The Transfer of Youth Players - Free Trade or Child Trafficking?
Football’s reputation has been tarnished by allegations made against Manchester United and Chelsea regarding the recruitment of young players. The international transfer of players under 18 has been referred to as ‘child slavery’ and ‘child trafficking’ by Sepp Blatter and Michel Platini. Chelsea are the first English club to feel FIFA’s wrath on this issue having been given a one and a half year transfer ban for their signing of Gael Kakuta. Furthermore, Chelsea has been fined £680,000, ordered to pay Lens £114,000 and Kakuta has been banned from playing any matches for 4 months.
Chelsea have been found guilty of breaching Article 17(4) of FIFA’s Regulations on the Status and Transfer of Players which states that ‘…It shall be presumed, unless established to the contrary, that any club signing a professional who has terminated his contract without just cause has induced that professional to commit a breach. The club shall be banned from registering any new players, either nationally or internationally for two registration periods.’
It is clear that the punishment handed down to Chelsea is enshrined in FIFA’s Regulations. However, Chelsea now claim that Kakuta was never contracted to French club Lens and that the only agreement in place was a promise made by Kakuta when he was 14 that he would join Lens when he was 16. If this is the case, then it makes FIFA’s decision seem questionable as it is likely that such pre-contracts involving a minor would be unenforceable. If no contract existed between Lens and Kakuta then Chelsea would appear not to have broken any rules, at least in the legal context.
In 2003, Arsenal were one of the pioneers of the international recruitment of young players when they signed a 16 year old Cesc Fabregas from Barcelona, exploiting Spanish employment law which forbid clubs from signing players on professional contracts until they are 18. Manchester United have taken advantage of a similar rule in Italy, resulting in a number of Italian clubs losing players that they have developed from an early age due to this obvious inconsistency in national regulations. The belief in Italy is that players should be free to decide who they want to play for, a decision that they can only make when they are 18.
It is clear that since the famous Bosman case that there has been a shift in power from clubs to players and FIFA’s ruling in the Kakuta case seems a marked attempt to reverse this trend. However, FIFA may be entering a legal minefield in relation to their quarrel with Chelsea. Freedom of Movement of individuals is one of the fundamental principles upon which the EU is founded. Kakuta has enforced his right as an EU citizen to move from France to England and now receives a reported £7,000 per week. Should this case ever reach a national court it is possible that FIFA’s decision would be held to be a restraint of trade and also incompatible with EU law.
The current media focus does offer a glint of what goes on behind the scenes in the recruitment of young players. Football is a cash rich business and it has continually been alleged that agents and clubs often offer inducements to players and their parents. Manchester United has been accused by French club Le Havre of offering financial inducements to the parents of Paul Pogba in order to secure their son’s signature, an accusation that they strenuously deny.
However this issue is not confined to foreign teenagers. In the past couple of years Leeds United have lost a number of academy players that they have nurtured through their youth system. Michael Woods and Tom Taiwo signed for Chelsea at 16 resulting in Leeds United receiving a £4million settlement from Chelsea as it is reported that Leeds United had telephone records proving that a Chelsea coach had been contacting both players whilst they were with Leeds United. More recently Luke Garbutt joined Everton despite Leeds United developing the player since he was 8 years old. Leeds United has complained that the initial £600,000 compensation payment that the club has received from Everton is nowhere near their value of the player’s potential. Leeds United return to the Professional Football Compensation Committee again later this month regarding the alleged poaching of two 14 year olds from their academy by Manchester City.
Although legally Freedom of Movement may be enshrined in EU law, the transfer of minors is clearly a moral and ethical issue. One may consider that youth players should be focussed on their development as a player and their long term future and not on financial pressures/opportunities bestowed on them at an early age. The active transfer market in young players is fuelled by stakeholders such as parents who may not be in receipt of the correct long term advice and football agents who stand to benefit. However, against the current legal backdrop and the financial power of Europe’s top clubs, it is difficult to envisage a cessation in the transfer of youth players despite Michel Platini’s overtures.
Gareth McCay is an Associate Solicitor and member of Tughans’ Sports Practice Group. Please note that this article does not constitute legal advice therefore should you have any queries regarding this article or any sports law matter then please contact Gareth, John Turley or Patrick Brown on 02890 553300. © Copyright Tughans Solicitors 2009.