The transfer of minors and the need for legal certainty - Analysis of the Barcelona, Real Madrid & Atletico Madrid CAS awards

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1. The regulatory infringements and initial sanctions

The differences in time taken to resolve the disputes

The timelines of the three proceedings are as follows:

There are two important differences to highlight in the above timeframes.

The first and most important difference is the length of the cases. Barcelona’s case was processed in 24 months, while the Atletico Madrid and Real Madrid cases took 38 and 44 months respectively. One would expect that the difference could be explained by the different number of minors involved: 31 in the Barcelona case and 70 in the Real Madrid case, but considering that 221 minors were involved in the Atletico Madrid case, we have to dismiss this option.

The second difference is the number of CAS arbitrators appointed to each Panel: the Barcelona and Atletico Madrid cases were heard by 3 arbitrators, whereas the Real Madrid case was heard by a sole arbitrator. Surprisingly, FIFA accepted this, which is unusual considering that during the last 5 years only 26 published cases appealed against FIFA before CAS (among the cases published by CAS from 2012-2017) have been decided by a Sole Arbitrator. Of those 26 cases, in only four of them did FIFA agree to a hearing before a sole arbitrator (in the other 21 cases, the sole arbitrator was imposed by CAS given the simplicity of the cases). By way of context, a common argument put forward by parties to dispute the submission of the case to a Sole Arbitrator is the importance of the legal principle in dispute and its consequences for future procedures.

What in the author’s view happened (as indicated by the Real Madrid award) is that the proceedings against Barcelona alerted other clubs to avoid further sanctions, giving them some time to adapt their situation to the regulations in force at that time.

FIFA’s disciplinary accusations and initial sanctions against each club

FIFA’s accusations against the clubs specify the violation of the following Articles of the Regulations of the Status and Transfer of Players (RSTP):

• Article 5: Obligation to register all players participating in organised football with the corresponding federation.

• Article 9: Obligation to obtain an International Transfer Certificate (ITC) prior to the player’s registration from other associations.

• Article 19.1: Prohibition of international transfers of players under the age of 18.

• Article 19.3: Prohibition on the registration of a minor for the first time in a federation without complying with the requirements set in Article 19.1.

• Article 19 bis.1: Obligation to inform the corresponding federation about the presence of minors who attend an academy legally linked, de facto or financially, to a club.

• Article 19 bis.6: Obligation to comply with the requirements set in Article 19, informing the corresponding federation about the presence of minors who attend an academy legally linked, de facto or financially, to a club and who are not nationals of the country in which the academy is based.

• Article 19.4 and Annexes 2 and 3 of the RSTP: Procedural rules for the request of minor’s registration.

The clubs were initially sanctioned by FIFA Disciplinary Committee for the following violations:

BARCELONA

Minors investigated: 31

Violations found:

• Article 5 (player registration) RSTP on 31 occasions

• Article 9.1 RSTP (transfers U12) on 6 occasions

• Article 19 RSTP (transfers U18) on 21 occasions

• Article 19bis RSTP (obligation to report) on 31 occasions

Sanction imposed: Prohibition of registering players, nationally or internationally, during 2 transfer windows + 450,000 CHF fine.

REAL MADRID:

Minors investigated: 70

Violations found:

Article 5 on 33 occasions

Article 9 on 1 occasion

Article 19 on 12 occasions

Article 19bis on 37 occasions

Sanction imposed: Prohibition of registering players, nationally or internationally, during 2 transfer windows + CHF 360,000 fine.

ATLÉTICO MADRID:

Minors investigated: 221

Violations found:

• Article 5 on 146 occasions

• Article 9.1 on 8 occasions

• Article 19 on 103 occasions

• Article 19bis on 183 occasions

• Article 19bis.6 on 30 occasions

Sanction imposed: Prohibition of registering players, nationally or internationally, during 2 transfer windows + CHF 900,000 fine.

2. Grounds of appeal raised before CAS

The arguments that the clubs used before the CAS Panels do not vary too much from their arguments before the FIFA Disciplinary Committee4.

