Editor’s note: Kester
Mekenkamp is an LL.M. student in European Law at Leiden University and an
intern at the ASSER International Sports Law Centre. This blog is, to a great
extent, an excerpt of his forthcoming thesis, which he shall submit in order to
complete his master’s degree.
This final blog aims to provide some broader
perspective, by sketching first the grander scheme in which Article 19 RSTP –
FIFA's provision on the protection of minors – operates. Thereafter, the focus will
shift towards testing Article 19 RSTP, thereby keeping in mind the previous
blogs (Part 1: The Early Years and Part 2: The 2009 reform and its aftermath), against EU free movement law.
Putting Article 19 RSTP into perspective: The bigger
picture
After having investigated the nuts and bolts of FIFA’s
provision on the protection of minors in the first two parts of this blog, it
might be useful to address its bigger picture.
Article
19 RSTP and its accompanying provisions regulate only a small share of the targeted
activity. There is, unfortunately, also an illegal
world. Circumvention of the prohibition is allegedly commonplace.[1]
Visas and passports can be falsified.[2]
Work permits can be obtained on the basis of jobs arranged by clubs.[3]
In any event, a larger dynamic constituted out of a
multitude of intertwined forces is at play. Globalization and
professionalization are important factors contributing to stardom in football. Football
idols, especially those originating from non-European countries, like Messi,
Neymar, Suarez, Drogba and Eto’o, symbolised a world of opportunity for millions
of children in the developing world eager to follow that same path to global
fame.[4]
In many parts of South America and Central and West-Africa, where families are
driven by the impetus to improve their daily lives and clubs eager to cash FIFA’s
training compensation money, an entire training industry emerged with the sole objective
of exporting young talents to European clubs.[5]
A horrifying example of the (ultimate) consequences this process can generate
was seen in 2007: A fishing trawler washed up on a Tenerife beach carrying 130
young African men, of which 15 were made to believe that they would attend
trials at Olympique Marseille and Real Madrid.[6]
Add to the mix a group of agents focused almost exclusively on harvesting young
boys for the international football market, and one can easily understand the
extreme difficulty faced by FIFA to rein these practices.[7]
It is evident that the case of minors wanting to
transfer internationally is closely related to a broader set of socio-economic difficulties
faced by an extremely unequal world. Wars, famine, drought, corruption and the
severe economic disparity[8]
between the developing and developed world are determinants that can simply not
be ignored. National laws applicable to asylum, migration and trade are also
part of the equation. The subject of this blog hence opens up a doorway to global
complexity. A true protection of minors will therefore undoubtedly require a
broader approach than solely measures concerning the world of football. Yet,
FIFA’s article 19 could potentially contribute to improving the fate of some
minors in the developing world. The question is, does it in practice?
Arguments supporting the prohibition of international
transfers of minors
Former FIFA and UEFA presidents, Blatter, Platini, and
Johansson, have all promoted an absolute forbiddance of international transfers
of minors.[9]
Although such a total ban was never introduced, the 2001 “Commission-condoned”
FIFA transfer rules for the first time included a section dedicated to the
enhancement of the protection of minors.[10]
An accompanying FIFA circular stipulated that the new transfer rules imposed
strict conditions “in order to provide a stable environment for the training
and education of players”.[11]
Moreover, it stated that the abuses, which were frequent in the past, had to be
curbed. [12] Crucial
in this is “protecting the appropriate and stable development of a minor as a
whole”, which includes the training and education of these players.[13]
Another argument supporting Article 19 is its
objective to tackle human trafficking. By strictly limiting the possibility for
international transfers of minors, it takes the wind out of the traffickers’
sails. The significance of this aim was acknowledged by the European Parliament
and the Commission.[14]
The thought behind the prohibition, being open to
exception only in specific cases, is that minors are vulnerable, especially when
moving to foreign countries. It tries to prevent football from breaking up
families and “allows [minor football players] to remain within their country of
origin and family networks for longer and hence reduces the psychological and
cultural problems associated with adjusting to foreign climes”.[15]
FIFA hereby acknowledges that “[w]hile international transfers might, in
specific cases, be favourable to a young player’s sporting career, they are
likely to be contrary to the best interests of the vast majority of players as
minors”.[16] Poli
came to a similar conclusion (concerning migration of football players in
general) by stating that “the few examples of upward career paths mask the many
cases of failure and are sufficient to convince young people and their families
that it is worth giving oneself body and soul to football, often to the
detriment of school training or an apprenticeship”.[17]
Arguments against the prohibition of international
transfers of minors
There is an opposite narrative that calls Article 19
RSTP’s rationale partially into question.[18]
It can be argued that for certain countries (keeping in mind the abovementioned),
with respect to the aim of protecting young football players against potential
abuse and exploitation through the appropriate and stable development in
training and education, minors are in reality not served by staying in their
home State.[19]
Furthermore, it can be contended that migration by young football players from
a developing country to a developed one can be a “viable livelihood strategy to
lift an individual and therefore vicariously their family out of poverty”.[20] Paradoxically a measure “with the aim
of protecting minors … may, in fact, reduce opportunities for youth living in
developing countries”.[21]
Moreover, one must beware of an ethnocentric judgement. The argument has been
raised that even in cases where third world immigrants had failed with respect
to their sporting careers, they considered themselves to have succeeded,
“thanks to football”, since they could come to Europe and stay.[22]
It becomes a positive “escape”, which stands in contradiction with the whole
idea underlying Article 19 RSTP.[23]
As we will see in the coming sections, this discussion is key to the evaluation
of the compatibility of FIFA’s rule with EU law.
