Writer: johnny crossan
Date:Monday September 14 2009
Vital Manchester City newbie, johnny crossan sent us the following:
A minor is defined as a football player (or indeed a person) who has not reached the age of 16. It is not permissible under EU law to have an enforceable contract with a minor, except in a few very particular circumstances - none of which relate to the work place.
There is a huge amount of unease amongst European (and other) clubs about the fact that 'big' clubs (mainly English it seems from the UEFA press releases, but mainly other countries in Europe from the press in countries outside Europe) 'get' to their best players and offer them a lot of money to move to England. This is variously called poaching, child slavery or child trafficking. 'Tapping up' is more a feature of the adult game, though most of the regulations are the same for adults and minors, and the actions and effects are the same.
The difference is a contractual one. FIFA rules get rid of the idea of tapping up by saying the buying club is automatically guilty of it by virtue of having signed the player - unless there are good grounds to show otherwise. Guilty unless proven innocent, I suppose.
The idea of this movement of players was started in France with the mass shipping of very young African players to French clubs, with disastrous results for the players who didn't make the grade - although France won the World Cup 1998 on the back of that policy.
It was introduced to England by Arsenal under Arsene Wenger, who filled his academy with young French players, and thereby achieved astounding footballing success. Things got worse after the introduction of the UEFA rules re 'home grown' players. This meant that a squad had to contain a quotient of home club trained players in the squad, regardless of nationality. FIFA wanted a quotient based on nationality, but EU laws prevented this, so UEFA had to apply this compromise.
NB a home grown player is one trained in the club for 3 years between the age of 17 - 21, regardless of nationality (as long as from EU or EEA).
So clubs that were happy to train local lads who would then go on to play in lower leagues could not continue in that way. The Football Academies now had to deliver the goods in terms of players talented enough play for the host club in order to meet the UEFA/FIFA targets.
FIFA are developing rules all the time to try and prevent the movement of players, but with little success anywhere in the world.
There are legal minefields to negotiate, at least in the EU, which has enshrined the notion of the mobility of labour, and the protection of the worker into its overarching principles.
In Africa, boundaries are regarded as colonial impositions to be heartily ignored and there are few effective deterrents to migration. In Africa, movement of child footballers is common due to the presence of the agents, who promise a future in France.
In other parts of the world, there isn't the financial incentive to move. South America and CONCAF are very territorial in footballing terms, but poor in financial terms. The Argentinean League has recently had to be taken effectively into public ownership due to financial problems. This is a breach of FIFA rules, but the Argentinean Finance Minister sits on the FIFA Board, so who cares! Asia and Oceania have little footballing base anyway, so nowhere to go - except Europe.
FIFA and UEFA work tirelessly to persuade the EU to treat football as a special case. The best they have yet achieved is an internal guaranteed compensation system for the clubs who lose players.
FIFA formulate the rules in a way that is ok in most of the world (given the difficulties of regulation, and the relative poverty), but not in Europe, and they hope no one challenges them. If someone does, UEFA is then left with a dogs breakfast, trying to satisfy FIFA and the EU legislatures.
No on else in Europe does this but...
French clubs believe they have a system of protection against this movement of young players. They issue their player (age usually 13 or 14) with a Pre Contract Agreement (Le Pre-Contract) whereby the player agrees not to be poached. They are usually issued if the player is selected to go to Clairfontaine - the national football academy.
The Pre- Contrasts take many forms, and there are potential legal problems with all of them within EU law. The main issue is that any contract with a minor is voidable. That means the contract cannot be enforceable, as the minor cannot have the capacity to understand the nature of the contract.
Most Pre-Contrasts simply say the minor cannot agree to sign for another club for the duration of the contract (Non Solicitation Contracts), and the club will decide in the future whether to offer a contract or not. This seems to offend the principle of consideration.
Some Pre-Contracts, such as Helan's (see below), have a guarantee that, if he achieves selection for a French team, he will be guaranteed a contract. This may covers consideration. But does it cover certainty? What is this contract worth? Maybe le Pre-Contract would need to stipulate?
1) Are the Pre-Contracts binding in EU law. Even if signed by parent/ guardian, it is still a contract with a minor, and any such contract is void or voidable in EU law.
2) Is there consideration? Some ask the player to agree to sign a contract when aged 16, but only if club wants to offer one at that time. This is the situation with Pogba and Kakuta below. What consideration is the minor getting out of this in exchange for turning down concrete offers from other clubs, given that the club may decide not to offer a contract after all?
3) Is there certainty? The player may be guaranteed a contract (see Helan below) but he doesn`t know what the contract will be for. What if he abides by the contract, only to find the offer is for a row of beans?
Some of these questions are being tested in the French Civil Courts in Helan v Stade Rennais. There is as yet no information at all available about the basis or time line for this case.
FIFA Rules on Transfer of MINORS across national borders (WEF 1/1/08) NB transfer of minors within an association is covered by the Association rules (which must be approved by FIFA)
FIFA, of course, make and implement the rules of football. They are the legislature, judiciary and enforcer.