The clubs had two arguments in common, relating to the violation of Articles 5 (registration of players with federation) and 19bis (registration of minors playing at club-linked academy). The arguments related to the Spanish constitutional legal framework and the relevant sporting regulations applicable. Real Madrid accompanied its presentation at the hearing with the expert evidence of Mr. Bacigalupo, Professor of Administrative Law at UNED (Spanish University of Distance Education).

Additionally, Atletico Madrid sought to argue against the imposition of additional requirements to minors legally resident in Spain simply because of their non-national status. This, they said, would violate the principle of equal treatment established in the Spanish Constitution.

Arguments relating to the breach of Article 5.1 RSTP - Only registered players are eligible to participate in organised football:

Article 5.1 RSTP states:

A player must be registered at an association to play for a club as either a professional or an amateur in accordance with the provisions of Article 2. Only registered players are eligible to participate in organised football. By the act of registering, a player agrees to abide by the statutes and regulations of FIFA, the confederations and the associations.

The clubs argued they did not infringe the Article, as the license issuing procedure in Spain is undertaken in accordance with the provincial territorial organization of the State. Indeed, the Spanish Football Federation (RFEF) has to coexist with 17 other regional federations (Federaciones Autonómicas) integrated within it, as RFEF representatives in their respective communities, for example the Federación Catalana (from Catalonia) and the Federación Madrileña from Madrid5.

In this regard, the Spanish territory is divided in 17 Autonomous Communities, which have, for the organization of the sports practice, the corresponding regional federations. This organization is based on Article 148.1.19 of the Constitution, the Statutes of Autonomy of the different Autonomous Communities, as well as in different legal dispositions which reflect the sports’ territorial organisation in Spain:

• Article 33.1 of Law of Sports (Law 10/1990)

The Spanish sports federations, under the coordination and guardianship of the Superior Council of Sports, shall exercise the following functions: [...] acting in coordination with Regional federations for the general promotion of sports throughout the whole national territory.

• Articles 1.2 and 6.2.d of Royal Decree 1835/1991, 20th of December, on Spanish Sports Federations and Sports Associations Registry:

The Spanish sports federations consist of Regional sports federations, clubs, athletes, coaches, judges and referees, professional leagues, if any, and other interested associations that promote, practice or contribute to the sports development.

The Regional sports federations, which are part of the corresponding Spanish sports federations, will represent the Spanish sports federations in their respective Autonomous Community.

In the case of football, the RFEF establishes in its statutes:

• Article 2 "The RFEF is composed of Regional sports federations, in the case provided for in Article 9 of the present Statutes, and by clubs, footballers, referees, coaches and the Liga Nacional de Fútbol Profesional."

• Article 6 "The territorial organization of the RFEF conforms to that of the State in Autonomous Communities. In virtue, such organization is formed by the following Regional sports federations:"

• Article 9 (3) (d): " Regional sports federations, integrated in the RFEF, shall represent the latter in the respective Autonomous Community”

Each regional federation is therefore the representative of the RFEF in each community, with exclusive competences within its own territory. Specifically, this refers to all the regional competitions. All those participating in competition until the category of youth players from under-16 to under-19 years, as well as the regional level senior categories, are regulated and controlled by the regional federations, not by the RFEF. Even the professional teams must register with the regional federations, as established in Article 99.2 of the statutes of the RFEF6.

The above, coupled with the administrative nature of sports licenses in the Spanish legal system, does not leave any discretion to clubs to decide before which body to request such licenses.7 It is for this reason the three clubs put forward in their defence the Spanish legal framework that obliges the clubs to register all the minors before the competent territorial federations, thus complying with the content of Article 5.1 RSTP.

In addition, the regional federations themselves have the statutory obligation to notify the arrivals and departures of players to the RFEF (Article 10 of the RFEF statutes)8, therefore by communicating to the RFEF all licenses issued, the requirements of Article 5.1 RSTP and the obligations of the clubs should be considered fulfilled.

