Trafficking in Football
Are current regulations sufficient in the protection of minors in football?
Rob Simons ANR: 871919 Master Thesis: Rechtsgeleerdheid, vrij programma Exam Committee: prof. dr. R. Blanpain prof. dr. M. Colucci Tilburg, April 2010
Trafficking in Football Rob Simons
“It is our duty to the youth of the world to protect young players. We must do it together. Stop slavery of these young players!” 1
FIFA President Joseph S. Blatter
1 FIFA Media Release, Protect the game, protect the players, strengthen global football governance, 3 June 2009 (http://www.fifa.com/aboutfifa/federation/bodies/media/newsid=1065926.html ). 2
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Table of Contents Page List of Abbreviations 5 I. Introduction 6 II. The Organization of Football: a World cartel 8 2.1 Pyramid Model of Sport: a World cartel 8 2.2 Specificity of sport and autonomy of sport organizations 9
III. Trafficking in Minors 12 3.1 Sports Agents – EC study 14 3.2 Football Academies 17
IV. Football Regulations regarding Protection of Minors 19 4.1 Development of the FIFA Regulations 19 4.1.1. CAS Caballero 20 4.1.2. CAS F.C. Midtjylland 22 4.2 Revised FIFA RSTP 2009 26 4.2.1 FIFA Players’ Status sub-committee 28 4.2.2 Academies – Article 19bis of the FIFA RSTP 28 4.2.3 Training Compensation 30 4.2.3.1 Bernard Case 31 4.2.4 FIFA Transfer Matching System 33 4.2.5 Awareness Campaign 33 4.2.6 Maximum Length of Contracts Minors 34 4.3 Conclusion FIFA measurements 34 4.4 UEFA Regulations regarding Protection of Minors 35 4.4.1 UEFA Homegrown Rule 35 4.4.2 International Transfer Prohibition U-18 37 4.5 KNVB Regulations regarding Protection of Minors 39
V. Legislation regarding the Protection of Minors 42 5.1 Protection at international level 42 5.1.1 UN Universal Declaration on Human Rights 42 5.1.2 Palermo Protocols UN Convention against Transnational Organized Crime 43 5.1.3 UN Convention on the Rights of the Child 44 5.1.4 ILO Forced Labour Convention 1930 (No. 29). 45 5.2 Protection at European level 46 5.2.1 European Parliament Resolution on the Future of Professional Football in Europe. 46 5.2.2 European Commission White Paper on Sport 48
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5.3 Protection at national level, the Netherlands 49 5.4 Procedure and Requirements: trials non-EU minors in the Netherlands. 51
VI. Summary 56 VII. Conclusions and Recommendations 60 VIII. Bibliography 63 IX. Annex (drop I) 69
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List of Abbreviations A-G Advocate-General CAS Court of Arbitration of Sport CWI Centraal Bureau voor Werk en Inkomen (Dutch Central Bureau for Work and Income) EC European Commission ECJ European Court of Justice e.g. exempli gratia (for example) EU European Union FBO Federatie Betaald Voetbal Organisaties (Federation Professional Football Organisations) FIFA Fédération Internationale de Football Association FIFA PSC FIFA Players’ Status Committee FIFA RSTP FIFA Regulations on the Status and Transfer of Players FIFPro Fédération Internationale des Associations de Footballeurs Professionels ILO International Labour Organisation IND Immigratie- en Naturalisatiedienst (Dutch Immigration Services) KNVB Koninklijke Nederlandse Voetbal Bond (Royal Dutch Football Association) KRO Katholieke Radio Omroep (Catholic Dutch broadcasting company) NGO Non-Governmental Organisation TFEU Treaty on the Functioning of the European Union TMS Transfer Matching System UEFA Union of European Football Associations UN United Nations
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I. INTRODUCTION
In the stairwell of a concrete high-rise block in Clichy-sous-Bois, one of Paris’s worst ghettos, 17-year-old Bernard Bass sits shivering in the cold. Originally from Guinea-Bissau, he travelled from Ghana to Senegal on the promise of a trial with F.C. Metz, in eastern France, from a Lebanese agent. ‘My mother sold our house and my two younger brothers started work at 12 to help pay for my passage,’ says Bass, who was told by the agent he could make the journey to France by boat. The journey took two weeks. ‘When we reached Europe I was kept in prison in Tenerife for a month and then flown to the mainland. I told my captors I was 18 and they let me go. I made it to France, but F.C. Metz had no idea who I was and threatened to report me to the police. Now I am here in Clichy-sous-Bois, staying on a friend’s floor.’ 2 This is just one of many examples in which a minor football player is subject to trafficking. 3 Ending up in a foreign country, without any money, hardly speaking the language, these minors become very vulnerable to be subject to exploitation, an issue which is also recognized by the European Commission and the European Parliament. 4 Not only unlicensed agents are responsible for these practices, also thousands of illegal academies exist throughout especially Africa. In 2009, FIFA has modified its regulations in order to increase the protection of minors. However, are these changes sufficient enough? Child trafficking in football is a global problem which not only involves football associations and clubs, but also national authorities play a role in this regard. Trafficking is obviously not only a legal problem, but also a major social issue. However, it should be noted that the emphasis of this thesis lies on the legal aspects.
2 D. McDougall, “The scandal of Africa’s trafficked players,” The Observer , Sunday 6 January 2008. 3 According to the FIFA Regulations on the Status and Transfer of Players a minors is a player who has not yet reached the age of 18. 4 European Commission, White Paper on Sport, 11 July 2007, para. 4.5 & European Parliament Resolution on the Future of professional football in Europe, 29 March 2007, para. 32 – 41. 6
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I will not only focus on the football regulations, but also on legislation varying from a global and European level to the protection of minors within Dutch law. The central question in this thesis will be: Are minor football players sufficiently protected from trafficking under current legislation and football regulations?
Structure To tackle this question, I will start by explaining the organization of sport and why this system can lead to human trafficking. Next, the core problem will be dealt with, namely sports agents and football academies. After describing the practice of trafficking in minors, in chapter IV the football regulations will be explained. How did they develop and what are the latest changes made by FIFA? Chapter V will contain the legal aspects. Hereby one can think of the UN Convention on the Rights of the Child, European Directives, but also of national (immigration) legislation within the Netherlands. I will conclude with a summary and conclusions & recommendations.
Method This study examines the legal protection of minors regarding trafficking and exploitation in football by analyzing existing literature, case law, international, European and national (Dutch) legislation, existing sports regulations (FIFA, UEFA & KNVB) and reports written by the European Commission (e.g. the White paper on Sports and the Study on Sports Agents in the European Union) and the European Parliament.
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II. THE ORGANISATION OF FOOTBALL: A WORLD CARTEL
Before going into detail regarding the matter of trafficking in minor players, I will start with explaining the organization of sports, like the pyramid structure, the specificity of sports and the autonomy of sports organization, in order to understand the whole picture.
2.1 Pyramid Model of Sport: a World cartel
The current model of organization of sport in Europe (the so-called “European Sport Model”) tends to be represented by means of a pyramid. The wide base comprises the pool of players, who are organized to form clubs, which in turn are members of national associations that are responsible for organizing championships and governing football at national level. The national associations then group together in continental associations. Finally, the peak of the pyramid represents the international association. 5 Basically, this means that the organization of sport can be seen as a world cartel. Sports associations usually have practical monopolies in a given sport and may thus normally be considered dominant in the market of the organisation of sports events under Article 82 EC 6 (currently Article 102 of the Treaty on the Functioning of the European Union ( TFEU ) / the Lisbon Treaty). Being a world cartel, enjoying a monopoly position, players can only change from one club to another if both clubs agree 7 and in case of an international transfer, the agreement of both national federations is required.8 This monopoly position makes it possible to ask compensation when players change clubs. And where money is involved and commissions are paid, this can finally lead to human trafficking in vulnerable young players from Africa and South America in particular. 9
5 Blanpain, Colucci & Hendrickx 2008, p. 96 footnote 1. 6 Commission Staff Working Document, The EU and Sport: Background and Context accompanying document to the White Paper on Sport, p. 68. 7 Unless the player is out of contract 8 R. Blanpain, Soccer is war, but for money (players and their fundamental rights) , presented during “FIFPro’s Lawyers Network”, Hoofddorp: 18 June 2009. 9 R. Blanpain, Soccer is war, but for money (players and their fundamental rights) , supra note 8. 8
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2.2 Specificity of sport and autonomy of sports organizations
For the first time in the history of the European Union, sport has become part of a European Treaty. Article 124 of the EU Reform Treaty, officially ratified on 1 December 2009, states that “The Union shall contribute to the promotion of European sporting issues while taking into account of its specific nature , its structures based on voluntary activity and its social and educational function. ”10
Ever since the first case on sports law before the European Court of Justice in 1974, it is settled case law that sport is subject to EC law only insofar as it constitutes an economic activity within the meaning of Article 3 TFEU.11 However, at the same time the Court stated that “rules of purely sporting interest” are not subject to EC law as long as the rule remains “limited to its proper objective.” 12 Examples of these rules of purely sporting interest are rules of the game (e.g. rules fixing the length of the matches or the number of players in the field), rules related to selection criteria in competitions and the “home and away rule.”13
In its White paper on Sport published in 2007, the European Commission states that sport has certain specific characteristic, which are often referred to as “specificity of sport,” which falls foul of EC law. The specificity of European sport can be approached through two prisms:
10 Blanpain, Colucci & Hendrickx 2008, introduction page. 11 Case 36/74 B.N.O Walrave and L.J.N. Koch v Association Union Cycliste Internationale, Koninklijke Nederlandsche Wielren Unie et Federación Española Ciclismo , [1974] E.C.R. 1405, at para. 4. Also: Case C-415/93 Union royale belge des sociétés de football association ASBL and others v Jean-Marc Bosman and others, [1995] E.C.R. I-4921, at para. 73; Case 13/76 Gaetano Donà v Mario Mantero , [1976] E.C.R. 1333, at para. 12; Case C- 176/96 Jiry Lehtonen and others vs Féderation Royale Belge des Sociétés de basket-ball ASBL (FRBSB) [1996] E.C.R.I-2681, para 32; joined cases C-51/96 and C-191/97 Christelle Deliège v Ligue Francophone de Judo et Disciplines ASBL, Ligue belge de judo ASBL, Union européenne de judo and François Pacquée , [2000] E.C.R. I- 2549, at para. 41; Case T-313/02 David Meca-Medina and Igor Majcen v. Commission ECR 2004 II-3291, para. 44 and Case C-519/04 P David Meca-Medina and Igor Majcen v. Commission ECR 2006 I-6991, para. 22. Important to emphasize is that these cases referred to “economic activity” as in Article 2 EC. However in the TFEU this Article was repealed and replaced in substance by Article 3 TFEU. 12 Walrave and Koch, supra note 11, at para. 9. 13 See Arnaut J., Independent European Sport Review: a Report by José Luis Arnaut (2006), p. 97. 9
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• The specificity of sporting activities and of sporting rules, such as separate competitions for men and women, limitations on the number of participants in competitions, or the need to ensure uncertainty concerning outcomes and to preserve a competitive balance between clubs taking part in the same competitions; • The specificity of the sport structure, including notably the autonomy and diversity of sport organisations, a pyramid structure of competitions from grassroots to elite level and organised solidarity mechanisms between the different levels and operators, the organisation of sport on a national basis, and the principle of a single federation per sport. 14
At the same time, the Commission states that “in the line with established case law, the specificity of sport will continue to be recognised, but it cannot be construed so as to justify a general exemption from the application of EU law.” 15 In other words, the specificity of sport is not an exemption to community law. 16
Very interesting in this regard is also the Meca Medina judgment of the European Court of Justice from 2006. 17 In its decision, the Court of Justice made an important legal point by rejecting the theory of the existence of “purely sporting rules”, falling a priori outside the TFEU (and therefore its articles 101 and 102) 18 and affirming to the contrary that each sporting rule should be studied case by case in the light of the provisions of articles 101 and 102 TFEU.19
The answer whether European law applies to sports activities can be answered affirmative. However, already in 2001 an agreement was reached between FIFA and the European Commission where it was said that "it is now accepted that EU and national law applies to football, and it is also now understood that EU law is able to take into account the specificity of
14 European Commission, White Paper on Sport, 11 July 2007, par. 4.1. 15 European Commission, White Paper on Sport, 11 July 2007, par. 4.1. 16 Blanpain, Colucci & Hendrickx 2008, p. 25. 17 Meca Medina, supra note 11. 18 At the time of the Meca Medina judgment, the competition law provisions were laid down in Articles 81 and 82 EC. In the TFEU, these articles were renumbered to Articles 101 and 102 TFEU. 19 Wathelet Report, Sport governance and EU legal order: present and future 2007, p. 25. 10
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sport (...).” 20 Provisions in the FIFA Regulations like contract stability (transfer windows), training compensation and regulations concerning minors, which in principle infringe European law, were allowed as being “specific.” A very recent example is the Bernard-case, on which I will come back later, where the concept of training compensation was accepted by the European Court of Justice even though this system in essence violates a player’s freedom to move freely from club to club.
In conclusion, to some extend sports federations have their own autonomy to set up rules within the “specificity of sports.” Before the Meca Medina judgment, these rules were not subject to EC law since they were for “purely sporting interest.” However, as determined in Meca Medina by the European Court of justice; “if the sporting activity in question falls within the scope of the Treaty, the conditions for engaging in it are then subject to all the obligations which result from the various provisions of the Treaty. It follows that the rules which govern that activity must satisfy the requirements of those provisions, which, in particular, seek to ensure freedom of movement for workers, freedom of establishment, freedom to provide services, or competition.” 21
Recently the Olympic and Sports Movement, together with sports federations including FIFA, published a report, in the light of the ratification of the TFEU, in which they plead to clarify the areas in which sport is considered to be “special”, and as a result is not affected by EU law, and to even extend these areas. 22 Besides the already existing “rules of purely sporting interest” like the size of the field, duration of the match etc. in which sporting federations enjoy a great level of autonomy, it is also proposed that the free movement of persons “should not be assessed exclusively in accordance with EU principles concerning free movement of workers or
20 Press Releases RAPID , Commission closes investigations into FIFA regulations on international football transfers, Brussels, 5 june 2002. 21 Meca-Medina ECJ, supra note 11, at para. 28. 22 International Olympic Committee, Common position of the Olympic and Sports Movement on the implementation of the new Treaty on the Functioning of the European Union (TFEU) on sport (Lisbon Treaty), January 2010. http://www.euoffice.eurolympic.org/cms/getfile.php?98 11
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persons.”23 According to this report, e.g. education and training of athletes and the integrity of sports competitions should also be taking into account. 24
In my opinion, by arguing for extension, sports federations are trying to obtain an even higher level of autonomy, which leads to less protection of the persons whom it all concerns; the athletes. The federations already enjoy a certain level of autonomy, granted and respected by the EU, and as a result have a particular margin to play in. However, it should be emphasized that FIFA is an autonomous organization but fundamental (human) rights and mandatory law should be taken into account, like the principles of freedom of labour, equal treatment and right to a fair trial. The level of autonomy should therefore be carefully balanced.
