Christina Lembo, Fifa Transfer Regulations and Uefa Player Eligibility Rules: Major Changes in European Football and the Negative Effect on Minors

• Jurisdiction: European Union
• Publication year: 2010
• Citation: Vol. 25 No. 1

FIFA TRANSFER REGULATIONS AND UEFA PLAYER ELIGIBILITY RULES: MAJOR CHANGES IN EUROPEAN FOOTBALL AND THE NEGATIVE EFFECT ON MINORS

Behind the European love affair with football1—the packed stadiums, the rowdy fans, the time off from work to watch important matches—lies a significant dilemma: on one hand, fans want their teams to play at the highest competitive level, but on the other, they care about the backgrounds and

nationality of the players on their locally-based teams.2 This dilemma has led

to the promulgation of various transfer regulations by the governing bodies of international football that control a player’s ability to transfer to a foreign team.3 The changing of these transfer regulations over time, however, has had a negative impact on many minors4 who play football. In particular, European football clubs have exploited various loopholes in the transfer regulations to recruit young foreign players and retain young local players.5 Some of these measures include creating jobs for the children’s parents so they can legally move to Europe,6 entering into contracts with minors at a young age,7 and using loopholes found in immigration laws throughout the European Union (“EU”).8 In the worst cases, unlicensed agents are trafficking minors from Africa to Europe.9 This Comment looks at the evolution of the regulations governing player mobility and its impact on minors.

The modern saga of who can play on which team began with the Bosman case,10 the seminal case that deals with transfer regulations in European football. The European Court of Justice (“ECJ”) decided the case in 1995.11 Bosman created free transferability for players with expired contracts and

1. In this Comment, the term “football” refers to American soccer.

2. See Srikanth Iyer, It’s All About Nationality, ISPORT (Aug. 10, 2009, 11:43 PM), http://www.isport.in/ european-football/its-all-about-nationality-654.

3. See infra Part III.

4. In this Comment, the term “minor” refers to persons under the age of eighteen.

5. See infra Part IV.

6. See infra Part IV.

7. See infra Part IV.

8. See infra Part V.A.

9. See infra Part V.B.

10. Case C-415/93, Union Royale Belge des Sociétés de Football Ass’n ASBL v. Bosman, 1995 E.C.R. I- 5040.

11. Id.

    opened the door for the recruitment of foreign players12—including teenagers and even children. The ECJ based its decision on a fundamental right under the laws of the EU: the freedom of movement for workers between countries within the EU.13 After the Bosman case, Fédération Internationale de Football Association (“FIFA”),14 the organization governing world football, promulgated new transfer regulations, and the Union of European Football Associations (“UEFA”),15 the continental confederation that sits under FIFA and governs European football, promulgated new player eligibility restrictions.16 Unfortunately, these regulations did not resolve all the issues presented in Bosman, and in turn, created even greater issues in relation to minor football players. In an effort to create greater protection for minors, FIFA promulgated new regulations in October 2009.17 Although the effects of these regulations have yet to be seen, many strategies that clubs employ to obtain young players are outside the scope of FIFA’s control, and these problems need to be evaluated and fixed on a European and international scale. This Comment explores the problems and proposes solutions for FIFA and UEFA, the EU, and other international and independent organizations.

    
    

    Part I gives a general overview of the organizations that govern international and European football and the EU institutions that play a role in European football. Part II discusses the history of football transfer regulations, with a particular focus on the ECJ’s ruling in the Bosman case. Part III explains the FIFA transfer regulations created after the Bosman case in 2001, FIFA’s amended transfer regulations of 2005, and UEFA’s player eligibility rules. Part IV discusses the football clubs’ reactions to these rules and their efforts to recruit and sign young talent. Part V analyzes the legal problems that result from the clubs’ actions within the framework of European and international law. Part VI discusses FIFA’s attempt to fix these problems with the 2009 transfer regulations, and points out potential problems. Finally, Part VII suggests solutions to the problems that should be implemented by FIFA and UEFA, the EU, and other international and independent organizations.

    
    

12. See infra Part II.C.

13 Bosman, 1995 E.C.R. I-5068, I-5071.

1. For a more detailed description, see infra Part I.A.

2. Id.

3. See infra Part III.D.

4. FIFA, REGULATIONS FOR THE STATUS AND TRANSFER OF PLAYERS (2009) [hereinafter FIFA RSTP

   (2009)], available at http://www.fifa.com/mm/document/affederation/administration/66/98/97/ regulationsstatusandtransfer_en_1210.pdf.

   1. OVERVIEW OF THE INSTITUTIONS GOVERNING EUROPEAN FOOTBALL

      
      

      This Part gives a general overview of the three main powers that influence the transfer regulations in European football: FIFA, UEFA, and the EU institutions. One main problem with the football transfer regulations results from the fact that the FIFA and UEFA regulations conflict with laws of the

      EU.18 Additionally, individual countries within the EU have different laws that

      FIFA and UEFA must take into account, which is discussed further in Part V.

