An explanation of Atlético and Real Madrid's transfer bans and their prospects on appealJohn Shea
The FIFA Disciplinary Committee sanctioned Spanish clubs Atlético Madrid and Real Madrid on 14 January 20161 for breaches relating to the international transfer and registration of players under the age of 18.
The Disciplinary Committee imposed a transfer ban on both clubs that prevents them from registering any players at national and international level for the next two transfer windows i.e. July 2016 and January 2017. The ban does not affect the selling of players.2
The clubs were also fined 900,000 Swiss Francs and 360,000 Swiss Francs respectively, issued a reprimand and given 90 days in which to regularise the situation of all minor players concerned. One presumes this means that the transfers of all such players must be approved by the sub-committee appointed by FIFA’s Players’ Status Committee and registered with the Spanish Football Federation (RFEF) before they can be selected again.
FIFA’s statement confirmed that the sanctions imposed followed investigations by FIFA’s Transfer Matching System and the FIFA Disciplinary Committee. The investigations related to minor players who were involved and participated in competitions with the clubs over various periods. In the case of Atlético, this was between 2007 and 2014; and for Real Madrid, between 2005 and 2014.
The sanctions came as no surprise as there were previous reports3 of the investigation by FIFA’s Disciplinary Committee. Similar sanctions were also imposed on FC Barcelona in April 2014, when the FIFA Disciplinary Committee sanctioned the club with a transfer ban for two consecutive transfer windows and a fine of 450,000 Swiss Francs for similar breaches.4
Breaches committed by Atlético and Real
Both clubs were found to have breached several provisions:
“concerning the international transfer and first registration of minor players as well as other relevant provisions with regard to the registration and participation of certain players in competitions.”5
These include Articles 5, 9, 19 and 19bis plus Annexes 2 and 3 of FIFA’s Regulations on the Status and Transfer of Players (“RSTP”).6
Article 19 of the RSTP prohibits the international transfer and first registration of foreign players under the age of 18 in order to protect the well-being of young players and their overall development in terms of academic and football education. There are, however, three exceptions to this rule under Article 19(2) of the RSTP.
The first exception applies if the player's parents move to the country in which the new club is located for reasons not linked to football.7
The second exception applies if the transfer takes place within the territory of the EU or European Economic Area and if the new club fulfils various minimum obligations in terms of football education and/or training, academic, school and/or vocational education and/or training, accommodation/living standards and mentoring.8 This exception also applies if the transfer takes place outside the European Union but involves a European citizen (see Girondins De Bordeaux c. FIFA9).
The final exception applies if both the player and the new club live within 50km of a neighbouring border, subject to a maximum distance of 100km between the player’s domicile and the club’s headquarters. The player must continue to live at home and the two associations concerned must give their explicit consent.10
Any international transfer or first registration of a foreign player under the age of 18 must be approved by a sub-committee appointed by FIFA’s Players’ Status Committee in accordance with Article 19(4) of the RSTP. This requirement was introduced in October 2009. All applications must be submitted and managed through TMS in accordance with Annexes 2 and 3 of the RSTP and in cases involving a transfer, the player can only be registered with the new association once the latter has received an International Transfer Certificate from the former association in accordance with Article 9 of the RSTP.
Clubs are responsible for providing details of the transfer, information regarding the player (nationality, date of birth, former club and former association) and the name of any intermediary involved plus any commission that intermediary has received.11 The new club must also upload copies of the transfer agreement, the player’s previous contract and new contract, and former contract and proof of the player’s identity.12 Any violations of these provisions will be sanctioned by the Disciplinary Committee in accordance with the FIFA Disciplinary Code.13
In the case of Atlético Madrid and Real Madrid, both clubs have been found to have breached:
- Article 5 of the RSTP, which require all players to be registered with the national association and confirms that only registered players are eligible to participate in organised football; and
- Article 19bis of the RSTP, which require clubs to reportall players under the age of 18 who attend their academies to the national association.
The breaches announced by FIFA imply that both clubs have:
- Completed international transfers of players under 18 and/or signed unregistered foreign players without submitting applications for approval from the sub-committee via TMS;
- Not registered such players with the national association (RFEF); and/or
- Not reported the attendance of such players at their academies.
Unsurprisingly, both clubs issued swift statements disagreeing with the decision. Atlético Madrid confirmed that they did “not agree with the imposed sanctioning ruling and will examine all the documentation received to lodge an appeal against the sanction”14 whilst Real Madrid issued a more detailed response claiming the alleged breaches were “untrue”.15
In respect of theinternational transfer and first registration of players under the age of 18, Real Madrid says that they have “always complied with FIFA regulations”. In terms of the registration of such players with the RFEF, they staunchly claimed:
“all the players that play or have played in the youth teams in our club are and have been registered with the RFEF with prior notice before entering the field of play, as certified by the Spanish Football Federation to FIFA by means of a correspondence dated 17thApril 2015, as the files show.”
