Editor's note: Conor Talbot is a Solicitor at LK Shields Solicitors in Dublin and an Associate Researcher at Trinity College Dublin. He can be contacted at ctalbot@tcd.ie, you can follow him on Twitter at @ConorTalbot and his research is available at www.ssrn.com/author=1369709. This piece was first published on the humanrights.ie blog.

Sport is an integral part of the culture of almost every nation and its ability to shape perceptions and influence public opinion should not be underestimated.  The United Nations has highlighted the potential for using sport in reducing discrimination and inequality, specifically by empowering girls and women.  Research indicates that the benefits of sport include enhancing health and well-being, fostering empowerment, facilitating social inclusion and challenging gender norms.

In spite of the possible benefits, the successful implementation of sport-related initiatives aimed at gender equity involves many challenges and obstacles.  Chief amongst these is the way that existing social constructs of masculinity and femininity — or socially accepted ways of expressing what it means to be a man or woman in a particular socio-cultural context — play a key role in determining access, levels of participation, and benefits from sport.  This contribution explores recent developments in the interaction between transgender and intersex rights and the multi-billion dollar industry that the modern Olympic Games has become.  Recent reports show that transgender people continue to suffer from the glacial pace of change in social attitudes and, while there has been progress as part of a long and difficult journey to afford transgender people full legal recognition through the courts, it seems clear that sport could play an increasingly important role in helping change or better inform social attitudes.

Background

“The practice of sport is a human right.  Every individual must have the possibility of practising sport, without discrimination of any kind and in the Olympic spirit, which requires mutual understanding with a spirit of friendship, solidarity and fair play.” - Olympic Charter

While proclaiming the practice of sport to be a human right, the Olympic Charter unequivocally states that the International Olympic Committee (IOC) has “supreme authority” over the staging of the Olympic Games.  Under the IOC’s stewardship, and in line with other major sporting events worldwide, a narrative has been carefully cultivated to the effect that events such as Olympic Games would not be possible without the support and resources of the broadcasters and, ultimately, sponsors.  Therefore, while on the one hand, the use of sports as a development tool and strategy to reduce discrimination generally is growing, there is also a distinct field of commentary which is critical of the approach of the Olympic “industry”  (indeed, the term "industry" is used to  draw attention to the profit-making goals of the Olympics).

Given the top-down nature of sporting governance, research from Wales and Scotland reveals that whilst many lesbian, gay, bisexual and transgender people continue to be put off by negative experiences or the perception that it is an unpleasant and unsafe environment for LGBT people.  This post focuses in particular on the treatment of transgender and intersex athletes under the rules enforced by international sporting federations.  In attempting to get ahead of the curve with transgender issues, with the stated aim of protecting the sporting integrity (and therefore the reputational and commercial value) of competitions by minimising sex-related advantages, the IOC has a long history of insensitive and often unproductive testing protocols for athletes.  As it is probably the most visible of all international sporting federations, the IOC became the standard bearer for such testing policies and, indeed, it has been argued that IOC policies gave impetus (and sometimes political cover) for other groups to follow suit.

Gender/Sex Verification Tests and the Stockholm Consensus

The issue of gender- or sex-verification gained global attention in recent times after South African runner Caster Semenya was ordered to undergo tests after winning the 800m world title in 2009.  She was eventually cleared to compete by the IAAF and won silver in the 800m at the 2012 London Olympics.

IOC had maintained a practice of conducting gender verification tests at the Olympic Games, with the testing of Dora Ratjen in 1938 and Foekje Dillema in 1950 being early cases to gain attention.  The initial testing protocols amounted to rather crude and undoubtedly humiliating physical examinations.  These techniques later gave way to the method of determining ‘sex’ chromatin through buccal smear examination, introduced at the Mexico City Olympic Games in 1968. Chromosome-based screenings were criticised for being unscientific and unfairly excluding many athletes, in particular since only the chromosomal (genetic) sex is analysed by sex chromatin testing, not the anatomical or psychosocial status.  These techniques were abandoned by the IAAF in 1991 and the IOC since Sydney 2000.

