The business of transferring minors in football - can more be done to protect young footballers?Matt Rogers
"People must realise that we are talking about kids playing football. We are not talking about business or professional football…there is more to life than football, that a child's life and happiness is worth more than a handful of money..." FIFPro President, Theo Van Seggelen, 2015.1
In March 2015, FIFA reduced the age of minors requiring an International Transfer Certificate (ITC) from 12 years to 10 years after a strong recommendation from the world’s professional players union FIFPro.2 This was the latest change to Article 19 of FIFA’s Regulation on the Status and Transfer of Players (RSTP),3 which governs the protection of ‘minors’ (defined as players age 18 and under) and aims to protect the welfare and development of young players in the fight against exploitationand child trafficking.
This article will analyse the effectiveness and sufficiency of FIFA’s current system of protecting minors.
The European market
The commerciality of European football is at an all time high. In 2015, a report by Deloitte4 into the financial performance of Europe’s twenty richest clubs for the 2013/2014 season showed that the aggregate annual revenue had surpassed £6bn. These extra revenues and the high stakes at play for winning a league or competing in competitions such as the UEFA’s Champions league have been contributing factors in driving up player transfers and wages.5
As a mean to address this, clubs have invested in alternative and more cost-effective means of acquiring talent by investing in young players. In Europe, competition is fierce, highlighted by Real Madrid’s acquisition of sixteen year-old wonderkid Martin Odegaard for around £2.3m on wages rumoured to be £80,000 per week.6 With some of the world’s brightest young footballing talents available in Africa, South America and Asia at a lower price and in less competitive circumstances than in Europe, clubs have opted to take a risk on a number of players from these regions in the hope that they return a significant profit. The European Clubs Association (ECA) Report on Youth Academiesin Europe7 study highlighted that Arsenal preferred to recruit youth players from overseas citing the inflation of transfer fees in English football as the main reason.
As clubs vie for new talent with agents ready to benefit financially, the needs of a child can appear at times to come secondary. For those that arrive at academies from outside Europe, including ‘strawman’ academies where players are attracted to academies on the base that the academies claim they have close ties with some of Europe major clubs. For others trying to achieve the European dream, they risk becoming victims of unscrupulous agents looking to profit at their expense resulting in extreme numbers of trafficked players.8
The RSTP and FIFA TMS
FIFA continues to develop a system in the form of Article 19 and Transfer Matching System (TMS) to afford minors greater protection, however, clubs and agents have found different ways to circumvent these. The success of Article 19 and TMS is discussed below.
Article 19: The success
The primary regulation for protecting minors in football is contained in Article 19 RSTP, entitled ‘Protection of Minors’.9 The Article stipulates that “international transfers of players are only permitted if the player is over the age of 18”10 including those players who wish to register with an international club for the first time.11 There are three exemptions to this rule:12
- “The player’s parents move to the country in which the new club is located for reasons not linked to football.
- 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 minimum obligations.
- It shall provide the player with an adequate football education and/or training in line with the highest national standards.
- 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.
- 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.).
- It shall, on registration of such a player, provide the relevant association with proof that it is complying with the aforementioned obligations.
- 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. “
Since 1 October 2009, every international transfer and first registration concerning a non-national minor is subject to approval of the sub-committee appointed by FIFA’s Players’ Status Committee which monitors compliance with the RSTP. The application for approval shall be submitted by the national association that wishes to register the player and the sub-committee’s approval shall be obtained prior to any request for an International Transfer Certificate (ITC)13 and/or first registration. Failure to do so will result in sanctions being imposed on the national association and possibly the former association for issuing an ITC without the approval of the sub-committee. Any clubs that reached an agreement for the transfer of a minor may also be sanctioned.14
FIFA’s Transfer Matching System15 (TMS) monitors international transfers involving minors above the age of 1016 (12 prior to March 2015) and of all professional male players with the primary objective of simplifying the process of international player transfers as well as improving transparency and the flow of information.17 TMS requires the national association on behalf of a club to enter specific documents into the system including proof of identity and nationality of the player and his parents, documentation of academic and football education and proof of residence for the player and his parents (where applicable).18 Once all documents have been uploaded into the TMS the sub-committee will then review the information before deciding upon whether to approve the application.
