Asser International Sports Law Blog

Our International Sports Law Diary
The Asser International Sports Law Centre is part of the T.M.C. Asser Instituut

Blog Symposium: The “Athlete Patient” and the 2015 World Anti-Doping Code: Competing Under Medical Treatment. By Marjolaine Viret and Emily Wisnosky

Introduction: The new WADA Code 2015
Day 1: The impact of the revised World Anti-Doping Code on the work of National Anti-Doping Agencies
Day 3: Proof of intent (or lack thereof) under the 2015 World Anti-Doping Code
Day 4: Ensuring proportionate sanctions under the 2015 World Anti-Doping Code

Editor's Note
Marjolaine Viret: An attorney-at-law at the Geneva bar, specialising in sports and health law. Her doctoral work in anti-doping was awarded a summa cum laude by the University of Fribourg in early 2015. She gained significant experience in sports arbitration as a senior associate in one of Switzerland’s leading law firms, advising clients, including major sports federations, on all aspects of anti-doping. She also holds positions within committees in sports organisations and has been involved in a variety of roles in the implementation of the 2015 WADC. Her book “Evidence in Anti-Doping at the Intersection of Science & Law” is scheduled for publication in 2015.

Emily Wisnosky: An attorney-at-law admitted to the California bar, she currently participates in the WADC 2015 Commentary research project as a doctoral researcher. She also holds an LLM from the University of Geneva in International Dispute Settlement, with a focus on sports arbitration. Before studying law, she worked as a civil engineer. More...

Blog Symposium: The impact of the revised World Anti-Doping Code on the work of National Anti-Doping Agencies. By Herman Ram

Introduction: The new WADA Code 2015
Day 2: The “Athlete Patient” and the 2015 World Anti-Doping Code: Competing Under Medical Treatment
Day 3: Proof of intent (or lack thereof) under the 2015 World Anti-Doping Code
Day 4: Ensuring proportionate sanctions under the 2015 World Anti-Doping Code

Editor's note
Herman Ram is the Chief Executive Officer of the Anti-Doping Authority the Netherlands, which is the National Anti-Doping Organization of the country. He has held this position since 2006. After working twelve years as a librarian, Herman Ram started his career in sport management in 1992, when he became Secretary general of the Royal Netherlands Chess Federation. In 1994, he moved on to the same position at the Netherlands Badminton Federation. He was founder and first secretary of the Foundation for the Promotion of Elite Badminton that was instrumental in the advancement of Dutch badminton. In 2000 he was appointed Secretary general of the Netherlands Ski Federation, where he focused, among other things, on the organization of large snowsports events in the Netherlands. Since his appointment as CEO of the Anti-Doping Authority, he has developed a special interest in legal, ethical and managerial aspects of anti-doping policies, on which he has delivered numerous presentations and lectures. On top of that, he acts as Spokesperson for the Doping Authority. Herman Ram holds two Master’s degrees, in Law and in Sport Management. More...

Blog Symposium: The new WADA Code 2015 - Introduction

Day 1: The impact of the revised World Anti-Doping Code on the work of National Anti-Doping Agencies
Day 2: The “Athlete Patient” and the 2015 World Anti-Doping Code: Competing Under Medical Treatment
Day 3: Proof of intent (or lack thereof) under the 2015 World Anti-Doping Code
Day 4: Ensuring proportionate sanctions under the 2015 World Anti-Doping Code

On 1 January, a new version of the World Anti-Doping Code (WADC or Code) entered into force. This blog symposium aims at taking stock of this development and at offering a preliminary analysis of the key legal changes introduced. The present blog will put the WADC into a more general historical and political context. It aims to briefly retrace the emergence of the World Anti-Doping Agency (WADA) and its Code. It will also reconstruct the legislative process that led to the adoption of the WADC 2015 and introduce the various contributions to the blog symposium.More...

To pay or not to pay? That is the question. The case of O’Bannon v. NCAA and the struggle of student athletes in the US. By Zlatka Koleva

Editor's note
Zlatka Koleva is a graduate from the Erasmus University Rotterdam and is currently an Intern at the ASSER International Sports Law Centre.

The decision on appeal in the case of O’Bannon v. NCAA seems, at first sight, to deliver answers right on time regarding the unpaid use of names, images and likenesses (NILs) of amateur college athletes, which has been an ongoing debate in the US after last year’s district court decision that amateur players in the college games deserve to receive compensation for their NILs.[1] The ongoing struggle for compensation in exchange for NILs used in TV broadcasts and video games in the US has reached a turning point and many have waited impatiently for the final say of the Court of Appeal for the 9th circuit. The court’s ruling on appeal for the 9th circuit, however, raises more legitimate concerns for amateur sports in general than it offers consolation to unprofessional college sportsmen. While the appellate court agreed with the district court that NCAA should provide scholarships amounting to the full cost of college attendance to student athletes, the former rejected deferred payment to students of up to 5,000 dollars for NILs rights. The conclusions reached in the case relate to the central antitrust concerns raised by NCAA, namely the preservation of consumer demand for amateur sports and how these interests can be best protected under antitrust law. More...

