Home Truths: Annual Review of Football Finance 2020.” Deloitte Annual Review of Football Finance 2020, no. June, 2020, pp. 01–40, https://www2.deloitte.com/uk/en/pages/sports-business-group/articles/annual-review-of-football-finance.html.
2. 7 Premier League Teams That Have Established and Used “Feeder Club” Relationships | 90min. https://www.90min.com/posts/5133780-7-premier-league-teams-that-have-established-and-used-feeder-club-relationships.
3. “RSTP.” Training., https://resources.fifa.com/image/upload/regulations-on-the-status-and-transfer-of-players-june-2020.pdf?cloudid=ixztobdwje3tn2bztqcp
4. FIFA. Regulations on the Status and Transfer of Players 2006 Commentary. 2010, p. 68., https://resources.fifa.com/image/upload/fifa-rstp-commentary-2006.pdf?cloudid=eeorr2eogoidxzlbwhr8
5. Arbitration CAS 2008/A/1485 FC Midtjylland A/S v. Fédération Internationale de Football Association (FIFA). no. March, 2008., https://jurisprudence.tas-cas.org/Shared%20Documents/1485.pdf
6. Fédération Internationale de Football Association. Commentary on the RSTP. no. 1726, 2019, p. 8044, https://resources.fifa.com/image/upload/1659-fifa-forward-development-programme-regulations-fifa-forward-2-0.pdf?cloudid=qdot1ebd3e4k9fmimmke.
7. CAS. Arbitrage TAS 2012/A/2862 FC Girondins de Bordeaux c. Fédération Internationale de Football Association (FIFA). 2013., https://jurisprudence.tas-cas.org/Shared%20Documents/2862.pdf
8. Tribunal Arbitral Du Sport Court of Arbitration for Sport. no. April, 2016, pp. 1–67., http://jurisprudence.tas-cas.org/Shared%20Documents/4903.pdf
9. Cas, Arbitration, et al. CAS 2013/A/3140 A. v. Club Atlético de Madrid SAD & RFEF & FIFA, Award of 10 October. no. October, 2013, p. 20, http://jurisprudence.tas-cas.org/Shared Documents/3140.pdf.