CAS UPHOLDS THE TRANSFER BAN IMPOSED ON FC BARCELONA BY THE FIFA DISCIPLINARY BODIES: POST-AWARD ANALYSIS

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1 CAS UPHOLDS THE TRANSFER BAN IMPOSED ON FC BARCELONA BY THE FIFA DISCIPLINARY BODIES: POST-AWARD ANALYSIS As it was announced some time ago, the Court of Arbitration for Sport dismissed FC Barcelona s appeal and upheld the transfer ban that FIFA imposed on the Club concerning the improper registration of minor players. The decision entails that Barcelona was prohibited from signing any new players in either the winter or the summer registration periods of this year. The first new players can therefore only be signed in the January 2016 window. When the Panel issued the award with the underlying reasoning, it became possible to understand what the implications may be for appealing disciplinary sanctions within the sports law realm. Lombardi Associates represented FC Barcelona in front of CAS in this complicated and controversial matter and here we would like to explain and comment upon the most interesting and important legal issues that can be taken from this landmark case. Case background In January 2013 the FIFA TMS Integrity and Compliance department ( FIFA TMS ) notified the FIFA Disciplinary and Governance department of a potential breach committed by FC Barcelona of the FIFA Regulations on the Status and Transfer of Players ( FIFA Regulations ) in relation to the transfer of one minor player. At a later date, the FIFA TMS brought up further potential breaches in relation to other players, on the basis of which in July 2013 the FIFA Disciplinary Committee initiated an investigation leading to disciplinary proceedings being opened on 25 th September FC Barcelona was accused of registering 31 minor players in violation of the FIFA Regulations. On 28 th November 2013 the FIFA Disciplinary Committee rendered a decision, whereby FC Barcelona and the Real Federación Española de Fútbol ( RFEF ) were sanctioned for breaches relating to the international transfer and registration of players under the age of 18. In particular, FC Barcelona was found to be in breach of Article 19 of the FIFA Regulations in the case of ten minor players and to have committed several other concurrent infringements in the context of other players, including under Annexe 2 of the FIFA Regulations. The FIFA Disciplinary Committee regarded the infringements as particularly serious and decided to sanction the club with a transfer ban at both national and international level for two complete and consecutive transfer periods, together with a fine of CHF In addition, the club was issued with a reprimand in accordance with Article 14 of the FIFA Disciplinary Code.

2 This decision was appealed against at the FIFA Appeal Committee, which on 19 th August 2014 issued its final decision dismissing the appeal and confirming the previous decision. At this point the case was taken to CAS. The main provision relating to the protection of minors in the context of international transfers is Article 19 of the FIFA Regulations, according to which the international transfer of players is only permitted if the player is over the age of 18. However, the same article stipulates that the international transfer of minor players is permitted under three limited circumstances, and such exceptions may only be granted after evaluation by the sub-committee of the Players Status Committee. In this respect, it must be emphasised that FC Barcelona had been operating under the assumption that by registering the minor players with its local football association, the Federacio Catalana de Futbol ( FCF ), it complied with the requirements set out in the FIFA Regulations. Protection of minors The CAS Panel found that FC Barcelona had committed a breach of Article 19.1 of the FIFA Regulations in relation to ten minor players. First and foremost, the Panel confirmed that the FCF cannot be deemed as an association within the meaning of the FIFA Statutes. Only the RFEF has responsibility for registering/transferring minors internationally, and its regional associations do not. According to CAS, given that the FIFA Regulations apply both to clubs and associations, FC Barcelona was under the direct and primary obligation to avoid transferring underage players, unless the transfer(s) met one of the statutory exceptions embedded in Article 19.2 of the FIFA Regulations. Furthermore, Article 19.3 of the FIFA Regulations, which relates to minors never previously registered, requires that the same three conditions also apply in this instance. The FIFA Regulations dictate that with an international transfer of a minor, the burden of proof lies with the club wishing to register the player, and thus in this case with FC Barcelona. However, according to the Panel FC Barcelona failed to present, even to the FCF, any evidence that would trigger any of the exceptions listed under Article 19.2 of the FIFA Regulations. In relation to minors younger than 12 years old, it was established that no ITC is required; nevertheless, they can be transferred only if the club requesting registration has proven that it complies with the requirements embedded in Article 19.2 of the FIFA Regulations. In this way, both Article 9.4 and Article 19.2 of the FIFA Regulations are simultaneously applicable. FC Barcelona was also found to have violated Article 19-bis of the FIFA Regulations, as it did not report any of 31 minors that attended its academy La Masia to its association. The Panel made a clear distinction between the 2

