1. Introduction

The realm of football has long been a stage where aspirations take vibrant form, painting dreams with vivid colours. Among these dreams, the intriguing concept of 'Project Mbappé' has risen to prominence. The term 'Project Mbappe,' finds its origins in a series of online jokes, and encapsulates the aspiration of nurturing young talents into future football legends, epitomised by the iconic Kylian Mbappé. However, beyond the humour lies a serious exploration of youth recruitment in football and the intricate legal landscape that accompanies it.

As the world witnesses the rise of prodigious talents known as 'Wunderkinds,' it becomes evident that the trajectory of football hinges on the development of its youthful prodigies. This universal sentiment has translated into the prevalent practice of scouting and precuring young prospects. While many pursue this practice with noble intentions, others seek to exploit it through illicit activities such as human trafficking.

This article dives into the legal frameworks that govern this practice, particularly focusing on the regulations set forth by FIFA and their implications in international youth transfers. Additionally, it explores the stance of the South African Football Association (SAFA) in the context of protecting minors and regulating youth recruitment.

2. The Regulatory Framework

• FIFA provisions on the protection of minor players in international transfers

FIFA, the governing body of the sport of football, has established a comprehensive set of regulations governing the process of international transfers involving minor players. These regulations have been put in place in response to a global demand for enhanced protection of underage individuals against the threats of human trafficking and unlawful labour practices.

The protection of minors in international football transfers, as outlined in Article 19 of FIFA’s Regulations on the Status and Transfer of Players (FIFA RSTPs),[1] revolves around several key principles. The central tenet of this regulatory framework is the prevention of international transfers of players under the age of 18, a restriction aimed at safeguarding the mobility and well-being of young players.[2]

This prohibition extends not only to outright transfers but also to the initial registration of a minor with a club in a foreign country where the minor is not a national.[3]

However, there exists four statutory exceptions to this overarching rule, each designed to address specific scenarios while maintaining the overarching goal of protecting minors in the context of football transfers:[4]

1. The first exception is known as the "parent rule." It permits the international transfer of minors if their families relocate to the country of the new club for reasons unrelated to football.[5] This acknowledges the need to accommodate situations where a family's movement is driven by non-sporting factors.
2. The second exception, termed the "EU–EEA rule," caters to minors aged between 16 and 18.[6] It allows for their transfer within the European Union (EU) or the European Economic Area (EEA) under the condition that the new club commits to providing the minor with comprehensive athletic and academic education, aligning with the highest national standards.[7] The new club is also obligated to ensure the minor's overall well-being in various aspects.[8]
3. The third exception, the "50+50 rule," takes into account the proximity of young players to national borders.[9] If a minor resides within 50 km of a national border and the intended club for registration is also within 50 km of that same border, the transfer may be permissible.[10] However, the distance between the player's home and the club's headquarters cannot exceed 100 km.[11] In such cases, both the player's and the club's associations must explicitly consent, with the player continuing to live at home.[12]
4. The fourth exception, known as the "five-year rule," applies solely to the first registration of a minor. It allows a minor's registration with a club in a foreign country where the player is not a national but has continuously resided for at least five years immediately preceding the intended registration. This exception is intended to accommodate situations where a player's prolonged residency in a foreign country is indicative of an established life there.[13]

Thus, Article 19 and its associated exceptions form the cornerstone of FIFA's approach to preserving the rights, development, and well-being of minors within the intricate landscape of international football transfers.

3. The South African Position

The regulations promulgated by FIFA pertaining to the protection of minors hold binding authority over all football associations affiliated with the organisation, a category encompassing the South African Football Association (SAFA) as well. In a seamless convergence with FIFA's regulatory framework, SAFA has adopted a position congruent with regard to issues concerning the recruitment of young talents and international transfers of minor players in its own Regulations on the Transfer and Status of Players.[14]

Aligned with FIFA's guidelines, SAFA's stipulations underscore the welfare and safeguarding of young players. These provisions, encapsulated within Article 19 of SAFA's framework, encompass the following salient elements:

1. Players can only be transferred internationally once they reach the age of 18.[15]
2. Two exceptions to this rule are recognized:
3. 1. If a player's parents relocate to a different country for reasons unrelated to football.[16]
   2. If the player resides within 50km of a national border, and the desired club for registration is also situated within 50km of that border. The maximum permissible distance between the player's residence and the club's headquarters is 100km. In such cases, the player must maintain their home address, and explicit consent from both relevant associations is mandatory.[17]

3. The provisions of this article are also applicable to players who have never been previously registered with any club and are not nationals of the country where they intend to register for the first time.[18]

Furthermore, SAFA unequivocally demonstrates its steadfast commitment to adhering to and implementing FIFA's regulations through Article 19(4) of SAFA's Regulations on the Status and Transfer of Players (SAFA RSTPs), which mandates each affiliated association to ensure their constituent clubs' adherence to SAFA's Article 19.[19]

This commitment to compliance is notably discernible in the context of Article 36 of the National Soccer League's (PSL) Handbook, which governs South Africa's premier football division.[20] Within this provision, explicit measures are articulated to safeguard minors in the context of international transfers. It provides that the international transfer of a player below the age of 18 is permissible only in circumstances where the family of the player relocates to South Africa for reasons unrelated to football.[21] Additionally, no player under 18 who is not a South African national can be registered as a professional player for the first time in South Africa, unless both the player and their parent or legal guardian possess lawful residency in the country.[22]

In summation, the regulations instituted by FIFA to ensure the protection of minors find resonance in the framework of SAFA, and this alignment is demonstrated through SAFA's provisions and the safeguarding measures adopted within South Africa's football landscape, as exemplified by the PSL Handbook.