Arguments relating to the breach of Article 19bis RSTP – clubs’ obligation to report all minors

Article 19bis(1) RSTP states:

Clubs that operate an academy with legal, financial or de facto links to the club are obliged to report all minors who attend the academy to the association upon whose territory the academy operates.

This Article requires clubs that operate an academy to notify the association, in which territory the activity is carried out, of the presence of minor players who attend, but the provision does not establish any specific formality in this regard. Therefore, when applying for licenses for players present in the academies, before their respective regional federations, the clubs were considered, legitimately, to be complying with the requirements of 19bis.

This view was expressed in the case of Barcelona by the representatives of the RFEF, who confirmed that the RFEF does not register players who do not compete at national level, nor does it keep a registry of minors; rather, the RFEF only serves the licenses processed before the regional federations, as a notification of the presence of the players falling outside of the RFEFs administrative responsibility. This is in keeping with the statutory obligation of the regional federations to inform the RFEF of the arrivals and departures to and from the clubs.

The statement of RFEF’s representatives in the Barcelona case confirmed that there was no RFEF procedure to report the presence of minors in the La Masia residence (Barcelona’s youth academy) and that the RFEF never requested such information from the club or the regional federation. Considering that the license of the Player is the notification of their existence, nothing prevented the club, in addition to registering the minors with the regional federation, from duplicating the information and sending a list to the RFEF.

Arguments relating to the breach of Articles 9 and 19 RSTP – the transfer of minors U12 & U18

These Articles are those that expressly refer to the international transfer of minors, through the ITC (Article 9) or through a registration of non-nationals (Article 19).

One of the conflicting points in regard to the application of these provisions is the one related to the transfer of minors under-12.

Under the regulations in force at the time of the initiation of the investigations and the imposition of sanctions, there was an apparent confusion, created by Articles 9 and 19, as to whether children under 12 years of age should also be under the jurisdiction of the RSTP.

Article 9.4, from the first publication of the RSTP, in 2005 and until January 2015, established that the transfer of children under 12 did not require an international transfer certificate (ITC). This Article remained unchanged until January 2015, when FIFA decided to reduce the age to 10 years (exclusively for the purpose of needing an ITC, but not for the calculation of training and solidarity).9

Article 19.110 establishes a general prohibition on transfers of children under 18 years of age, unchanged since 2005 in relation to this prohibition, so there was a doubt as to whether such a prohibition also reached those under 12 years of age (now 10), in the case of transfers not affected by the RSTP.

The only tool that FIFA has provided for the interpretation of the RSTP in these twelve years has been the Official Commentary, published as an interpretation of the 2005 Regulations. Although this is a non-binding version of the regulation, we must remember that Article 9 did not change with regards to the need to apply for an ITC for minors under 12 years of age until 2015, so it should be considered as a valid starting point.

The Commentary confirms that the need for the ITC exists only for those over 12, but also adds that the content of the RSTP does not apply to those under 12 years of age11.

Therefore, it seems that the provisions could lead to confusion as to whether to apply a ban to minors under 12 years of age and whether or not there was a need to go through FIFA to request the registration of such minors. FIFA considered that the ban was extended to minors under 12 and that therefore clubs had violated the RSTP.

The defence of the clubs was based precisely on the confusion created by the RSTP and Commentary, as well as on a particular communication from FIFA itself of 17 April 2014, in which it informed the RFEF (responding to the latter's question) that for the transfer of minors under 12 years, that no prior approval of FIFA was required. This document was confirmed and explained by the RFEF at the hearing held in December 2014 in the Barcelona case.

The RFEF, solely in the Real Madrid case, in a letter dated March 10, 2014 (after notification of the sanction of the FIFA Disciplinary Committee), confirmed to the club that for the transfer and registration of minors, neither its approval nor that of FIFA was required (paragraph 55 case 4785 grounds). The document was submitted in the proceedings and confirmed by the representative of the RFEF during the hearing12.

Arguments in respect to players over 12 years old at the time of registration

It is worth highlighting that the dispute refers only to those minors registered since October 1, 2009, when the modification of the RSTP created the FIFA Minors Sub-committee, until then, the Federations were responsible of registering minors.