III. TRAFFICKING IN MINORS
Faced with a steady rise in the price of players, many European clubs are increasingly turning to non-European markets, most of which are located in the African and South American continents, where it is possible to acquire talented players at significantly lower prices than in Europe. 25 Trafficking in sportspersons mainly concerns young sportspersons from third countries, particularly from Africa and Latin America. In the specific case of football, these continents represent a reservoir of young talent and are the main areas of origin of foreign professional football players who play in European championships. 26
In 2009, the European Commission published a study on sports agents in the European Union. 27 This report describes in 7 steps how minor football players, from Africa and South-America in particular, are being trafficked;
23 International Olympic Committee, Common position of the Olympic and Sports Movement on the implementation of the new Treaty on the Functioning of the European Union (TFEU) on sport (Lisbon Treaty), January 2010, p. 4. 24 International Olympic Committee, Common position of the Olympic and Sports Movement on the implementation of the new Treaty on the Functioning of the European Union (TFEU) on sport (Lisbon Treaty), January 2010, p. 4. 25 European Commission, KEA – CDES – EOSE: Study on Sports Agents in the European Union, November 2009, p. 120. 26 European Commission, Study on Sports Agents in the European Union, supra note 24, p. 121. 27 European Commission, Study on sports agents in the European Union, supra note 24. 12
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1) An intermediary spots a – usually young – player and promises to have him recruited by a European club. In most cases these players, who wish to emulate their idols, practice their sport in informal settings which are not easy to monitor. 2) The intermediary asks the player’s family for money in exchange for finding a “placement” for him in Europe. Sometimes the player’s family will sell all their possessions or take out a loan to pay the intermediary, in the hope of receiving a quick return on their investment. 3) The player arrives in Europe, in most cases with a one-month tourist visa. The travel conditions are often illegal (e.g. travelling as a stowaway in a ship) and dangerous (excessively long journeys, dehydration, hypothermia, etc.). 4) Once he arrives in Europe, the player is “put to the test” by several clubs, which are not necessarily those promised by the intermediary. He is taken from one club to another until the intermediary is satisfied or gives up the process. 5) If the tests are successful, the players signs a (usually, short-term) contract with the club (in fact, very often the intermediary encourages the player to sign a short-term contract). The contract is often precarious and its terms are disadvantageous to the player. If the player no longer has a contract with a club, the intermediary often “drops him.” 6) If the player does not pass any of the tests and is not recruited by a club, the intermediary usually abandons him to his fate. 7) In principle, an intermediary who brings a player to Europe should bear the costs of his stay as well as all travel costs, including the return fare to the country of origin. However, many intermediaries will abandon the player when the tests with the clubs do not lead to a contract. With no money, no connections and often unable to speak the language of the country where he stays, the abandoned player usually has no choice but to remain in Europe in an irregular situation, i.e. without a work permit or a stay permit. He will end up doing undeclared, casual jobs for a living, possibly sending part of his earnings to his family back home. Most often, the player is unable to return to his country of origin because he cannot afford the fare or because he does not wish to return, since this would be perceived as failure by his family, which made sacrifices for him. In general, it is apparent that very few players from these countries are recruited or given a contract in 13
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relation to the high numbers who travel to Europe – which results in a large population of destitute persons who are reluctant to return to their countries of origin and who try to remain in Europe at any price. 28
Another example of this practice was also given in the report: in 2007 34 Ivorian youths (aged 16 to 18) were held against their will for three months in a villa located in the town of Sikasso, in southern Mali, before being freed by the Malian police. They were undernourished and had been forced to sleep on the floor in a single room. Their parents had been swindled by an intermediary who had promised to have them recruited by a European club in exchange for CFA300,000 (equivalent to approximately 450 Euros). 29
3.1 Sports agents – EC study
Sports agents are influential economic actors. According to the study performed by the European Commission on Sports Agents, there are currently between 5.695 and 6.140 sports agents – including both official and unofficial agents in the various sports disciplines considered in the study – operating in the territory of the European Union, of which football is by far the sport with the largest number of official sports agents. 30 At FIFA, at a worldwide level, there are 5208 of licensed agents registered. 31 In the Netherlands only, there are 113 licensed player agents. Remarkable is that in Spain, this number is 550.
However, according to FIFA, only 25 to 30 percent of the transfers are performed by licensed agents. 32 Therefore FIFA is considering abolishing the whole licensing system. A bad idea in my opinion. By opening this market for every single person to represent a player as an intermediary, a morbid growth of player agents is created. Instead FIFA should consider a system whereby
28 European Commission, Study on Sports Agents in the European Union, supra note 24, p. 121. Also: I. van Duren & T. Knipping, “De nieuwe slavenhandel”, Voetbal International , 2010, 45 ste jaargang, nr. 4, p. 32. 29 European Commission, Study on Sports Agents in the European Union, supra note 24, p. 122, but see also Press release of the International Organization for Migration (IOM), “Football players’ Dream of Fame in Europe Shattered”, 27 March 2007. 30 European Commission, Study on Sports Agents in the European Union, supra note 24, p. 4. 31 See http://www.fifa.com/aboutfifa/federation/administration/playersagents/list.html . 32 FIFA.com, “FIFA acts to protect core values”, 15 July 2009: http://www.fifa.com/aboutfifa/federation/administration/news/newsid=1081337.html . 14
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clubs are sanctioned if dealing with unlicensed agents. This way unlicensed agents are forced to obtain a license or they will lose their business. All licensed agents should be published and with every transfer made it should be made clear who represented the player. Since clubs are affiliated to FIFA, FIFA is able to impose sanctions upon clubs who deal with unlicensed agents.
The commissions earned by player agents on transfers of players in European football are estimated at EUR 200 million per year (!). 33 Revenues like these also attract “intermediaries” who want to benefit. These intermediaries are only interested in their own commissions rather than the interest of the players they represent. This leads to human trafficking in sports, in particular the economic exploitation of minor African and/or South-American players. In other words, some sports agents play an essential role within the practice of human trafficking, as has also been shown from the examples given above. Furthermore, the study on sports agents also confirms the inadequate protection of minors. 34 The Commission concludes in its report that “sports federations are not adequately equipped to combat and punish offences against public order, particularly in the fields of human trafficking (which falls within the province of migration and security policies) and financial crime (which falls within the province of financial supervision, fiscal control and crime prevention/law enforcement policies).” However, the Commission states, “a number of recent initiatives by the sports federations, such as the introduction of a licensing system for clubs or the Transfer Matching System seem to be moving in the right direction in terms of promoting good governance in sport and strengthening the supervision and transparency of financial flows.”35
According to the Commission, “states must play a complementary role by supervising the measures implemented by national federations and imposing criminal penalties for offences against public order. This involves, for example, such measures as the following: - Intensify the audits and checks performed by tax, social welfare and labour inspectors in sports clubs. Carry out checks of various aspects, including financial flows, work permits, social security registration, undeclared labour, working conditions, housing etc.;
33 European Commission, Study on Sports Agents in the European Union, supra note 24, p. 4. 34 European Commission, Study on Sports Agents in the European Union, supra note 24, p. 169. 35 European Commission, Study on Sports Agents in the European Union, supra note 24, p. 172. 15
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- Improve the control of training centres in Europe to ensure compliance with national laws on the protection of minors; - Establish indicators to measure the “sport variable” in statistics on illegal immigration and financial fraud.”36
The Commission is of the opinion that governments should play a stronger role in protecting minors. Sports federations alone cannot solve this social problem themselves. Furthermore, more transparency in professional sport is recommended by the Commission, e.g. inform about reprehensible or illegal practices by sportspersons, agents, clubs, organizers of sports events or federations (including information on sanctions imposed by the sports authorities or public authorities); publish a list of sports agents and their clients (including, if possible, information on the duration of the contracts signed with the clients as well as on the qualifications and experience of the agents); include, in all placement contracts, the name of the agent and his/her remuneration and publish and make available to the members of the boards of directors (of clubs/organizers of sports events) the accounts concerning placement of sportspersons. 37
However, I would like to emphasize that the system of player agents, if bona fide, is very good or even necessary in order to guide and support the players in the world of football. Players need experience persons who can advise them which decisions to make etc. This applies especially to minor players (and their parents) who are inexperienced and are more likely to make wrong choices based on wrong considerations and short-term visions.
The measures recommended by the Commission will definitely mean a big step in the right direction. However, I wonder whether these measures are strong enough to discourage malicious agents to recruit minor African and/or South-American and to bring them to Europe.
36 European Commission, Study on Sports Agents in the European Union, supra note 24, p. 172 - 173. 37 European Commission, Study on Sports Agents in the European Union, supra note 24, p. 175. 16
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3.2 Football Academies
Not only agents play an essential role in the exploitation of minor players, also the academies should not be forgotten. According to Darby, Akindes and Kirwin, football academies in Africa can be classified into four divisions. The first are African academies, organized and run by African club sides or African national federations, which operate, on the surface at least, in a manner similar to those that exist in, for example, Europe. An example in this regard is the academy of the Cote d’Ivoire club ASEC (Association Sportive des Employés de Commerce) Mimosas. This academy shares a similar philosophy with that of typical youth football academies found throughout Europe in that it provides young players between the ages of 13 and 17 with both a football and a general education. The most talented players are sold on, predominantly to European clubs, as a way of recouping the costs incurred in the training and education of young players. A famous example in the Netherlands is Ivory Coast player Salomon Kalou who was being transferred to Feyenoord. 38 The second category are Afro-European Academies, which involves 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 and then either subsumes the club’s existing youth structures or establishes new ones. 39 This partnership has typically two forms. In the first, European clubs set up academies or training centres or invest in existing ones and in return they have first claim on the best players that are produced, as the Feyenoord Fetteh Football Academy in Ghana. 40 A second European arrangement involves European clubs purchasing a controlling stakes in African clubs. A famous example is Dutch club Ajax Amsterdam, which in 1999 acquired a 51 percent controlling stake in a Cape Town club, Cape Town Spurs, which was subsequently renamed Ajax Cape Town. 41 Examples of the third category academies are those established and sponsored by former players, private individuals, or corporations. For example in Mali, the Salif Keita Football Centre was established in 1993 by former Mailan international Keita. However, there are also a number of
38 Darby, Akindes & Kirwin 2007, p. 149. 39 Darby, Akindes & Kirwin 2007, p. 149. 40 Darby, Akindes & Kirwin 2007, p. 150. 41 Darby, Akindes & Kirwin 2007, p. 151. 17
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academies that are sponsored by national or multinational companies. 42 A very famous and one of the largest is the Pepsi Football Academy in Lagos, Nigeria. 43 The above academies not only pay attention to the football education of the youngsters, but also general education. Though, the final category and the one most likely to cause trafficking are those that are not affiliated to a national association, club, or corporate organization and are established in an ad hoc, improvised manner by both African and European speculators whose primary interest is not football development but rather personal financial gain from the sale of young players to European clubs. 44 Only in Accra, Ghana alone there are an estimated 500 illegal, non-reported and non-affiliated to the national association, academies operating. Thousands more are spread across Ghana. Many run by the roadside; most have no proper training facilities. With biblical names such as ‘Sons of Moses’ and ‘Lovers of Christ.’ 45 Given that the players in these types of academies are not affiliated with a club or federation, they fall outside any legal and administrative regulations that are aimed at safeguarding young players from unscrupulous agents. Thus, these players are not required to obtain an official letter from their national federation and neither are their agents required to pay a lump sum to take the players abroad for trial. All they require is a tourist visa for the player and an agreement to pay compensation to the parents should their son be successful. As a consequence, these private, nonaffiliated academies expose young Africans to the greed of noncertified agents who are able to acquire recruits cheaply and convince them to sign exploitative contracts if they are successful during their trials. 46
42 Darby, Akindes & Kirwin 2007, p. 151 - 152. 43 See http://www.pepsifootballacademy.com/ 44 Darby, Akindes & Kirwin 2007, p. 153. 45 D. McDougall, “The scandal of Africa’s trafficked players,” The Observer , Sunday 6 January 2008. 46 Darby, Akindes & Kirwin 2007, p. 153. 18
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IV. FOOTBALL REGULATIONS REGARDING PROTECTION OF MINORS
4.1 Development of the FIFA Regulations After the Bosman judgment in 1995, FIFA and the European Commission – together with FIFPro, UEFA and the European Leagues – started negotiations to review the transfer system within football. 47 Main subjects during these negotiations were the contractual stability and the protection of minors. This finally led to revised FIFA Regulations on the Status and Transfer of Players in March 2001. New provisions in this regard were e.g. the introduction of a training compensation system, a contractual stability period of 2/3 years (depending on the age of the player concerned), a solidarity mechanism 48 and also the rules concerning minors were amended. 49
In 2005 the FIFA RSTP were once again revised. The provisions regards minors became the following;
Article 19 FIFA RSTP (2005 version) - Protection of minors 1. International transfers of players are only permitted if the player is over the age of 18. 2. The following three exceptions to this rule apply: a) The player’s parents move to the country in which the new club is located for reasons not linked to football; b) The transfer takes place within the territory of the European Union (EU) or European Economic Area (EEA) and the player is aged between 16 and 18. In this case, the new club must fulfil the following minimum obligations: i) It shall provide the player with an adequate football education and/or training in line with the highest standards. ii) It shall guarantee the player an academic and/or school and/or vocational and/or training, in addition to his football education and/or training, which will allow the player to pursue a career other than football should he cease playing professional football.
