Editor’s note: Rhys Lenarduzzi is a final semester Bachelor of Law (LL.B) and Bachelor of Philosophy (B.Phil.) student, at the University of Notre Dame, Sydney, Australia. As a former professional athlete, then international sports agent and consultant, Rhys is interested in international sports law, policy and ethics. He is currently undertaking an internship at the T.M.C. Asser Institute with a focus on Transnational Sports Law.
Having considered the history and justifications
for the FIFA training compensation and solidarity mechanisms in my previous blog, I will now consider these systems in the African
context. This appears to be a worthwhile undertaking given these global mechanisms
were largely a result of European influence, so understanding their
(extraterritorial) impact beyond the EU seems particularly important. Moreover,
much has been written about the “muscle drain” affecting African football and
the need for such drain to either be brought to a halt, or, more likely and
perhaps more practical, to put in place an adequate system of redistribution to
ensure the flourishing of African football that has essentially acted as a
nursery for European football for at least a century. In the present blog, I
intend to draw on my experiences as a football agent to expand on how FIFA’s
redistributive mechanisms function in practice when an African player signs in
Europe via one of the many kinds of entities that develop or purport to develop
talent in Africa. I will throughout address the question of whether these
mechanisms are effective in a general sense and more specifically in relation
to their operation in Africa.
1.
The
context: African players’ pattern of migration to Europe
There is a substantial body of work on player migration
from Africa to Europe. The history of this movement is important context but
just one element to the composition of this blog, so for a more comprehensive
unpacking I recommend turning to Darby
and Poli’s
work. Briefly though, much of the movement began in the early 1900s, with
an axiomatic nexus between African countries and their colonial ruler. These
connections and channels live on and as one author noted, old colonial ties continue to structure the flow’.[1] This is of little surprise
given the language advantages, cultural and economic connections between
countries already in place, though some other explanations for the ongoing and
evidently near exclusively one way flow are at play.
Economic prosperity has always been the drawcard
for African footballers pursuing the European dream, though as Ungruhe submits, in modernity there is an
additionally strong pull and distortion at play.[2] Here Ungruhe apportions
considerable blame on Africans and the media painting a picture of football in
Europe through the lives of players like Didier Drogba and Samuel Eto’o. The
result for young African footballers is a ‘dream of being part of an imagined
Euro-American modernity and aspirations of a good life as well as
socio-cultural demands of ‘becoming a somebody’ in society.’[3]
These dreams don’t always align with the realities and come at the cost of
other educational or career pursuits.
Further and perhaps more obvious reasons for the
movement is the relatively cheap labour costs an African player presents in
opposition to the European player of equivalent footballing quality. Transfer
fees, or more relevant to this blog, training compensation, is commonly waived
(often in exchange for a less than ideal future sell-on arrangement) making the
African player attractive in an economical sense. The way Africa acts as a nursery to European football clubs
has been analogised by Darby to the mining of the imperialist colonial period,
where the ‘sourcing, refinement, and export of raw materials’ can be compared
to the ‘mining and export of indigenous football talent for consumption on the
European football market.’[4] Though as has been noted
above, this is ongoing and the movement continues to be one way, seemingly
pointing to a neo-colonialist dimension to player movement, a term famously
used in a Sepp Blatter interview (2003), along
with such practice being labelled ‘social and economic rape’.
Though much is made of the movement being nearly
exclusively one-directional historically and in a contemporary transfer market,
the movement and environment surrounding such transfers might be more
defensible if FIFA’s redistributive mechanisms were effective.
2.
Statistics
of concern: FIFA redistribution mechanisms and Africa
Quantitative data in this space has historically
been hard to come by. In fact, a breakdown of the parties that paid the due
training compensation and solidarity contributions, a breakdown of those that
did not meet their payment obligations, and the confederations in which the
paying and the owing entities sit would be instructive but is currently missing.
Nevertheless, the recently published Players’ Status
Department Report and Global Transfer Market
Report 2019 provide some interesting insights. For instance, the Players’ Status Department Report shows inter alia
that clubs from CAF are very rarely a respondent in training compensation and
solidarity mechanism claims,[5] the rather obvious result
of being largely an export rather than import market. If we focus on 2018-2019 transfers
to UEFA clubs (see fig.12), most transfers to
these clubs are from within UEFA (8,108), whereas CONMEBOL to UEFA is second
(836), then CAF to UEFA (581). Despite there being a gap between CONMEBOL and
CAF transfers to UEFA, it is not nearly as significant as the gap between
claims brought and resolved at FIFA, for both solidarity contributions and the
training compensation mechanism. For instance, the solidarity contribution
mechanism claims brought and resolved where CONMEBOL is the claimant and UEFA
in the respondent (304) is approximately double that of CAF as claimant and
UEFA as respondent (144) (see fig.12). The
number of resolved claims with UEFA as respondent for training compensation
disputes is again, approximately double, with CONMEBOL (131) and CAF (70). (see fig.19) This disproportionality between total
transfers and disputes brought and resolved on the redistributive mechanisms,
may point to African clubs being either unaware of their rights under these
mechanisms or rendering themselves unable of achieving a remedy when falling
victim to a more powerful club from Europe.
