An update on legal aspects of FC Barcelona and the protection of minorsJohn Shea
In this blog John Shea provides an update on the one year transfer ban that has been imposed on FC Barcelona after the club was found to have breached FIFA regulations relating to the international transfer and first registration of players under the age of 18.
On 02 April 2014, FIFA’s Disciplinary Committee sanctioned FC Barcelona and the Spanish Football Association (“The RFEF”)1 for breaches of the regulations relating to the international transfer and first registration of minors. The investigations related to ten players who were registered by FC Barcelona and participated in competitions with the club between 2009 and 2013. FIFA’sDisciplinary Committeeimposed a transfer ban on FC Barcelona at both national and international level for two consecutive transfer windows2, together with a fine of 450,000 Swiss Francs.The effect of the transfer ban means that FC Barcelona are prevented from registering any new players until the 2015 summer transfer window, which includes players that the club has already agreed to sign.The RFEF also received a fine of 500,000 Swiss Francs and given one year to rectify their regulations concerning the international transfer of minors.In addition, FC Barcelona and the RFEF were issued with a reprimand. Please read my previous blog3 for more background to the case.
FC Barcelona have been found to have breached Article 19 of FIFA’s Regulations on the Status and Transfer of Players4 (“RSTP”) which prohibits the international transfer and first registration of players under the age of 18. The rationale behind the rule is to protect the well being of young players and their overall development in terms of academic and football education. The rule is also designed to prevent forms of exploitation and child trafficking that can take place within football, which is obviously a real concern for FIFA.
There are, however, three exceptions to this rule under Article 19(2) of the RSTP. The first exception applies if the player's parent’s move to the country in which the new club is located for reasons not linked to football5. The second exception applies if the transfer takes place within the European Union and if the new club fulfils various obligations in terms of football education, academic education and accommodation/living standards6. This exception also applies if the transfer takes place outside the European Union but involves a European citizen (see TAS 2012/A/2862 FC Girondins De Bordeaux c. FIFA7). The final exception applies if both the player and the new club live within 50km of a neighbouring border.8
In order for the three written exceptions to apply, however, the transfer or first registration of a minor must first 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 20099. An application for approval must be submitted by the national association who wishes to register the player through FIFA’s Transfer Matching System (“TMS”) and any such application must include various documents in support. Sanctions will be imposed on national associations who fail to apply to the sub-committee for approval and on clubs who reach agreements for the transfer of minors without the sub-committee’s approval. Whilst we do not have specific details regarding the nature of the breaches in this case, it appears that FC Barcelona completed the transfer of the ten minor players and the RFEF proceeded to register them without obtaining proper approval from the sub-committee.
FC Barcelona later issued a statement on 02 April 2014 listing 14 points in response to the decision and confirming their intention to appeal to FIFA’s Appeal Committee and, if necessary, to the Court of Arbitration for Sport (“CAS”)10. FC Barcelona highlighted that the regulations are intended to protect minors from clubs who do not provide adequate attention for young players’ development and that FC Barcelona “does guarantee the development of its players through the model of La Masia.” The club’s statement explained how “La Masia’s model incorporates educational training programs, accommodation, meals, medical care, attention to the needs of children and sports development plans” and that the club “forms people before athletes, a fact that has not been considered by FIFA, which applies a penalty criterion that ignores the educational function of our training program.”
It is clear from FC Barcelona’s statement that none of the three exceptions under Article 19(2) of FIFA’s RSTP are applicable otherwise FC Barcelona would have relied upon the exceptions in their statement. However, FC Barcelona believe that the protection of minors regulations should be amended:
FC Barcelona are clearly frustrated at being restricted in recruiting young players from around the world due to Article 19 despite their La Masia facility complying with the overall aim of ensuring that young players’ overall development and education is adequately protected. Essentially, FC Barcelona want a further exception under Article 19 to be implemented which permits clubs like FC Barcelona, who have invested heavily in youth development centres and who have excellent ratings in terms of player development and education, to sign players under the age of 18 regardless of their origin. FC Barcelona also take the view that the current regulations are overly restrictive as they prevent young players from having the opportunity of attending youth development centres like La Masia and pursuing their career within the sport. The president of FC Barcelona, Sandro Rosell, previously wrote to FIFA’s Secretary General, Jerome Valcke, in March 201311 requesting this amendment, which FIFA agreed to consider12 however a decision on this request has yet to be made.