This change caused the subcommittee itself to be overwhelmed by the number of applications that were submitted, hence FIFA was obliged to create a "limited exemption" for a 2-year period, allowing the National Associations to take care of applications on a temporary basis when referring to amateur clubs (not applicable in those cases where the club had a team in any category considered professional).

The RFEF requested such an exemption from FIFA and it was granted on 18 February 2010 - an argument used by clubs to claim that if they requested the license and corresponding registration to the corresponding regional federation they could, if the answer was positive, be protected by the principle of legitimate trust and by the CAS doctrine of "own acts", according to which:

"when the conduct of one party creates in another party a legitimate expectation that its course is correct, this part, who acts moved by trust, cannot suffer unfavorable consequences”.13

The Atletico Madrid case has 2 different elements, which are the participation of a third club, the ATMadrileño, and the presence of minors of different nationality (Chinese) in a sports project organised by a foreign entity: WANDA Project.

As to the ATMadrileño participation, Atletico Madrid expressed its disagreement regarding the sanction because they were two different entities which cannot be held responsible for the violations of the other.

As to the minors of Chinese nationality, Atletico Madrid argued, before FIFA and CAS, that those minors only used the facilities and the staff of the club under the agreement signed with the WANDA project, which maintains the organization and management of minors outside Atletico Madrid, offering them training and then returning to their country of origin. Atletico Madrid argued that the arrangement prevents the WANDA project from being considered an academy or players under the Atletico Madrid discipline.

The particular cases of those minors which were investigated individually are not analysed by this Article.

Summary of FIFA Disciplinary Committee Sanctions

Although all the FIFA Disciplinary Committee decisions were reconsidered, only the sanction imposed on Barcelona remained unchanged. According to FIFA's decisions, non-compliance with Articles 19.1 and 19.314 (in respect of the international transfer of minors) had the greatest weight in terms of disciplinary consequences (and led to the most serious sanction, namely, the ban from registering players). In addition, the violation of Articles 5, 9 and 19bis – violations that were considered as aggravating factors – increased the initial sanction.

In the Barcelona case, the sanction was divided in three parts:

1. violation of Articles 19.1 and 3 - without identifying the times the rule was infringed, resulted in the imposition of the ban to register players and a fine.

2. endangerment of the legally protected interest (integrity of minors)- determined that the ban was for 2 transfer windows and established the base value of the fine at 300,000 CHF; and,

3. other violations and the incidence - increased the initial fine to 450,000 CHF (50% more).

The determination of the appropriate sanction in the case Real Madrid case differed slightly, and was divided as follows:

1. violation of Articles 19.1 and 3 - without evaluating the times the rule was infringed, resulted in the imposition of the ban to register players during two transfer windows and a fine of 270,000 CHF; and,

2. other violations and the incidence - increased the initial fine to 360,000CHF (44% more).

Finally, Atletico Madrid breaches were identical to Real Madrid’s, and the sanctions differed only at first instance in value: the base 600,000 CHF fine was increased by 50% to 900,000 CHF at consideration of the second stage (violations of the other Articles and the incidence).

3. THE FINDINGS OF THE CAS PANELS

The awards of the three CAS Panels analyse the arguments of the Spanish clubs and draw conclusions by applying three different reasonings. The Panels decided to confirm the sanction of Barcelona and to modify the Real Madrid and Atletico Madrid sanctions as follows:

Although none of the CAS arbitrators recognised that the violation of Articles 19.1 and 19.3 should be lifted, only Real Madrid saw the main sanction reduced.