In 2018, it was reported
that just USD$67.7m of the USD$351.5m due to be distributed in solidarity
contributions, was actually paid. That
is a mere 19.3% of what should have trickled down and perhaps just as alarming
is that this percentage has been worsening. Africa, as a poorer continent than
most and certainly a poorer continent than Europe to which it provides football
talent more than it provides any other confederation, is arguably hurt most
from this non-payment. Furthermore, the
2019
FIFA Global Transfer Market Report stated
that USD$12.2 million in training compensation was paid,[6] which is a considerable
distance from what was paid in solidarity contributions and light-years from
what was supposed to be paid in solidarity contributions. So what might this
say about these mechanisms in general and in the African context specifically,
if one is to conclude that Africa provides a wealth of talent for Europe and
other confederations and is hence in most need of redistribution for fulfilling
the role of talent nursery?
3. The
Operation of Training Compensation in the African Context
More than any other confederation, Africa has
found itself with an array of different entities undertaking football training
and education, most commonly referred to as academies. Not all have
questionable intentions, however this range of non-conventional arrangements of
registering or attaching young players to a particular entity is usually for
profit. This often results in some regulatory gymnastics, and particularly in
relation to both the training compensation and solidarity mechanisms when
profit is on the line. I will borrow Darby’s four categories
of training structures in Africa and apply my understanding of the industry. I
would submit that we can look at these arrangements and form conclusions on how
training compensation may operate in each scenario if a young player from
either of these environments is recruited to Europe. I will keep the players
and clubs involved in the following anecdotes anonymous, in the interest of
confidentiality and professionalism. I will pay particular attention to
scenarios (1) and (3) as what takes place in practice behind the scenes in
these categories can be less obvious and perhaps more interesting for the
purpose of this blog.
Darby’s
four categories of training structures in
Africa are; [7]
1) African
academies, organized and run by African club sides or African national
federations
2) Afro-European
academies, which involve either a partnership between an existing academy and a
European club or an arrangement whereby a European club takes a controlling
interest in an African club[8]
3) Private
or corporate-sponsored academies, which have well-established foundations and
operate with the support and sponsorship of private individuals
4)
Non-affiliated, improvised
academies, which are set up on an ad hoc basis and involve poorly qualified
staff and lack proper facilities[9]
3.1. Scenario 1: Training compensation and
African club academies
In my experience as a football agent and that of
my colleagues and competitors that I’ve spoken with on the topic, scenario (1)
is the most likely to result in some redistribution, though it is still not always
commonplace for clubs to stand their ground and demand training compensation.
Instead, what regularly happens is a gamble of sorts, where African clubs waive
their right to training compensation initially, in exchange for a percentage of
future sell-on value. This can be pitched by a new club to be an amount that
would be greater than what a club would receive in training compensation, but
is simultaneously often a condition of a “take it or leave it” offer from a buying
club, meaning that the player will no longer be of interest if they are not
free. This “fee” or piece of future sell-on value is then at times contingent
on things such as the new club’s success or first team appearances of the
player in question. Unfortunately with the latter, there have been instances
when clubs have stopped selecting the player in question when his number of appearances
is coming close to the threshold of that clause.
Scenario (1) type clubs can appear to be the
most legitimate entities of the four categories to claim training compensation,
though perhaps the following two anecdotes taken from my practice will shed
light on how the mechanism operates in practice, with particular attention to
it’s waiver and the ‘hindrance effect’[10] it might have. For
instance, a former youth national team captain from Ghana had been on the edge
of a transfer to a myriad of small-medium size clubs in Europe. The interest
had been intense since his 16th birthday and the plan was for him to
move at 18 when the regulations permitted. However, due to a short-term injury
around age 18, the interest for an immediate transfer diminished. The player
recovered and struggled to generate the same interest in Europe as before, but became
of interest in Australia, where the strategy would have been to play at a club
within a country that was arguably a better stepping stone to Europe than his
current club. When the interest was from Europe, his club was open to waiving
training compensation in exchange for a future sell-on benefit and saw this as a
safer bet. However,when the interested club was an Australian one, the training
club saw the chances of the player moving on to Europe as less likely and the
chance to profit substantially from future sell on fees unlikely, hence it refused
to waive the training compensation. The player is still at the same club years
later, in his mid-twenties and with little prospects of playing outside of his
home nation. The result in this instance is that the player's career was strongly
affected by the training compensation mechanism, his training clubs and
community will never be the beneficiaries of redistribution, and the Australian
club who was only interested if the player was free missed out on a player who wanted
to come to the club. Can such a strong restriction on a player’s ability to
move to seek employment as a professional player outside of his home country
really be justified by the redistributive goal of the training compensation
mechanism? Especially, when in many cases this mechanism is being waived and perhaps
not considered necessary by FIFA itself.