47 IP/01/314, “Outcome of discussions between the Commission and FIFA/UEFA on FIFA Regulations on international transfers,” 5 March 2001. 48 See FIFA Circular no. 769, 24 August 2001 or Weatherhill 2007, p. 222. 49 At the time, regulated in Article 12(a) of the 2001 FIFA RSTP, which formed the basis for Article 19 of the 2005 FIFA RSTP and again revised in Article 19 of the 2009 FIFA RSTP. 19
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iii) It shall make all necessary arrangements to ensure that the player is looked after in the best possible way (optimum living standards with a host family or in club accommodation, appointment of a mentor at the club etc.). iv) It shall, on registration of such a player, provide the relevant association with proof that it is complying with the aforementioned obligations; c) The player lives no further than 50km from a national border and the club with which the player to be registered in the neighbouring association is also within 50km of that border. The maximum distance between the player’s domicile and the club’s headquarters shall be 100km. In such cases, the player must continue to live at home and the two associations concerned must give their explicit consent. 3. The conditions of this article shall also apply to any player who has never previously been registered with a club and is not a national of the country in which he wishes to be registered for the first time. 4. Each Association shall ensure the respect of this provision by its clubs. 5. The Players’ Status Committee shall be competent to decide on any dispute arising in relation to these matters and shall impose appropriate sanctions in case of violation of this provision.
Basically, the regulations determine that international transfers are prohibited for players under 18 years, unless one of the exceptions mentioned in paragraph two applies. However, especially the first exception has been abused a lot (par. 2(a)). In many circumstances the family of the player does not move to a foreign country for real labour or similar reasons, but are offered a fictitious job, in order to legitimate an already agreed transfer of a minor players. Leading case in this matter is CAS Càdiz C.F. & Caballero v/FIFA & Asociación Paraguaya de Fútbol. 50
4.1.1 CAS Caballero At the age of 16, on 14 February 2005, Paraguayan player Carlos Javier Acuña Caballero signed a contract with Spanish football club Cádiz C.F. The same day a transfer agreement was signed between Cádiz C.F. and his (former) club Club Olympia de Paraguay. A week after signing, the player’s mother signed a contract of employment with a restaurant in Spain. However, on 22 June 2005 the Paraguayan Football Association refused to issue an “International Transfer Certificate (ITC)” due to the player’s age. On 27 July 2005, both associations are informed by FIFA that an ITC could not be issued as the conditions of Article 12 of the Regulations for the
50 CAS 2005/A/955 Càdiz C.F., SAD v/FIFA en Asociación Paraguaya de Fútbol & CAS 2005/A/956 Carlos Javier Acuña Caballero v/FIFA en Asociación Paraguaya de Fútbol. 20
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Status and Transfer of Players (2001 version) and of Article 19 of the Regulations for the Status and Transfer of Players (2005 version) had not been met. 51 The club decides to submit the case to the FIFA Players’ Status Committee ( FIFA PSC ). However, the Single Judge also refuses the request of the Spanish Football Federation to register the player due to a lack of proof that the player would work in Spain in any other activity than football. “In effect, in the documentation submitted was no mention anywhere of the player’s intention to continue his school or academic education. The Single Judge also concludes that instead of following the mother as a result of a change of domicile for reasons not linked to football (which is a legitimate exception under Article 19 of the FIFA RSTP), the case at hand was opposite, i.e., the mother would have followed the player after the Spanish club had expressed their special interest in the player.”52
On 8 September 2005, Cádiz C.F. filed a statement of appeal with the Court of Arbitration of Sport ( CAS ). Firstly, CAS had to deal with the validity of the FIFA rules on the protection of minors. Cádiz C.F. and player Caballero argued that the FIFA rules regarding the protection of minors are void “as they are private rules of an association in conflict with mandatory provisions of public policy, which cannot be limited by private parties.” 53
CAS replies as follows;
7.2.2. The Panel, having examined carefully the contested FIFA Rules limiting the international transfer of players who are less than 18 years old, has come to the conclusion that those FIFA rules do not violate any mandatory principle of public policy (“ordre public”) under Swiss law or any other national or international law , insofar as: i) they pursue a legitimate objective, namely the protection of young players from international transfers which could disrupt their lives, particularly if, as often happens the football career eventually fails or, anyways, is not as successful as expected;
51 CAS Caballero, supra note 49, paragraphs 2.1 – 2.12. 52 CAS Caballero, supra note 49, para. 2.16. 53 CAS Caballero, supra note 49, para. 7.2.1. 21
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ii) they are proportionate to the objective sought, as they provide for some reasonable exceptions. 54
In other words, CAS states that the FIFA Regulations concerning minors are valid since they pursue a legitimate objective and are proportionate.
Finally, CAS agrees with the FIFA PSC concluding that the player’s decision to move to Spain was made first and the decision of the mother of the player to move to Spain was thus directly linked to the contract signed between the player and the club. 55 Therefore the appeal was dismissed.
The Caballero case was the first case in which an international transfer of a minor was rejected on the basis of Article 19 of the FIFA RSTP. Leading principle in this case was the validity of the FIFA Regulations concerning minors. This doctrine was again confirmed in a CAS case between Spanish club Racing Santander and Argentinian club Estudiantes regarding the transfer of minor Oscar Sarmiento. 56
In 2008 another prominent CAS judgment concerning minors was given;
4.1.2 CAS F.C. Midtjylland Danish Premier League Club F.C. Midtjylland has established cooperation with Nigerian club F.C. Ebedei. The agreement comprises amongst other things a purchase option for F.C. Midtjylland on the Nigerian club’s biggest talents and the possibility of enrolling minor Nigerian in its football academy in Denmark.57 On 6 June 2006 F.C. Midtjylland registers three minor Nigerian players, previously registered with the Nigerian club, as amateurs at the Danish Football Association, who issues the necessary
54 CAS Caballero, supra note 49, para. 7.2.2. 55 CAS Caballero, supra note 49, para. 7.3.1. 56 CAS 2007/A/1403 Real Club Racing de Santander, SAD v. Club Estudiantes de la Plata (speler Brian Oscar Sarmiento). 57 CAS 2008/A/1485 FC Midtjylland A/S/ v/ Fédération Internationale de Football Assocation, para. 2.2. 22
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licenses. The Nigerian players have been granted a residence permit by the Danish Immigration Service as students (without the right to work), and have been given an upper secondary school education in Denmark. 58 In February 2007, the Fédération Internationale des Associations de Footballeurs Professionels (FIFPro) contacted FIFA alleging that F.C. Midtjylland was systematically violating Article 19 par. 1 of the FIFA RSTP transferring minor Nigerian players. After investigations, the FIFA PSC agrees with FIFPro and issues a decision against F.C. Midtjylland and the Danish Football Association. 59 The FIFA PSC firstly highlights that “Article 19 of the FIFA RSTP applies to both amateur and professional players. Furthermore the FIFA PSC states that the protection of minors constitutes one of the principles included in the agreement that was concluded between FIFA, UEFA and the European Commission in March 2001 and is one of the pillars of the Regulations. To prevent abuse and maltreatment of young players, a strict, consistent and systematic implementation of Article 19 of the FIFA RSTP is necessary. The fact that a young player enters a country for educational purposes does not affect the applicability of Article 19 of the FIFA RSTP. The Danish Football Association is not entitled to grant other exceptions than those provided for by Article 19 FIFA RSTP. Therefore the Danish Football Association has been issued with a strong warning for infringing Article 19 FIFA RSTP.”60
On 14 February 2008, F.C. Midtjylland filed a statement of appeal with the Court of Arbitration against the decision of the FIFA PSC. F.C. Midtjylland refers to the partnership agreement between the European Union and a number of African countries, including Nigeria, called the “Cotonou Agreement.” 61 The club argues that a Nigerian citizen, who is a legal resident in Denmark, could invoke Article 13.3 of the Cotonou
58 CAS 2008/A/1485 FC Midtjylland A/S/ v/ FIFA, para. 2.3 – 2.6. 59 CAS 2008/A/1485 FC Midtjylland A/S/ v/ FIFA, para 2.8. 60 CAS 2008/A/1485 FC Midtjylland A/S/ v/ FIFA, para 2.8 and 2.9. 61 2000/483/EC: Partnership agreement between the members of the African, Caribbean and Pacific Group of States of the one part, and the European Community and its Member States, of the other part, signed in Cotonou on 23 June 2000. 23
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Agreement to be treated equally to a Danish citizen. 62 Moreover, F.C. Midtjylland, referring to the Simutenkov case before the European Court of Justice63 , is of the opinion that the exception in Article 19 par. 2(b) of the FIFA RSTP “should be interpreted that it can also benefit citizens from third countries which have made a bilateral agreement with the European Union to secure third countries’ citizens from discrimination caused by nationality in terms of working conditions.”64 Furthermore, the Danish club submits that “the application of Article 19 of the FIFA Regulations for the Nigerian students under 18 years of age, who have gained a legal permit to remain in Denmark in order to study and who in their leisure time wish to play football on amateur level would be too far reaching and would exceed the substance and spirit of the Article. Article 19 of the FIFA Regulations has been adopted to prevent the exploitation and abuse of young players; according to the club, in this specific case, there is no trace of exploitation and abuse, as the students have the opportunity to develop both personally, socially, culturally, and in terms of education. In addition, F.C. Midtjylland states that Article 19 of the FIFA Regulations should only apply to professional players rather than to minor amateur players. Finally, the club submits that Article 19 of the FIFA Regulations is inconsistent with the Nigerian students’ human rights including the right of freedom of assembly and association and the protection against discrimination caused by nationality.”65
CAS firstly confirms the conclusion of the FIFA PSC stating that Article 19 of the FIFA Regulations equally applies to amateur and professional minor players. 66
62 Article 13.3 of the Cotonou agreement; The treatment accorded by each Member State to workers of ACP countries legally employed in its territory, shall be free from any discrimination based on nationality, as regards working conditions, remuneration and dismissal, relative to its own nationals. Further in this regard, each ACP State shall accord comparable non-discriminatory treatment to workers who are nationals of a Member State. 63 Case C-265/03 Igor Simutenkov v. Ministerio de Education y Cultura and Real Federación Española de Fútbol, [2005] E.C.R. I-02579. 64 CAS 2008/A/1485 FC Midtjylland A/S/ v/ FIFA, para. 3.3. 65 For the above arguments submitted by F.C. Midtjylland and the Danish Football Association, see CAS 2008/A/1485 FC Midtjylland A/S/ v/ FIFA, para 3.3. 66 CAS 2008/A/1485 FC Midtjylland A/S/ v/ FIFA, para 7.2.4 – 7.2.7. 24
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Next, CAS deals with the exceptions listed in paragraph 2 of Article 19 of the FIFA Regulations and, contrary to the FIFA PSC, concludes that these exceptions “are not exhaustive and accepts two further exceptions (relating to students only); - The international transfer of minors is allowed in cases where the players concerned could establish without any doubt that the reason for relocation to another country was related to their studies, and not to their activity as football players. - The international transfer is also allowed in cases in which the Association of origin and the new club of the players concerned have signed an agreement within the scope of a development program for young players under certain strict conditions (agreement on the academic and/or school education, authorization granted for a limited period of time).”67
However, CAS is of the opinion that none of these exceptions apply in the current case. With regard to European Law and the Cotonou Agreement, CAS states the Nigerian players cannot benefit from the Agreement since the relevant provisions prohibiting discrimination on the basis of nationality only apply to “workers” and only as far as working conditions are concerned. It does not apply to students or other persons who intend to enter the employment market in a European Community Member State.68 Also the last argument submitted by the club regarding the minor players’ freedom of assembly and of association is rejected by CAS. In paragraph 7.4.17 of the CAS decision it is said that the Charter of Fundamental Rights is not a legal document having binding effect. In consequence, one cannot rely upon Article 12 of this Charter (which deals with both freedom of assembly and association) in order to assert any legally enforceable right. Moreover, CAS concludes that “the registration of minors with a football club is not protected by the right to freedom of peaceful assembly and association since i) no player is prevented from playing football or from joining other people to play football on the basis of Article 19 of the FIFA Regulations and ii) it is admissible that some rules restrict fundamental rights when such
67 CAS 2008/A/1485 FC Midtjylland A/S/ v/ FIFA, para 7.3.3. 68 CAS 2008/A/1485 FC Midtjylland A/S/ v/ FIFA, para 7.4.5 – 7.4.16. 25
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rules pursue a legitimate objective and are proportionate to the objective sought. Reference to the CAS Caballero decision is made in this regard.”69
With regard to the last arguments concerning the freedom of assembly and of association, personally I think CAS has rejected these arguments too easily. We are talking about fundamental rights which are internationally recognized. Referring to the fact that no player is prevented from playing football or joining other people to play football cannot be a legitimate ground stating these fundamental rights are not affected; this is rather obvious. Of course no one is prevented to join other people to play football, everyone can join their friends to play football, e.g. in a garden or on the streets. Therefore this is an empty argument.
Though, on the basis of the above mentioned the appeal made by F.C. Midtjylland against the decision of the FIFA PSC is dismissed by CAS.