Article 19 has provided added protection to minors since its original inception in 2001 and FIFA will refer to the following cases to justify its success. In 2005, the first case regarding Article 19 arose when the international minor transfer of Paraguayan player Carlos Javier Acuña Caballero was rejected after the Court of Arbitration for Sport (CAS) panel concluded the exception in Article 19, paragraph 2(a) was not applicable in the circumstances. At the age of 16, Caballero, of Club Olympia de Paraguay, signed a contract with Spanish club Cádiz C.F. A week later Caballero’s mother signed a contract of employment with a restaurant in Spain. The Paraguayan FA refused to issue an ITC to the Spanish FA under Article 19 due to the player’s age. On behalf of Cádiz C.F, the Spanish FA appealed to FIFA’s Player Status Committee (FIFA PSC) on the grounds of the exception in Article 19, paragraph 2(a) but this was rejected as the decision of Caballero’s mother to move to Spain was directly linked to the transfer of her son to Cádiz. The club appealed to CAS who confirmed the decision of FIFA and also held that Article 19 was valid as it was proportionate and pursued a legitimate objective to protect young players.19
In 2006, an appeal was made to CAS after Danish club FC Midtjylland registered three minor players as amateurs with the Danish FA who were acquired from Nigerian club F.C. Ebedei through a cooperation agreement. In February 2007 FIFPro contacted FIFA alleging that Midtjylland were in breach of Article 19 and the FIFA Players’ Status Committee20 duly agreed stating that Article 19 applied to both amateur and professional players. Midtjylland appealed to CAS on the grounds that the players were in Denmark mainly as students but this was rejected.21 Furthermore the CAS panel rejected various arguments concerning EU law including an attempt by Midtjylland to use the Cotonou Agreement22, a Treaty between the EU and African, Carribean and Pacific States (ACP) to promote the economic, cultural and social development of ACP counties; this was also rejected as the players were not legally employed in Denmark as required by the Agreement and additionally their status under Danish immigration law were as students, not workers.
These cases demonstrate the strictness of Article 19 when any wrongdoing has been detected. Loopholes remain, however, as some clubs, agents and players have continued to undermine FIFA and their goals in recent years.
The ‘parents’ rule
The provision is the most vulnerable of the three exceptions because it gives clubs and agents more scope to circumvent the rule. Clubs will explore every avenue to make sure they bring the best players to their academies, including incentives for parents , and are seemingly aided by a lack of ignorance from national federations.23
According to two Norwegian journalists who conducted an investigation into the illegal practices regarding the transfer of minors in Europe, they found clubs who had admitted to offering the parents jobs.24 One father was offered a position as a gardener whilst another was given the role of team bus driver.25
Where individual cases have been detected by FIFA, a strict approach has been applied. In the case of Cádiz before CAS, the registration of Caballero was rejected through Article 19 (2)(a) RSTP as the relocation of the player’s mother to Spain was directly linked to his transfer.
Whilst strict application of the rule is required,26 it can prevent a player from developing and the family from having a chance of a better life as noted in the first case of Valentin Vada (2011).
In the case of Elmir Muhic (2011), the natural mother of Muhic did not move at the time when her son moved from Bosnia and Herzegovina to Germany.28 The player resided at his aunt’s house but the CAS Panel adopted a strict interpretation of the term “parents” as stipulated by the Commentary to Article 19 (2)(a) RSTP.29 The CAS panel did acknowledge, however, that the provision could “conceivably cover situations beyond the natural parents.” Concerns have been raised by FIFPro as to the number of agents becoming legal guardians of the players but it remains to be seen how FIFA will resolve this.30
National law vs. National association regulations
A further loophole exploited by clubs arises because the legal age a player can sign a professional employment contract in one EU country sometimes differs from each other. In Spain the youngest age a footballer can sign a professional contract is 18 compared to England where players can enter a scholarship agreement at 16 and sign a professional contract at 17. This has led to many players transferring from other European countries to England at minimal cost
With European players able to move because of differing national association rules, this can have a negative effect on the standard of the national leagues players are departing from. Further, clubs are unable to benefit sufficiently from the financial value a promising sixteen year old may hold due to the relatively low training compensation and solidarity payments.31
The loopholes have sought to undermine the intentions of RSTP and many clubs continue to escape FIFA’s attention resulting in an influx of minors being brought into Europe. Last year, however, F.C.Barcelona’s transfer activity regarding minors was detected and the club and its players are still feeling the effects of the outcome.