In their appeal, FC Barcelona are likely to ask FIFA’s Appeal Committee to consider implementing this amendment and applying it to this particular case, which could perhaps be done by extending the exception listed under Article 19(2)(b) of FIFA’s RSTP to have worldwide effect and for the exception to not just to apply to transfers of minors within the European Union or to European citizens.If FIFA’s Appeal Committee accepts such a proposal, then FC Barcelona’s appeal would be successful however it is doubtful that the committee will agree to do so as they are likely to strongly defend the current regulatory framework. The CAS, however, may be more receptive to such an argument as they have previously found that some further unwritten exceptions apply to the protection of minors regulations. The most notable case was TAS 2012/A/2862 FC Girondins De Bordeaux c. FIFA13 where the CAS extended the Article 19(2)(b) exception to apply to transfers of minors outside the European Union providing the minor is a European citizen. However, the CAS’s decision was justified on the basis that the Article 19(2)(b) exception needed to be compliant with European legislation relating to freedom of movement of workers, which is not relevant in the FC Barcelona case as the minors concerned are all believed to be from outside Europe.
FC Barcelona will also surely appeal the severity of the sanction and this is likely to be their strongest argument. Whilst there are effectively ten separate breaches of the regulations and FIFA’s Disciplinary Committee considered those breaches to be serious, FIFA clearly wanted to send out a strong warning to all clubs to ensure that the protection of minors regulations are strictly adhered to. However, the sanction imposed by FIFA’s Disciplinary Committee in this case is arguably inconsistent with sanctions they have imposed in previous cases. In 2006, FC Midtjylland and the Danish Football Association breached Article 19 by registering three minor players from Nigeria however they only received a strong warning from FIFA’s Disciplinary Committee14 and not a transfer ban or a fine. This decision was subsequently upheld on appeal by the CAS15. Barcelona will, therefore, likely argue that the sanction of a transfer ban is disproportionate to the offence and that a lesser sanction should be imposed instead such as a warning and/or a fine, particularly as FC Barcelona complies with the overall aim of ensuring that the welfare and development of young players is adequately provided for. In support, Barcelona will point to the fact that they have allowed the players in question to remain at their La Masia facility even though they are not currently permitted to play for the team.
FC Barcelona must first lodge an appeal with FIFA’s Appeal Committee and provide written reasons for the appeal within seven days of the notification of the decision16. The transfer ban is obviously the most damaging sanction that has been imposed on the club and the ban will remain in place until FIFA’s Appeal Committee confirm their decision as Article 124(2) of FIFA’s Disciplinary Code17 only allows for fines to be suspended pending an appeal. If, however, FIFA’s Appeal Committee rejects the appeal and FC Barcelona choose to lodge a further appeal to the CAS, the club can apply to the CAS for a stay of the sanction until the CAS appeal is determined18. FC Barcelona will, therefore, want the FIFA appeal to be heard as soon as possible to enable them to urgently apply to the CAS for a stay of the decision before the summer transfer window so they can continue to sign players until the CAS appeal is heard. Chelsea were previously successful in applying for a stay of a transfer ban in 2009 in the case involving Gael Kakuta19.
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- Tags: Court of Arbitration for Sport (CAS) | FIFA | FIFA Dispute Resolution Chamber | FIFA Regulations on the Status and Transfer of Players | Football | Players Rights | Spain | Transfer of Minors
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