In another example of a scenario (1) legitimate
club with a youth academy involving the ‘hindrance effect’, an arguably unfortunate
outcome can result if a training club refuses to waive its rights to training
compensation. Indeed, often only a small group of big clubs with well above
average financial resources can afford the entire bill for compensation between
the ages of 12 and 21. I recall a top
youth prospect from Mali who had attracted lots of interest from clubs in
Europe following strong performances at both the under 17 and the under 20 World
Cup. Yet, training compensation due had acted as a hindrance until he had a strong
season around age 20. The player’s training club(s) in Mali had stood their
ground and insisted training compensation be paid if the player was to transfer.
Here, it took a relatively big club that regularly plays Champions League or
Europa League football with the financial resources to pay it. The club has an enormous squad, many international
players, and would not generally be thought of as an ideal destination for a youth
prospect as they have a history of parking players. Since his signing, the
player has played little football as loan options have fallen through and he
has been unable to find himself in the first team. In this case the player's
development has stagnated, having ended up at a big club, and not at other more
suitable destinations despite interest and offers, nearly exclusively because
training compensation acted as a barrier for him to be signed by a club that
most would deem a more appropriate stepping stone.
3.2. Scenario 3: Training compensation and
African private academies
Scenario (3) has become an incredibly common
environment for young African footballers to find themselves in, given the
abundance of these academies throughout the continent. Players enter these entities either by paying
their way if they have the means and aspirations but lack the talent or having
been scouted for their above average potential. This creates for an interesting
dynamic come transfer time and considerable controversy. These academies are
generally created for profit but are of course non-FIFA entities, requiring they
get creative if a player becomes the subject of interest from Europe. Some less
than ideal sequences of events can follow from this arrangement. Examples include academies affiliating
themselves with clubs through ‘under the table’ arrangements, handing the
player back to a FIFA recognised club before transferring, or having the player
registered at that club for the duration of their stay with the academy to
simplify a transfer if it eventuates, perhaps then attracting training
compensation to the club but more likely arranging an agreement like those
alluded to above, where compensation for training a player will only be
realised down the track on future sell-on fees. Academies want immediate money
as well though so there are instances where a club will pay to have the players
current registration and share a percentage of future sell on fees with the
academy. There are a number of other
arrangements however one can probably get the picture, that the FIFA training
compensation mechanism is regularly being circumvented or tweaked significantly
so as to make a deal happen, rather than having it fall through. In this
instance, the academies are paid in some form now or later, as well as the
clubs that help them facilitate the transfer.
For instance, a star of a recent under 17s World
Cup from Nigeria had spent the majority of his youth at one of the more famous
scenario (3) type academies. When interest flooded in following the World Cup,
there was nearly a year worth of assessing what would be the best move for the
player. A lot of the interest was from
medium sized clubs and from destinations outside of the big 5 leagues, and
these destinations were arguably a better stepping-stone. However, most of
these preferable destinations demanded the player be free or they would not
make an offer and some of this interest hinged on an assumption the player would
be free given he was the product of a private academy and not a FIFA recognised
club.[11] After much dispute and
controversy with the academy trying to get in the way of a deal or be the
beneficiaries of such a deal, the player managed to get away free from the
academy and sign for free with a club. It is difficult to emphasise how tricky
it was to fend off attempts from this academy to stop the deal or be a part of
it, as well as how important it was that the player be free for a more suitable
deal to eventuate. The player has already transferred again within Europe to a
bigger club, as he was able to get plenty of first team football to display his
abilities. This can sound great for the player and the clubs, but what about
the far-reaching societal benefits that training compensation and solidarity is
geared towards achieving? In many, perhaps most, analogous cases, the academy
would have successfully got in the way of the deal or benefitted from it. In
both cases, the deal that happened, or the scenario that usually happens as
unpacked above, the objectives of the redistributive mechanisms are bypassed.
The ‘hindrance effect’ would have almost certainly played a part in this
players journey had compensation been due, or a big club that could afford
compensation may have come forward, though it would then have been unlikely
that the player would have played first team football to the same extent, and
his career might have faltered.