4.2 Revised FIFA Regulations 2009
Despite the fact that CAS in the two cases above strictly applied the FIFA Regulations in international transfers of minors, this was not sufficient enough to prevent further abuse and exploitation of minors as we have seen. Therefore it was decided at the end of 2008 to revise some articles of the FIFA Regulations once again to combat these practices, including Article 19 of the FIFA Regulations, which came into force on 1 October 2009;
Article 19 FIFA RSTP 2009 - Protection of minors 1. International transfers of players are only permitted if the player is over the age of 18. 2. The following three exceptions to this rule apply: a) The player’s parents move to the country in which the new club is located for reasons not linked to football; b) The transfer takes place within the territory of the European Union (EU) or European Economic Area (EEA) and the player is aged between 16 and 18. In this case, the new club must fulfil the following minimum obligations:
69 CAS 2008/A/1485 FC Midtjylland A/S/ v/ FIFA, para 7.4.17 – 7.4.19. 26
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i) It shall provide the player with an adequate football education and/or training in line with the highest standards. ii) It shall guarantee the player an academic and/or school and/or vocational and/or training, in addition to his football education and/or training, which will allow the player to pursue a career other than football should he cease playing professional football. iii) It shall make all necessary arrangements to ensure that the player is looked after in the best possible way (optimum living standards with a host family or in club accommodation, appointment of a mentor at the club etc.). iv) It shall, on registration of such a player, provide the relevant association with proof that it is complying with the aforementioned obligations; c) The player lives no further than 50km from a national border and the club with which the player to be registered in the neighbouring association is also within 50km of that border. The maximum distance between the player’s domicile and the club’s headquarters shall be 100km. In such cases, the player must continue to live at home and the two associations concerned must give their explicit consent. 3. The conditions of this article shall also apply to any player who has never previously been registered with a club and is not a national of the country in which he wishes to be registered for the first time. 4. Every international transfer according to paragraph 2 and every first registration according to paragraph 3 is subject to the approval of the sub-committee appointed by the Players’ Status Committee for that purpose. The application for approval shall be submitted by the association that wished to register the player. The former association shall be given the opportunity to submit its position. The sub-committee’s approval shall be obtained prior to any request from an association for an International Transfer Certificate and/or a first registration. Any violations of this provision will be sanctioned by the Disciplinary Committee in accordance with the FIFA Disciplinary Code. In addition to the association that failed to apply to the sub-committee, sanctions may also be imposed on the former association for issuing and International Transfer Certificate without the approval of the sub-committee, as well as on the clubs that reached an agreement for the transfer of the minor.
Article 19bis – registration and reporting of minors at academies
1. Clubs that operate an academy with legal, financial or de facto links to the club are obliged to report all minors who attend the academy to the association upon whose territory the academy operates. 2. Each association is obliged to ensure that all academies without legal, financial or de facto links to a club: a) run a club that participates in the relevant national championships; all players shall be reported to the association upon whose territory the academy operates, or register with the club itself; or b) report all minors who attend the academy for the purpose of training to the association upon whose territory the academy operates. 27
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3. Each association shall keep a register comprising the names and dates of birth of the minors who have been reported to it by its clubs or academies. 4. Through the act of reporting, academies and players undertake to practise football in accordance with the FIFA Statutes, and to respect and promote the ethical principles of organised football. 5. Any violations of this provision will be sanctioned by the Disciplinary Committee in accordance with the FIFA Disciplinary Code. 6. Article 19 shall also apply to the reporting of all minor players who are not nationals of the country in which they wish to be reported.
Article 19 of the FIFA RSTP has extensively been amended. However, these are not the only provisions that have been changed dealing with minors as we will see later. To start with, paragraph 4 of Article 19 of the FIFA Regulations.
4.2.1 FIFA Players’ Status sub-committee. From 1 October 2009 onwards, every international transfer involving minors will be subject to the approval of a specially created sub-committee. The sub-committee consists of representatives of the players, clubs, and minors’ confederations of origin (e.g. CAF and CONMEBOL) and confederations of adoption (particularly UEFA). This sub-committee is responsible for implementing an advance approval procedure for the transfer of minors to ensure that the exceptional circumstances laid down in Article 19, paragraph 2 of the FIFA Regulations are applied correctly. 70 This means that the responsibility does no longer lie with the member associations of FIFA.
4.2.2 Academies – Article 19bis of the FIFA RSTP. Another amendment is the inclusion of a new article, Article 19bis which deals with minors at academies. As we have seen in Chapter III, also academies play an important role as regards trafficking of minors. This article is a first step to better regulate the organization of these academies. From now on, in order to control the emergence of private academies outside of
70 FIFA, Protection of minors and training clubs, principles approved by the FIFA Executive Committee, Zurich: 24 October 2008, p. 1 (http://www.fifa.com/mm/document/affederation/bodies/92/41/19/mineurs-presse-en.pdf ). 28
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association structures, such academies will be integrated within FIFA’s member associations. 71 As explained before, there is a division between academies linked to a club and private academies, like e.g. Pepsi academies. In case academies are legally, financially or de facto linked to a club, the club is required to report all minors who attend the academy to the association upon whose territory the academy operates (paragraph 1). If there is no direct link to a club, the association has to ensure that the academy runs a club that participates in the national championships. All players have to be reported to the association upon whose territory the academy operates or have to be registered with the club itself (paragraph 2a). Furthermore the association is obliged to ensure that all minors at the academies on its territory are reported to the association (paragraph 2b).
Personally I think FIFA should have done this long before. They knew of the existence of malicious academies and the serious problems it caused. I hope there will be strict supervision to make sure these measures are observed. If so, this could be an important article to prevent trafficking in youngsters and academies that not only provide football training but also general education will survive.
As said, these new provisions are not the only new principles concerning minors that came into force in 2009, the regulations with regard to training compensation were amended, a Transfer Matching System was introduced, an awareness campaign directed at minor’s countries of origin will be launched in cooperation with FIFPro and discussions have been initiated with football’s stakeholders, most notably with FIFPro, in order to amend article 18, paragraph 2 of the FIFA Regulations regarding the maximum length of a contract, i.e. three years, that may be signed by any player under the age of 18. 72
71 FIFA, Protection of minors and training clubs, supra note 69, p. 1. 72 FIFA, Protection of minors and training clubs, supra note 69, p. 1. 29
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4.2.3 Training Compensation The objective of training compensation is to compensate clubs that have contributed to the player’s training and education between the ages of 12 and 23 years old. As can be read in Annexe 4 of the FIFA Regulations, training compensation shall be payable, as a general rule, up to the age of 21, unless it is evident that a player has already terminated his training period before the age of 21. 73 Clubs are divided in different categories. Depending on the category of the club (1 to 4, the better the club, the higher the category, 1 being the highest), the amount of the training compensation per season is determined (which in Europe varies from EURO 90.000 for category 1 clubs, EURO 60.000 for category 2 clubs, EURO 30.000 for category 3 clubs and to EURO 10.000 for category 4 clubs). Furthermore, important to note is that under the old regulations, training compensation between the ages of 12 to 15 was always based on a category 4 amount. To give an easy example; if player A plays from the age of 12 to 16 for category 2 club X, from the age of 17 to 20 for category 1 club Y and then moves to club Z, another category 1 club, the latter club under the old regulations had to pay the two former clubs; • Club X: player A played at the category 2 club for five years (12-16). However, four of those years were between the age of 12 to 15, meaning compensation according to category 4, which is 4 x EUR 10.000 = EUR 40.000, plus one year (age of 16) of category 2 compensation, which is EUR 60.000. In total club X will receive EUR 100.000 of training compensation. • Club Y: player A also played for category 1 club Y (17-20), meaning EUR 90.000 per season, which is EUR 360.000 in total. We can conclude that club Z thus has to pay a total training compensation of EUR 460.000 for signing player A. Again, this was under the old regulations.
However, also regarding training compensation, the regulations were changed for a better protection of minors. Article 5 paragraph 3 of Annexe 4 now stipulates that where the event giving rise to the rights to training compensation occurs before the end of the season of the player’s 18 th birthday, the training costs for players for the seasons between their 12 th and 15 th
73 Article 1 Annexe 4 of the 2009 FIFA RSTP. 30
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birthdays (i.e. four seasons) shall no longer be based on the training and education costs of category 4 clubs, but on the category of the new club. 74 This means in the example above that Club Y (to which the player moves at the age of 17), as category 1 club, has to pay club X for the training and education of player A between the ages of 12 to 15 a total amount of 4 x EUR 90.000 = EUR 360.000 instead of the EUR 40.000 under the old regulations. However, where the player moves at the age of 19, the training and education costs of category 4 clubs would continue to be applied for the seasons between his 12 th and 15 th birthdays. 75
It is a rather technical provision, and it will definitely discourage some clubs to sign players under 18, however in my opinion, this will not put off category 1 clubs to sign minors. They might still consider EUR 320.000 extra (EUR 360.000 – 40.000) as peanuts for talents.
4.2.3.1 Bernard Case Training compensation of course limits the freedom of movement of players. A sum of money needs to be paid to the former club in order to sign the player. Therefore, the concept of training compensation was recently under attack before the European Court of Justice. 76 The case involved Olivier Bernard who had signed a “joueur espoir” contract with French football club Olympic Lyonnais for three years. Instead of accepting a new contract offer made by Olympic Lyonnais at the end of this training period, Bernard signed a professional contract with English club Newcastle United. However, the French rules required that a player with a youth contract, as Bernard, was obliged to conclude a contract with the club that trained the player, Olympic Lyonnais in this case, if this club offered him a contract. As a result of these regulations, Olympic Lyonnais sued Bernard and claimed damages. The case is finally referred to the European Court of justice. Advocate-General Sharpston, who delivered her opinion on 16 July 2009, stated that “rules which require payment of a transfer, training or development fee between clubs on the transfer of
74 FIFA Circular no. 1190, “Revised regulations on the status and transfer of players – protection of minors,” 20 May 2009, p. 2. 75 FIFA Circular no. 1190, “Revised regulations on the status and transfer of players – protection of minors,” 20 May 2009, p. 2. 76 Case C-325/08, Olympique Lyonnais v. Olivier Bernard and Newcastle United , ECJ 16 March 2010. 31
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a professional footballer are in principle an obstacle to freedom of movement for workers.” 77 It may escape the prohibition if the rule pursues a legitimate aim compatible with the Treaty. According to the A-G “the need to encourage the recruitment and training of young professional football players is capable of justifying a requirement to pay training compensation where an obligation to remain with the training club for a specified (and not over-lengthy) period after completion of training is not respected. However, that will be so only if the amount concerned is based on the actual training costs incurred by the training club and/or saved by the new club and, to the extent that the compensation is to be paid by the player himself, limited to the outstanding cost of the individual training.” 78 In other words, training compensation is permissible under European law according to the A-G. On 16 March 2010, the European Court of Justice confirmed the opinion given by A-G Sharpston. In paragraph 45 of its judgment, the ECJ concludes that “it follows that a scheme providing for the payment of compensation for training where a young player, at the end of his training, signs a professional contract with a club other than the one which trained him can, in principle, be justified by the objective of encouraging the recruitment and training of young players. However, such a scheme must be actually capable of attaining that objective and be proportionate to it, taking due account of the costs borne by the clubs in training both future professional players and those who will never play professionally.”
Not only the costs made to train the individual player should be taken into account, also costs borne by clubs in training players who will never play professionally should be taken into account. The main question is how this will be calculated. I think the Court has created legal uncertainty by taking forfeiture amounts.
77 Opinion A-G Sharpston, delivered on 16 July 2009 in case C-325/08 Olympique Lyonnais v. Olivier Bernard and Newcastle United, para. 40. 78 Opinion A-G Sharpston, supra note 76, para. 58. 32
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4.2.4 FIFA Transfer Matching System Another new measure is the involvement of minors in the FIFA Transfer Matching System (TMS ) as can be read in Annexe 2 of the FIFA Regulations. The objective of the TMS is, on the one hand, to make sure that football’s authorities have more details available to them on each and every transfer, and on the other hand, to increase the transparency of individual transactions, which will in turn improve the credibility and standing of the entire transfer system. At the same time, the system will also ensure that it is indeed a player who is being transferred and not merely a fictitious player being used to move money (“money-laundering”). And last but not least, it will also contribute towards safeguarding the protection of minors. 79 Via the TMS, the movement of players is monitored through a central database. Electronic ITC’s can be issued via the TMS, so this is a great step forward to transparency. From October 2010, the use of TMS will become a mandatory step for all international transfers of professional players, including minors, and any professional player registrations made without the use of TMS will be deemed invalid by FIFA. 80
I definitely encourage the introduction of the TMS, more transparency is essential in fighting trafficking of (minor) players. It might also be a good idea to include an extra tab in the system for international trial periods for players/minors in order to keep track where these players find themselves and whether a contract is offered to make sure these players are flown back to their country of origin. If it is possible with international transfers, a similar program should also be possible for trial periods.
4.2.5 Awareness campaign In conjunction with FIFPro and any other interested parties an awareness campaign will be launched directed at minors’ countries of origin, in order to draw the attention of the public authorities, as well as of parents and minors themselves, to the consequences and social dangers posed by the issue of minors in football today. 81
79 FIFA Circular no. 1205, “FIFA TMS transition phase,” Zurich: 23 september 2009, p.1. 80 FIFA Circular no. 1205, “FIFA TMS transition phase,” Zurich: 23 september 2009, p.1. 81 FIFA, “Protection of minors and training clubs,” supra note 69, p. 2. 33
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In this regard, FIFA also supports the organization Culture Foot Solidaire. This Non- Governmental Organisation (NGO) was set up by ex-professional footballer Jean-Claude Mbvoumin in 2000 and is aimed to protect young African footballers from human trafficking and exploitation by informing, supporting and guiding young players who were subject to trafficking and exploitation, by promoting good practice in the coaching of youth teams, through information campaigns and cooperation for minors’ countries of origin and to work closely with political authorities and (inter)national sports authorities in order to prevent trafficking and exploitation.82
Of course, these projects and campaigns are very important. With the World Cup in South-Africa ahead this is a perfect possibility to raise attention for this terrible phenomenon.
4.2.6 Maximum length of contract minors Furthermore, discussions have been initiated with football’s stakeholders, most notably with FIFPro, in order to amend article 18, paragraph 2 of the FIFA Regulations regarding the maximum length of a contract, i.e. three years, that may be signed by any player under the age of 18.83
4.3 Conclusion FIFA measurements Great attention is paid to the protection of minors by FIFA. Major steps are taken in this area. Even though some of the separate measures are doubtful (i.e. increase of training compensation), all measures combined, if strictly supervised, can be a huge step forward. The creation of the sub-committee, together with the Transfer Matching System and the awareness campaign are very important in this regard and “easy” to implement. However, I am very curious whether FIFA will be able to monitor all illegal academies. If they will be able to do so, of course in close co-operation with the national (African and South-American) associations, it will be a lot harder to traffic youngsters.
82 See http://www.footsolidaire.org/index/presentation/ 83 FIFA, “Protection of minors and training clubs,” supra note 69, p. 1. 34
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4.4 UEFA Regulations regarding Protection of Minors Besides FIFA (club) competitions, clubs also participate in UEFA (club) competitions, the UEFA Champions League and the UEFA Europe League (formerly known as UEFA Cup). Also UEFA has taken measures to protect minors in its competitions. Already in 2005, the homegrown rule was introduced and recently a resolution was adapted to prohibit international transfers of player under 18 years old.