Under the so-called Stockholm Consensus, the IOC granted permission for men and women who had undergone gender reassignment surgery to participate in competitive sport.  The Consensus recommended that individuals undergoing sex reassignment from male to female after puberty (and the converse) be eligible for participation in female or male competitions, respectively, once surgical anatomical changes had been completed (gonadectomy), legal recognition of their assigned sex had been conferred; and verifiable hormonal therapy had been administered for a sufficient length of time to minimise gender-related advantages. Under the Consensus, eligibility for competition could begin no sooner than two years after the athlete’s gonadectomy.

Regulation of Hyperandrogenism in Female Athletes

Hyperandrogenism is a term used to describe the excessive production of androgens (testosterone).  Given its influence on endurance and recovery, controversies have arisen in the past surrounding cisgender women athletes with high levels of testosterone.  An Indian sprinter, Dutee Chand, was suspended by the IAAF in 2014 due to her elevated testosterone levels.  However, the Court of Arbitration for Sport (CAS) suspended the IAAF rule in July 2015, on the grounds that the IAAF had failed to prove that women with naturally high levels of testosterone had a competitive edge.  The CAS ordered the IAAF to present new scientific evidence regarding the degree of competitive advantage enjoyed by hyperandrogenic females by July 2017, otherwise its 2011 Regulations Governing Eligibility of Females with Hyperandrogenism to Compete in Women’s Competition would be declared void. 

While Chand was cleared to compete following her high profile appeal, a study published in April 2013 in the Journal of Clinical Endocrinology & Metabolism, a US peer-reviewed journal for endocrine clinical research, recounts the rather less fortunate fate of four anonymous young athletes who, it appears, were effectively forced to undergo surgery to allow them to compete in women’s sports ahead of the 2012 Olympics.  When the story emerged in June 2013, the IAAF reportedly denied that it had taken place.

The young women, who were 18, 20, 21, and 20 years of age at the time of the study, came from rural or mountainous regions of developing countries.  Clinical inspection of the women revealed varying degrees of intersexuality: they had never menstruated and had male bone characteristics, no breast development and partial or complete labial fusion.  Consanguinity was confirmed for three of them (first cousins in two cases and siblings in another) and was suspected in the fourth case with her parents originating from neighbouring villages.  The authors of the report opine that the gender abnormalities of the athletes may not have been formally diagnosed or given medical attention because they had been born in rural regions of countries with poor care.  In all cases, they were tall, slim, muscular women and had manifested strong motivation and high tolerance to intensive daily training, which had made them good candidates for elite sports competition. 

Rather than requesting gender change, the study reports that the athletes wished to maintain their female identity in order to continue elite sport in the female category.  Although leaving male gonads carried no health risk, and despite the negative effect that a gonadectomy would have on their performance levels and general health, the athletes underwent the feminising surgical procedures.  The study concludes that the sports authorities then allowed them to continue competing in the female category one year after their procedures.  The radical nature of the surgery required, as well as the unknown future impact on the athletes’ health, highlight the dangers of such policies for inclusion in women's sporting events.

New IOC Guidelines

Under new IOC Transgender Guidelines, which were reported as stemming from an unpublicised Consensus Meeting on Sex Reassignment and Hyperandrogenism, surgery such as that described above will no longer be required.  Female-to-male transgender athletes are now eligible to take part in men’s competitions “without restriction”, while male-to-female transgender athletes will need to demonstrate that their testosterone level has been below 10 nanomols per litre for at least one year before their first competition.  That said, the IOC document does contain a provision allowing for a the imposition of a period of longer than one year, based on a confidential case-by-case evaluation, considering whether or not 12 months is a sufficient length of time to minimize any advantage in women’s competition.  No further detail is provided on the nature of these case by case evaluations so it is unclear just how much progress these guidelines actually represent compared to the crude sex verification tests used in the past.  Again, the IOC justifies these regulations as being necessary to avoid accusations of an unfair competitive advantage. 