The Compatibility of Article 19 RSTP
with EU free movement law
Applicability
For the purpose of this blog it is assumed that EU free movement law is
applicable to Article 19 RSTP in relation to minor football players with an EU
nationality. EU minors below the age of 16 might be able to rely on the EU citizenship
rights and the free movement right of their parents. Furthermore, it can be
reasonably argued that, by referring to inter alia Lawrie Blum[24],
EU minor football players of 16 and above can be deemed workers in the sense of
the free movement of workers.
Free
movement law aspects
A few aspects that could be deemed restrictive of EU
Free movement rights deserve some attention. These are separated into
situations concerning either the rights of the minor football player itself, or
the rights of their parents.
Article 19(2)(b), the “EU and EEA-rule”, is explicitly
created in order for the provision as a whole to meet the requirements of EU
free movement law.[25]
Yet, the free movement of minors is restricted by the fact that they can only
transfer to a club within another Member State once additional criteria
concerning football training, education and living arrangements are complied
with.[26]
These extra criteria, intrinsically, make it harder for minor football players
to move to a foreign club. Furthermore, EU minors below the age of 16 are
unable to rely on this exception. As already mentioned at the beginning of the blog,
this particular age group is unlikely to perform economic services against
remuneration in the sense of a “worker” under Article 45 TFEU. Nonetheless, one
could envisage that under-16 EU minors could be able to rely on their
citizenship rights enshrined in Article 21 TFEU (together with Art. 34(2) of
the EU Charter of Fundamental Rights) as non-economically active EU migrants.
Moreover, under-16 EU minors might be able to rely on
the free movement rights of their parents. In short, the reason why an EU
national decides to move to another Member State and take up work there is
irrelevant under EU free movement law. To the contrary, Article 19 RSTP puts an
emphasis on the underlying reason, as the “parents-rule” of Article 19(2)(a)
RSTP can only be invoked where the player’s parents move to the country in
which the new club is located “for reasons not linked to football”. The CAS has
hereby clarified that the family’s move must be entirely disconnected from the
transfer of the minor in a new football club. Under the FIFA rule, it is for
example insufficient to establish that the move is partially connected to their
child’s football activities, although not being the primary aim.[27]
Hence, if (a) parent(s) would want to move to another Member State to take up
work there for the, sole or partial, reason that their child can play for a
club in that country, Article 19 RSTP will deter them from doing so. As such,
the contested rule may thus amount to a provision that precludes or deters the
parents from leaving their country of origin in order to exercise their right
to free movement as workers.
Is Article 19 RSTP a proportionate measure under EU
law?
The previous sections
demonstrated that there is some room to argue that Article 19 RSTP could run
counter EU Internal Market law, which could form a basis for future challenge
to the provision. Regardless of whether this will ultimately be the case, the
provision might benefit from some amendments. It goes without saying that the
aim is on its face value laudable. Protecting minors against abuses connected
to the transfer market must remain a priority. The manner in which this
objective has been given practical effect has not been without criticism.
By encouraging minor football players to remain in their
home country, the measure is certainly likely to contribute to them enjoying an
appropriate and stable development in training and education. Furthermore, by introducing
a strict regulatory regime, it lessens the chance of human traffickers using
international football transfers as a cover for trafficking purposes.
Therefore, it can be argued that the measure is suitable to attain its aim of
protecting minors.
It then still has to be assessed whether it passes the
test of necessity. As concluded at the time of its inception, an absolute ban
on international transfers of minors was deemed too pervasive. The exceptions
assured the overall appropriateness and reasonableness of the measure. This
test raises in particular the question of existence of less intrusive
alternatives. I would argue that there is indeed a less intrusive alternative to
the current rule available. It involves a slight amendment of the
“parents-rule” and would still attain the aim underlying the overall provision.