4.4.1. UEFA Homegrown Rule In 2005 UEFA agreed on the introduction of a so-called homegrown-rule . “This rule states that squad lists for UEFA club competitions will continue to be limited to 25 players for the main ‘A’ list. From season 2006/07, the final four places are reserved exclusively for ‘locally trained players.’ A locally trained player is either a ‘club trained player’ or an ‘association trained player.’ In the following two seasons, one additional place for a club trained player for a club trained player and one additional place for an association trained player will be reserved on the A list with the final number of four club trained and four association trained players in place for the (current) 2009 season. A club trained player is defined as a player who, irrespective of his nationality and age, has been registered with his current club for a period, continuous or non- continuous, of three entire seasons or of 36 months whilst between the age of 15 and 21. An association trained player fulfils the same criteria but with another club in the same association. In the event that a club fails to meet the new conditions for registration, the maximum number of players on the ‘A’ list will be reduced accordingly.”84 As can be read in articles 18.08 – 18.14 of the 2009/10 UEFA Regulations this system is still in place and are clubs in UEFA club competitions required to have (minimum) four locally trained players and (maximum) four association trained players listed in places 18 – 25 on list A.
84 S. Miettinen & R. Parrish, Nationality Discrimination in Community Law: An Assessment of UEFA Regulations Governing Player Eligibility for European Club Competitions (The Home-Grown Player Rule), 5 (2) Entertainment and Sports Law Journal (2007), p. 3. 35
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Even though this rule is obviously (indirectly) discriminating, UEFA, supported by the European Parliament 85 , is of the opinion that this rule can be justified since it is proportionate and pursues a legitimate objective; reaching a “competitive balance” between clubs and “to encourage and protect the training and education of players.” In Bosman a rule which limited the number of professional players who are nationals of other Member States to be fielded (3+2 rule) was dismissed as being contrary to the freedom of movement since it was directly discriminating and moreover could not be justified. 86 At the same time, in paragraph 106 in the Bosman judgment the Court stated that ‘in the view of the considerable social importance of sporting activities, and in particular football in the Community, the aims of maintaining a balance between clubs by preserving a certain degree of equality and uncertainty as to results and of encouraging the recruitment and training of young players must be accepted as legitimate.’ The difference between the 3+2 rule in Bosman and the UEFA homegrown rule is that the homegrown rule is “legally distinguishable in that although the objective is an attempt to link attributes of residence and players’ club affiliations, the method employed does not constitute direct nationality discrimination but indirect discrimination which arises from requirements which more nationals than non-nationals are likely to fulfill. Since it is indirectly discriminatory, categories of objective justification beyond the limited Treaty grounds may be available.”87
This all sounds very nice and promising, but a very important side effect in this regard is easily forgotten. A player must be registered with a club for three years between the age of 15 – 21 in order to be considered a homegrown player. This means that the younger a player is when registered with a club (i.e. 15 years old), the sooner he can be regarded as homegrown, which is an advantage for the club to field another non-homegrown player. In my view, this only encourages clubs to attract players at a young age rather than to protect them. By making sure the player is registered with the club at the age of 15, already at the age of 18 he will be considered
85 As can be read in the European Parliament Resolution on the future of professional football in Europe, 29 March 2007 (2006/2130(INI)), para. 34-35. 86 Bosman, supra note 11, para. 15 summary. 87 S. Miettinen & R. Parrish, Nationality Discrimination in Community Law: An Assessment of UEFA Regulations Governing Player Eligibility for European Club Competitions (The Home-Grown Player Rule), 5 (2) Entertainment and Sports Law Journal (2007), p. 9. 36
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as a homegrown player. So even though the discriminatory effect of the rule may be justified, this does not prevent clubs to attract young players.
Though, in combination with the new FIFA Regulations regarding minors which are in place as summarized above, this rule can indeed encourage and protect the training of young players. However, the FIFA Regulations should be observed strictly. So far, it has been too easy to sign a youngster and to misuse the FIFA Regulations.
4.4.2. International Transfer Prohibition U-18 In 2009 a resolution was ratified by UEFA together with representatives of the associations, clubs, leagues and players, in which it was agreed that “no international transfers (or first registration of non-nationals) of players under 18 into Europe or within Europe should be permitted. This means in particular that the third exception foreseen today in Article 19, paragraph 2 b), of the FIFA Regulations for the Status and Transfer of Players, and which relates only to the EU/EEA, should be reviewed in order to guarantee that the same system regarding transfer bans of under-18 year old players applies both within and outside Europe and that this system is strictly monitored.”88
However, within the European Union, one of the core principles is the internal market and the freedom of movement provisions. In particular Article 45 of the TFEU applies in this matter, which deals with the freedom of movement of workers. As can be read in this article (paragraph 2), the freedom of movement of workers “shall entail the abolition of any discrimination based on nationality between workers of the Member States as regards employment, remuneration and other conditions of work and employment.” In paragraph 3 of Article 45 TFEU it is explained what rights explicitly entails; the right to accept offers of employment actually made (sub a), to move freely within the territory for this purpose (sub b), to stay in a Member State for the purpose of employment in accordance with the provisions governing employment of nationals of
88 UEFA Media Release, Protection of young players and encouragement of youth development, Resolution of the Professional Football Strategy Council, Nyon: 9 March 2009. 37
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that State laid down by law, regulations or administrative sanction (sub c) and to remain in the territory of a Member State, subject to conditions which shall be embodied in implementing regulations to be drawn up by the Commission (sub d).
According to the Community Charter of the Fundamental Social Rights of Workers “without prejudice to such rules as may be more favourable to young people, in particular those ensuring their preparation for work through vocational training, and subject to derogations limited to certain light work, the minimum employment age must not be lower than the minimum school- leaving age and, in any case, not lower than 15 years.” 89 Looking at the Netherlands, minors are allowed to sign an employment contract from the age of 16. 90 By reaching this minimum age to sign an employment contract, a minor evidently also gains the right to sign an employment contract in another country within the European Union on the basis of Article 45 TFEU.
An international transfer ban for players under 18 years would obviously infringe this fundamental right of EU citizens as it is discriminatory. A violation of this Article can only be justified on the grounds of public health, public security or public health (paragraph 2 of Article 39 EC). However, this does not apply in this regard.
Therefore, it will not be possible to implement a rule like this.
4.5 KNVB Regulations regarding the Protection of Minors Finally, the regulations of the Dutch National Football Association KNVB. Since the provisions regarding minors in the FIFA RSTP, articles 19 and 19bis, are binding at national level and must be included without modification in the association’s regulations, these rules fully apply in the Dutch KNVB Regulations. 91
89 Community Charter of the Fundamental Social Rights of Workers, title I point 20. 90 See Article 7: 612 of the Dutch Civil Code. 91 Article 3(a) of the FIFA RSTP. 38
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With regard to minors, besides the FIFA Regulations, the KNVB Players Agents Regulations (“ KNVB Reglement Spelersmakelaars ”) applies. Article 8 paragraph 1 sub d states that a players agent has the obligation to refrain himself from any activities as far as players younger than 16 years concerned. 92
As regards sports agents in the Netherlands, not only the football regulations as the FIFA Regulations and the KNVB Regulations apply, but also the national legislation concerning job placement by intermediaries (third parties), the WAADI ( Wet allocatie arbeidskrachten door intermediaries ) applies. An important provision is Article 3 paragraph 1 of the WAADI, which states that “for the performed job location by the intermediary, the intermediary shall not receive anything in return from the person who is seeking work.” This means that a Dutch player’s agent is not allowed to ask the player for any payments for his services, but this should be done by a third party, mostly the clubs. A payment clause between a player’s agent and a player in the Netherlands is thus invalid.
Recently there has been a case before the disciplinary committee of the KNVB in which a Dutch player’s agent was accused of approaching (parents of) minor players of club PSV Eindhoven, as was shown in a KRO-documentary broadcasted at the end of 2009 in the Netherlands. 93
In its judgment the disciplinary committee concluded the following; “The disciplinary committee must establish that it was decided to, when dealing with article 8 paragraph 1 sub d of the KNVB Players Agents Regulations, opt for a certain minimum age (i.e. 16 years) to allow activities concerning players. In the light of article 7:612 of the Dutch Civil Code 94 the disciplinary committee considers that the age of 16 as a limit, implemented in article 8 paragraph 1 sub d of the KNVB Players Agents Regulations, was not a coincidence but particularly chosen to link up to the minimum age of 16
92 See KNVB Reglement Spelersmakelaar, article 8 par. 1 sub d. 93 KRO documentary “de slag om jong talent”, broadcasted 4 October 2009. Documentary available at: http://reporter.kro.nl/uitzendingen/_2009/0410_jongevoetballers/introvoetballers.aspx# . 94 Paragraph 1 of this article states that a minor who has reached the age of 16 is competent to enter into an employment contract. 39
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years to conclude an employment contract. For minors younger than 16 years, the parents play a large role. More specifically, the disciplinary committee considers that, by including such a provision in the KNVB Players Agents Regulations, it is attempted to protect the interests of minors under a certain age from influences of player’s agents. Until the player has reached the age of 16, his parents are the legal representatives to guide and support the player. The influences of player agents should certainly not be underestimated since, as a result of being licensed, the player agent is entitled to represent players and professional football clubs regarding employment contracts and/or transferring players within the KNVB as well as to and from other national associations. By obtaining a license, a player agent acquires the right to conduct such activities to which are normally solely certified lawyers or close relatives entitled to. On the other hand, a player’s agent commits himself to only carry out such activities when the player reaches the age of 16 or older. Of course it is true that a player under the age of 16 cannot sign an employment contract with a professional football club and as a result a player’s agent is not able to help him in this regard. However, by building up another relationship with the (parents of the) player under 16, the players agent is able to gain a position in which he can influence the player even before reaching the age of 16, e.g. by obtaining the players’ trust, and to bind the player.”
In other words, it is totally forbidden for a player’s agent to even contact a player under the age of 16. In its verdict the disciplinary committee discharges the player’s agent, but imposes a provisional fine of EUR 5000. However, one can ask the question whether parents are able to make the right decisions for the minor players. There is nothing wrong with advising parents in their decision-making, what consequences which decisions have etc. There can be no harm in that since minor players under the age of 16 are not allowed to sign a contract. This could be an important role of agents.
In the same KRO documentary it was shown that the transfer of Dutch youth international Jeffrey Bruma from Dutch club Feyenoord to Chelsea F.C. was contrary to the FIFA Regulations. Relying on the exception in Article 19 paragraph 2 sub a of the FIFA RSTP, the transfer was 40
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justified. However, in the documentary the mother of the player explicitly states that she indeed joined the player to London, but did not work in London.
This shows that not only in Africa and South-America, but even in a Western European country as the Netherlands minors need to be protected.
In Chapter V, I will extensively deal the requirements for non-EU minors who want to come to the Netherlands for e.g. trial periods. Not only KNVB regulations will be discussed, but also national immigration and labour law provisions that apply in the Netherlands. However, firstly I will discuss the protection of minors from a legal point of view.
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V. LEGISLATION REGARDING THE PROTECTION OF MINORS
The scale and importance of the problem of trafficking in minors cannot only be solved by rules, laid down by sporting organizations. Fortunately many regulations exist to prevent children from being exploited. In this chapter, I will shortly deal with regulations that apply on a global level and I will slowly work my way down via European legislation to the Dutch regulations concerning minors. I will also take a look whether and how the national Dutch authorities should play an active role in preventing child exploitation/trafficking in football. Furthermore, I will explain how a trial period for African and South-American youngsters can be arranged with a Dutch club and which conditions have to be fulfilled.
5.1 Protection at international level At international level, several declarations and conventions exist to protect people from being exploited, trafficked, smuggled and forced to labour. Four important documents in this regard are the UN Universal Declaration of Human Rights, the UN Convention against Transnational Organized Crime (Palermo Protocols), the UN Convention on the Rights of the Child and the ILO Forced Labour Convention 1930 (No. 29). All documents require State Parties to undertake the necessary action to prevent these practices.
5.1.1. UN Universal Declaration of Human Rights On 10 December 1948 the United Nations adopted the Universal Declaration of Human Rights. This document contains human rights which apply to the whole community. 95 Fundamental human rights, as equality and dignity, the right to life and the prohibition of slavery have to be respected by all countries. States have to refrain themselves from violating these fundamental human rights and have a common responsibility to make sure these rights are respected. The right not to be trafficked is obviously part of the Declaration.
95 For complete text of the Declaration go to: http://www.un.org/en/documents/udhr/#atop . 42
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5.1.2. Palermo Protocols UN Convention against Transnational Organized Crime The Protocols attached to the UN Convention against Transnational Organized Crime (also known as the Palermo Protocols 96 ), have legally defined human trafficking and human smuggling at an international level.97 Article 3 of the Protocol to prevent, suppress and punish trafficking in persons defines “trafficking in persons” as “(a) the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs; (b) the consent of a victim of trafficking in persons to the intended exploitation set forth in subparagraph (a) of this article shall be irrelevant where any of the means set forth in subparagraph (a) have been used; (c) the recruitment, transportation, transfer, harbouring or receipt of a child for the purpose of exploitation shall be considered “trafficking in persons” even if this does not involve any of the means set forth in subparagraph (a) of this article; (d) “Child” shall mean any person under eighteen years of age .”
According to Article 3 of the Protocol against the smuggling of migrants by land, sea and air “smuggling of migrants” shall mean “the procurement, in order to obtain, directly or indirectly, a financial or other material benefit, of the illegal entry of a person into a State Party of which the person is not a national or a permanent resident.”
Regarding (minor) African and South-American players, the practice teaches us that they enter Europe with a tourist visa (as will be dealt with later on). In other words, they enter Europe legally, but are in a situation which is characterized by an economic dependence on the person
96 Protocol to prevent, suppress and punish trafficking in persons, especially women and children & Protocol against the smuggling of migrants by land, sea and air, supplementing the United Nations Convention against Transnational Organized Crime, adopted in 2000. 97 J. Scherrens, The Muscle Drain of African Football Players to Europe: Trade or Trafficking? European Master in Human Rights and Democratisation 2006-2007, p. 55. 43
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who facilitated their transportation, 98 mainly the (malicious) agents. Therefore the term trafficking applies in this matter rather than smuggling.