The IOC document also refers directly to CAS decision in relation to Dutee Chand.  Specifically, the IOC encourages the IAAF, with support from other International Federations, National Olympic Committees and other sports organisations, to revert to CAS with arguments and evidence to support the reinstatement of its hyperandrogenism rules.  Therefore, the IOC’s appears to contest the validity of the CAS award and seems determined to provide scientific grounds for upholding its ban on female athletes with elevated levels of testosterone, even where it is naturally occurring and the athletes’ bodies are partially unable to process it.

Taken together, the net result of these regulations is that if a female transgender or intersex athlete’s natural testosterone levels are considered too high, she is expected to undergo treatment to reduce her testosterone to levels considered to be within the normal range for women before being allowed to compete in women’s sports.  This has come to be the subject of severe criticism because it is argued that such athletes are being medically harmed by sport under these regulations.  Testosterone is essential for the development of male growth and masculine characteristics, and is vital for any athlete in aiding recovery times from physical exertion.  Although the health effects of the presence of high levels of testosterone in women’s bodies is still the subject of research, testosterone occurs naturally in both males and females and would appear to be vital for the body’s all-round health.

Kristen Worley Litigation

The potential for these testosterone limits to lead to harm to the athletes involved is the focus of a major case being brought by a Canadian cyclist, Kirsten Worley, a female athlete who has transitioned from male to female by undergoing sex reassignment surgery with the result that she no longer produces either testosterone or estrogen.  She alleges that the Ontario Cycling Association and Cycling Canada Cyclisme gender verification and anti-doping rules discriminate against her on grounds of sex, contrary to the Canadian Human Rights Code.  The rules in question are based on the Union Cycliste Internationale (UCI) directives which are, in turn, based on IOC policies.  Worley claims that these policies have damaged not only her ability to continue taking part in competitive cycling, but also her health. 

Interestingly, Worley effectively bypassed international sport's usual dispute-settlement procedures by bringing her claim through the mainstream human rights judicial instances.  After the preliminary issue of whether the respondents received effective legal notice, a further dealy was caused when the IOC requested that the Tribunal defer consideration of Worley’s application pending the completion of a judicial review application commenced by the IOC.  The IOC also argued  that the Human Rights Tribunal of Ontario was not competent to hear the case, since it concerns sporting rules.  Likewise, the UCI objected to the Tribunal’s ability to adjudicate and argued that the UCI Arbitral Board and/or the Canadian Center for Ethics in Sport are the competent authorities to address the allegations contained in Worley’s application. 

Next Steps

Importantly, the court hearing the preliminary proceedings in the Worley application held that it is established law that parties cannot contract out of the Canadian Human Rights Code’s protections.  Therefore, the court rejected the proposition that the Human Rights Tribunal lacked jurisdiction purely because there are alternate mechanisms to which Worley could have, but did not, file a claim.  As such, the Worley litigation is extremely interesting as it will be a rare instance of the sheltered world of international sporting organisations being subjected to the full rigours of human rights principles.

It will be very interesting to follow how this claim is dealt with by the Canadian courts, and received by the international sporting community generally, in the months and years to come.  Worley herself has pursued this campaign for over a decade and, given the publicity garnered by the latest steps in her litigation, it now appears to have the potential to inspire other athletes to avail of human rights avenues to open up sports-based disputes to courts of law rather than courts of arbitration.  From the IOC’s perspective, it is clear that it has a legitimate interest in acting to preserve fair competition but this agenda cannot be pursued irrespective of the repercussions.  The most recent changes to its Transgender Guidelines are expressly stated to have been introduced in recognition of how requiring surgical anatomical changes as a pre-condition to participation may be inconsistent with “notions of human rights”.