The European Commission’s ISU antitrust investigation explained. By Ben Van Rompuy

In June 2014, two prominent Dutch speed skaters, Mark Tuitert (Olympic Champion 1500m) and Niels Kerstholt (World Champion short track), filed a competition law complaint against the International Skating Union (ISU) with the European Commission.

ChanceToCompeteTwitter.png (50.4KB)

Today, the European Commission announced that it has opened a formal antitrust investigation into International Skating Union (ISU) rules that permanently ban skaters from competitions such as the Winter Olympics and the ISU World and European Championships if they take part in events not organised or promoted by the ISU. The Commissioner for Competition, Margrethe Vestager, stated that the Commission "will investigate if such rules are being abused to enforce a monopoly over the organisation of sporting events or otherwise restrict competition. Athletes can only compete at the highest level for a limited number of years, so there must be good reasons for preventing them to take part in events."

Since the case originates from legal advice provided by the ASSER International Sports Law Centre, we thought it would be helpful to provide some clarifications on the background of the case and the main legal issues at stake. More...

Interview with Wil van Megen (Legal Director of FIFPro) on FIFPro’s EU Competition Law complaint against the FIFA Transfer System

Editor’s note
Wil is working as a lawyer since 1980. He started his legal career at Rechtshulp Rotterdam. Later on he worked for the Dutch national trade union FNV and law firm Varrolaan Advocaten. Currently he is participating in the Labour Law Section of lawfirm MHZ-advocaten in Schiedam in the Netherlands. He is also a member of a joint committee advising the government in labour issues.

Since 1991 he is dealing with the labour issues of the trade union for professional football players VVCS and cyclists’ union VVBW. Since 2002, he works for FIFPro, the worldwide union for professional football players based in Hoofddorp in the Netherlands. He is involved in many international football cases and provides legal support for FIFPro members all over the world. Wil was also involved in the FIFPro Black Book campaign on match fixing and corruption in Eastern Europe. More...

The Scala reform proposals for FIFA: Old wine in new bottles?

Rien ne va plus at FIFA. The news that FIFA’s Secretary General Jérôme Valcke was put on leave and released from his duties has been quickly overtaken by the opening of a criminal investigation targeting both Blatter and Platini.

With FIFA hopping from one scandal to the next, one tends to disregard the fact that it has been attempting (or rather pretending) to improve the governance of the organisation for some years now. In previous blogs (here and here), we discussed the so-called ‘FIFA Governance Reform Project’, a project carried out by the Independent Governance Committee (IGC) under the leadership of Prof. Dr. Mark Pieth of the Basel Institute on Governance. Their third and final report, published on 22 April 2014, listed a set of achievements made by FIFA in the area of good governance since 2011, such as establishing an Audit and Compliance Committee (A&C). However, the report also indicated the reform proposals that FIFA had not met. These proposals included the introduction of term limits for specific FIFA officials (e.g. the President) as well as introducing an integrity review procedure for all the members of the Executive Committee (ExCo) and the Standing Committees. More...

Why the CAS #LetDuteeRun: the Proportionality of the Regulation of Hyperandrogenism in Athletics by Piotr Drabik

Editor's note
Piotr is an intern at the ASSER International Sports Law Centre.


On 24 July the Court of Arbitration for Sport (CAS) issued its decision in the proceedings brought by the Indian athlete Ms. Dutee Chand against the Athletics Federation of India (AFI) and the International Association of Athletics Federations (IAAF) in which she challenged the validity of the IAAF Regulations Governing Eligibility of Female with Hyperandrogenism to Compete in Women’s Competition (Regulations). The Regulations were established in 2011 as a response to the controversies surrounding South African athlete Caster Semenya (see e.g. here, here, and here), and for the purpose of safeguarding fairness in sport by prohibiting women with hyperandrogenism, i.e. those with excessive levels of endogenous (naturally occurring) testosterone, from competing in women athletics competitions. Owing to the subject-matter that the Regulations cover, the case before the CAS generated complex legal, scientific and ethical questions. The following case note thus aims at explaining how the Panel addressed the issues raised by the Indian athlete. It follows a previous blog we published in December 2014 that analysed the arguments raised in favour of Ms. Chand. More...

Not comfortably satisfied? The upcoming Court of Arbitration for Sport case of the thirty-four current and former players of the Essendon football club. By James Kitching

Editor's note: James Kitching is Legal Counsel and Secretary to the AFC judicial bodies at the Asian Football Confederation. James is an Australian and Italian citizen and one of the few Australians working in international sports law. He is admitted as barrister and solicitor in the Supreme Court of South Australia. James graduated from the International Master in the Management, Law, and Humanities of Sport offered by the Centre International d'Etude du Sport in July 2012.