The only award that addressed whether or not there was an endangerment of the legally protected interest (the integrity of minors) was the Barcelona award, which established15:

The Panel wishes to make clear two points. First, its finding regarding Aricle 19-bis RSTP concerned a procedural violation only, that is, the lack of reporting of information regarding the progress and development of players participating in “La Masia”. Second, the Panel does not question the quality of services offered in “La Masia”. In fact, the opposite is true. The Panel recognizes the contribution of the FCB academy to the overall development of athletes that have spent time in “La Masia”. Indeed, both on the sporting level (where the numbers of home grown players actually playing in the first team of FCB and elsewhere are proof enough of the quality of training received), as well on the education level, FCB is a leading institution at the European - and the world level. Various witnesses underscored the impressive numbers of players that go through secondary education in reputed schools in Spain, and some even further. In this respect the Panel cannot agree with the findings of the FIFA Appeals Committee that the players attending, training and playing at “La Masia” were put in danger or that their potential football career was endangered. No proof to support these findings was submitted, and, in the Panel’s eyes, this statement remains an allegation, an unproven conjecture. The Panel, through its various findings, sanctioned FCB for the conditions under which players “accessed” “La Masia”, and not for the conditions reigning once access had been guaranteed. It is in this line that the findings regarding Aricle 19-bis RSTP should be understood.

The Panel rejected FIFA’s argument regarding the endangerment of minors; however, Barcelona’s sanction was not reduced. In the Real Madrid and Atletico Madrid cases, the base fine was reduced due to:

1. the reduction in the number of infractions of Article 19, since it was recognised that under 12 minors should have not been counted and that participating in friendly competitions cannot be considered organised football (in the Real Madrid case); and

2. the use of ATMadrileño and the RFEF limited exemption (in the Atletico Madrid case). In the Atletico Madrid and Real Madrid cases, the aggravated fine was reduced because their respective arbitrator Panels recognised that there were fewer infractions, among other reasons, considering that the clubs respected Article 5.

The violation of Article 5 (registration of players with Federation)

The three CAS Panels established that the Spanish political and legal system did not allow the direct players’ registration before the RFEF. Therefore, the clubs could not be held responsible for fulfilling an obligation established by law.

However, it is curious that, out of the 3 cases, and taking into account that said violation of the regulation was "lifted" by the three arbitration Panels, only Barcelona did not receive a reduction of the sanction.

The violation of Article 19bis (reporting of academy players to the Federation)

It is surprising that, given the weight the CAS Panels placed on the Spanish legal system in determining that Article 5 RSTP had not been violated, all the Panels recognised the violation of Article 19bis16.

According to the CAS Panel in the Barclona case17:

The obligation imposed by Aricle 19-bis RSTP on clubs to report minors attending an academy to the relevant association is a further, and different, obligation than the one concerning the registration of the players. In other words, it cannot be considered that by registering a player a club would automatically comply also with the obligation to “report” players who are attending its academy.

In the author’s opinion this is a surprising conclusion.

The explanation given to this consideration is that the purpose of this rule is that no clubs may have minors in their "academies" without being under the Federation’s control in order to regulate and prevent abuse. This purpose, laudable in any case and absolutely logical, was used to sanction the clubs, but instead of sanctioning them for having minors without registering or being reported to the Federation, the Clubs were sanctioned for not having informed the Federation about their existence despite they all were registered and therefore under the Federations’ control.

The violations of Article 9 and 19

Regarding under-12 minors

The CAS decisions in the Barcelona and Atletico Madrid cases, dated 31 December 2014 and 1 June 2017, considered that, although Article 9.4 states that there is no obligation to request an ITC for minors under 12, this does not mean that minors under 12 can be transferred, because Article 19.1 (prohibition of international transfer of children under the age of 18) prevents it.

This reasoning was used by the CAS Panel in the Barcelona case, (the operative part of the Barcelona decision was notified on 31 December 2014 and its grounds were released on 24 April 2015) and confirmed by the Atletico Madrid CAS case on 1 June 2017.

In the Real Madrid case, the decision of which was published on 3 May 2017 (1 month before the release of the Atletico Madrid Award), the sole arbitrator considered that the Panel’s conclusions in the Barcelona case were valid, but that in this particular case, the arbitrator had new evidence and convincing legal arguments (which are unknown) that led to the conclusion that it was generally accepted that the registration of under 12 minors did not require any process before FIFA or the corresponding national federation. Therefore, he considered that the decision to sanction Real Madrid for 4 out of the 12 violations of Article 19 should have been eliminated.