      
      

      1. Governing Organizations of International and European Football: FIFA and UEFA

         
         

         The structure of international football is hierarchical.19 FIFA, the governing organization of international football, sits at the top of the hierarchy.20 FIFA was created in 1904 under Swiss law to create an international structure for football.21 FIFA commits itself to constantly improving the sport.22 The FIFA Statutes form the overarching document guiding FIFA’s governing system.23 The governing system is divided into separate bodies that have the appropriate powers to create a system of checks and balances.24 It consists of four general bodies:25 the Congress,26 the Executive Committee,27 the general secretariat,28 and standing and ad-hoc committees.29 For the purposes of this Comment it is important to note that the Executive Committee “regulate[s] the status of [p]layers and the provisions for their transfer,”30 and that the Players’ Status

         
         

5. See Bosman, 1995 E.C.R. I-5040.

6. Lindsey J. Meân, Making Masculinity and Framing Femininity: FIFA, Soccer, and World Cup Websites, in EXAMINING IDENTITY IN SPORTS MEDIA 65, 66 (Heather L. Hundley & Andrew C. Billings eds., 2010).

7. Id.

8. The Federation, FIFA.COM, http://www.fifa.com/aboutfifa/federation/index.html (last visited Jan. 28, 2011).

9. FRANS DE WEGER, THE JURISPRUDENCE OF THE FIFA DISPUTE RESOLUTION CHAMBER 1 (2008).

10. FIFA, FIFA STATUTES: REGULATIONS GOVERNING THE APPLICATION OF THE STATUTES STANDING

    ORDERS OF THE CONGRESS (2009) [hereinafter FIFA STATUTES], available at http://www.fifa.com/mm/ document/affederation/federation/01/24/fifastatuten2009_e.pdf.

11. Id. art. 21.

12. Id.

13. Under the FIFA Statutes, “Congress is the supreme and legislative body.” Id. art. 21(1).

14. The Executive Committee “is the executive body.” Id. art. 21(2). It “consists of 24 members: 1 President elected by Congress, 8 vice-presidents, and 15 members, appointed by the Confederations and [National] Associations.” Id. art. 30(1).

15. The general secretariat acts as “the administrative body.” Id. art. 21(3).

16. The standing and ad hoc committees “advise and assist the Executive Committee in fulfilling its duties.” Id. art. 21(4).

17. Id. art. 5.

    Committee is the standing committee that is responsible for monitoring compliance with the transfer regulations.31

    
    

    Below FIFA sit six confederations that are divided roughly by continent, which create the next level of the hierarchy.32 Each continental confederation has a governing body similar to FIFA’s and can create separate rules and regulations so long as they are not in conflict with FIFA’s rules and regulations.33 These continental confederations oversee the national associations, which are assigned to a confederation based on continent.34 The national associations can also create separate rules and regulations so long as they are not in conflict with the corresponding confederation’s rules or FIFA’s rules.35 As of the writing of this Comment, 208 national football associations are members of FIFA.36 Each national association oversees all the individual clubs, which are separated into divisions based on their level of competition.37 Finally, the individual players are divided among all the clubs.38

    
    

    UEFA is one of the six confederations under FIFA and one of the largest in terms of strength and wealth.39 As of 2011, UEFA oversees fifty-three national football associations.40 UEFA administers football games through the national associations and through its own competitions.41 UEFA has a governing structure similar to FIFA’s that consists of four “organs” that UEFA may act

    through.42 These organs are the Congress,43 the Executive Committee,44 the

    
    

18. Id. art. 49.

19. These continental confederations include: Confederación Sudamericana de Fútbol (“CONMEBOL”), Asian Football Confederation (“AFC”), Union des Associations Européennes de Football (“UEFA”), Confédération Africaine de Football (“CAF”), Confederation of North, Central American and Caribbean Association Football (“CONCACAF”), and Oceania Football Confederation (“OFC”). Id. art. 20(1).

33 See id. art. 20(3)–(5).

1. FIFA may give confederations authority to grant membership to a national association that is not geographically located within its continent. Id. art. 20(2).

2. See id. arts. 12–13 (explaining Members’ rights and duties in relation to FIFA).

3. FIFA’s Member Associations, FIFA.COM, http://www.fifa.com/aboutfifa/federation/associations.html (last visited Jan. 28, 2011).

4. See, e.g., JOSÉ LUIS ARNAUT, INDEPENDENT EUROPEAN SPORT REVIEW 57 (2006).

5. Id.

6. UEFA, ECONOMICEXPERT.COM, http://www.economicexpert.com/a/UEFA.html (last visited Jan. 28, 2011); UEFA, SOLAR NAVIGATOR, http://www.solarnavigator.net/sport/UEFA.htm (last visited Jan. 28, 2011).

7. About UEFA, UEFA.COM,...