On 12 May 2015, the Court of Arbitration for Sport (CAS) announced that the World Anti-Doping Agency (WADA) had filed an appeal against the decision issued by the Australian Football League (AFL) Anti-Doping Tribunal (AADT) that thirty-four current and former players of Essendon Football Club (Essendon) had not committed any anti-doping rule violation (ADRV) identified within the AFL Anti-Doping Code (AADC). The players had each been charged with using Thymosin-Beta 4 (TB4) during the 2012 AFL season.

On 1 June 2015, WADA announced that it had filed an appeal against the decision by the AADT to clear Mr. Stephen Dank (Dank), a sports scientist employed at Essendon during the relevant period, of twenty-one charges of violating the AADC. Dank was, however, found guilty of ten charges and banned for life.

This blog will solely discuss the likelihood of the first AADT decision (the Decision) being overturned by the CAS. It will briefly summarise the facts, discuss the applicable rules and decision of the AADT, review similar cases involving ‘non-analytical positive’ ADRVs relating to the use of a prohibited substance or a prohibited method, and examine whether the Code of Sports-related Arbitration (CAS Code) is able to assist WADA in its appeal.

This blog will not examine the soap opera that was the two years leading-up to the Decision. Readers seeking a comprehensive factual background should view the excellent up-to-date timeline published by the Australian Broadcasting Corporation. More...

EU Law is not enough: Why FIFA's TPO ban survived its first challenge before the Brussels Court

Star Lawyer Jean-Louis Dupont is almost a monopolist as far as high profile EU law and football cases are concerned. This year, besides a mediatised challenge against UEFA’s FFP regulations, he is going after FIFA’s TPO ban on behalf of the Spanish and Portuguese leagues in front of the EU Commission, but also before the Brussels First Instance Court defending the infamous Malta-based football investment firm Doyen Sport. FIFA and UEFA’s archenemy, probably electrified by the 20 years of the Bosman ruling, is emphatically trying to reproduce his world-famous legal prowess. Despite a first spark at a success in the FFP case against UEFA with the Court of first instance of Brussels sending a preliminary reference to the Court of Justice of the EU (CJEU), this has proven to be a mirage as the CJEU refused, as foretold, to answer the questions of the Brussels Court, while the provisory measures ordered by the judge have been suspended due to UEFA’s appeal. But, there was still hope, the case against FIFA’s TPO ban, also involving UEFA and the Belgium federation, was pending in front of the same Brussels Court of First Instance, which had proven to be very willing to block UEFA’s FFP regulations. Yet, the final ruling is another disappointment for Dupont (and good news for FIFA). The Court refused to give way to Doyen’s demands for provisional measures and a preliminary reference. The likelihood of a timely Bosman bis repetita is fading away. Fortunately, we got hold of the judgment of the Brussels court and it is certainly of interest to all those eagerly awaiting to know whether FIFA’s TPO ban will be deemed compatible or not with EU law. More...

Asser International Sports Law Blog | FIFA’s provision on the protection of minors - Part 2: The 2009 reform and its aftermath. By Kester Mekenkamp.

Asser International Sports Law Blog

Our International Sports Law Diary
The Asser International Sports Law Centre is part of the T.M.C. Asser Instituut

FIFA’s provision on the protection of minors - Part 2: The 2009 reform and its aftermath. By Kester Mekenkamp.

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 is the second part of a three-piece blog on FIFA’s provision on the protection of minors, Article 19 of the Regulations on the Status and Transfer of Players. The contribution in its entirety aims to provide an encompassing overview of the rule’s lifespan since its inception in 2001. The previous (first) part has shed light on the “birth” and “first years” of the provision, and as such illustrated the relevant developments from 2001 till 2009. This second part covers 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. Thereafter the important CAS decisions concerning Article 19, Muhic, Vada I and II, FC Barcelona, RFEF, and the FIFA decisions relating to Real Madrid and Atlético Madrid, will be scrutinized. The third, and final, part will constitute a substantive assessment of the provision under EU Internal Market law.

Given that the version adopted in 2008 left Article 19 untouched, the 2009 RSTP represented the next significant step in the regulation of the protection of minors. It had become clear that the system as used up to that point was inadequate to achieve its goal,[1] most notably because several national associations still neglected to strictly apply the rules.[2] In response to this perceived failure, a new set of rules and procedures was adopted and came into force on 1 October 2009: the creation of a special FIFA oversight sub-committee of the PSC, the introduction of a special provision on football academies, and the instalment of a transfer matching system.[3] Importantly, with the enactment of these new regulations, Articles 19 and 19bis RSTP were included in the set of provisions binding upon the national level, which consequently had to be incorporated into the national associations’ regulations without alteration.[4]

This new 11-member PSC sub-committee (consisting of representatives of the confederations, leagues, clubs, players and the PSC’s chairman and deputy chairman) became the supervising body concerning the examination, and potential approval, of every international transfer and first registration of a minor player.[5] Its approval is mandatory and needs to be obtained prior to any request for any association’s ITC-request.[6] Moreover, non-compliance can be sanctioned by the FIFA’s Disciplinary Committee, although a limited exception from this obligation exists for minor amateur players.[7]