I think these regulations are drafted in the continental way, i.e. purposively. It makes it almost impossible to fathom what they might mean, as to do that you need to reach into the mind of the drafter. Febrile press releases are all there is to go on.
In the mind of the FIFA people, the purpose is to stop rich clubs poaching form poor clubs (Sion v El Hadary) and any movement at all of players under 18. That is how FIFA Tribunals will approach anything referred to them. Laudable from the clubs view, but from the player's point of view - I am not so sure. That debate is for another time.
The FIFA Rules
These are applied to all football clubs and players. But they are subservient to national and EU Law - if someone chooses to challenge whether they are legal.
It is impossible under EU law to have a contract with a minor - someone under 16, except in special circumstances, none of which relate directly to employment law
) Article 9 of Regs (applies to minors and non-minors)
All players must be registered with the National Association of their club. In order to move to another Association, the old Association must provide the new Association with an International Transfer Certificate (ITC). This must be copied to FIFA.
2) Article 4 of Regs applies to minors and non-minors) Terminating contract without just cause or sporting just cause.
Sporting just cause is to have been picked for less than 10% of games for which the player was available. There is no other sporting just cause. Just cause alone is not defined. If a player breaches a contract without cause, he is subject to a fine (payable to the former club) and a suspension of 12 months. The suspension comes into effect at the start of the following season
Article 17 of Regs - If a club signs a professional player who has breached his contract, they are banned from registering players for 2 transfer windows, and must pay compensation to the club 'Professional' is defined by FIFA as a player who has a written contract with a club and is paid more for footballing activity than the expenses he incurs. It does not appear to be contract related.
Article 17 of the Regs continues...The new club will be deemed automatically to have induced the breach by the player unless they can prove otherwise (An agent who induces a breach can also be sanctioned).
3) Article 19 of Regs (Protection of Minors): Cannot transfer players under 18 across national borders unless...
1) parents move to UK for reasons unrelated to football (E.g. Alex Nimely)
2) Or movement is between EU or EEA and affiliated countries. Then club must
i) Provide football training to the highest national standard
ii) Provide education or training outside football
iii) Ensure care of player - mentor, accommodation etc
4) Transfers are allowed across borders if player lives within 50 Kms of border and club is 50 kms form border (i.e. 100 kms apart)
From 1/10/09 all such transfers of minors must be approved by FIFA before there is a request for the ITC.
5) Annex 3 of Regs: Para 1 - The ICT must be provided by the old Association before the player is eligible to play for the new club.
6) Para 3
7) Upon receipt of the ICT request the former Association must check with player and former club if the contract has expired, terminated by mutual consent, or if it subject to a dispute. The former Association has 7 days to issue an ICT or point out the dispute to the purchasing club.
8) Annex 3 Para 6: An ITC cannot be issued where there is a contractual dispute. It should be referred to FIFA who must decide within 60 days. (FC Sion & Essam el Hadary Egyptian goal keeper).
8) Para 5 : If there is no reply at all the new club can register the player provisionally and after 12 months, the transfer goes ahead.
FC Sion Case
The main (and probably only) case under the new regs, El Hadary (an Egyptian goalkeeper) sought to buy out his contract with el Ahly, (an Egyptian football club) under the Webster ruling (Definition 7 of Regs). He moved to FC Sion. El Ahly did not know of the move until after the event and insisted he was still their player. The Egyptian FA refused an ITC (International Transfer Certificate) as there was a contractual dispute, and the club then complained to FIFA.
FIFA found that the player had not complied with the regulations for buying out his contract, specifically he had not waited till the end of a season. (Article 16 applies. Cannot unilaterally terminate contract during a season). He was banned for 4 months and FC Sion were banned from buying players for 2 windows.
FC Sion are appealing to CAS, and the ban is stayed till the outcome of the appeal
his case does not concern a minor but is indicative that FIFA will impose the stipulated penalty in every case. It remains to be seen whether CAS supports them. History says (AC Roma & Mexes case) that they will reduce the penalty on the club, but not on the player (which is shared jointly and severally).
1) The French courts must decide whether le Pre-Contract is a binding contract. FIFA have already found against Chelsea on a Pre-Contract, so they clearly find them binding. Helan's is said by Rennes to be more certain than Kakuta's as it included a guaranteed contract at 16. Will FIFA go ahead with a hearing anyway, without waiting for the judicial decision? If so, they will find against us, so the CAS will need to decide whether to wait or go.
2) He was already in dispute with Rennes when we signed him. In fact, he had already gone through the French FA procedures and had lodged a Civil law action. City signed him in good faith, and only played him having received the ITC from the French Federation. Or did we use this to flout the rules?
We were aware of the contractual disputes that were ongoing. We can thus, hopefully, prove we were not the cause of the contractual breakdown (if there was a contract). But would that be viewed as a loophole in the purposive rules?
Will this miss the purposive element of the Regulations?
Pogba - Utd
Kakuta - Chelsea
Montfuiser? - Utd
Macheda -Utd Disgruntled but unchallenged
Helan - City
Members of the jury, I rest my case.
Date:Monday September 14 2009
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