If nothing else, the new IOC Transgender Guidelines proves that international sport does not operate in a vacuum and is capable, to some extent at least, of reflecting social progress.  However, it remains to be seen whether the most visible sporting governance body is prepared to play a true leadership role in utilising all the benefits of sports in helping to change perceptions of transgender and intersex athletes.  In that sense, the Kirsten Worley litigation represents a crystallisation of a struggle to apply human rights principles in a new area and, as such, will be worthy of our attention going forward.

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 master thesis. 

On 24 November 2016, a claim was lodged before a Zurich commercial court against FIFA’s transfer regulations by a 17-year-old African football player.[1] The culprit, according to the allegation: The provision on the protection of minors, Article 19 of the Regulations for the Status and Transfer of Players.[2] The claimant and his parents dispute the validity of this measure, based on the view that it discriminates between football players from the European Union and those from third countries. Besides to Swiss cartel law, the claim is substantiated on EU citizenship rights, free movement and competition law. Evidently, it is difficult to assess the claim’s chance of success based on the sparse information provided in the press.[3] Be that as it may, it does provide for an ideal (and unexpected) opportunity to delve into the fascinating subject of my master thesis on FIFA’s regulatory system aimed at enhancing the protection of young football players and its compatibility with EU law. This three-part blog shall therefore try to provide an encompassing overview of the rule’s lifespan since its inception in 2001. This first part will shed its light on the “birth” and “first years” of the provision, thereby illustrating the relevant developments from 2001 till 2009. The heart of this analysis is formed by two decisions of the Court of Arbitration for Sport (“CAS”): The Acuña and FC Midtjylland case. The second part shall subsequently cover the rule’s “adolescent years”, which span from 2009 to the present. Therein, the major changes put forward in the 2009, 2015 and 2016 versions of the RSTP will be addressed, together with the important CAS decisions concerning Article 19. The third, and final, part will constitute a substantive assessment of the provision under EU Internal Market law. 

The first years, from 2001 onwards[4]

The 2001 “Commission-condoned” FIFA transfer rules included for the first time a section dedicated to the enhancement of the protection of minors.[5] An accompanying circular by FIFA stipulated that the new transfer rules imposed strict conditions “in order to provide a stable environment for the training and education of players”.[6] Moreover, stating that abuses frequent in the past had to be tackled, it seemed to inaugurate a new era of safeguarding young footballers.[7] The starting point of the new provision is a general prohibition for players under the age of 18 (“minor”) to transfer internationally.[8] The same principles apply to a so-called “first registration” of a minor who requests to be registered in a country other than that of his nationality.[9] An absolute transfer ban however was apparently deemed too radical.[10] The prohibition was therefore made subject to two exceptions. Firstly, the “parents-rule” allows for minors to transfer internationally when their family moves to a country, in which the new club is located, for “reasons not related to football”.[11] Secondly, within the territory of the EU and EEA, players younger than 18 but above the minimum working age can transfer internationally, given that their sporting and academic education is guaranteed by the new training club.[12] FIFA further stressed its intention to issue, together with UEFA, a code of conduct guiding the national associations regarding these conditional arrangements.[13] However, this self-obligation was removed from the subsequent 2005 edition of the RSTP.[14]