Article 19bis RSTP on the registration and reporting of minors at academies was another substantial modification with respect to the protection of minors.[8] A football academy is defined by the regulations as “an organisation or an independent legal entity whose primary, long-term objective is to provide players with long-term training through the provision of the necessary training facilities and infrastructure. This shall primarily include, but not be limited to, football training centres, football camps, football schools, etc.”[9] With the creation of this new provision, all minor players that attend an academy, indifferent to whether or not that academy takes part in a national championship or has a legal, financial or de facto link to a club participating in a national championship, must be reported to the national association upon whose territory the academy operates.[10] This regulation of academies resembles an attempt to deal with what was previously a major loophole, the unregistered academies.[11]

The third major change was the instalment of a transfer matching system (“TMS”), which is a web-based data information system that, first of all, aims to simplify the processing of international transfers.[12] Its task is to provide more details to football’s governing bodies on all transfers taking place.[13] This should furthermore increase the transparency of the individual transactions, and in doing so, it will “improve the credibility and standing of the entire transfer system, and additionally also “safeguard the protection of minors”.[14] In practice, the TMS is a central database that monitors the international movement of players. As mentioned earlier, every application for an international transfer by a minor player must receive the approval of the PSC sub-committee. This process is managed through the transfer matching system, the details of which are stipulated in annexe 2 of the RSTP.[15] The sub-committee decides with three of its members, or, in urgent cases, through a sole member acting as “single judge”.[16] The national association wanting to register a player, files the application for an approval of an international transfer (or first registration) into the TMS.[17] Accompanying this application, the TMS requires a great number of specific documents, depending on the facts of the case and the exception that is being invoked.[18] This mandatory release of information spans documentation on, inter alia: academic and football education, accommodation, player’s and/or player’s parent(s) contract, parental authorisation and a birth certificate.[19] Subsequently, the sub-committee decides whether or not it gives its approval. If so, an ITC will be delivered via the TMS and the transfer can be finalized.[20] Parties involved have 10 days to inquire for the grounds of the decision, after that an appeal before the CAS is still open. Note that this procedure for minors differs from a regular international transfer, in that for the latter there is no substantive review by a third party. The clubs provide the relevant information and the TMS merely, automatically, checks whether the two strands of facts match.[21]

The Elmir Muhic case

The regulatory system laid down in the 2009 RSTP operates in roughly the same manner today, as the revisions of 2010, 2012, 2014, 2015, did not substantially amend the core rules.[22] The case law of the CAS during this period, from 2009 to 2012, provides some examples of the application and interpretation of the 2009 rules.

In Elmir Muhic v. FIFA, a 16-year-old football player from Bosnia-Herzegovina joined the German OFC Kickers Offenbach.[23] Following the PSC sub-committee refusal to give its approval, the case ended up before the CAS. The Panel found that none of the three exceptions applied in the matter at hand. It did specify, in relation to the “parents-rule” of Article 19(2)(a), that the term “parents” needs to be applied stricto sensu.[24] Even though it could “conceivably cover situations beyond the natural parents”, such was not the case here.[25] Muhic’s parents still lived in Bosnia and Herzegovina (and it remained uncertain why they did not joined their child), while the player stayed at his aunt’s house.[26] The Panel stated that an aunt (and relatives alike) cannot replace the player’s parents in order to invoke the exception.[27] 

The Vada II case

Around the same time, Vada II made an important contribution to the application of Article 19(2)(b) (the first case had evolved along the lines of the Acuña award).[28] Valentin Vada was a football player living in Argentina, with dual citizenship. Next to possessing the Argentinian nationality, Vada also owned an Italian passport.[29] The 16-year-old was of the opinion that he could transfer to the French Club Girondins de Bordeaux, based on the “EU and EEA-rule” of Article 19(2)(b) RSTP.[30] FIFA’s single judge rejected the request, as he found the facts of the transfer not to match the strict requirements of the exception.[31] The arbiter reasoned that this exception is based on the criterion of territoriality, not nationality, and thus only refers to “a transfer taking place within the territory of the EU or EEA”.[32] Therefore, as Vada wished to transfer from an Argentinian club, Article 19(2)(b) RSTP could not be applied. Be that as it may, the CAS Panel argued (in length) otherwise. It agreed that the “EU and EEA-rule” merely stipulates a criterion of territoriality not nationality.[33] Still, it also noted that the FIFA’s RSTP commentary (as abovementioned) revealed that this exception was included in the 2001 informal agreement between FIFA/UEFA and the Commission in order for it to respect EU free movement law.[34] Thus, this objective to comply with EU free movement rights could not be ignored.[35] Additionally the CAS found, in line with FC Midtjylland, that the list of exceptions in Article 19(2) is not exhaustive.[36] This was supported by a document submitted by Girondins de Bordeaux setting out the case law of the PSC sub-committee. It explained that “if a club believes that very special circumstances, which do not meet any of the exceptions provided…the association of the club concerned may, on behalf of its affiliate, submit a formal request in writing to the FIFA sub-commission to consider the specific case and make a formal decision”.[37] Moreover, the document showed that the sub-committee in the majority of cases takes free movement law into consideration when “assessing the transfer of a player who, with a passport from an EU or EEA country, wishes to register with a club in an EU or EEA country”.[38] Consequently, the Panel accepted an unwritten exception allowing a player such as Vada, with the nationality of one of the EU or EEA member countries, to invoke Article 19(2)(b) RSTP.[39] 