5.1.3. UN Convention on the Rights of the Child Another important international document which only applies to children is the UN Convention on the Rights of the Child, which was the first legally binding international instrument to incorporate the full range of human rights – civil, cultural, economic, political and social rights. 99 This Convention, as of March 2010, has been ratified by all governments except for Somalia and the United States. 100 According to this Convention, a child means every human being below the age of eighteen years unless under the law applicable to the child, majority is attainted earlier. 101
An important article within the framework of this thesis is Article 32 of the Convention; 1) States Parties recognize the right of the child to be protected from economic exploitation and from performing any work that is likely to be hazardous or interfere with the child’s education, or to be harmful to the child’s health or physical, mental, spiritual, moral or social development. 2) States Parties shall take legislative, administrative, social and educational measures to ensure the implementation of the present article. To this end, and having regard to the relevant provisions of other international instruments, States Parties shall in particular: a. Provide for a minimum age or minimum ages for admission to employment; b. Provide for appropriate regulation of the hours and conditions of employment; c. Provide for appropriate penalties or other sanctions to ensure the effective enforcement of the present article.
Forced labour for economic exploitation comprises all forced labour performed by private agents and enterprises in sectors other than the sex industry (of which victims of trafficking in persons). 102 Minors who are trapped into false promises of malicious agents/academies and as a
98 J. Scherrens, The Muscle Drain of African Football Players to Europe: Trade or Trafficking? European Master in Human Rights and Democratisation 2006-2007, p. 58. 99 http://www.unicef.org/crc/ , 17 March 2010. 100 For an overview of ratification per government, go to: http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-11&chapter=4&lang=en 101 UN Convention on the Rights of the Child 1989, article 1. 102 P. Belser, ILO Forced Labour and Human Trafficking: Estimating the Profits Working Paper, Declaration/WP/42/2005, p. 3. 44
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result are deprived of their free will obviously belong to this category. However, minors may end up being sexually exploitated after they are abandonned by their agent.
Furthermore, important is that the best interest of the child should be a primary consideration in all actions concerning children (e.g. article 3 of the Convention, but is emphasized throughout the whole Convention). Therefore interests should be carefully balanced if a child is involved.
Going to Europe and trying to obtain a contract is not always in the best interest of the child. The child leaves his family and friends, goes to a different unfamiliar environment with the risk of not signing a contract. Since in certain cases the whole family is dependent on the success of the player after e.g. selling their house, immense pressure is put on the child which can make him decide not to return home after an unsuccessful trip to Europe. Obviously this can be very harmful for the child’s health or physical, mental, spiritual, moral or social development.
5.1.4. ILO Forced Labour Convention, 1930 (No. 29) Finally, each member of the ILO which ratifies this Convention has to undertake to suppress the use of forced or compulsory labour in all its forms within the shortest period (article 1). In Article 2 the term forced or compulsory labour is given; all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntary.
We can conclude that many regulations exist at international level to protect people from exploitation. However, the responsibility to criminalise the phenomenon and to prosecute traffickers remains the responsibility of national legislations. 103
103 J. Scherrens, The Muscle Drain of African Football Players to Europe: Trade or Trafficking? European Master in Human Rights and Democratisation 2006-2007, p. 58. 45
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5.2 Protection at European level
Not only at international level, but also at European level it is made sure fundamental rights are protected by the Member States. This is done through e.g. the European Charter of Fundamental Rights 104 , but also via Directives adopted by the European Parliament. Both the European Parliament and the European Commission recognize the problems regarding minors in respectively the European Parliament Resolution on the Future of professional football in Europe and the White Paper on Sport.
5.2.1. European Parliament Resolution on the Future of professional football in Europe. In its resolution on the Future of professional football in Europe in 2007, the European Parliament confirms the problems regarding minors and calls for action. In its report the European Parliament;
32. Highlights the importance of education through sport and the potential of football to help get socially vulnerable youngsters back on track and asks Member States, national associations, leagues and clubs to exchange best practices in this regard; 33. Calls on the Commission and Member States also to support social inclusion projects by football clubs; 34. Expresses its clear support for the UEFA measures to encourage the education of young players by requiring a minimum number of home-grown players in a professional club’s squad and by placing a limit on the size of the squads; believes that such incentive measures are proportionate and calls on professional clubs to strictly implement this rule; 35. Is convinced that additional arrangements are necessary to ensure that the home-grown players initiative does not lead to child trafficking, with some clubs giving contracts to very young children (below 16 years of age); 36. Points out that young players must be given the opportunity for a general and vocational education, in parallel with their club and training activities and that the clubs should ensure that young players from third countries return safely home if their career does not take off in Europe; 37. Insists that immigration law must always be respected in relation to the recruitment of young foreign talent and calls on the Commission to tackle the problem of child trafficking in the context of Council Framework Decision 2002/629/JHA of July 2002 on combating trafficking in human beings and/or in the context of the implementation of Council Directive 94/33/EC of 22 June 1994 on the protection of young people at work; points out that young players must be given the opportunity for a general education and vocational training in parallel with their club and
104 Article 5 paragraph 3 explicitly states that “Trafficking in human beings is prohibited.” 46
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training activity, so that they do not depend entirely on the clubs; calls for action to prevent social exclusion of young people who are ultimately not selected; 38. Calls on the football governing bodies and the clubs to engage in the fight against human trafficking by - subscribing to a European charter for solidarity in football, that commits subscribers to respect good practices concerning the discovery, recruitment and reception of young foreign football players; - the creation of a Solidarity Fund that would finance prevention programmes in countries most affected by human trafficking; - reviewing Article 19 of the FIFA Regulations for the Status and Transfer of Players in relation to the protection of minors*; 39. Underlines the important social and educational role of training centres and the vital role which they play in both the well-being of clubs and the future development of football talents, supports financial incentives for clubs with a training centre, provided such incentives are compatible with the Treaty rules on State aid, and asks the Commission to recognize this crucial role when developing guidelines on State aid; 40. Stresses the need for an environment to be created in which young players can develop and be brought up in a spirit of honesty and fair play; 41. Urges the Member States to introduce a gender perspective in all aspects of sport policies, with the aim of further reducing the continuing difference between men and women both in representation on sports bodies and in remuneration, as well as in actual participation in sport, thus equalizing the personal and social benefits flowing from sport. 105 * already done in 2009.
So not only the problems are acknowledged, active action should be taken to prevent further exploitation. E.g. immigration law provisions should play an important role in this regard, with the help of European Directives. It should be noted that the Directive on the protection of young people at work contains a provision which allows Member States to stipulate, subject to certain conditions, that the ban on the employment of children is not applicable to children employed for the purposes of sporting or advertising activities, subject to prior authorization by the competent authority in each specific case (Article 4(2) and 5 of the Directive). Member States can thus exclude sport activities, but only through existing national legislation. 106 Not only the European Parliament supports action, but also the Commission calls for measures in its White Paper.
105 European Parliament Resolution on the future of professional football in Europe, 29 March 2007 (2006/2130(INI)), para. 32 – 41. 106 See also European Commission, White Paper on Sport, 11 July 2007, footnote 129. 47
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5.2.2. European Commission White Paper on Sport In its White Paper on Sport, the European Commission continuous and confirms that “there are concerns that the exploitation (sometimes referred to as “trafficking”) of young players is continuing. It is reported that an international network managed by agents takes very young players to Europe, especially from Africa and Latin America. The most serious problem concerns children who are not selected for competitions and are abandoned in a foreign country, often falling in this way in an irregular position which fosters their further exploitation.” 107
The Commission further elaborates on the immigration law provisions already mentioned by the European Parliament; “as far as violations of immigration law are involved, Member States must apply the protective measures for unaccompanied minors envisaged by national legislation, where appropriate in accordance with Council Directive 2004/81/EC of 29 April 2004 on the residence permit. 108 In line with the UN Convention on the Rights of the Child, the best interest of the child must be a primary consideration for Member States when applying national legislation, especially concerning education and social integration. Finally, according to the Commission’s proposal for a Directive on common standards and procedures in Member States for returning illegally staying third-country nationals, the “best interest of the child” should be taken in due account when making any decision on the return of the child, in particular with respect to the duration of the child’s stay in the Member State and of the existence of family, cultural and social ties with the country of origin.” 109
As said before, active action cannot be done without the Member States. In the end, the Member States should implement appropriate legislation to protect minors, with the support of the European Parliament and the European Commission. In the next paragraph I will look how the protection of minors in the Netherlands is regulated, in particular in the area of labour law.
107 European Commission, White Paper on Sport, 11 July 2007, para. 4.5. 108 Council Directive 2004/81/EC of 29 April 2004 on the residence permit issued to third-country nationals who are victims of trafficking in human beings or who have been subject of an action to facilitate illegal immigration, who cooperate with the competent authorities. 109 European Commission, White Paper on Sport, 11 July 2007, para. 4.5. 48
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5.3. Protect at national level, the Netherlands. Labour regulations in the Netherlands are laid down book 7 of the Dutch Civil Code. In Article 7: 612 this Dutch Civil Code, it is stated that minors are allowed to sign an employment contract from the age of 16;
Article 7: 612 of the Dutch Civil Code; 1) A minor who has reached the age of 16 is competent to enter into an employment contract. He is equal to an adult concerning everything related to this employment contract and he is able to appear in court without any support of his legal representatives. 2) If an incompetent minor has entered into an employment contract and subsequently has worked for four weeks for the employer without his legal representative having appealed on the nullification as a result of the incompetence it is assumed he has the permission of this legal representative to enter into an employment contract. 3) An incompetent minor who has entered into an employment contract with the permission of his legal representative is equal to an adult concerning everything related to this employment contract, except for what is mentioned paragraph 4. 4) An incompetent minor is not able to appear in court without the assistance of his legal representative, unless it appeared to the court that his legal representative was unable to declare himself.
In principle, this article sets the minimum working age on 16 years.
Under strict circumstances, it is allowed for a minor to perform labour before the age of 16 as can also be read in the Directive on the Protection of young people at work (article 4), and is implemented in the Dutch Act on Working Time;
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Act on Working Time: Article 3:2 – prohibition of child labour 1. The responsible person makes sure no child performs labour. 110 2. The first paragraph does not apply regarding: a. Labour performed as an alternative sanction by a child of 12 years or older, as far as this labour is not performed during school hours; b. Non-industrial labour of a light nature performed by a child of 13 years or older, as far as this labour is not performed during school hours; c. Labour of a light nature performed by a child of 14 years or older as far as this labour is performed next to and in conjunction with education; d. Labour containing delivering of morning papers performed by a child of 15 years, as far as this labour is not performed during school hours. 3. By regulations of our Minister further rules are set up concerning the second paragraph. 4. The responsible person complies with the further rules as meant in paragraph three.
Per age, different labour requirements exist that apply. For example, children under the age of 13 are allowed to participate in a fashion show or in a play, but only with the permission of the labour inspection and under the supervision of experts. Furthermore, only for a very limited amount of time (e.g. 2 hours per school day, rehearsal is considered to be working time). Minors of 13 and 14 years old are only allowed to do odd jobs about the house and light non-industrial work. Required is that these children have a minimum of 14 hours of daily rest, at least between 7 p.m. to 7 a.m. Moreover, there is a maximum of 2 working hours per school day and 7 hours per non-school day. Minors from the age of 15 are allowed to deliver morning papers and to do light non-industrial work like shelf-filling in a supermarket and picking fruit. The minor is not allowed to lift more than 10 kilogram or push or pull more than 20 kilogram. Furthermore, dangerous and unhealthy labour is not permitted. Hereby one can think of machinery labour and work that involves dangerous substances. From the age of 16, minors are allowed to do all sorts of work, however very dangerous jobs are prohibited and some jobs are only allowed under the
110 According to the Act on Working Time, a child is a person younger than 16 years (article 1:2 (a)). 50
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supervision of experts. Also for this age, limited working hours (including school hours) and required breaks apply. 111
These specific regulations also apply in football, meaning that football clubs in the Netherlands do not only have to obey the FIFA Regulations, but also national law.
5.4 Procedure and Requirements: trial periods of non-EU minors in the Netherlands For a non-EU player to come to the Netherlands and play for a professional football club, several requirements have to be fulfilled. 112 Besides the FIFA Regulations which apply, the player in question needs to have a (Dutch) working permit and a (temporary) residence permit. In the majority of the cases, the Federation of Professional Football Organizations (Federatie Betaald Voetbal Organisaties (FBO) ) requests these documents on behalf of the clubs with the Dutch Immigration Services ( Immigratie- en Naturalisatiedienst (IND) ). In case this residence permit runs out, the player is required to leave the country.
On my question whether the responsibility regarding expulsion is with the KNVB or the IND, the KNVB replied that they keep records when all permits of the players expire, but that further competences lie with the IND.
The conditions for a non-EU player to acquire a working permit are the following; • An income requirement, which is for the current season (2009/10): o € 251.500 for 18 and 19 year old players; o € 503.000 for players over 20 years old. • A quality requirement:
111 See for the above information the website of the Dutch Ministry of Social Affairs and Employment: http://home.szw.nl/index.cfm?menu_item_id=13745&hoofdmenu_item_id=1375&rubriek_item=391919&rubriek_i d=391817&set_id=2673&doctype_id=6&link_id=116443#link8920300 , 9 April 2010. 112 See attachment I an email from the Dutch national association in which this is confirmed. 51
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o The player in question played the foregoing season in the highest League of a country which is in the top 40 of the FIFA ranking at the moment of the request or; o The player has played in one of the national youth teams or; o The player has played a match in the UEFA Europe League or UEFA Champions League.
Important to note is that the working permit is also required in case the player will play for a professional football club but will be registered as an amateur player. In general, the permit is required if the player will play for the 1 st , 2 nd , A, B or C team of that club since this is considered to be labour by the Dutch Central Bureau for Work and Income ( Centraal Bureau voor Werk en Inkomen (CWI) ).
However, as we have seen, in the vast majority of the cases young African or South-American players travel to Europe on a tourist visa on the promise of a trial period with one of the top teams. How does this work in the Netherlands?