Only a year after the introduction of the new rules, the first adaptations were made in response to concerns raised by national associations.[15] FIFA’s Players Status Committee (“PSC”, FIFA’s competent body adjudicating any disputes on matters related to the protection of minors) decided to add a third exception, which became known as the “50 + 50-rule”.[16] Hereby it aimed at dealing with the case of players living close to national borders where “cross-border traffic is a daily matter”.[17] Those young players living within this 50 km range may attend a club of a neighbouring association if that club is similarly situated within a 50 km distance of the border, provided that these players remain living at home. The two-part FIFA Circular is rather ambiguous in its explanation, stating on the one hand that minors in this situation can solely “train” with the club situated across the border,[18] while on the other hand introducing a full exception to the transfer ban (thereby permitting a “complete” international transfer).[19] This latter view is in accordance with the regulations’ revision that entered into force on 1 July 2005.[20] Next to adding the “50 + 50-rule”, the new article 19 RSTP slightly adjusted and hence further clarified the first two exceptions. A minor can transfer internationally only if his “parents” move to another country for reasons not related to football, restricting the scope of the rule from “family” to “parents”.[21] Moreover, with respect to the “EU and EEA-rule” it set the international standard of 16 as the minimum age and spelled out several additional requirements on the arrangements made by the recruiting club for the academic education of the transferred player.[22] These oblige the club to: “provide the player with an adequate football education and/or training in line with the highest national standards”; “guarantee an academic or vocational education which will allow the player to pursue a career other than football”; “ensure that the player is looked after in the best possible way” by arranging housing with optimal living standards; and “provide its association with proof of compliance”.[23] Importantly, paragraph 4 orders national associations to safeguard compliance by clubs and paragraph 5 installs the PSC as the competent body to adjudicate in this field.[24] Hence, more explicit accountability and control was established concerning the abidance with the rules on the protection of minors.

In early 2007, FIFA issued a commentary on the RSTP in order to further clarify the separate provisions.[25] It stipulated that the international transfer of minors should be subject to stern restrictions in order to provide a stable environment for the player’s training and education.[26] Furthermore, “the term ‘parents’ has to be understood in a strict way”, a minor therefore cannot live with a close relative in the country of the new club. The document acknowledges that the “EU and EEA-rule” was adopted as to not interfere with EU free movement law.[27] National associations are once more reminded that they possess a vital role in ensuring compliance, amongst other by carrying our on-spot investigations regarding the mandatory educational arrangements if need be.[28] 

The Acuña case

These rules have not operated in a vacuum. The real effect of the provisions on the protection of minors has been shaped by the judicial practice of FIFA, through the PSC, and first and foremost the Court of Arbitration for Sport (“CAS”, the competent institution that deals with appeals contra FIFA’s internal decisions).[29]

The first (published) case before the CAS concerning a dispute on the provision’s content was Càdiz C.F. and Carlos Javier Acuña Caballero v. FIFA and Asociación Paraguaya de Fútbol.[30] In January 2005, the 16-year-old Acuña Caballero represented his Paraguayan club Olimpia in an international tournament for players under 20. His successful performance led to foreign interest, and on 14 February 2005 he, together with his family, left Paraguay for Cádiz, Spain.[31] Three days later, Cádiz C.F. (a club meandering through the Spanish second and third league) and the player signed an employment contract, and subsequently Olimpia agreed to the transfer.[32] However the Paraguayan football association refused to issue the compulsory international transfer certificate (“ITC”), referring to Acuña Caballero’s age.[33] The FIFA PSC decided upon the matter on 26 August 2005 by verifying whether the requirements of the “parents-rule” of Article 19(2)(a) RSTP were observed. By highlighting the apparent lack of intention to continue his education besides football, as well as the fact that the mother’s employment contract commenced much later than her son’s, the PSC found the case to be in total contradiction with the letter and spirit of the exemption: “the mother would have followed the player”[34], instead of the other way round. The PSC noted that the protection of minors is one of the fundamental principles of the RSTP, which requires the strict application of Article 19, and consequently refused the request of the Spanish association to register Acuña with Cádiz C.F.[35] Both the club and the player appealed this decision before the CAS, after which the tribunal organized a hearing of all parties concerned and several witnesses in order to grasp the factual context of this international transfer.[36] The CAS Panel swiftly countered the appellants’ views by stating that FIFA’s rules limiting the international transfer of minors do not violate any mandatory principle of public policy under Swiss law or any other national or international law, insofar that “they pursue a legitimate objective, namely the protection of young players from international transfers which could disrupt their lives, particularly if, as often happens the football career eventually fails or, anyways, is not as successful as expected and they are proportionate to the objective sought, as they provide for some reasonable exceptions”.[37] Subsequently it explained that, it had to be determined whether the move of the mother was related to the transfer of her son, and ergo whether the exception of article 19(2)(a) was applicable? The Panel found that “the players’ decision to move to Spain was made first”[38], by emphasizing the inconsistencies in the appellants’ statements, and as a result thereof doubting their truthfulness.[39] Furthermore, the club’s submission stated that “from all the possibilities, the offer made by CÁDIZ C.F. was the most suited to his parents’ wishes”, which lead the Panel to believe that in fact the clubs’ offer for her son made the mother look for a suitable job in Cádiz.[40] As such, the Panel established that the appellants could not benefit from the exception, since it concluded that Acuña’s family moved “for reasons linked to football”.[41]