The Spanish lawbreakers

From 2013 onwards the three biggest and richest football clubs in Spain, at the same time belonging to the top 15 clubs worldwide, Atlético Madrid, Real Madrid and FC Barcelona, found themselves embroiled in a number of legal disputes as a result of signing minors.[40] A significant step unto its own, as it demonstrates that FIFA will not shy away from taking on the big iconic clubs when enforcing its regulations.

This “Spanish saga” kicked-off with a dispute concerning a US teenager, of 13 years old, who moved to Spain together with his parents and wanted to register with Atlético Madrid in September 2012.[41] Once more, the main question was whether the factual constellation of the case supported the application of the “parents-rule” (did the parents move to the country of the new club for reasons not linked to football?), and again the Panel stressed, in line with both Acuña and FC Midtjylland,[42] the need to apply the protection of minors rules in a “strict, rigorous and consistent manner”.[43] This means, following its decision in Vada I, that the family’s move must be unconnected altogether to football.[44] It is insufficient to establish that the move is partially connected to their child’s football activities, although not being the primary aim.[45] The Panel’s factual assessment distinguished multiple relevant elements to come to a decision on the possible application of the exception. Contra: the short timeline (six weeks) between the minor’s arrival in Madrid and the registration request (which hints at a previous intention); the player’s previous footballing activities; the player’s statement, reported on his school’s official website, “that the reason of his move to Spain was the possibility that he has been given to play with the Club Atlético de Madrid”.[46] Pro: the family of the player is partially Colombian, which connected them to Spain for reasons of culture and language; “The family is wealthy and…the basic maintenance of the family is not dependent of a working activity of the parents”; The player’s sister had already moved to Europe for her studies; The first preparations were undoubtedly made several months before the interaction with the club commenced; The club does not have a particular interest in the player “other than having in its team a teenager which may have a certain talent for football, such as many others in the Madrid area”.[47] In sum, the CAS concluded that, due to the exceptional facts, there is no link between the move of the family and their son’s football activities.[48]

The FC Barcelona case

Atlético’s fellow-townsman Real Madrid ended up in a likewise dispute with FIFA regarding a 13-year-old player from Venezuela.[49] The main hitter however was the case regarding their Catalonian archenemy: FC Barcelona.[50] The FIFA TMS, in January 2013, became aware of a potential breach, which ultimately lead to a case involving registrations of 31 minors.[51] These players, of various nationalities, were registered at FC Barcelona in the period from 2005 until 2012.[52] Via the FIFA Disciplinary Committee and Appeal Committee, who both found the club to have violated i.a. Articles 19(1), 19(3), 19(4), 19bis, and Annexe 2 of the RSTP, the case ended up before the CAS.[53] The Panel addressed the different potentially breached articles in a consecutive order, starting with Article 19(1) RSTP. The Panel found FC Barcelona to have infringed this provision with respect to nine players. The club had tried to shelter behind the fact that it had complied with all the rules laid down by the regional Catalonian football association, and, as such, had acted rightfully. The Panel held instead that the ban on internationally transferring minors is without doubt “addressed to both ‘associations’ and clubs”.[54] It thereby emphasized that national associations are paramount to the enforcement of FIFA’s statutes, and in the extent thereof the enforcement of the RSTP. Regional associations, such as the Catalonian, cannot govern the international transfer of players.[55] Given that clubs are the starting point of every international transfer, they “must primarily observe this ban”. The Panel stressed furthermore that Article 19(4) RSTP marks this by obliging the associations to ensure the clubs’ compliance in this matter, and moreover, Article 1(4) RSTP, explains that the Regulations “are binding for all associations and clubs”.[56] FC Barcelona may thus not hide behind apparent mistakes/breaches by both the Catalonian and the Spanish football associations, given that it “did not even try to request the transfers based on any one of the exceptions”.[57] Furthermore, FC Barcelona “should have been aware of the simple fact that they [the Spanish and the Catalonian associations] could not register the minors in any legitimate way under the RSTP”, which the CAS compared to “wilful ignorance” or, the “deliberate shutting of eyes”.[58]

