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

International transfers of minors: The sword of Damocles over FC Barcelona’s head? by Giandonato Marino and Oskar van Maren

In the same week that saw Europe’s best eight teams compete in the Champions League quarter finals, one of its competitors received such a severe disciplinary sanction by FIFA that it could see its status as one of the world’s top teams jeopardized. FC Barcelona, a club that owes its success both at a national and international level for a large part to its outstanding youth academy, La Masia, got to FIFA’s attention for breaching FIFA Regulations on international transfers of minors.  Unfortunately, at the moment FIFA has not published the decision of the Disciplinary Committee on this case, therefore our analysis is mainly based on the two official statements of FIFA and FC Barcelona.

When FC Barcelona signed the 13 years-old South Korean Lee Sung Woo, in 2011, they thought they found the “new Lionel Messi”. Little did they know that this under-aged Korean football player was to be one of the sources of the legal trouble they are in now. On 5 february, 2013, the Club received the request from FIFA via the Spanish Football Federation (RFEF) to provide information concerning the registration of Lee. Over the course of 2013, FIFA further asked FC Barcelona for additional information on other players. By December 2013, FC Barcelona provided FIFA information on a total of 37 minors.

According to FIFA’s official statement FC Barcelona has been found to be in breach of art.19 of the Regulations on the Status and Transfer of Players (hereinafter “the Regulations”). In this regard, special attention was focused on ten minors signed between the years 2009 and 2013, including the abovementioned Lee. According to article 19 of the Regulations, international transfers of players are only permitted if the player is over the age of 18, or 16 if the player is transferred within the territory of the European Union[1]. Also according to FIFA, the RFEF has been found to have breached the same article 19 of the Regulations in the context of the transfer and registration of certain minor players. Indeed, the Regulations oblige the National Federations to enforce these provisions on national football clubs.

For a normal international transfer procedure, the Regulations impose to clubs and Federations the use of the web-based Transfer Matching System (hereinafter “the TMS”) since 2009.  The TMS ensures that all international transfers are conducted in line with the FIFA rules, thereby controlling the integrity of both clubs and Federations involved. In other words, the club willing to register a new player informs its National Federation of the transfer, who in turn informs TMS, in order for the new player to be registered in his new Federation. As regards the case at hands, the exact details of the used procedure are unknown. However, one could suspect that FC Barcelona deviated from the “usual” procedure and decided to register the minors with the Catalan Federation instead. This means that, at a certain point, the Catalan Federation had to inform the National one. According to the RFEF Secretary General, the Spanish National Federation actually refused to register the concerned minors, but the Catalan Federation proceeded anyway. This alternative registering procedure is by no means contrary to TMS, but does increase the risk for “bureaucratic mistakes”. This case highlights the difficulty in identifying a responsible party. Despite the fact that FC Barcelona, RFEF and the Catalan Federation have a shared responsibility in the administrative mess-up leading to this procedure, FIFA only sanctioned the first two.

FIFA has been clear regarding the disciplinary sanctions: in accordance with article 23 of FIFA Disciplinary Code, FC Barcelona is imposed a ban to register new players for two complete and consecutive transfer periods (summer 2014 and January 2015). Moreover, the Club received a fine of CHF 450,000 and a deadline of 90 days in which to regularise the position of all minors concerned. The RFEF, for its part, received a fine of CHF 500,000 plus a deadline of one year in order to regularise their regulatory framework on this issue. With a turnover of more than 400 million Euro per year, it is unlikely that the Club is seriously worried about the fine. However, the transfer ban places the FC Barcelona in a very unpleasant situation. The first team is in need of certain important replacements, such as a new goalkeeper and a central defender, after both Víctor Valdés and Carles Puyol announced their departure this upcoming summer. Furthermore, it remains unclear what will happen with the promised signings of the German goalkeeper Marc-André Ter Stegen and the Croatian talent Alen Halilović.

FC Barcelona announced in its aforementioned official statement, that it will be appealing to the FIFA Appeal Committee and, if necessary, further appeal to CAS. Furthermore, the Club will demand for provisional measures in order to register new players during the next transfer window at least. Meanwhile, the RFEF is yet to give a detailed statement on its future legal strategy.

The fact that FIFA sanctions one of the biggest and renowned football clubs in the world in an unprecedented way demonstrates that they take this issue seriously, no matter how big the club in question is. The rules on minors is made to protect the best interest of the child. FIFA argues that the interest in protecting the appropriate and healthy development of a minor as a whole must prevail over purely sporting interests. This position is also supported by the International Federation of Professional Footballers (FIFPro), who fears that without the proper controls the development of a minor is not adequately protected against exploitation.

Undoubtedly, FC Barcelona will refer to the letter its former President, Sandro Rosell, sent to FIFA in March 2013. In this letter, Rosell argued that to fully safeguard the protection of minors, clubs must ensure the players can benefit from any good opportunity on their reach. In this regard, Rosell asked FIFA to consider a further exception on article 19 in favour of the clubs that have developed excellent Youth Academies. This would mean that certain clubs should be allowed to register minors regardless of their origin as long as the clubs compromise to take care of the minor until his 18th birthday.

This could be a valid argument but would require FIFA Regulations to be modified. With regard to provisional measures, the Club’s demand is very unlikely to be accepted by the FIFA Appeal Committee, since article 124 of the FIFA Disciplinary Code only permits a suspension of the economical sanction. At CAS, on the other hand, the Club should demonstrate the existence of an irreparable harm, the likelihood of success on the merits of the claim, and whether the interests of the FC Barcelona outweigh those of FIFA[2]. In this regard, FC Barcelona can refer to the Mexès case where CAS temporarily lifted the ban imposed on the Italian football club A.S. Roma[3]. Furthermore, it can also rely on a more recent precedent in this field: the Kakuta case.

Considering the potential impact of the imposed disciplinary sanctions, this legal dispute will be one of the most difficult and challenging games in FC Barcelona’s long history. But make no mistake, this is just the beginning of an exciting legal game…

[1] Article 19 stipulates a few exceptions that provide International transfers of minors to be allowed. In each case, FIFA’s Player’s Status Committee has exclusive competence to review the circumstances and permit the exception.

[2] R37 Provisional and Conservatory Measures – CAS Procedural Rules

[3] Arbitrage TAS 2005/A/916 AS Roma c. Fédération Internationale de Football Association (FIFA), §39-40

Comments are closed