The Acuña case exhibits a strict application of the rule. This strict application, although being in line with FIFA’s policy, lead to a disadvantageous outcome for the minor in question.[42] As argued by the player, his life in Paraguay meant living alone in a small apartment at his agent’s house and only seeing his mother two or three times a year.[43] The move to Spain allowed him to live with his mother and was therefore positive for both his career and his family. The CAS Panel addressed this matter by stating that “the task of the CAS is not to revise the content of the applicable rules but only to apply them”.[44] Moreover, it stressed that any adverse consequences in relation to the refusal to allow the player to be registered with the club were the result of the appellants own actions. The Panel finally put forward that the player would not have to face the adverse consequence for long as he would turn 18 in a couple of months.[45] 

The FC Midtjylland case

The next confrontation followed suit: the case of FC Midtjylland.[46] The Danish Superligaen club came in FIFA’s crosshairs through a FIFPro complaint concerning the signing of six young Nigerians.[47] These players were registered as amateurs and played for Midtjylland’s youth teams. Additionally, they were granted short-term residence permits as students, excluding the right to work, and enrolled in the Danish educational program.[48] The FIFA PSC emphasized that Article 19 RSTP on the protection of minors, being one of the principles included in the FIFA/UEFA and European Commission agreement and “one of the pillars of the regulations”, is applicable to both amateur and professional players.[49] Thereto, only a strict, consistent and systematically implemented interdiction subject to very limited exceptions could stop the abuse and maltreatment of many young players. The PSC hence warned the Danish Football Association (DBU) and FC Midtjylland, and subsequently refused the registration of the players.[50]

The CAS Panel addressed four main issues in relation to what had been brought to the fore in the parties’ submissions concerning Article 19 RSTP:

1. Is it applicable to both professional and amateur minor players?

2. What are the exceptions and are any of these applicable?

3. Does the application of the provision “contradict any mandatory provision of public policy or any of the provisions of EC Law”? Is there a breach of the non-discrimination principle, following the alleged inconsistent approach of FIFA?[51]