This is achieved by firstly, omitting the requirement for the parents’ move
“not to be linked to football”, and secondly, extending the mandatory
obligations of clubs regarding the education and wellbeing of foreign minors,
laid down in Article 19(2)(b), to the “parents-rule”.
Proposed amendment to the “parents-rule”
Article 19(2)(a) RSTP, the “parents-rule”, has shown
to be controversial. It has, to give but an example, been stated that this
exemption has “effectively made the [entire] rule worthless”. [28]
As discussed in the previous blogs, the case law is marred with disputes
arising with respect to this exception, wherein the judicial bodies have advocated
a strict application of the rule. In brief, the minor must follow its parents
and not vice versa. Yet, circumvention of the rule appears to be quite simple.[29]
Without implying that this is a sufficient reason for changing the measure, it
nevertheless does show that its current form is rather impractical (or
hypocritical).
It can be reasonably argued that permitting an
international transfer only if the parents move based on “reasons not linked to
football” is too stern. There are examples of outcomes being adverse to the
interests of the minors concerned, for instance the Acuña case.[30]
Even stronger is the appeal by families who have decided to move together to
another country in order for the children to pursue their dream of becoming a
professional footballer.[31]
In the words of the father of a 15-year-old player who was denied to play for
FC Barcelona (after they, as a family, had moved from the US to Spain with that
particular aim): “Why should FIFA be able to tell our family where it has to
live if we want our kid to play [football]?”[32]
Indeed, why should families not be able to move out of their own accord,
provided that they meet the general criteria for residence within the new
country? If for instance a family has enough financial resources to not become
a burden on the social welfare systems or both parents find employment within
the new country, they obtain the required residence permits, and as a result
their child can play for the club of his choosing, it is hard to argue that
this is contradictory to the aim of Article 19 RSTP. The CAS has been receptive
to this type of arguments in the previously discussed case concerning Atlético
Madrid, in which a minor (USA) was allowed to register with the club amongst
others because his family was wealthy and its basic financial maintenance was
not dependent on the parents’ work.[33]
One could rightly contend that less affluent families should equally have the
possibility to move together with their child to the country of a new club.
Such a move, in particularly when considering a transfer from a club in a developing
country to a European club, could be in line with the aim of Article 19 RSTP. Furthermore,
the comparison with other sports, i.e. volleyball, hockey, tennis, rugby and
athletics, shows that in those sports minors are not explicitly prohibited from
moving, together with their parents, to another country in pursuit of their
sporting dream.[34] The
same can be said, when the children pursue a career in music or dance and the
family moves to the place where he or she can learn from the best mentors.
It is no coincidence that the “parents-rule” is the
most debated exception of Article 19 RSTP. One can easily agree that it is
beneficial (in a vast majority of cases) for minors to keep living with their
parents as it enhances their chances of having a stable
development. However, does this also have to entail in which country that might
be? This author does not believe so and would favour a situation where parents
are allowed to move together with their child to another country, whether that
is for reasons linked to football or not.
It can be tentatively pleaded that this can be
realized, while still reaching the aims of Article 19 RSTP. As abovementioned,
this can be achieved by, firstly, omitting the requirement for the parents’
move “not to be linked to football”, and secondly, by extending the mandatory
obligations of clubs regarding the education and wellbeing of foreign minors as
laid down in the “EU and EEA-rule” (Article 19(2)(b) RSTP), to the
“parents-rule”. This alternative measure would warrant the objective of
“appropriate and stable development in training and education”, given that the
minor and his parents remain a united family and the clubs are additionally
made responsible for ensuring that their sporting and academic education is
guaranteed. To also attain the anti-human-trafficking aim, this proposed
alternative should be safeguarded from abuse by way of legal guardianship (e.g.
situations where human traffickers are able to obtain the status of legal
guardian of a minor). Therefore the meaning of parents, within the reading of
this exception, should constitute solely the biological parents at first.
Perhaps it is possible for the PSC subcommittee to devise a suitable test,
based on the minor’s best interest, for judging whether anyone other than the
biological parents could equally be deemed eligible under this exception.
In an attempt to contribute to the debate on the
protection of minors in football, this blog has proposed a modest reform of
Article 19 RSTP. It is believed that such a change would tackle some of the
problems withnessed in the past years, without loosing sight of the objectives of
FIFA's provision on the protection of minors in football.
[1] J. Señík
and T. Gábris, Minors in Sport. Position Paper on Legal Aspects of Minors in Sports in
the Slovak Republic, (2010)
International Sports Law Journal, p. 69.
[2] Ed
Hawkins, The Lost Boys. Inside Football’s
Slave Trade. Bloomsbury (2015), inter alia pp. 135, 162 and 229.