3 reporting function and the registering function. Such actions are distinct from each other. Proportionality of the sanction As noted previously, FIFA sanctioned FC Barcelona by banning all transfers to the club for two consecutive registration periods. FC Barcelona submitted that such a sanction was disproportionate and incongruous; the breaches committed did not deserve such a harsh punishment. Moreover, the alleged breaches took place in the context of the transfer of underage players, while the sanction banned the activity relating to any player transfer, most importantly to established potential first team professional players. Both the FIFA Disciplinary Code and the FIFA Regulations are silent on the specific sanctions available that may be applied upon a breach of Article 19 of the FIFA Regulations and other provisions relating to the transfer/registration of minors. The FIFA Disciplinary Committee, therefore, has great discretion in deciding upon an appropriate sanction. The Panel did not agree with the argument of FC Barcelona that the sanction imposed on it does not meet the goal of congruence, or in other words, that violations regarding transfer of minor players should be sanctioned with a ban in transfer of players of the same age level. It was stated that this argument is not supported by any of the provisions in the FIFA statutes or regulations, and furthermore, the discretion of a body imposing a sanction cannot be narrowed in this manner. The Panel also disagreed with FC Barcelona that the sanction was disproportionate and that it was the most severe that could be applied. To this end, the Panel noted that among the possible sanctions under Article 12 of the FIFA Disciplinary Code the expulsion from a competition, the relegation to a lower division or even the deduction of points are more severe. The core issue, from the Panels perspective, was whether the sanction was proportionate to the breach committed. As was noted, proportionality is considered an integral part of the implied powers that bodies such as the FIFA Disciplinary Committee possess and must use when deciding on the appropriate sanction. However, judging the severity of an infringement and imposing the relevant punishment are activities that, as such, cannot be regarded as entirely objective. Without significant jurisprudence in this specific area, any sanction may always be considered too weak or too severe. To assist with their understanding, in this case the CAS Panel defined three main elements for assessing the proportionality of the sanction: the gravity of the illegal act; the power to dissuade the offender from repeating the same infringement in the future; the importance of the rule of law that is being protected. 3

4 In its findings, the Panel was satisfied that the transfer ban corresponds to the violations committed by FC Barcelona with reference to the three elements above. It was noted that violations of Article 19 of the FIFA Regulations are grave violations and should be sanctioned as such. No doubt the Panel considered that FC Barcelona are an important club and a power house of both European and World Football. Any sanction would need to ensure that FC Barcelona would not repeat this infringement. Equally, no doubt the FIFA Disciplinary Committee wanted to send a strong signal to other clubs who may have considered making a similar violation. The protection of minors is of course a very serious issue, however by making an example of such a large club, the FIFA Disciplinary Committee was able to send out a strong message Finally, the Panel did not find any similarity in this case with the only known previous CAS case regarding the protection of minors, namely CAS 2008/A/1485 Midtjylland v FIFA, and other previous jurisprudence of FIFA. The Midtjylland case concerned six international transfers, which were carried out over a period of less than eight months and the violation concerned only Article 19 of the FIFA Regulations. At the end of that case, CAS upheld the FIFA decision and the sanction imposed was a mere warning. In contrast, the FC Barcelona case allegedly involved 31 minors with transfer activity spanning a period of more than seven years and the infringement of several articles of the FIFA Regulations. It should be mentioned that only nine of the 31 FC Barcelona players may have been transferred in violation of Article 19 of the FIFA Regulations (with six in the Midtjylland case). Some of the other transfers violated Article 19-bis (failure to notify to the association that minors are attending the academy). It is also difficult to apportion all blame to FC Barcelona for the length of time of its unlawful activity. Whilst it amounted to a period of seven years (and in the Midtjylland case it was only eight months), three years of this were concurrent to the investigation and legal proceedings. Furthermore, in the Midtjylland case, FIFA discovered the violation quickly, whereas in the FC Barcelona case, Barcelona was constantly assured it was acting properly by registering the players with the FCF. FC Barcelona did not have the privilege of a warning from either the RFEF or from FIFA itself that the approach adopted by them for four years was in violation of the FIFA Regulations. In the Midtjylland case the club was only investigated, and found to have violated, Article 19. Although, as mentioned above, no similarity was found by the panel between the two cases, from the short analysis here, it can be seen that the cases were not completely dissimilar. As a result, it is difficult not to consider it as highlighting the disproportionality of the sanction imposed on FC Barcelona. It is also interesting to compare the sanctions imposed in this case with the wellknown F.C. Sion case, where the club was banned from signing new players for two consecutive transfer periods due to a violation of contractual stability. By imposing a similar sanction to this case, the Panel has underlined that a violation of Article 19 of the FIFA Regulations is not less important than that of Article 17 of the FIFA Regulations (the protection of minors is not less valuable that the safeguarding of contractual stability). 4