In the Real Madrid Award, FIFA’s conduct was compared to conduct in the case of FC Girondins de Bordeaux c. FIFA18, concerning the granting of the player Valentín Vada’s registration. In that case, it was recognised that it was not fully established that the 15-year-old's parents had moved abroad for reasons not linked to football, so the FIFA Subcommittee rejected his transfer to FC Girondins de Bordeaux.

However, regarding the Player’s brother, who was under 12, FIFA did not oppose his registration. The Girondins de Bordeaux award established that FIFA knew about the existence of such situations but it acted only in respect of the minor who was over 12 years old (the player was 15 years old at the time)19.

Over-12 minors

The three decisions recognize several common points.

First, Article 9.1 of the RSTP states that international transfers cannot be made without an ITC. According to Annex 3 of the RSTP, it is the new club that must initiate the process in order to obtain the ITC, by sending the request to the competent national association through FIFA TMS. It is a violation of Article 9.1 if the club does not initiate this process or does not comply with it.

Article 19.1 of the RSTP is clear in that, generally, transfers of minors are prohibited. Since only clubs can start the transfer process, they must comply with that prohibition in the first place. To emphasise this prohibition, Article 19.4 expressly states that "associations" must ensure that clubs comply with the requirements of Article 19. In this regard, a club cannot try to hide its non-compliance behind violations of the rules that national associations or regional federations may have had committed, as the club should know that neither national associations, nor regional federations have the power to register minors under the RSTP. Accepting this argument would mean enabling "willful blindness".

Article 19.4 establishes sanctions for clubs that agreed to a transfer of a minor. Therefore, according to the arguments of the clubs, this would exclude transfers made without the agreement with the club of origin. However, this position is unreasonable given that the vast majority of transfers of minors occur without agreement of the club of origin. The interpretation of the word "agreement" should therefore have a broader meaning, including all those agreements that could have been reached between the club of destination and the player, his parents or agent.

In the Barcelona case, the arbitration Panel established that in the case of minors under 18, Barcelona did not follow the procedures nor fulfil the established requirements. Therefore, the negligence of regional federations could not be used as shield from the club’s obligations, of which it was fully aware. Therefore the Panel also included in its calculation of violations those cases involving minors under 12, as we have explained before.

The Real Madrid case was divided into four particular cases (players 22,23, 38 and 39):

• In the case of first two players, it was held that there was no violation because, although it was true that both players participated in various tournaments, these could not be considered organised football in accordance with the RSTP. Therefore, despite training for several months (one of them more than 6 months), the sole arbitrator did not consider that Real Madrid had violated Article 19, but it did violate Article 19bis.

• The two following were related to:

• a minor with a regional federation provisional authorisation for being included in the 5-year rule;20 and,

• to a minor who did not compete in organized football and had a license "in deposit". These arguments were rejected by the sole arbitrator and Real Madrid was sanctioned.

The Atletico Madrid case was a step further; according to the CAS Panel, the general prohibition of registering foreigners does not conflict with the universal principle of equality between people established in the Constitution. According to the Panel, it is true that there is a discrepancy between the FIFA system and Spanish legislation; however, this should not constitute any exemption for Spanish clubs’ compliance with the system imposed by FIFA.

According to the CAS Panel, the fact that foreigners cannot be discriminated does not mean that clubs can request the registration of a minor even when the minor does not comply with the requirements set by Article 19. According to the Panel, the inclusion of Article 19 in the RFEF regulation in July 2014, confirmed the validity of the provision.

This case is also different due to the participation of ATMadrileño, which, using the limited exemption requested by the RFEF, registered several players (16 of which were considered a violation of Article 19 by Atletico Madrid, without going through the FIFA subcommittee).

In this regard, FIFA sanctioned Atletico Madrid because it considers that Atletico Madrid and ATMadrileño are a unique entity, they share players, facilities and Atletico Madrid has even received training compensations for ATMadrileño players. The CAS confirmed this opinion, considering that the breach committed by ATMadrileño was attributable to Atletico Madrid precisely because of the existing identity between the two clubs. So much so, that Atletico Madrid was sanctioned because of the minors registered by ATMadrileño through the limited exemption.