[3] S. Van den
Bogaert, Practical Regulation of the
Mobility of Sportsmen in the EU post Bosman, Kluwer (2005), p. 240; Supra
at 2, p. 165.
[4] Supra at 2,
pp. 115-116.
[5] J.
Schokkaert, Football clubs’ recruitment
strategies and international player migration: evidence from Senegal and South
Africa, 17 Soccer & Society (2016), p. 121; The Guardian, “The
scandal of Africa's trafficked players”, 6 January 2008,; Supra at 2,
pp. 117-129.
[6] The
Telegraph, “The
dark side of football transfers”, 31 December 2014; Supra at 2, p. 132.
[7] R. Poli, African migrants in Asian and European
football: hopes and realities, 13 Sport in Society (2010), p. 1008. For
more on player’s agents, see A. Duval and K. Mekenkamp, “De-
or Re-regulating the middlemen? The DFB’s regulation of intermediaries under EU
law scrutiny at the OLG Frankfurt”, Asser International Sports
Law Blog.
[8] J. Schokaert
showed, supra at 5, p. 132, in comparison, that an economically higher
developed country, such as South Africa as opposed to Senegal, which attracts
more money to domestic football and higher wages for football players,
resulting in more players to stay in their home country.
[9] Supra at 1,
p. 68.
[10] Art. 12
FIFA RSTP 2001.
[11] FIFA Circular no. 769,
24 August 2001.
[12] N. St. Cyr
Clarke, The beauty and the beast: Taming
the ugly side of the people’s game, 2011 Columbia Journal of European Law, p.
627.
[13] See Blog
1; Commentary
on the Status and Transfer of Players, p. 58.
[14] European
Parliament, Report
on the future of professional football in Europe
(2006/2130(INI)), paras. 33-34; The
White Paper on Sport, COM(2007) 391 final, p. 16.
[15] P. Darby,
“Out of Africa: The exodus of elite African football talent to Europe”, JLS
2007, p. 453.
[16] FIFA,
September 2016, “FAQ
Protection of Minors”,
[17] Supra at 7,
p. 1008.
[18] J. Esson, Better Off at Home? Rethinking Responses to
Trafficked West African Footballers in Europe, Journal of Ethnic and
Migration Studies 2015, pp. 526-527.
[19] M. LoPiccolo,
You don't have to go home, but you can't
stay here: Problems arising when SIJS meets international adoption, Wisconsin
International Law Journal 2015, pp. 200-201.
[20] Supra at
18, p. 521.
[21] M. Mauro, Inclusive sport or institutional
discrimination? New FIFA regulations, organized football and migrant youth in
Italy, Sport in Society 2016, p. 2.
[22] R. Poli, African migrants in Asian and European
football: hopes and realities, 13 Sport in Society (2010), p. 1009.
[23] P. Darby
and E. Solberg, Differing Trajectories: Football
Development and Patterns of Player Migration in South Africa and Ghana, 11
Soccer and Society (2009), pp. 118–130.
[24] Case
66/85, Lawrie Blum v Land Baden-Württemberg, [1986] ECR 2135,
para. 17: the crucial elements are that, for a certain period of time, a
person performs services for and under the direction of another person in
return for which he receives remuneration.
[25] See blog
1.
[26] Art.
19(2)(b) RSTP: Hereby, it is important to indicate that the CAS in Vada II (TAS 2012/A/2862) has
established a workable account for the particular case of players with the
nationality of a EU or EEA Member State residing in a non-EU/EEA country, by
allowing them to invoke this exception.
[27] TAS 2011/A/2494, FC Girondins de
Bordeaux c. Fédération Internationale
de Football Association (FIFA), sentence du 22 décembre 2011 (Vada I), paras. 31-38;
CAS 2013/A/3140, A. v. Club Atlético de Madrid SAD & Real
Federación Española de Fútbol (RFEF) & Fédération Internationale de
Football Association (FIFA), award of 10 October 2013 (A. v. Club Atlético de Madrid),
para. 8.25.
[28] Supra at 2,
p. 246.
[29] KEA, CDES
and EOSE, Study
on Sports Agents in the Eurropean Union, November
2009, p. 128; Supra at 3, p. 240.
[30] See blog
2.
[31] The New
York Times, “An
American Boy Wonder in Barcelona”, 7 November 2013.
[32] The New
York Times, “Strict
Enforcement of FIFA Rules Sidelines Young Players Abroad”, 31
Augustus 2015.
[33] See blog 2; A. v. Club Atlético de Madrid, Supra at
28, para. 8.31.
[34] Supra at
30, pp. 127-129.