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