Of the group of minors at the centre of the dispute, three were below the age of 12. FC Barcelona put forward a restrictive reading of the personal scope of application of the Articles 19 and 9(4) RSTP (2010 edition), arguing “that there are no prohibitions for the transfer of players under the age of 12”.[59] It thereby relied on Article 9 of the 2006 RSTP Commentary that stipulates “for players younger than 12, the Regulations do not provide for an obligation to issue an ITC for international transfers”.[60] The Panel nonetheless made short work of this argumentation by explaining that Article 9(4) RSTP’s absence of an obligation to issue an ITC for under-12 players merely addresses a formal requirement. The substantive rules for the international transfer of minors (irrespective whether below or above 12 years of age) are found in Article 19 RSTP, including paragraph 2 of that article.[61] This led the Panel to conclude that “no ITC was required when the transfers occurred for players below the age of 12; their transfer nevertheless, can only be lawful if it complies with the requirements embedded in Article 19(2) RSTP”.[62] The Panel also noted the amendment to Article 9(4) RSTP, effective as of 1 March 2015, which lowered the age at which an ITC is required from 12 to 10.[63]

In short, the CAS also ruled that FC Barcelona had violated Article 19(3) RSTP in relation to one minor, for the same reasons referred to in its findings under Article 19(1) RSTP.[64] Moreover, six cases violated Article 19(4) RSTP, as the Catalonian association had failed to refer these transfers to the PSC sub-committee. These infringements of paragraph 4 further justify that “sanctions may also be imposed (…) on the clubs that reached an agreement for the transfer of a minor”. The CAS in this regard defined the interpretation of the word “agreement” to include “agreements concluded between the registering club and the player himself, his parents, agents, etc”.[65] Further, the Panel established a breach of Article 19bis RSTP for all 31 players under investigation.[66] This constitutes a procedural violation, being “the lack of reporting of information regarding the progress and development of players” attending FC Barcelona’s well-known academy ‘La Masía’”.[67] Be that as it may, the CAS did praise the training and educational track record of La Masía. Thereby it deviated from the Appeal Committee’s ruling. In opposition to the latter it found that the attending players’ potential football careers are not endangered. On the contrary, if FC Barcelona in the future commits itself to its reporting duties under Article 19bis RSTP, then it “will be contributing to the overarching principles governing the protection of minors, since it will be providing other clubs with an enviable benchmark for the education and training of players”.[68] The CAS Panel found the sanctions imposed by the FIFA Disciplinary Committee and the Appeal Committee to be proportionate, and hence confirmed the earlier verdict.[69] Concretely, FC Barcelona was imposed a transfer ban for two transfer periods, as well as a fine of CHF 450,000.[70]

The RFEF case and latest developments

Things had not completely settled down yet with regard to the Spanish national football association: Real Federación Española de Fútbol (“RFEF”).[71] As has become clear in the coverage of the Barcelona case, apparent mistakes were made in the Spanish supervision of the ban on international transfers of minors. In a dispute regarding 31 international minor transfers to several Spanish football clubs[72], the RFEF was found by the CAS to have violated its guarding role and thereby induced a passive infringement of Articles 19(1), 19(3), 19(4) together with Annexes 2 and 3, and Articles 5(1) and 9(1) RSTP. [73] A fine of CHF 280,000 was imposed. The Panel pointed out that the RFEF could not justify its failure by arguing that the RSTP was conflicting with Spanish law, given that the rules on the protection of minors had come about in the 2001 agreement between FIFA/UEFA and the EU, which was acknowledged by Spain as a Member State of the EU.[74] Also, for 21 players below the age of 12 the RFEF had failed to fulfil its notification obligations, which the Panel condemned for the exact same reasons as in the FC Barcelona case.[75] The RFEF had failed to “make use of the statutory frameworks and tools at its disposal to ensure the full protection of minors”, and was found negligent as it failed to ensure that clubs and regional associations strictly complied with Article 19.[76] Furthermore, it had in some cases not fulfilled its obligation to seek the approval of the PSC subcommittee nor even submitted an application for such transfers.[77]

Ultimately in 2016, a fate similar to that of “Barça” fell upon both Atlético and Real Madrid.[78] The concise FIFA press release indicates that investigations were conducted by FIFA TMS, which “concerned minor players who were involved and participated in competitions with the clubs over various periods”, between roughly 2005 and 2014. Both clubs were sanctioned for violating, amongst others, Articles 19 and 19bis as well as annexe 2 of the RSTP. The clubs appealed (by which the sanctions were temporarily lifted), yet in September 2016 these appeals were similarly rejected by FIFA’s Appeal Committee.[79] This meant that Atlético Madrid and Real Madrid will have to serve a transfer ban lasting two consecutive transfer periods (e.g. until January 2018), during which they will not be able to attract any players, and were fined CHF 900,000 and CHF 360,000 respectively. The clubs were given a 90 day period “to regularise the situation of all minor players concerned”.[80] A little over a week later, Real Madrid informed the CAS that it would appeal FIFA’s decision before the court in Lausanne.[81] The final outcome of this appeal is still unknown.

