Understanding Barcelona's transfer ban, their violations and Article 19
The biggest date on Barcelona's schedule this season isn't March 22 at Camp Nou when Barcelona look to avenge their 3-1 loss to Real Madrid in the last instalment of the Clasico. It's not on Feb. 24 either, when Barcelona will find themselves at Etihad Stadium seeking to reassert their Champions League dominance over Manchester City.
No, the biggest match of their season already happened. It took place on Dec. 5 and it was contested not by Lionel Messi, Xavi, and Neymar in front of thousands in the stands and millions at home, but by lawyers in a Swiss boardroom in front of an arbitration panel. The opponent, as you might have guessed, was FIFA.
With the final verdict on Barcelona's yearlong transfer ban now confirmed and their ban upheld, here's a primer on the issues.
What has happened so far?
Following a year-long investigation into Barcelona's transfer activity, the FIFA Disciplinary Committee announced on April 2 that Barcelona were guilty of violating Article 19 of the FIFA Regulations on the Status and Transfer of Players.
As a result, the Disciplinary Committee imposed a two-window transfer ban on the club, which would prevent Barcelona from buying or selling players for the next two transfer windows (the club was also fined around 300,000 pounds). The RFEF (Spanish FA) was also found guilty for its part in transfer registrations and fined around 330,000 pounds.
Barcelona immediately appealed the decision to the FIFA Appeals Committee, which stayed the ban and allowed Barcelona to conduct transfer business as usual this past summer pending the outcome of the appeal. In August, the Appeals Committee rejected the Catalan club's appeal.
Immediately following the decision from the Appeals Committee, Barcelona announced that they would appeal FIFA's decision to the Court of Arbitration for Sport (CAS). Barring a procedural error (unlikely), Dec. 5 had been Barcelona's last chance to get the transfer ban reduced or overturned. They were unsuccessful.
What is Article 19?
Article 19 is specifically concerned with the protection of minors and prohibits international transfers of players under the age of 18.
However, there are three notable exceptions to this rule: when the player's parents move to the country where the club is located, when the transfer takes place within the European Union or European Economic Area and when the player lives less than 100 kilometres away from the club.
In October 2009, FIFA amended Article 19 and began mandating that clubs use the transfer matching system (TMS) for international transfers of a minor player (it became mandatory for all international transfers one year later.) The transfer matching system is an online filing system/database that clubs must use when completing transfers and there is a strict procedure that must be followed.
Speaking on behalf of Barcelona in the Dec. 5 hearing were Carles Folguera, the director of La Masia, and Esther Balmana, who runs a school called Leo XIII, which Barcelona's teenage players have been attending since 2011. Fabrice Ondoa and Elohor Godswill also attended. Ondoa is an 18-year-old goalkeeper originally from Cameroon and has been in Barcelona's youth system since he was 13; Godswill is a 19-year-old right-back originally from Nigeria who arrived at La Masia at the age of 6. (It's worth noting that neither player is on the list of players Barcelona has been accused of illegally bringing to La Masia.)
The club also enlisted the help of Paolo Lombardi and Juan de Dios Crespo. Lombardi was Head of FIFA's Disciplinary and Governance when Article 19 was amended in 2009 and is now a consultant for top sports law firm Couchmans LLP. Crespo has represented hundreds of clients at CAS and has been involved in some of football's biggest cases. The assistance of Lombardi and Crespo is especially noteworthy; these are two of the biggest names in sports law and, in particular, sports arbitration.
Why is Article 19 important?
Alexander Wild, the German sports lawyer who quite literally wrote the book on football arbitration, explains the harsh realities of human trafficking in football: "It has occurred, and unfortunately still happens, that most socially deprived minors [are] unscrupulously exploited by agents and clubs who [want] to make big money."
Wild also highlights the fact that the transfer of minors represents an extremely low financial risk for clubs and agents. Young footballers represent cheap labour and often have tremendous upside. If they blossom into world-class players, the club will have a cost-effective way of bolstering its squad but if the player is deemed surplus to requirements, he can be sold on the highly inflated transfer market.
Only one in a few players need to develop into a player who is capable of contributing first-team minutes for this form of "trafficking" to be economically viable for the club.
However, as Wild notes, for the players "the risk to fail is totally out of scale." Very few young players develop into world-class footballers, and for the large percentage that fall short, there is a very harsh reality that likely isn't talked about enough.
"The minors are asked to leave their home countries and to settle down in countries [where] the culture and the way of living are completely different to what they are used to," he said. "If they do not live up to expectations, they are abandoned, not knowing how to survive in a foreign country, without an education and mostly without any relations to people they know."
What is the Court of Arbitration for Sport?
The Court of Arbitration for Sport is an independent organisation based in Lausanne, Switzerland, and is tasked with resolving legal disputes in sport. Formed in 1984, it has slowly evolved into the world's "supreme court" of sport. However, CAS can only exercise jurisdiction over entities that have explicitly agreed to use it to resolve disputes.
FIFA voluntarily granted jurisdiction to CAS in 2002. When the decision was announced, FIFA president Sepp Blatter called it "a significant step towards resolving the regrettable proliferation of disputes in the world of football. The experience and expertise of the CAS will prove invaluable to FIFA and I am delighted."