Finally, the club confirmed that it “has always notified the RFEF” of such players in their academies. As a result, Real Madrid confirmed that they would also appeal the decision as they considered it “absolutely inappropriate.”
Both clubs have lodged appeals with FIFA’s Appeal Committee, and FIFA confirmed last week that the sanctions have been suspended pending the appeals.
The sanctions previously imposed on FC Barcelona were also suspended by the FIFA Appeal Committee16 on the basis that the FIFA Appeal Committee was not in a position to decide the appeal early enough to enable any subsequent appeal to the Court of Arbitration for Sport ("CAS") to be decided before the summer transfer window in July 2014.17
This reason has not been cited by FIFA on this occasion presumably because there is more time to decide to appeals in this instance and there are reports that the appeals will be determined before the summer transfer window opens in July.
Whilst this could still mean that Atlético Madrid and Real Madrid will be prevented from registering players this summer in the event that the FIFA Appeal Committee rejects their appeal, if the clubs decide to appeal to CAS, they can apply for a stay of the sanctions until the CAS appeal is determined.18
Chelsea were previously successful in applying for a stay of a transfer ban in 2009 in the case involving Gael Kakuta.19
What are the clubs’ prospects on appeal?
It is very difficult to determine the clubs’ prospects on appeal without more specific information regarding the nature of the alleged breaches; however, the previous case involving FC Barcelona does provide a potentially helpful indication.
FC Barcelona’s appeals to the FIFA Appeal Committee and CAS were both dismissed and this excellent analysis of the CAS decision by Lombardi Associates (who represented FC Barcelona) is important reading as the award has not been published.20
CAS found that FC Barcelona were in breach of Article 19 of the RSTP as they failed to provide any evidence to show that any of the exceptions listed under Article 19.2 applied. FC Barcelona was also in breach of Article 19bis as it did not report any of the thirty one minors who attended their academy to the RFEF.
An important part of FC Barcelona’s appeal was that the transfer ban was disproportionate to the breaches that had been established. In particular, the club emphasised that the breaches were in relation to underage players only, whilst the transfer ban would affect established first team players.
The panel rejected the possibility of the transfer ban being limited to only minor players and also disagreed that the sanction was disproportionate bearing in mind the seriousness of the offence, the power to dissuade the offender from repeating the offence in the future and the importance of the rule of law being protected.
The panel believed that the violations were serious and noted that other possible sanctions – including expulsion from competitions, relegation to a lower division and a deduction of points – were more severe than a transfer ban. In the panel’s view, the sanction was also serious enough to deter clubs from breaching the regulations in the future.
Finally, the panel distinguished the case from the previous CAS appeal involving Article 19 pursued by FC Midtjylland against FIFA21 when the club only received a strong warning from FIFA’s Disciplinary Committee.22 CAS distinguished the case because it only involved a breach of Article 19 and six transfers over a period of less than eight months, whilst FC Barcelona were found to have breached Article 19 and 19bis, involving thirty one players over a period of seven years.
The extent of the alleged breaches by Atlético and Real appear similar to the breaches by FC Barcelona so, unless they can successfully prove that the alleged breaches did not occur, they are likely to have real difficulty in successfully appealing the transfer ban on proportionality grounds.
While so far Spain appears to have taken the brunt of FIFA’s wrath regarding the protection of minors in football, reports23 under investigation by FIFA, which possibly include Chelsea following their signing of Bertrand Traore.24 There is, therefore, a real possibility of other clubs facing similar sanctions in the future.
This work was written for and first published on LawInSport.com (unless otherwise stated) and the copyright is owned by LawInSport Ltd. Permission to make digital or hard copies of this work (or part, or abstracts, of it) for personal use provided copies are not made or distributed for profit or commercial advantage, and provided that all copies bear this notice and full citation on the first page (which should include the URL, company name (LawInSport), article title, author name, date of the publication and date of use) of any copies made. Copyright for components of this work owned by parties other than LawInSport must be honoured.
- Tags: Court of Arbitration for Sports (CAS) | Disciplinary | FIFA | FIFA Appeal Committee | FIFA Disciplinary Committee | FIFA Players’ Status Committee | FIFA Regulations on the Status and Transfer of Players | Football | Governance | Regulation | Spain
- Resolving failed last minute football transfer deals: lessons from the De Gea case
- Key sports law cases and legal developments of 2015
- How will Blatter and Platini challenge the decision of the FIFA Ethics Committee?
- Another round in favour of sports arbitration: Court confirms boxing disciplinary appeal panel is an Arbitration