However, regarding the violation of Article 19, in connection with Annexes 2 and 3 of the RSTP, which establish the procedures to be followed for registering minors, the opposite was held. According to the CAS Panel in the Atletico Madrid case, when registering minors from ATMadrileño, Atletico Madrid did not commit any infraction, since they were strictly national transfers that did not require FIFA approval: which is the reason why the 16 registered minors coming from ATMadrileño did not constitute a violation of Article 19, in connection with Annexes 2 and 3.

4. CONCLUSION – THE APPLICATION OF LEGAL PRICINPLES

There are obviously some details that have been not considered, as well as some particular cases of players investigated, whose situation were not relevant when establishing the different legal criteria that may be applied before the CAS.

In this regard, we must highlight 2 key points:

Inconsistency between the sanction of Articles 5 and 19bis

It is incomprehensible to the author that the three awards considered that the Spanish legislation prevents the players’ registration before the RFEF, and that the players’ registration before the corresponding regional federation fulfills the obligation established by Article 5 of the RSTP. However, when the same Spanish legislation established that all registrations must be communicated to the RFEF by the regional federation, the Panels did not consider that the requirement of Article 19.bis was fulfilled by the clubs.

In the authors’ opinion, Article 19bis is structured to avoid the presence of minors in academies without being registered with the corresponding national association, and therefore outside of the protection of the sports authorities. For this reason, the clubs should only have been penalised if FIFA could determine that there were minors under those conditions.

In the author’s opinion, the presence of minors in academies, duly registered, with their federative licence, should not be held to be within the scope of the protection set in Article 19bis, since such minors’ license guarantees that their presence is recognised by all the competent authorities.

However, regarding the violation of Article 19bis in the cases of investigated Chinese minors, the CAS Panel recognised that its presence could not be considered as an academy managed by the Club in the sense of the RSTP, or not even that Atletico Madrid had any obligation to inform the RFEF about the presence of those players in its facilities. According to the club, the words "academy managed by the Club" imply that it is in charge of the main activities. According to the contract between the company WANDA and the club, WANDA was in charge of managing minors, their selection, travels, accommodation, etc., and that, although it was true that they trained in the Atletico Madrid premises, the club had no control over them.

As logical as this argument is, by allowing nationals of other countries to enjoy the training methods and formation in a big European club, under the control of entities from their own country, and with the permission of their parents (who hired the services of said entity precisely for that purpose), these minors were not under the umbrella of any federation, are those for which the Atletico Madrid was not sanctioned, and yet, is sanctioned by those minors who had a license (therefore the RFEF knew of its existence, as we have already explained). It is evident that the children of the WANDA project cannot be included in Article 19bis and therefore that the club should not be sanctioned, but then it is still less understandable the requirement of FIFA and the confirmation by the CAS of the double registration of minors already registered.

Arbitrary sanctions in cases of under-12 minors

In the author’s opinion it is troubling that the Barcelona case, as the first case heard by a CAS Panel, established that the club was responsible for violating Article 19 for transferring or registering the minors under 12, yet in the second case heard (Real Madrid) the exact opposite is considered, and finally, in the third case (Atletico Madrid) the criteria used in the first case is applied. The first case disregarded the clear content of FIFA’s letter of 17 April 2014, as well as the explanation of the RFEF representative that the RFEF always considered (and this was what it explained to Spanish clubs) that for the transfer of under 12 minors they did not need FIFA’s approval. The second case considered unknown new evidence and unknown new convincing legal arguments. The third case was decided after the publication of the Award of the second one but reapplied the arguments used in the first one.

The problem reflected in concrete by these two points is the absence of legal certainty, the absence of certainty, even far off, of the consequences of an act, own or of someone else, contrary to the legal framework.