F.C. Barcelona case
In 2014 the Real Federación Española de Fútbol (RFEF) and FC Barcelona were found to have breached Article 19 RSTP for breaking rules on registering minors as youth players following an investigation by FIFA TMS.32 This was subsequently appealed to CAS who upheld the 14-month transfer ban and a fine of CHF 450,000 first issued by FIFA in April 2014.33
In August 2014 an appeal was rejected by the FIFA Appeal Committee and Barcelona is now prevented from registering any players at both national and international level until the January 2016 transfer window.34 The club was also given a period of 90 days from 20 August 2014 to “regularise the situation of all minor players concerned”. RFEF was ordered to pay a fine of CHF 500,000 and granted a period of one year in which to regularise their regulatory framework and existing system concerning the international transfer of minors in football. Before the decision of CAS, Barcelona President Josep Maria Bartomeu accepted the club had made administrative mistakes35 and stated that the club would argue against the disproportionality of the original sanction.36 It is unknown as to when, or if, any further details will be released but the case has brought to light the need for greater regulation at a national level in response to protecting minors.
Recently, the effects on those Barcelona players at the heart of the investigation have become publicly known. Ben Lederman, 15, joined La Masia in 2011 but has not been allowed to play in an official game for Barcelona’s youth teams for more than a year and recently returned to the US to continue his football development.37
Can more be done to protect young footballers?
Are Article 19 and FIFA TMS sufficient?
In the author’s opinion the verdict in the Barcelona case was a step in the right direction and other teams are rumoured to be under investigation.38 The problem is not limited to Europe with 23 under-age minors reported to have moved from Liberia to Laos.39
When a case has reached FIFA’s Disciplinary Committee and/or CAS, the regulations have been strictly applied (Vada, Muhic). Such strict interpretation in light of FIFA’s punishment given to Barcelona has also given rise to a possible challenge to CAS by Ben Lederman’s father, who disputes FIFA’s decision to ban the player from the club’s training academy in specific regard to Article 19 (2)(a) RSTP.40
Whilst FIFA maintain the protection of minors is of major importance, its ability to monitor the situation is questionable.41 In an interview with the New York Times, it seemed apparent that the Lederman family had moved to Barcelona for reasons linked to football, which is prohibited under Article 19 (2)(a) RSTP.42
It is submitted that greater communication is needed between TMS and national federations to increase the monitoring of transfer activity and first registration of minors. In light of the situation involving clubs in Liberia and Laos, FIFPro criticised TMS for failing minors.43 Stéphane Burchkalter, FIFPro Division Africa Secretary General, commented: "It is shocking to FIFPro that a club from Laos, which - with all due respect - is a very small football country, can lure 21 minor players from Liberia without the FIFA TMS noticing.”44
A further example where TMS would benefit from more interaction with national federations is where professional clubs have links to ‘strawman’ academies. In Spain, Kaptiva Sports Academy runs residency programmes that incorporate football training and education, hosting young aspiring footballers from around the world. It has close links to F.C. Barcelona and used to advertise in its programmes that players could easily get Spanish or Catalan registration cards. Following FIFA’s punishment of Barcelona, the owner Oriol Sala stated his “entire business model had to change”. There are a number of regional football academies with links to clubs around Europe that are running similar programmes.
TMS will rely on the following figures to suggest the system has been successful in protecting young players. In 2012, 1,527 out of 1,747 applications before the sub-committee involving minors were approved; 1,637 out of 1,844 applications were approved in 2013; and 1,607 out of 1,793 applications were approved in 2014.45 However, with thousands of minors reportedly being transferred internationally around the world, it is the author’s view that these figuresdo not necessarily provide an accurate representation of the scale of the problem.