My
experience shows that the fact that training compensation can be waived has turned
it into a subject of speculation and market negotiation between the more powerful
European club and the economically vulnerable African club. The latter are
often happy to forego their claim for training compensation if it is necessary
to close a deal that would include some future potential benefit. Thus, it can
hardly be said that African clubs can rely on this right to training
compensation to guarantee stable funding to support their investment in educating
players. Furthermore, while being relatively ineffective as a mechanism of
redistribution, it nevertheless acts as a hindrance on the movement of African
football players. Hence, the continent experiences the worst of both worlds,
limited training compensation for its clubs and limited freedom of movement for
its players.
4. Africa’s
missing solidarity contributions
The solidarity mechanism is mandatory and cannot
be waived like the training compensation mechanism, though as is clear from the
gap between what is paid and what ought to have been, there are issues with
regard to its implementation. In the African context, there are a number of
reasons why payments are not made. On the one hand, it is clear that the
differing capacity of administration and the quality of legal advice accessible
to African clubs plays a role. Sometimes African clubs are simply unaware that they
are even owed solidarity. Further, if they are aware, the task of taking on a
European club in a legal battle can be too expensive or too daunting to pursue,
ultimately rendering this an access to justice issue as well.
On the other hand, as is true of both solidarity
and training compensation mechanisms, funds are channelled through the national
association and this has been problematic on occasions. I was once involved in
a situation with a club within an African league with a notoriously
controversial national body. The club was due to receive solidarity
contributions given a player it had registered between the ages of 12 and 21
had signed with a club from one of the big 5 leagues for a fee into the tens of
millions of euros. The African club had changed names but remained the same
legal entity between the time the player had been at the club and his
subsequent transfer. This was common knowledge to the football community within
this African country and the national federation. It appeared on this occasion
that the national governing body was attempting to argue the club ‘ceased to
participate in organised football’ per Annex 5(2)3 of
the RSTP which outlines that an association is entitled to receive the
proportion of solidarity contribution, though it shall be reserved for youth
football development programmes in the association. Given this particular
associations track record, suspicions linger as to what the money would have
been used for.
It is clear that in general a lot of solidarity
money is lost or not paid, and it ultimately does not reach the African
grassroots where it is needed most. It seems some, if not most, of this loss
can be attributed to the costs attached to the process of obtaining this
solidarity funds. If FIFA were serious about redistribution, it would ensure
that solidarity transfers be almost automatic. Otherwise all the talk about
solidarity is hypocritical at best, as those who need it the most are the least
likely to enjoy it.
5. Concluding
remarks
This
blog has highlighted various issues that surface in the African context with
regard to FIFA’s redistributive systems. While on the face of it solidarity
between the richest European football clubs and African training clubs can only
be applauded, it remains to be seen whether the current regulatory set-up achieves
the desired solidarity.
I have seen first-hand that training
compensation acts as a real hindrance for the professional career of African
footballers. Players suffer from being unable to go to clubs of suitability,
and it is clear that the mechanism has become a regular bargaining chip in the
wider transfer market, where a waiver in exchange for a future sell-on fee may be as common an occurrence as actual
payment of a training compensation. In practice and because it can be waived, the
training compensation is part and parcel of a speculative transfer market
rather than an effective instrument of solidarity between clubs. Moreover,
insofar as the solidarity mechanism is concerned, its effectiveness seems to be
blunted by the administrative burden that comes with its implementation. All
too commonly, African clubs have simply too little means to be able to ensure the
rights they should derive from it. Ultimately, from the training compensation
mechanism arises a transactional dilemma, whilst in the event of non-payment of
solidarity contributions, arises an administrative predicament.
There is a neo-colonial flavour to the fact that
the training compensation can be waived. Indeed, (European) buyers are often in
a strong bargaining position, as they can (collectively) put pressure on training
clubs with ‘take it or leave it’ options. In doing so, they shift some of the
risks related to the future development of the player back onto the shoulders
of African clubs. Instead of getting an immediate fee for training the player,
the African clubs get only a potential opportunity of a future fee that will be
dependent on a player’s capacity to adapt to his new club and a myriad of other
factors. One could see this as a free choice, yet, such a view would paper over
the massive power imbalance between European clubs and African ones. If the
objective of FIFA’s regulations is truly to foster solidarity and
redistribution then they ought to be devised in a way that takes better account
of this power imbalance between clubs from different parts of the world.
African clubs must be able to systematically claim their training compensation
fee without fearing to miss out on a transfer entirely, and to seamlessly
receive the solidarity contributions owed. If not, it becomes extremely hard to
justify burdening the (African) players’ right to move and take employment around
the world. Indeed, one is left to wonder whether FIFA’s redistributive
mechanisms could not be entirely uncoupled from the players’ movement and from
the transfer market.
[5] CAF
was not even listed in Fig.11 of the report “Confederation of respondent club
for claims resolved in 2019/2020”.