In short, the Panel answered the first question in the affirmative, based on a textual approach together with taking due notice of the intended objective as “to apply Art. 19 of the RSTP restrictively to professional players only could result in obviating protection of young amateur players from the risk of abuse and ill treatment”.[52] As to the second question, it was noted that the codified exceptions provided in Article 19(2) RSTP were not applicable to the case at hand. Nevertheless, the Panel regarded this list not to be exhaustive and allowed for two additional exceptions relating to students: first, “where the players concerned could establish without any doubt that the reason for relocation to another country was related to their studies, and not to their activity as football players”, and second, “where the association of origin and the new club of the players concerned have signed an agreement within the scope of a development program for young players under certain strict conditions (agreement on the academic and/or school education, authorization granted for a limited period of time)”.[53] Yet, neither of these additional exceptions applied here.[54] The third issue was related to appellant’s Cotonou Agreement argument.[55] The Panel agreed that the non-discrimination rights are conferred by article 13(3) of the Cotonou Agreement to “Workers of ACP countries legally employed in its territory”.[56] Nonetheless, the Nigerian players in question are to be considered as “students”, not as “workers” legally employed in Denmark, which means they fall outside the scope of this provision.[57] The Panel moreover dismissed, based on that same reasoning, the appellant’s claim founded on the Simutenkov[58] case in their attempt for the “EU and EEA-rule” of Article 19(2)(b) RSTP to be applicable.[59] The Panel furthermore stressed with regard to this third question that agreements between the EU and third countries that prohibit discrimination in working conditions are clearly limited in scope to foreigners “legally employed in the Member States” and do not concern access to the employment market.[60] It also endorsed the Acuña case in that the FIFA rules limiting the international transfer of minor players “do not violate any mandatory principle of public policy and do not constitute any restriction to the fundamental rights that would have to be considered as not admissible”.[61] Lastly on the fourth issue, in reaction to the appellant’s allegation that FIFA’s approach was inconsistent and favoured bigger clubs (by reference to Bayern München’s registering a minor player from South America), the CAS solely pointed at the general principle “that no one can claim for equal treatment by referring to someone else who has adopted an illegal conduct, without sanction (nemini dolus alienus prodesse debet)”.[62] Concluding, FC Midtjylland was found to have breached Article 19 RSTP as the CAS favoured a strict interpretation, yet simultaneously, it allowed for two additional implicit exceptions for students.

Around this point in time, the European Commission’s attention was also drawn to the protection of minors in sport. In its white paper on sport, it  pointed at “children who are not selected for competitions and abandoned in a foreign country, often falling in this way in an irregular position which fosters their further exploitation”.[63] Even though it makes reference to neither of the two abovementioned cases, this explicit consideration by the Commission, emphasizing the importance of protecting minors, could be seen as an indirect endorsement, prima facie, of the strict interpretation of Article 19 RSTP by CAS.

The next, second, part of this blog series shall aim to cover the rule’s “adolescent years”, which span from 2009 to the present. The major changes put forward in the 2009, 2015 and 2016 versions of the RSTP will be addressed. Furthermore, important CAS decisions concerning Article 19, Muhic, Vada I and II, FC Barcelona, RFEF, and the FIFA decisions relating to Real and Atlético Madrid, will be at the centre of the attention. 

[1] CNN, 24 November 2016, “FIFA: African footballer, 17, takes world governing body to court”

[2] Article 19 FIFA RSTP (2016)

[3] Eurosport, 24 November, “FIFA faces lawsuit over rules banning transfer of minors”

[4] The text of this blog contribution is part of my forthcoming thesis, which shall be submitted in order to complete my master’s degree in European Law at Leiden University.

[5] Art. 12 FIFA RSTP 2001.

[6] FIFA Circular no. 769, 24 August 2001.

[7] N. St. Cyr Clarke, “The beauty and the beast: Taming the ugly side of the people’s game”, 2011 CJEL, P. 627.

[8] Art. 12(1) FIFA RSTP 2001.

[9] Art. 12(2) FIFA RSTP 2001.

[10] Press release EU Commission, IP/01/29, 14 February 2001.

[11] Art. 12(1)(a) FIFA RSTP 2001.

[12] Art. 12(1)(b) FIFA RSTP 2001.

[13] FIFA Circular no. 769, 24 August 2001.

[14] F. de Weger, “The Jurisprudence of the FIFA Dispute Resolution Chamber”, 2nd edition, Asser Press (2016), p. 14.

[15] FIFA Circular no. 801, 28 March 2002.

[16] Supra at 14, pp. 36-37.

[17] Supra at 15.

[18] Ibid.

[19] New Art. 12(1)(c) FIFA RSTP 2001 in FIFA Circular no. 801, 28 March 2002, “Amendments to the FIFA Regulations for the Status and Transfer of Players”.

[20] Art. 19(2)(c) FIFA RSTP 2005.