Should national federationsadopt a Domestic Transfer Matching System?
With a need for greater detection of the transfer of minors worldwide, it is submitted that initially all national federations shouldadopt a Domestic Transfer Matching System (DTMS) “an online platform modelled on ITMS (International Transfer Matching System), which is provided to over 209 MAs and 6,500 clubs for cross-border player transfers. DTMS is fully integrated with ITMS and work with one single sign-on”. The DMTS is used by the Dutch Football Association (KNVB)46 which allows the KNVB to process domestic transfers with greater efficiency, giving the Dutch FA greater control over all stages of the transfer process. Both international and domestic transfers of male professional players in Holland are now accessible on one system. The use of DTMS increases the accountability of the national federation and ensures greater transparency.47
The DTMS has been successful in Holland and raised interest among other member associations.48 Requiring all 209 of its member associations to adopt a DTMS system is not without its challenges, however, with the need to accommodate countries all over the world. Further, each member association has its own regulations at domestic level so a platform must fully correspond to each association’s needs. FIFA and other stakeholders must invest time and money in ensuring this.
Whilst it is further submitted that an ITC should have no age barrier; at FIFPro America’s legal conference in August, Head of the Players' Status and Governance Department of FIFA, Omar Ongaro, said that it is up to all national football associations to ensure that the requirements of Article 19 of FIFA’s RSTP are complied with to protect the players under 10 years.49 A DTMS system for all nations may go some way to fulfilling this.
A DTMS will provide greater protection for registered minors as the centralised database can facilitate the storage of minors’ details. Whilst the Dutch DTMS only provides for players who are professionals or senior amateurs, a member association can request additional fields. Should member associations create a field to accommodate minors, the DTMS system, which is linked to a National Registration System (NRS), will automatically store their information if the player is registered at a club. As the DTMS and ITMS can be accessed on one system, any details regarding the international transfers of minors will be automatically updated on the DTMS. With the DTMS ensuring domestic regulations regarding minors are complied with, this will afford minors greater protection and increase the accountability of clubs. DTMS can also monitor payment to ensure that there is a more effective system to ensure solidarity payments are more accurate.
Since Barcelona was found to be in breach of Article 19, clubs will be worried about facing a similar fate as football’s world governing body appears from the outside to be finally addressing one of the sport’s biggest issues. Ben Lederman and others have unfortunately fallen victim of mistakes by the club, national federations and FIFA by having their stay at La Masia brought to an end. Had FIFA detected the situation earlier, this could have been prevented.
Whilst FIFA may feel somewhat vindicated by the outcome, many observers suggest it is only the tip of the iceberg. With FIFPro making an application to the EU courts to challenge FIFA’s transfer system, highlighting the need to afford minors greater protection among other serious issues, FIFA will continue to come under increased pressure. With competition to acquire the most promising youth players intensifying, it is hoped that systematic change will force clubs to change their mentality as the lives of thousands of children hangs in the balance.
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- Tags: Africa | Bosnia | Brazil | Cotonou Agreement | Court of Arbitration for Sport (CAS) | Dutch Football Association (KNVB) | Employment Law | Europe | European Union | FIFA | FIFA Disciplinary Committee | FIFA International Transfer Matching System (ITMS) | FIFA Players’ Status Committee | FIFA Regulations on the Status and Transfer of Players | FIFA TMS | FIFPro | Germany | Governance | Guinea | Herzegovina | Holland | International Transfer Certificate (ITC) | Japan | Loas | Paraguayan Football Association (APF) | Philippines | Portugal | Regulation | Senegal | South America | Spain | Spanish Football Association (RFEF) | The Europeans Clubs Association | The FA | Transfer of Minors | United Kingdom (UK)
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About the Author
Matt is a law graduate who has aspirations to become an international lawyer. His legal work experience includes that of City and regional law firms in addition to pro bono experience and extensive research into Japanese sports betting law. He has recently spent two years living in Japan to broaden his knowledge of a different culture and legal system. His sporting interests lie predominantly in football, tennis, boxing and cycling.