A non-EU player can come to the Netherlands for a trial period without the requirement of having a working permit if he meets the following requirements: • The player is not younger than 17 years old; • The trial period is purely aimed at testing the football qualities of the player, without any salary is being paid for or any gain for the club is acquired (a reimbursement of expenses is allowed though); • The trial period and the period of the trial needs to be agreed on in a written agreement between the player and the club; • The length of the trial period may not exceed 4 continuous weeks; • It is permitted for the player to compete in friendly matches of the club where the character of these matches does not exceed its friendly nature. Hereby one can think of, besides official matches, international tournaments in which professional clubs participate and matches in which the club opens the season (semi-official matches). 52
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If these conditions are met, the player does not need a working permit for the period of the trial. However, a residence permit/status is required for this period. Therefore the player has to request a short-term (tourist) visa for which the player is responsible himself.
To give a specific example; Let assume a 17 year old Ivory Coast player agrees on a trial period with a Dutch club. All the above requirements are met. The only condition left is the (short term) residence permit of the player. The easiest way to obtain a short-term residence permit is to apply for a tourist visa. For an Ivorian player to come to the Netherlands, a tourist visa for maximum 3 months can be acquired. According to the IND, the following documents have to be requested at the Dutch Embassy or Consulate in Ivory Coast before a tourist visa will be acquired by the player; • A valid passport; • Proof of his or her travel objective; • Proof that he or she has sufficient funds for his or her stay, his or her transit journey and/or his or her return journey; • A sponsor declaration if required (this is only necessary if he or she does not have sufficient means of support him or herself. He or she has sufficient means of support if he or she has at least € 34 per day of his or her stay in the Netherlands); • Documentation showing that he or she intends to return to his or her country of origin (for instance an employer’s declaration, proof of registration of school-age children or proof that he owns his or her own home); • Two passport photographs; • in the event that he or she wishes to come to the Netherlands in order to receive medical treatment: a declaration from his or her doctor; • He or she is usually not required to produce the following until he or she comes to collect the visa: o Proof that he or she has a medical travel insurance policy with minimum cover of € 30.000;
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o Proof that the journey back has been booked. 113
The same procedure applies to most African countries. However, contrary to most African countries, South-American players from for example Brazil and Argentina do not need a visa. To take the same example, but instead of an Ivorian 17 year old player we take a Brazilian 17 year old player. According to the IND, Brazil is a country that is not subject to a visa requirement. This means the player in question does not need to apply for a visa and that he has a free period of 3 months in any 6-month period to stay in the Schengen territory. This means that, if the player has been in the Schengen territory for an uninterrupted period of 3 months, he must leave the Schengen territory for a period of 3 months before he can use his free period again. This is set out in the Schengen Convention and the Schengen Implementation Agreement.
Although a visa is not required, the following conditions have to be met: • Valid passport • Sufficient funds • Able to provide evidence of travel objective • Not constitute a risk to public order
Although a visa is not needed, a check may be made at the border or by the Aliens Police whether the conditions for entry into the Netherlands are met. Upon arrival in the Netherlands, the player must report to the local Aliens Police within 3 working days. In case the player will be in the Netherlands for less than 3 days or will be staying in a hotel, reporting to the Aliens Police is not necessary.
As we can conclude from the above, the national authorities play a central role in admitting non- EU players into the Netherlands. As we have seen, the Dutch Football Association KNVB keeps track of all permits and a written agreement is required if the player is invited for a trial period.
113 See website www.ind.nl for a step by step overview. 54
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Therefore close co-operation is necessary between the clubs, the KNVB and the national authorities.
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VI. SUMMARY
Trafficking in minor African and South-American football players is still an important issue on the agenda of not only football authorities, but also national authorities. Each year many minors end up illegally in a European country after not being selected for a European team. They mainly enter Europe on a tourist visa via a malicious agent, mostly after paying the agent a sum of money for the “service” and after paying for the trip to Europe as well. In case there is indeed a trial period at a club, which is not always the case, and the player is able to obtain a contract, the player and the agent are best friends. After all, the agent has a new source of income. However, in the majority of the cases, the player is not selected and the agent suddenly disappears. As a result, the minor player is left in a country without any money and is often not able to speak the language. Moreover, since the whole family of the player depends on a successful trial period, sometimes even after selling their house(s), the player is too ashamed to go back to his country of origin. Instead, the players decide to remain in Europe illegally and become vulnerable for exploitation. Through self-proclaimed regulations, football authorities commit themselves to combat these practices. In 2009, FIFA has adapted its regulations concerning the protection of minors. On the other hand, through various legal regulations and treaties, varying from international to national level, national authorities also commit themselves to prevent trafficking in minors. Therefore, the main question in this thesis was: Are minor football players sufficiently protected from trafficking under current legislation and football regulations? In order to tackle this question, I firstly dealt with the organization of football. The model of football can be seen as a pyramid model with FIFA as the peak of the pyramid. This monopoly position makes it possible to ask transfer sums when players move between clubs and as a result can lead to trafficking. Furthermore, I discussed the specificity of sports and the autonomy of sports organizations. Sport has specific characteristics and rules which are considered to be of “purely sporting interest” and therefore are not subject to EC law. Rules which essentially infringe European law, but are allowed by the European Commission due to “specificity.”
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Within this area, sports organizations enjoy a level of autonomy to set up rules and therefore have a certain margin of “playing field.” After painting the picture of the organization of football, I looked at the actual practice of trafficking in minors. In its study on sports agents in the European Union, the Commission descrided in 7 steps how minor football players are trafficked, starting with a malicious agent approaching an African or South-American minor to abandoning this player in Europe. As the study showed, malicious player agents play a very important role in the practice of trafficking minor football players. They put their own interest, earning money, over the interest of the players. The Commission concludes that sports federations do not have sufficient tools to combat and punish offences like human trafficking. Therefore, states must play a complementary role as well. Furthermore, the Commission advocates for more transparancy in professional football; throw everything out in the open, also regarding agents, their clients and qualifications. Another important actor in human trafficking in sports are football academies. Especially in Africa, thousands of football academies exist. The academies were classified into four divisions of which the final fourth division is the one most likely to cause trafficking. These are academies that are not affiliated to any national association, club or other corporate organization and whose primary interest is personal gain rather than football development and general education of the minors. After dealing with the organization of football, which can cause trafficking, and the actual practice of human trafficking in football, in Chapter IV the football regulations were discussed. Article 19 of the FIFA RSTP deals with minors. General rule is that international transfers are prohibited under the age of 18, unless one of the exceptions in paragraph 2 or 3 applies. Two recent cases before CAS, CAS Caballero and CAS F.C. Midtjylland, showed that the exceptions as regards minors are applied strictly. However, since these exceptions are very sensitive for misuse, FIFA decided to revise and extend Article 19 of its Regulations again to further protect minors in football. First measure was the introduction of a sub-committee of which each transfer involving minors is subject to approval. Secondly, the implementation of Article 19bis, which requires all academies linked to a club to report all minors who attend the academy to the national association and if no direct link to a club exists, associations have to make sure the academy runs a club in the national championships (and again all players have to be registered). 57
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Another measure is the increase of training compensation to discourage clubs to attract minors from other clubs. The concept of training compensation was justified by the European Court of Justice in the Bernard case. Fourthly, very important in my opinion is the involvement of minors in the FIFA Transfer Matching System in order to create much more transparency in individual transactions. Finally, an awareness campaign, in conjunction with FIFPro, is launched to raise public awareness for this terrible practice. At European level, UEFA has also taken measures to protect minors in its club competitions. Already in 2005 the homegrown rule was introduced which requires teams to have a certain number of locally/club trained players (currently 8) on its 25 player squad list. Even though it is said this rule can be justified on the grounds of “competitive balance” and “to encourage and protect the training and education of players,” important to keep in mind is that this rule can also encourage clubs to attract minors in order for them to become homegrown as soon as possible. Furtermore, UEFA adopted a resolution in 2009 in which it agreed that no international transfer of players under 18 into Europe or within Europe should be permitted. However, as discussed in paragraph 4.4.2., I do not think this rule is possible within the freedom of movement provisions of the EU. Finally, the Dutch KNVB regulations were discussed. The FIFA Regulations concerning minors are binding at national level, therefore they fully apply in the KNVB Regulations as well. In a recent case before the Dutch disciplinary committee, the committee concluded that agents are not allowed to approach a minor (or his parents) before the age of 16 under any circumstances.
In Chapter V, it was shown that also States commit themselves to prevent and combat human trafficking through public law regulations. At international level, especially via the United Nations, States promise to do everything to combat trafficking, e.g. via sufficient national legislation. Examples of such documents are the UN Universal Declaration of Human Rights, UN Convention against Transnational Organized Crime, UN Convention on the Rights of the Child and the ILO Forced Labour Convention. Not only at international level, but also at European level the prevention of trafficking and exploitation is regulated and discussed. The European Parliament stated in its Resolution on the Future of professional football in Europe in 2007 that immigration law must always be respected 58
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and called on the Commission to tackle the problem of child trafficking in the context of Council Framework Decision of July 2002 on combating trafficking in human beings and/or in the context of the implementation of Council Directive of June 1994 on the protection of young people at work. The Commission also recognized the problem of child trafficking in its White Paper on Sport and elaborated on the Parliament and also mentioned Council Directive of April 2004 on the residence permit and the UN Convention on the Rights of the Child referring to the “best interest of the child.” Finally, I looked at the Dutch regulations regarding the protection of minors. I discussed national labour legislation; at what age a minor is competent to enter into an employment contract, which is 16 years old, what forms of protection there is, e.g. on the basis of the Act on Working Time. I concluded with some examples what is required for an African and South-American minor to come to the Netherlands for a trial period with a Dutch club on a tourist visa. Here we have seen that national authorities play a major role in admitting non-EU players into the Netherlands. The national authorities are responsible for temporary residence permits. This example made clear that it is a combination of clubs, national associations and national authorities who are involved in this proces.
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VII. CONCLUSIONS & RECOMMENDATIONS
On the basis of all the aforementioned, conclusions and recommendations can be made. The main question in this thesis was: Are minor football players sufficiently protected from trafficking under current legislation and football regulations? As we have seen, FIFA has recently revised its regulations to improve the protection of minors. I think the amendments are a great improvement in the protection of minors compared to former regulations. However, they have to be strictly monitored and supervised. A great challenge will be to monitor all academies in Africa in order to register all minors. Through the introduction of a sub-committee, each international transfer of a minor is subject to approval on a case-by-case basis. Even though this committee has only entered into force recently, this is a great way to assess each case individually looking at all circumstances. For example whether it are the parents that follow the player or the other way around (see CAS Caballero). The central database TMS creates transparency. Therefore, in my opinion, purely looking at the football regulations, FIFA has done a great effort in the protection of minors, but as always, there is room for improvement. Moreover, since the new FIFA regulations and measures make it much more difficult for minors to move and as a result much harder for clubs to attract minors, UEFA’s homegrown rule becomes much more effective too. Before the amendments made by FIFA, it was relatively easy for clubs to attract minors and to avoid the FIFA Regulations. Due to the homegrown rule, clubs were encouraged to attract and sign minors as soon as possible in order for them to become “homegrown” after three seasons (before the age of 21). In combination with the changes made by FIFA, clubs are now indeed encouraged to pay more attention to the recruitment and training of young players. On the other hand, UEFA’s resolution to prohibit all international transfers within Europe under the age of 18 cannot be implemented since it infringes one of the core principles of the EU, the freedom of movement. However, the problem of trafficking in minors in football cannot only be solved by the sport organizations. As we have seen, states also commit themselves to combat trafficking, on a global and European level, but also at national level. Labour legislation plays an important role in this regard. As follows from European Directives, e.g. the Directive on the protection of youngsters
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at work, in general minors are allowed to work from the age of 16. This is also implemented in the Dutch legislation in the Act on Working Time. Moreover, this Act prohibits child labour. As can be concluded from this thesis, many parties are involved in (international) transfers; the player, a club, the national football association and the national authorities. It can be said that the regulations regarding minors are sufficient, or at least on paper, although it is important that this is reflected in practice. This is in my opinion the main obstacle in the protection of minors. Typical in this regard was the reply I received from the Dutch football association in which they stated that they know when certain residence/work permits from non-EU players expire, but that further competences lie with the national immigration services, which inclines towards a “hands- off mentality” in my view. Very important therefore is close co-operation between all the parties. Furthermore, clubs should have much more responsibilities for looking after the player after a trial period. Hereby one can think of responsibilities of arranging flights back home after expiry of his stay or in case no contract is offered to the player. This could for example be part of the requirements for a trial period and be included in the FIFA Regulations. Not only the clubs, but also the national authorities should become more active. As was already recommended by the European Commission, the labour inspection should intensify its supervision, at clubs or training centers, on work permits etc. in order to keep track of non-EU players. A central database as TMS could also be created for trial periods for more transparency to monitor all activities and movements. Though, one should also look at the core problem of trafficking; malicious agents and academies. Regarding academies FIFA has adapted new effective Regulations in Article 19bis of the FIFA RSTP. The intentions are good, although it will be hard to accomplish this goal of registering all academies and its players. As was recommended by the Commission in its report on sport agents, much more transparency should be created. Indeed, there should be an overview for each transfer who was representing the player, what commission he asked for and what other players he represents. Moreover, there should be a blacklist of agents published of agents who make the players sign killer contracts or who have abandoned players. Furthermore, there should be an official manual for players what to expect from agents and what to watch out for before agreeing with representation. Providing information is essential in this regard. This could be done through awareness campaigns, 61
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especially with the upcoming World Cup in South-Africa. Emphasizing on minors should be the best interest of the child and this does not always mean agreeing with a transfer or a trial period. Thereby, clubs should be sanctioned for doing any business with unlicensed agents. Hereby one can think of fines, but if caught more often, transfer prohibitions. These measures combined can be an important step in protecting minors from being trafficked by malicious agents.
As can be concluded from this thesis, European law allows for specificity of sports (as also followed from the Bernard-case). Therefore also regarding minors specificity exists even though this specificity limits the freedom of movement of the players. Examples in this regard are the transfer prohibition for players under 18 years of age (within the EU, transfers between the age of 16 and 18 are only allowed if one of the exceptions in Article 19, paragraph 2 of the FIFA RSTP apply) and a maximum contract of 3 years if signed before becoming 18 years old. Important in my view is that national and European law also fully applies to minors. Arguing for more “specificity” is therefore not a good idea. As we have seen, also through national, European and international legislation minors are being protected.