[21] Art. 19(2)(a) FIFA RSTP 2005.

[22] Art. 19(2)(b) FIFA RSTP 2005.

[23] C. Lembo, “FIFA Transfer Regulations and UEFA Player Eligibility Rules: Major Changes In European Football And The Negative Effect On Minors”, Emory Int'l L. Rev 2005, p. 557.

[24] Art. 19(4) and 19(5) FIFA RSTP 2005.

[25] FIFA Circular no. 1075, 18 January 2007.

[26] Commentary on the Status and Transfer of Players, p. 58.

[27] Ibid, p. 59.

[28] Ibid, p. 59.

[29] For more information see A. Duval, “The FIFA Regulations on the Status and Transfer of Players: Transnational Law-Making in the Shadow of Bosman” in A. Duval and B. Van Rompuy (Eds.) “The Legacy of Bosman”, Asser Press (2016), pp. 81-116; A. Duval “The Court of Arbitration for Sport and EU Law. Chronicle of an Encounter”, MJ 2015, pp. 224-256.

[30] CAS 2005/A/955 Càdiz C.F., SAD v FIFA and Asociación Paraguaya de Fútbol and CAS 2005/A/956 Carlos Javier Acuña Caballero v/FIFA and Asociación Paraguaya de Fútbol.

[31] Ibid, para. 2.5.

[32] Ibid, paras. 2.6-2.7.

[33] Ibid, para. 2.10.

[34] Ibid, para. 2.16.

[35] Ibid, para. 2.17.

[36] Ibid, paras. 3.6-3.17.

[37] Ibid, para. 7.2.

[38] Ibid, para. 7.3.1.

[39] Ibid, paras. 7.3.2-7.3.5; Especially the circumstances surrounding the mother’s search for a job, the agreement between her and her employer, and the reasons why she decided to take up work in Cádiz while, being a cook, she could have worked anywhere in Spain, did not assist to their case.

[40] Ibid, para. 7.3.6.

[41] Ibid, para. 7.3.8.

[42] FIFA Circular no. 801, 28 March 2002.

[43] Supra at 30, para. 3.3.5 and 3.11.

[44] Ibid, para. 7.3.10.

[45] Ibid, para. 7.3.10.

[46] CAS 2008/A/1485 FC Midtjylland A/S v. Féderation Internationale de Football Association.

[47] A. Wild, “Young Football Players: Protection of Minors” in “CAS and Football: Landmark Cases”, Asser Press (2012), p. 249.

[48] Ibid, p. 250.

[49] Supra at 46, p. 3.

[50] Ibid, p. 4.

[51] Ibid, para. 10.

[52] Ibid, para. 15.

[53] Ibid, paras. 19-21.

[54] Ibid, para. 22.

[55] The Cotonou agreement between the EU and certain African, Caribbean and Pacific States, including Nigeria; Ibid, paras. 30-31.

[56] Supra at 46, para. 35.

[57] Ibid, para. 36.

[58] Case C-265/03 Simutenkov v Ministerio de Educación y Cultura and RFEFl [2005] ECR I-2579, Therein the ECJ ruled that non-EU/EEA sportsmen can challenge nationality clauses if: they are legally employed in a host EU Member State and “can rely upon a directly effective equal treatment provision included in an international agreement establishing a partnership between the EU and their country of origin, regardless of whether accession to the EU is envisaged or not”, see S. Van den Bogaert, “From Bosman to Bernard” in J. Anderson (Ed.), “Leading Cases in Sports Law”, T.M.C. Asser Press (2013), p. 104.

[59] Supra at 46, para. 40.

[60] Ibid, para. 41.

[61] Ibid, para. 45; Supra at 30, para. 7.2.

[62] Supra at 46, paras. 47-49.

[63] The White Paper on Sport (COM 2007) 391 final, point 4.5; European Parliament, Report on the on the future of professional football in Europe (2006/2130(INI)), p. 25.