Football-related disputes now comprise 30 to 40 percent of CAS's entire caseload, and it is well-equipped to arbitrate the dispute between Barcelona and FIFA. CAS has almost 300 arbitrators from 87 different countries, all of whom are experts in sports law and arbitration.
On Dec. 5, Barcelona's appeal was heard by a panel of three. FIFA and Barcelona were each permitted to choose one of the panel members from the list of available arbitrators. The third panel member, who will act as the leader, will have been selected by CAS. (The full list of arbitrators eligible for selection is here.) The decision need not be unanimous and only requires a simple majority (i.e. two of the three panel members agreeing on a verdict).
Once CAS renders its decision, that decision is final and immediately becomes binding on the parties.
Is there any precedent for a case involving Article 19?
Technically CAS is not bound to precedent, which can lead (and in fact has led) to contradictory decisions, but CAS has cited previous cases when issuing decisions in the past. As such, it is therefore worth taking a brief look at how CAS has previously handled cases involving Article 19.
The leading case involves Javier Acuna, a Paraguayan footballer who, in 2005 at age 16, was transferred from his club in Paraguay to Cadiz, which competes in the third level of Spanish football. The Paraguayan FA refused to issue the necessary transfer paperwork, asserting Acuna's age rendered the transfer illegal under Article 19, which prohibits the international transfer of footballers under the age of 18.
Acting on behalf of Cadiz, the Spanish FA argued that the transfer fell under the exception, which allows young footballers to play for a club if their parents move to that country. Acuna's mother signed employment papers with a local restaurant one week after the transfer paperwork was filed.
CAS held that since the decision to move to Spain was a direct result of the transfer, rather than Acuna's mother's new job, the exception did not apply and the transfer was invalid.
The case is significant for two reasons. First it established the validity of Article 19. It also marked the first time that a transfer was rejected because of an Article 19 violation.
Another relevant case involves Danish club FC Midtjylland signing three underage footballers from Nigerian club FC Ebede. FIFPro, the international players' union, found out about the transfers and alerted FIFA to what the union characterised as "systematically transferring minor Nigerian players in violation of Article 19."
FIFA agreed with the union that the transfers were invalid and sanctioned both FC Midtjylland and the Danish FA. The Danish FA accepted the sanction (a warning) but FC Midtjylland, wanting to complete the transfers the three young Nigerians, appealed to CAS but they ruled in favour of FIFA. This case is significant in that CAS held that Article 19 applies to both amateur and professional footballers.
At a glance, it may seem as if Barcelona's case is similar to the one involving Chelsea's acquisition of Gael Kakuta from RC Lens in 2007. However, they bear little resemblance outside of a procedural issue involving the transfer ban being stayed pending the outcome of the appeal.
In the Kakuta case, FIFA initially placed a two-window ban on Chelsea for allegedly engaging in "tapping up" (attempting to sign another club's player without permission from that club) during its pursuit and eventual signing of Kakuta, who was 16 at the time.
However in that case, Article 19 did not apply; rather, the issue involved how the contract between Kakuta and his former club, Lens, was terminated.
Chelsea and Lens also ended up settling out of court rather than proceeding with CAS arbitration; in any event, the involvement of CAS was limited to ratifying the agreement between the clubs. In addition, the dispute was primarily between two clubs and concerned just one player. In Barcelona's case, the dispute is with FIFA itself and involves 10 different players.
How badly will a two-window transfer ban hurt Barcelona?
Despite the widely held notion that Barcelona build its squad almost exclusively through its vaunted La Masia youth academy, it also relies very heavily on the transfer market. In fact, since 2006-07, Barcelona's net spend (358 million pounds, or $558 million) is higher than Chelsea's (297 million pounds, or $464 million).
In the short term, Barcelona will almost certainly lose ground to Real Madrid domestically, as Barca will have to finish the season and build next season's squad with only what it has right now.
Of course, Barcelona are working with a pretty decent squad right now; 10 of the 55 players nominated for the FIFPro World XI currently ply their trade at Camp Nou, including the rather impressive attacking trio of Lionel Messi, Luis Suarez and Neymar. Only one other club in the world has more players in the nominees for the World XI: Real Madrid, with 12.
Depth is already an issue for Barcelona at centre-back, and with Barcelona competing for trophies domestically and in Europe, much will be asked of the club's promising youngsters. While plenty of clubs would be thrilled at the prospect of having Marc Bartra, Sergi Roberto, Sandro Ramirez, Sergi Samper or Munir El-Haddadi available to contribute significant minutes if called upon, these talented but largely unproven players seem unlikely to be enough to match the might of the "Galacticos."
In the long term, however, Barcelona will be fine. There are only three other clubs in the world who can compete with them in terms of both current talent and the money to go out and get more talent: Real Madrid, Bayern Munich and Manchester United. As soon as the transfer ban expires, Barcelona will be able to go on a spending spree the likes of which football has never seen, if that is what the club's board wants to do.
Jake Cohen is a Boston-based sports lawyer. He can be found on Twitter at @JakeFCohen