Follow up With the implementation of the new regulations, the follow up is important. The sub-committee should continue assessing each international transfer of a minor case-by-case, the FIFA Transfer Matching System where all information regarding international transfer is published could also be extended to trial periods, all academies should be monitored and reported to the national association (including the minors) and a black list of malicious agents should be established and a manual on line regarding agents should be available for the players rather than abolishing the agent licensing system. Moreover, clubs should be sanctioned if dealing with agents on this black list or unlicensed agents. Furthermore, clubs should become responsible for making sure the minor goes back home after an unsuccessful trial period and work close together with the national authorities and the national football association to make sure the minor does not end up illegally in e.g. the Netherlands or Europe. Co-operation, transparency and supervision are the essential words in order to effectively combat trafficking in minors in football. 62
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VIII. BIBLIOGRAPHY
Books & Articles Blanpain, Colucci & Hendrickx 2008 R. Blanpain, M. Colucci & F. Hendrickx, The Future of Sports Law in the European Union: beyond the EU Reform Treaty and the White Paper , Alphen aan den Rijn: Kluwer Law International 2008.
Weatherhill 2007 S. Weatherhill, European Sports Law collected papers, T.M.C. Asser Press: The Hague 2007.
Scherrens 2007 J. Scherrens, The Muscle Drain of African Football Players to Europe: Trade or Trafficking? European Master in Human Rights and Democratization 2006-2007.
McDougall 2008 D. McDougall, “The scandal of Africa’s trafficked players,” The Observer , Sunday 6 January 2008.
Darby, Akindes & Kirwin 2007 P. Darby, G. Akindes & M. Kirwin, “Football Academies and the Migration of African Football Labor to Europe” , Journal of Sport and Social Issues , 31, 2 (2007a).
Miettinen & Parrish 2007 S. Miettinen & R. Parrish, Nationality Discrimination in Community Law: An Assessment of UEFA Regulations Governing Player Eligibility for European Club Competitions (The Home- Grown Player Rule), 5 (2) Entertainment and Sports Law Journal (2007).
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Blanpain 2009 R. Blanpain, Soccer is war, but for money (players and their fundamental rights), presented during “FIFPro’s Lawyers Network”, Hoofddorp: 18 June 2009.
Van Duren & Knipping 2010 I. van Duren & T. Knipping, “De nieuwe slavenhandel”, Voetbal International , 2010, 45 ste jaargang, nr. 4.
IP/01/314, “Outcome of discussions between the Commission and FIFA/UEFA on FIFA Regulations on international transfers,” 5 March 2001.
Press Releases RAPID , Commission closes investigations into FIFA regulations on international football transfers, Brussels: 5 June 2002.
Press release of the International Organization for Migration (IOM), “Football players’ Dream of Fame in Europe Shattered”, 27 March 2007.
UEFA Media Release, Protection of young players and encouragement of youth development, Resolution of the Professional Football Strategy Council, Nyon: 9 March 2009
FIFA.com, “FIFA acts to protect core values”, 15 July 2009: http://www.fifa.com/aboutfifa/federation/administration/news/newsid=1081337.html .
FIFA, Protection of minors and training clubs, principles approved by the FIFA Executive Committee, Zurich: 24 October 2008, p. 1. (http://www.fifa.com/mm/document/affederation/bodies/92/41/19/mineurs-presse-en.pdf ).
FIFA Circular no. 1190, “Revised regulations on the status and transfer of players – protection of minors,” 20 May 2009.
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FIFA Circular no. 769, “Revised FIFA Regulations for the Status and Transfer of Players,” 24 August 2001.
FIFA Circular no. 1205, “FIFA TMS transition phase,” Zurich: 23 September 2009
Reports and Working papers Commission of the European Communities, “White Paper on Sport”, 11 July 2007, COM (2007), 391.
Commission Staff Working Document, The EU and Sport: Background and Context accompanying document to the White Paper on Sport.
European Parliament Resolution on the Future of professional football in Europe, 29 March 2007.
J. Arnaut, Independent European Sport Review 2006, available on the internet:
Wathelet Report, “Sport governance and EU legal order: present and future,” The Hague: T.M.C. Asser Instituut 2007. Available on the internet: http://www.ielaws.com/Wathelet_EN.pdf .
International Olympic Committee, Common position of the Olympic and Sports Movement on the implementation of the new Treaty on the Functioning of the European Union (TFEU) on sport (Lisbon Treaty), January 2010. Available on the internet: http://www.euoffice.eurolympic.org/cms/getfile.php?98 .
European Commission, KEA – CDES – EOSE: Study on Sports Agents in the European Union, November 2009. Available on the internet: http://ec.europa.eu/sport/library/doc/f_studies/study_on_sports_agents_in_the_EU.pdf .
P. Belser, ILO Forced Labour and Human Trafficking: Estimating the Profits Working Paper, Declaration/WP/42/2005. 65
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Legislation Treaty on the Functioning of the European Union (Treaty of Lisbon), OJ C306 17.12.2007, entered into force 1 December 2009.
Treaty Establishing the European Community (consolidated version as amended by the Treaty of Amsterdam), [1997] OJ C 340/173.
2000/483/EC: Partnership agreement between the members of the African, Caribbean and Pacific Group of States of the one part, and the European Community and its Member States, of the other part, signed in Cotonou on 23 June 2000.
Opinion A-G Sharpston, delivered on 16 July 2009 in case C-325/08 Olympique Lyonnais v. Olivier Bernard and Newcastle United.
Community Charter of the Fundamental Social Rights of Workers
UN Universal Declaration of Human Rights
Protocol to prevent, suppress and punish trafficking in persons, especially women and children & Protocol against the smuggling of migrants by land, sea and air, supplementing the United Nations Convention against Transnational Organized Crime, adopted in 2000.
UN Convention on the Rights of the Child 1989
Council Directive 2004/81/EC of 29 April 2004 on the residence permit issued to third-country nationals who are victims of trafficking in human beings or who have been subject of an action to facilitate illegal immigration, who cooperate with the competent authorities.
European Charter of Fundamental Rights
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Websites : Pepsi Football Academy: http://www.pepsifootballacademy.com/
FIFA: www.fifa.com
Culture Foot Solidaire: http://www.footsolidaire.org/index/presentation/
Immigratie- en naturalisatiedienst (Dutch Immigration Services) www.ind.nl
Case law: CAS: CAS 2005/A/955 Càdiz C.F., SAD v/FIFA en Asociación Paraguaya de Fútbol & CAS 2005/A/956 Carlos Javier Acuña Caballero v/FIFA en Asociación Paraguaya de Fútbol.
CAS 2007/A/1403 Real Club Racing de Santander, SAD v. Club Estudiantes de la Plata (speler Brian Oscar Sarmiento).
CAS 2008/A/1485 FC Midtjylland A/S/ v/ Fédération Internationale de Football Association
European Court of Justice : Case 36/74 B.N.O Walrave and L.J.N. Koch v Association Union Cycliste Internationale, Koninklijke Nederlandsche Wielren Unie et Federación Española Ciclismo , [1974] E.C.R. 1405. Case C-415/93 Union royale belge des sociétés de football association ASBL and others v Jean- Marc Bosman and others, [1995] E.C.R. I-4921.
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Case 13/76 Gaetano Donà v Mario Mantero , [1976] E.C.R. 1333. Case C-176/96 Jiry Lehtonen and others vs Féderation Royale Belge des Sociétés de basket-ball ASBL (FRBSB) [1996] E.C.R.I-2681 Joined cases C-51/96 and C-191/97 Christelle Deliège v Ligue Francophone de Judo et Disciplines ASBL, Ligue belge de judo ASBL, Union européenne de judo and François Pacquée , [2000] E.C.R. I-2549. Case C-519/04 P David Meca-Medina and Igor Majcen v. Commission ECR 2006 I-6991. Case C-265/03 Igor Simutenkov v. Ministerio de Education y Cultura and Real Federación Española de Fútbol, [2005] E.C.R. I-02579. Case C-325/08, Olympique Lyonnais v. Olivier Bernard and Newcastle United , ECJ 16 March 2010.
Court of First Instance: Case T-313/02 David Meca-Medina and Igor Majcen v. Commission ECR 2004 II-3291.
Other: KRO documentary “de slag om jong talent”, broadcasted 4 October 2009. Documentary available at: http://reporter.kro.nl/uitzendingen/_2009/0410_jongevoetballers/introvoetballers.aspx# .
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IX. ANNEX I
From: Dingemans, Martijn
Bcc: R. Simons LLB.LLM.
Date: 03/17/10 01:40 pm
Subject: RE:
Attachments:
Geachte heer Simons,
Hieronder treft u een antwoord aan op uw vragen:
-kunt u me kort vertellen hoe de gang van zaken is als een (minderjarige) buitenlandse, niet EU speler, naar Nederland komt om bijvoorbeeld een stage af te werken. Wie verleent de verblijfsvergunning? Klopt het dat dit door de FBO wordt geregeld? En die handelen dit af met de Nederlandse immigratiedienst? Wat gebeurd er indien de tijdelijke verblijfsvergunning afloopt, is dit dan een zaak van de immigratiedienst of heeft de KNVB ook nog een vinger in de pap omtrend uitzetting?
Een niet-EU speler die wilt spelen bij een betaaldvoetbalorganisatie in Nederland moet, naast de vereisten en voorschriften uit de FIFA Regulations on the Status and Transfer of Players, over een tewerkstellingsvergunning en een machtiging voorlopig verblijf te beschikken. Het is inderdaad zo dat de FBO deze documenten veelal voor de Nederlandse betaaldvoetbalorganisaties aanvraagt. Enkele betaaldvoetbalorganisaties doen dit echter zelf. Op het moment dat een verblijfsvergunning zou lopen, zou het voor de speler niet langer zijn toegestaan om in Nederland te verblijven. Hij kan hier dan ook niet langer voetballen. De KNVB houdt bij wanneer de verschillende vergunningen aflopen maar het moge duidelijk zijn dat de verdere bevoegdheden bij de immigratiedienst liggen en niet bij de KNVB.
Indien een niet-EU speler in aanmerking wilt komen voor een tewerkstellingsvergunning in Nederland moet er aan 2 voorwaarden worden voldaan:
1) Het inkomenscriterium voor het seizoen 2009/10 is:
€ 251.500, - voor spelers die 18 en 19 jaar oud zijn;
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€ 503.000, - voor spelers die 20 jaar en ouder zijn.
2) Het kwaliteitscriterium:
De betreffende speler speelde in het voorafgaande seizoen in de hoogste competitie van een land dat in de top 40 van de FIFA ranglijst staat op het moment van de aanvraag van de tewerkstellingsvergunning; of de speler is ooit uitgekomen in een jeugdselectie (bijvoorbeeld onder -17 etc) of het nationale team; of de speler heeft in een wedstrijd meegespeeld in de Uefacup, of Champions League.
Deze tewerkstellingsvergunning is ook nodig in dien de betreffende speler als amateur speler uit wilt komen voor een betaaldvoetbalorganisatie. In de regel moet hieraan voldaan zijn indien de speler in het 1e, 2e, A, B of C elftal van een betaaldvoetbalorganisatie zal gaan spelen aangezien dit door het CWI wordt gezien als arbeid.
Ten aanzien van een stageperiode van een niet-EU speler bij een betaaldvoetbalorganisatie geldt het volgende:
Een niet-EU speler mag op proef komen zonder dat een tewerkstellingsvergunning vereist is, indien voldaan is aan de volgende voorwaarden:
• De betreffende niet-EU speler moet minimaal 17 jaar oud zijn;
• De proeftraining moet gericht zijn op het testen van de kwaliteiten van de speler, zonder dat er sprake is van een salaris voor de speler of winst voor de club (een onkostenvergoeding voor de speler is wel toegestaan);
• De proeftraining en de proeftrainingsperiode moet schriftelijk tussen de speler en de club worden vastgelegd;
• De exacte periode van de proeftraining mag maximaal 4 aaneengesloten weken duren. De proeftraining dient te worden verricht binnen een tijdsbestek van 52 weken;
• In het kader van de proeftrainingen is het toegestaan de speler deel te laten nemen aan oefenwedstrijden, voorzover zij het
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oefenkarak ter niet overstijgen en de oefenwedstrijden niet een meer officieel karakter hebben. Naast officiële wedstrijden dient er dan bijvoorbeeld gedacht te worden aan deelname aan toernooien waar internationale Betaald Voetbal organisaties aan deelnemen en wedstrijden waarmee een club het seizoen opent (semi-officiële wedstrijden).
Indien aan deze voorwaarden wordt voldaan, is voor de desbetreffende speler geen tewerkstellingsvergunning vereist voor de periode dat de proeftraining duurt. Uiteraard dient hij gedurende deze periode wel een verblijfsstatus te hebben in Nederland. Hij dient derhalve een visum aan te vragen om naar Nederland te mogen komen voor een korte periode. Hiervoor dient de speler zelf zorg te dragen.
Voor de hiervoor benodigde formulieren en documenten verwijzen wij u door naar de IND (telefoonnummer 0031-900 1234561). Een andere mogelijkheid is om contact op te nemen met de Nederlandse ambassade in het betreffende land. Beide instanties kunnen u meer informatie hieromtrent verschaffen.
En indien er een contract wordt getekend dient er een Transfer Certificate afgegeven te worden door de KNVB. Kijken jullie dan samen met de Nederlandse overheid of er een vergunning verleend mag worden voordat een ITC afgegeven wordt?
Het ITC wordt door ons bij de buitenlandse bond opgevraagd op het moment dat wij alle voor de overschrijving benodigde documenten (waaronder het contract maar niet de tewerkstellingsvergunning en verblijfsvergunning) van de club hebben ontvangen. De speler zal evenwel pas speelg erechtigd worden verklaard op het moment dat de vergunningen zijn afgegeven. Vandaar dat het voorkomt dat spelers wel al zijn vrijgegeven door de oude bond maar nog niet speelgerechtigd zijn verklaard door de nieuwe bond.
Met vriendelijke groet, KONINKLIJKE NEDERLANDSE VOETBALBOND
Martijn Dingemans Coördinator tuchtzaken betaald voetbal
Woudenbergseweg 56-58 // 3707 HX ZEIST Postbus 515 // 3700 AM ZEIST Tel. 0343-499506 Fax 0343-499259 E-mail [email protected] Website www.knvb.nl
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