While you read this I want you to keep two questions in mind:
- Are young players being protected or kept from having opportunities?
- Are FIFA giving preferential treatment to Europeans?
Becoming a professional football player is the dream of many children around the world. As the most popular sport on the planet, it’s no surprise that in many countries kids start practicing very young to develop their skills so perhaps one day they might be sufficiently experienced to sign a professional contract with a club. Sometimes young players try alternatives outside of their home country, where they may have more opportunities. Minors in football is nothing new or a rare, however, can minors actually move to foreign countries to seek their dream of becoming – who knows? – the next Messi?
FIFA established in the Regulations of Status and Transfers of Players (RSTP) a specific chapter for the international transfers of minors, referring to it as protection of minors in football. Initially, FIFA RSTP defines the term minors as a concept regardless of each country’s law in relation to maturity; it’s an objective concept aiming for international unification. The RSTP provides the relevant rules for the protection of minors in Article 19:
THE GENERAL RULE AND THE EXCEPTIONS
As provided by Art. 19(1), an international transfer of a player is only permitted if the player is over the age of 18. According to FIFA, such protection is necessary to provide minors a stable environment for their training and education, as well as to avoid the abuse of minors. This used to happen in the past, in situations where clubs transferred them, but if they didn’t perform, abandoned them, leaving them alone without assistance.
Art. 19(2), however, provides exceptional cases that an international transfer of a minor can be authorised:
- The first one, Art. 19(2)(a) is when the player’s parents move abroad for reasons not related to football. In this scenario, a transfer may be allowed for the minor to follow his parents moving their home, and not the other way around, meaning that the transfer of the minor to a foreign club can’t be the reason for the family to move abroad.
- The second exception Art. 19(2)(b) is in cases where the international transfer takes place within European Union (EU) territory or the European Economic Area (EEA) and the player is aged between 16 and 18. In such a scenario, the new club must meet the requirements listed on the provision for the transfer to be authorised.
- The third situation allowed by FIFA is the ‘border rule’, self-explained by the provision of Art. 19(2)(c) where the player lives sufficiently close to the neighbouring country.
Although not expressly mentioned by the RSTP, there are other circumstances in which FIFA may authorise the international transfer of a minor: The list of exceptions isn’t exhaustive. Amongst these other exceptions there’s the transfer of refugee minors, both accompanied and unaccompanied by the parents, known as a ‘transfer for humanitarian reasons’, mentioned by FIFA in Circular Letter number 1635. A further exception admitted by FIFA is when the minor moves abroad for study reasons, for example, international student programs for limited time periods. Both these exceptions can be found on FIFA Minor Application Guide, and FIFA mentioned during the 2018 Football Law Review that they would be included in the RSTP soon.
It’s worth mentioning that these same rules provided for transfers apply to the first registration of the minor, as determined by Art. 19(3), in case they aren’t a national of the country in which they wish to be registered for the first time and have not lived continuously, for at least the last five years in the said country, the so-called ‘5 years rule’.
So, again: can minors be transferred internationally?
The general rule is the prohibition of the international transfer of minors. However, if certain requirements are fulfilled, some exceptions are accepted by FIFA. The authorisation of the transfer or the first registration is subject to the approval of FIFA Players’ Status Committee, as provided by Art. 19(4).
What about these exceptions? More specifically, does the possibility of transferring minors from 16 to 18 years old only within the EU/EEA territory seem fair? Is there any problem with that?
THE EU/EEA PROBLEM NOTICED BY CAS
Initially, according to the wording of the RSTP, the criteria seem to be territorial. However, FIFA explained in the Commentary on RSTP that such exceptions are because of an agreement reached with the EU in 2001, so as not to contravene the free movement of employees within the EU/EEA. FIFA used to interpret the rules very strictly, understanding that they would only be applicable if both clubs involved were within the EU, using a purely territorial criteria. However, since the so-called ‘VADA II’ CAS Case (TAS 2012/A/2862), in which it was understood that an exception should be made in cases where the minor was a citizen of an EU country, FIFA started authorising the exception also by the athlete’s nationality/citizenship.
Although FIFA started to interpret the relevant provision of the RSTP according to CAS understandings on ‘VADA II’ case, it hasn’t modified the wording of the article in question. Neither has it expressly disclosed such interpretation to its members through circular letters, raising doubts regarding the strict application or not of the territorial criteria, as well as discussions about a potential discrimination against athletes and clubs from non-EU countries regarding the international transfer of minors.
As seen in CAS 2016/A/4903, it was recognised that such interpretation, in certain circumstances, could lead to unequal treatment between athletes holding EU/EEA citizenship and athletes not holding an EU/EEA citizenship. The CAS Panel also pointed out that there was no apparent justification for FIFA to apply different treatment between EU/EEA citizens and non-EU/EEA citizens.
The discriminatory treatment becomes more apparent in cases of athletes holding two or more citizenships, where one of them is from an EU/EEA member – as shown in the aforementioned case where a 16 year old athlete, holding Argentinian and Italian citizenships, requested a transfer from an Argentinian club to a club in an EU country. In this scenario, the transfer should be allowed based on the free movement of workers within the EU. However, if the transfer was from an EU club to an Argentinian club, applying the same interpretation, the transfer wouldn’t be allowed, even though the athlete was a national from Argentina, due to the fact that the transfer is only authorised if the new club is located within the EU/EEA territory. Therefore, there is an evident special treatment given by Art. 19(2)(b) of RSTP to clubs and athletes from EU/EEA members.
In its conclusion, CAS expected FIFA to duly consider the findings of the award and to determine whether to amend the regulations, or to adopt a different interpretation of the rule through circular letters, or otherwise. However, so far there hasn’t been any change, apart from revealing that the protection of minors in the agenda for next regulatory reforms, although FIFA didn’t specify how things would change.
SO WHAT NOW?
The protection of minors is an extremely important matter in the world of football and FIFA plays a very important role. Nevertheless, such protection can’t be followed by discrimination or preferential treatment to some. Applying Art. 19(2)(b) and its current interpretation, a minor from a non-EU/EEA country, but holding an EU/EEA member citizenship, could be transferred to any club of any EU/EEA country; however, would not be able to return home un til 18 years old even though he’s a national of the country of destination.
If the financial gap wasn’t already an advantage for European clubs, there’s also this ‘minors transferring’ advantage, permitted by FIFA itself, which was supposed, contrarily, to promote equal competition. Although FIFA must comply with EU law regarding free movement of workers, it shouldn’t allow that compliance to give an improper advantage to EU/EEA members over non-members. Moreover, it should also take into account the law of other jurisdictions, especially when it comes to the minimal legal age to sign professional contracts – for instance, in Brazil, it’s 16 years old.
Delving deeper into the problem, why limit this exception only to players from 16 to 18 years old? If a minor is younger than 16 years old and their family holds EU citizenship in addition to their home country citizenship, and the family is able to provide for them to follow their dream abroad, and if the national laws of the country allow them to do so, why keep this family from trying to achieve the kid’s dream? Why limit the opportunities for young players?
It’s time for FIFA to review the protection of minors in the RSTP, including the transfer system for young athletes. The rules from 2001 can’t be applicable almost 20 years later especially seeing how quickly society, but more importantly, football changes.