In a similar vein, very recently, the English club Manchester City has come under suspicion for allegedly wanting to transfer a 15-year-old player from Argentina, while the Dutch club Ajax was denied by the CAS to sign an American player aged 15.[82] These cases exemplify that clubs might just not be ready to put the practice of internationally transferring minors to bed yet. Moreover, the adaptation of the relevant rules is a sign for the need of continuous monitoring the effect of the provision on the protection of minors. The latest update, the June 2016 version, has incorporated another exception to the prohibition for the international transfer of minors, which has been created through the Sub-Committee’s case law.[83] Players that have for the five years preceding the request continuously lived in the country (other than that of their nationality) of intended registration are now exempted from the prohibition.[84]

In this part 2 of the blog, I have shown that FIFA’s restrictions on minor transfers have become more stringent after the 2009 reform. In recent years, FIFA has also cracked down on various prominent clubs, especially in Spain, which were still involved in recruiting minor players while disregarding, with the tacit support of their national federation, FIFA’s rules. Unsurprisingly, these developments have also flared up again the debate on the compatibility of those rules with EU law.[85] Thus, the next, third and final, part of this blog on FIFA’s provision on the protection of minors will offer a substantive assessment of FIFA’s rule under the requirements of EU Internal Market law. 

[1] A. Najarian, “’The Lost Boys’: FIFA's Insufficient Efforts To Stop Trafficking of Youth Footballers”, Sports Law. J. 2015, p. 167; R. Simons, “Protection of Minors vs. European Law”, Eur Sports Law Bulletin 2010, p. 172.

[2] R. Simons, “FIFA Transfer Matching System wel effectief?”, TvS&R 2011, p. 100.

[3] FIFA Circular no. 1190, 20 May 2009.

[4] Ibid.

[5] Art. 19(4) FIFA RTSP 2009.

[6] FIFA Circular no. 1206, 13 October 2009.

[7] FIFA Circular 1209, 30 October 2009.

[8] Art. 19bis FIFA RSTP 2009.

[9] Definition 12 FIFA RSTP 2009.

[10] Art. 19bis(1) and (2) FIFA RSTP 2009; Supra at 5.

[11] V. Derungs, “Protecting underage football players in the transfer system”, World Sports L. Report 2015, p. 15.

[12] Definition 13 FIFA RSTP 2016.

[13] 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. 619.

[14] FIFA Circular No. 1174, 12 January 2009.

[15] Annexe 2 FIFA RSTP 2016

[16] Art. 3(2) Annexe 2 FIFA RSTP 2009.

[17] Art. 5(1) Annexe 2 FIFA RSTP 2009.

[18] Art. 5(2) Annexe 2 FIFA RSTP 2009.

[19] FIFA Document, Protection of minors – Pertinent facts to be included in documents.

[20] Art. 9 and Annexe 3 FIFA RSTP 2009.

[21] For precise steps see FIFA TMS, Global Transfer Market Report 2016, p. 8; Supra at 4, p. 101.

[22] FIFA, Transfers, Player’s status, Clubs, Agents Regulations - Archived regulations

[23] Arbitration CAS 2011/A/2354 E. v. Fédération Internationale de Football Association (FIFA), award of 24 August 2011: At the same time, he participated in a three-year educational/trainee program at a company in Frankfurt, which aimed “to prepare him as office clerk to apply for a job as ‘Airport Manager’”. The German national football association, on behalf of Muhic and Kickers Offenbach made a request to FIFA for an exception via a special authorization for the transfer, founded on the “hardship based on the specific circumstances of the present case, namely the move of the player from Bosnia and Herzegovina to Germany without his parents, but with their expressed consent, for reasons not linked to football but to benefit from a humanitarian educational project” (p. 2.).

[24] Ibid, para. 17.

[25] Ibid, para. 18.

[26] Ibid, para. 18 and p. 2; Furthermore, the Panel recalled that Bosnia and Herzegovina is neither a member of the EU nor of the EEA and, as a consequence thereof, a player with this nationality cannot rely on the exception of Article 19(2)(b) RSTP (para. 20). The Panel subsequently, by emphasizing that the rationale for this exception is the “free movement of services and services suppliers within the EU and the EEA (and other production factors)”, quickly dismissed the appellant’s claim for the application of this provision resting on “the Stabilization and Association Agreement signed between the EU and Bosnia and Herzegovina” (paras. 21-23). In final, the CAS once more indicated that Article 19’s rationale was not to stop voluntary movement, yet it felt compelled to apply the protection of minors strictly: “Opening up the door to exceptions beyond those carefully drafted and included in the present text would unavoidably lead to cases of circumvention of the rationale for this provision” (para. 26). Moreover, Muhic could still continue his education, which was his primary reason to move to Germany, and likewise train with his team. He did have to wait a few months before becoming 18 years of age and thus eligible to start in professional matches. Nevertheless, the Panel concluded that this could not amount to constitute an “exceptional hardship going beyond the general impact of the provisions on the protection of minors” (para. 27).

[27] Supra at 11, p. 15.