5 To this end, a parallel between sporting sanctions under Article 17 and disciplinary sanctions possibly deriving from violations of Article 19 is actually not so obvious. In particular, Article 17 of the FIFA Regulations expressly defines the sanctions applicable in case of breach, while Article 19 and the FIFA Disciplinary Code are completely silent on possible sanctions, leaving it to the discretion of the deciding body to use a range of sanctions from a reprimand to the return of awards and relegation to a lower division. The well-known principle nulla poena sine lege was not addressed by the Panel in this award. It is interesting to note that CAS omitted to analyse the proportionality of the sanction in respect to the one imposed on the RFEF (a monetary sanction of similar value to that imposed on Barcelona). This sanction on the RFEF was used by FC Barcelona as an important argument in the dispute. Article 19.4 of the FIFA Regulations reads in addition to the association that failed to apply to the sub-committee, sanctions may also be imposed [ ] on the club that reached an agreement for the transfer of the minor. The wording seems unambiguous: a sanction should be applied firstly to the association at fault, and then the club may, in addition, be sanctioned. Normally in such a construction it would be fair to assume that any sanction on a club would be secondary to the sanction on the association and thus of lesser or, at most, equal severity. Both the RFEF and FC Barcelona received a reprimand. The fines imposed on the RFEF, who along with the FCF, was responsible for the registration of the minor players not being submitted the relevant FIFA subcommittee, and on FC Barcelona were almost the same. Yet, an additional sanction in the form of a transfer ban for two registration periods was imposed on FC Barcelona. This second part of the sanction is obviously a very severe one for any club, and it means that the sanction on FC Barcelona is disproportionate in the extreme to the sanction imposed on the RFEF. Regrettably, the lack of reasoning from the Panel in this specific regard leaves this issue without an answer. Many clubs would be glad to obtain clarification from CAS on the interpretation of this provision of the FIFA Regulations. Interestingly, the Panel also did not address the issues of mitigating/aggravating circumstances that related to the sanction imposed on FC Barcelona. Pursuant to Article 39.4 of the FIFA Disciplinary Code, the body shall take account of all relevant factors in the case and the degree of the offender s guilt when imposing the sanction. The Appealed Decision referred to the minors integrity being at risk or in danger as a result of careless and reckless behaviour. On the contrary, it was confirmed by CAS that the players attending La Masia were not in any danger and that their potential football career was not endangered by attending, training and playing there. At least one of the aggravating factors employed by FIFA, therefore, was regarded by the Panel as groundless. Logically, this should have had an impact on the final sanction. Nevertheless, it appears that no attention was paid by the Panel in their assessment of the final award to this fact. This may suggest that mitigating/aggravating circumstances are probably of essence only in the initial stage at FIFA, but not at the final appeal proceedings at CAS, where the effect of Article 39.4 FIFA Disciplinary Code is obliterated. 5

6 De novo principle and its application by CAS in disciplinary matters In the analysed CAS award, it is also mentioned that according to Article R57 of the CAS Code, the Panel has full power to review the facts and the law of the case. Furthermore, the Panel may issue a new decision, which replaces the decision challenged, or may annul the decision and refer the case back to the previous instance. A direct application of such unambiguous provision would imply that the CAS Panel, when deciding any dispute within appeal proceedings at CAS, has the discretion to analyse all arguments and facts from scratch should they think fit. This entails taking into account all circumstances of the case, giving them their own assessment and being able to modify, even slightly, the appealed decision, including any sanction previously imposed by a sports disciplinary body. However, as it is clear from the constant CAS jurisprudence 1 and this CAS award, such an approach is disregarded in cases where the appeal concerns disciplinary matters (as opposed to commercial ones). The only possibility for a disciplinary sanction being cancelled or amended occurs when it is grossly and evidently disproportionate. This principle seems to apply even when CAS do not agree with the findings of the previous deciding body, and, thus, may hypothetically change the sanction based on different assessment of facts and evidence. Interestingly, under such circumstances CAS do not appear to refer to specific provisions and do not substantiate such a position with any legal grounds, but only refer to previous jurisprudence. Stare decisis is not obligatory, however, and they may apply directly Article R57 of the CAS Code and review the case and sanction imposed de novo. In conclusion, it is interesting to make a final note on the interaction between FIFA and CAS. Any football player or team under an association affiliated to world football governing body FIFA must respect and follow FIFA s rules and pronouncements. FIFA, being an association under Swiss law, has a wide discretion of self-regulation, and organises its own disciplinary procedures and sanctions as it wishes amongst other things. CAS of course is independent of any sports organisation. It seems, however, that most CAS Panels within appeal proceedings often respect the discretion of the FIFA decision-making bodies and will only take the large step of annulling a sanction if this appears to be completely and blatantly disproportionate. At no time is there a thought to amend it, at least on the basis of de novo principle. One might conclude that FIFA wished to make an example of FC Barcelona is this case, and CAS did not wish to differ. 1 CAS 2005/C/976 & 986 FIFA & WADA, par. 143; CAS 2007/A/1217 Feyernoord Rotterdam v/uefa, par (with reference to CAS 2004/A/690 Hipperdinger v/atp Tour, Inc. para. 86; CAS 2005/A/830 Squizzato v/fina Para ); CAS 2009/A/1817 & CAS 2009/A/1844, par. 174; CAS 2009/A/1918 Jakub Wawrzyniak v. HFF, par. 59 (or 106 in full award); CAS 2012/A/2821 Bursaspor Kulübü Dernegi v. UEFA, par. 68 (with reference to CAS 2012/A/2702 Gyori v. UEFA par. 160); CAS 2013/A/ FC Nantes v. FIFA & Al Nasr Sports Club, par. 289; CAS 2013/A/3139 Fenerbahçe SK v. UEFA, par. 114; CAS 2013/A/3256 Fenerbahçe SK v. UEFA, par

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