The principle of legal certainty means the security of knowing, or being able to know what is regulated by authorities, in the sense of permitted or prohibited and having foreseeable consequences for violating the rules. If two identical infractions are sanctioned in a diametrically opposed ways by the same authority, members of "the football family" are in an absolute defenseless situation.

It is true that CAS is structured as an arbitral tribunal. This fact prevents those decisions previously taken by other Panels to be binding on subsequent Panels, at least in the same way that the national courts are subject to jurisprudence. However, it is also true that CAS acts as a court of appeal for decisions rendered by international federations (and by other organisations that submit their decisions in order to appeal to the CAS jurisdiction), many of which are of a disciplinary nature.

It is true that decisions on contractual issues have wider margins in variation, given the multitude of available scenarios. However, as far as the application of the rules is concerned, the decisions of the CAS should be uniform, a criterion that would allow those subject to its jurisdiction to predict the consequences of their actions with some degree of certainty.

Legal certainty is established as one of the guiding principles in many jurisdictions. In Spain, for example, Article 9.3 of the constitution states:

The Constitution guarantees the principle of legality, the hierarchy of legal provisions, the publicity of legal enactments, the nonretroactivity of punitive measures that are unfavorable to or restrict individual rights, the certainty that the rule of law will prevail, the accountability of the public authorities, and the prohibition against arbitrary action on the part of the latter.

Also, CAS has applied this principle consistently, for example

192. Legal certainty requires, inter alia, that the applicable provision (in the case at hand Article 2.06 of the UCLR) is sufficiently clear as to its material and territorial scope of application.21

It is certain that this principle should not be considered as absolute, since otherwise "the principle of legal certainty cannot be erected in absolute value as it would result in freezing the existing legal system, being that is, regulating relations of human coexistence, must respond to the social reality of each moment as a tool of improvement and progress": STC 126/1987, (BOE No. 191 1987)22.

In an analysis made in 2013, Judge Gonzalo Moliner Tamborero (President of the Spanish Supreme Court and President of the General Council of the Judiciary) examined the exigence and challenges of legal security in decisions rendered by Supreme Court. Thus, in this way the decision TC 234/2012 of 13 December, was based on the previous decision STC 136/2011, of 13 September, according to which, the principle of legal security must be:

“The certainty related to the applicable legal system and the legally protected interests (STS 15/1986, 31 January, FJ1), such as the reasonably founded expectation of the citizen in which should be the action applying the law (STC 36/1991, 14 February, FJ 5), or such as the clarity of the legislator and not the confusion of rules (STC 46/1990, 15 March FJ 4)”; having also stressed the importance of this principle by pointing out how “without legal security there is no rule of law worthy of that name”, since “it is the reasonable prediction of the legal consequences of conduct in accordance with the legal system and its application by the courts, which allows citizens to enjoy a peaceful coexistence and guarantees social peace and economic development”.23

After reading the content of this principle, it seems obvious to me that, when it comes to applying rules of a disciplinary nature, while it is true that it does not have a criminal, but a sanctioning nature, the proceedings should guarantee legal certainty for those who affected.

This consideration is not for the purpose of making a complaint against the different criteria applied, which will also create a mystery to the other European clubs in defending themselves, but to draw attention to the fact that no one will know what doctrine or criteria will apply to them (which is important for ensuring compliance with the RSTP and/or for defending a potential case brought against them by FIFA). This results in a call to reflect about the need to reformulate the role of CAS, its powers and obviously its limitations.

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• Tags: Athlete Welfare | Barcelona | Court of Arbitration for Sport (CAS) | Employment | FIFA | FIFA Disciplinary Committee | FIFA Integrity Committee | FIFA Regulations of the Status and Transfer of Players (RSTP) | Football | Minors | Real Madrid | Spain | Spanish Football Federation (RFEF) | Transfer of Minors

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About the Author

Enric Ripoll González

Associate - Ruiz-Huerta & Crespo

He received an honorable mention from ISDE in 2012, and in 2018 won the "International Advisory Experts in Sports Law Award". He has authored and collaborated on numerous publications relating to sports law, as well as teaching on a number of sports law courses.

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