[28] Arbitrage TAS 2012/A/2862 FC Girondins de Bordeaux c. Fédération Internationale de Football Association (FIFA), sentence du 11 janvier 2013 (Vada II); Arbitrage TAS 2011/A/2494 FC Girondins de Bordeaux c. Fédération Internationale de Football Association (FIFA), sentence du 22 décembre 2011 (Vada I).

[29] TAS 2012/A/2862 (Vada II), para. 3.

[30] Ibid, para. 18.

[31] Ibid, para. 19.

[32] Ibid, para. 19; Bulletin TAS CAS Bulletin 2014/2, p. 29.

[33] Supra at 29, para. 91.

[34] Ibid, para. 94.

[35] Ibid, para. 95.

[36] CAS 2008/A/1485 FC Midtjylland A/S v. Féderation Internationale de Football Association, paras. 19-21.

[37] Supra at 29, para. 96; Bulletin TAS CAS Bulletin 2014/2, p. 29.

[38] Supra at 29, para. 97.

[39] Ibid, paras. 98-100.                                                                                                                                                                  

[40] The Guardian, 29 April 2015, “Atlético Madrid and Real deny reports they are facing Fifa transfer embargo”.

[41] Arbitration 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.

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

[43] Supra at 41, paras. 8.20-8.23.

[44] TAS 2011/A/2494 FC (Vada I), paras. 31-38.

[45] Supra at 41, paras. 8.25.

[46] Ibid, para. 8.30.

[47] Ibid, para. 8.31.

[48] Ibid, paras. 8.32-36.

[49] Arbitration CAS 2014/A/3611 Real Madrid FC v. Fédération Internationale de Football Association (FIFA), award of 27 February 2015: The PSC Sub-Committee had rejected the request, which was again founded on the “parent rule”. It did so inter alia since the player’s parents had merely obtained a temporary residence permit that denied them the right to work, while the submitted employment contracts “made reference to enterprises incorporated and domiciled in Venezuela” (para. 11). This in combination with the fact that the player had moved to Spain one month in advance of his parents, led the PSC to believe that their move was linked to Real Madrid’s interest in their son (paras. 12-14). The subsequent proceedings before the CAS are only of interest in relation to the procedural aspects, since the appeal was declared inadmissible and consequently did not address the merits (paras. 63-66).

[50] CAS 2014/A/3793 Fútbol Club Barcelona v. Fédération Internationale de Football Association (FIFA), award of 24 April 2015.

[51] Bulletin TAS CAS Bulletin 2015/2, p. 76; Supra at 52, paras. 2.3-2.11.

[52] Supra at 50, para. 2.2.

[53] Supra at 51, p. 77.

[54] Supra at 50, paras. 9.1-9.2.

[55] Ibid, paras. 9.2-9.3.

[56] Ibid, para. 9.4.

[57] Ibid.

[58] Ibid.

[59] Ibid, para. 9.7.

[60] Ibid.

[61] Ibid, para. 9.8.

[62] Ibid.

[63] Ibid, para. 9.9.

[64] Ibid, paras. 9.10-9.12.

[65] Ibid, para. 9.14.

[66] Ibid, para. 9.18.

[67] Ibid, para. 9.19.

[68] Ibid.

[69] Ibid, paras. 9.29-9.36 and 10.

[70] Ibid, para. 2.18.

[71] CAS 2014/A/3813 Real Federación Española de Fútbol (RFEF) v. Fédération Internationale de Football Association (FIFA), 27 November 2015.

[72] Coincidentally the exact same number of minors under investigation as in the FC Barcelona Case. Be that as it may, in the case a hand the minors transferred to various Spanish clubs.

[73] Bulletin TAS CAS Bulletin 2016/1. P. 66.

[74] Ibid, p. 63, the Panel stated “As a member of the European Union, the Kingdom of Spain had acknowledged the application of this general prohibition throughout Spain and no express Spanish law stating otherwise had been brought to the Panel’s attention”.

[75] Supra at 73, p. 63.

[76] Ibid, p. 64.

[77] Ibid.

[78] FIFA, 14 January 2016, “Atlético de Madrid and Real Madrid sanctioned for international transfers of minors”.

[79] FIFA, 8 September 2016, “FIFA rejects appeals of Atlético de Madrid and Real Madrid in relation to transfers of minors”.

[80] The Guardian, 8 September 2016, “Real Madrid and Atlético Madrid lose appeals against Fifa transfer ban”.

[81] CAS, 16 September, “Request for stay filed by Real Madrid CF granted by the Court of Arbitration for Sport”.

[82] Independent, 22 September 2016, “Manchester City could face transfer ban after being reported to Fifa for 'trafficking' of youngster”; USA Today, 29 October 2016, “CAS rejects US teenager’s challenge to FIFA transfer rules”.

[83] Supra at 11, p. 15; FIFA Circular no. 1542, 1 June 2016.

[84] Art. 19(3) FIFA RSTP 2016.

[85] Reuters, 24 November 2016, “FIFA faces lawsuit over rules banning transfer of minors”.

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