4. Consequences of the Breach of FIFA rules

FIFA emphasises the imperative of adhering to the stipulations set forth in Article 19, which necessitates a stringent interpretation to safeguard the rights of minors and counteract instances of exploitation.[23]

This stance is evident in notable cases involving Atletico Madrid, Real Madrid, FC Barcelona and Chelsea FC, wherein FIFA had diligently upheld the mandates outlined in Article 19 of the Regulations on the Status and Transfer of Players (RSTP). The regulatory body's disciplinary committee remains poised to levy penalties for any transgressions against the provisions safeguarding the interests of minors in football.

It rests upon FIFA to substantiate instances of disciplinary transgressions, bearing the onus of proof in such matters. In accordance with Article 35(3) of the FIFA Disciplinary Code, the standard of proof required is that of "comfortable satisfaction of the competent judicial body."[24] When evaluating the appropriateness of punitive measures, and in the absence of specific directives within the FIFA Disciplinary Code, the ensuing criteria merit consideration:

1. “the nature of the offence;
2. the seriousness of the loss or damage caused;
3. the extent of the relevant party’s culpability;
4. the offender’s previous and subsequent conduct in terms of rectifying and/or preventing similar situations;
5. the applicable case law; and
6. any other relevant circumstances”.[25]

An illustrative illustration of FIFA's active response to transgressions against Article 19 is notably apparent in the high-profile case involving Chelsea FC in 2019. The club was found to be in violation of Article 19 with respect to 29 minor players and further found to have committed several additional breaches pertaining to player registration requisites.[26] Consequently, the Disciplinary Committee imposed a suspension on Chelsea FC's capacity to register new players for two successive registration periods (two transfer windows), both domestic and international, excluding the women’s and futsal teams.[27] Notably, this sanction did not impede on the release of players.[28]

Additionally, a financial penalty of CHF 600 000 (£460 000/$600 000) was levied upon the club, coupled with a designated timeframe of 90 days for rectifying the status of the implicated minor players.[29] The Football Association (FA) similarly faced consequences for its transgressions pertaining to underage players. The association incurred a fine amounting to CHF 510 000 (£390 000/$510 000) and was granted a six-month period to rectify the concerns linked to international transfers and initial registrations of minor players in football.[30]

The stringent interpretation of Article 19 and the imposition of penalties by FIFA's disciplinary committee underscore the gravity of transgressions and send a powerful message to the football community about the organisation's commitment to ethical conduct. By carefully evaluating the criteria outlined in the FIFA Disciplinary Code and exercising its authority with diligence, FIFA continues to foster an environment that prioritises the well-being and development of young athletes while maintaining the integrity of the sport. The enforcement actions against Chelsea FC and the FA in the face of violations reiterate that no entity, regardless of its stature, is above the regulations set forth by FIFA in the pursuit of protecting minors' interests in football.

National associations have an oversight responsibility to ensure their members comply with the regulations of FIFA which also includes the provisions of the RSTP concerning the protection of minors. As a result, the regulatory violations by the clubs at a national level creates the basis for liability for a national association because of the national association’s status as a FIFA member and the corresponding legal duty that arises. For this reason, national associations must ensure that their members adhere to the regulatory framework under the RSTP.

5. The Way Forward?

Compliance with FIFA's Article 19 in its Regulations on the Status and Transfer of Players (RSTPs) is non-negotiable for clubs, as any non-compliance exposes them to severe sanctions. This same responsibility extends to national member associations, obligated to ensure compliance. These associations serve an oversight role in guaranteeing that their affiliated entities conform to FIFA's regulatory framework, specifically the RSTP provisions for safeguarding minors.[31] The consequences of clubs' regulatory violations at the national level create potential liability for the respective national association due to its FIFA membership status and the accompanying legal obligations.[32]

This underlines the necessity for national associations to actively oversee and enforce alignment of their constituent clubs with the RSTP's comprehensive regulatory structure. Failure to do so would hinder these associations from escaping liability, as they are intrinsically bound to ensure compliance.

In 2020, FIFA took a significant step towards aiding both clubs and national member associations in upholding compliance with Article 19 through the introduction of the "Guide to Submitting a Minor Application."[33] This comprehensive guide serves a central purpose of educating various stakeholders in football, as well as the general public, about the intricate procedures and essential documentation needed for international transfers involving minor players.[34] The rationale behind this guide stemmed from the emergence of novel exceptions, heightened intricacies within cases, and the imperative for legal certainty within the domain of player transfers.[35]

The guide encompasses several key components:

Firstly, it offers a meticulous walk-through of the process involved in submitting applications for the transfer of minor players.[36] Secondly, it presents exhaustive catalogues detailing the specific documents requisite for diverse application categories.[37] Additionally, an FAQ section is included, replete with practical insights gleaned from real-life cases.[38] Moreover, the guide furnishes valuable legal resources, including FIFA circulars and Court of Arbitration for Sport awards, which serve to shed further light on the regulations encompassing the safeguarding of minors during football transfers.[39]

By adhering to the guidance outlined in the minor application guide, in conjunction with the stipulations articulated in Article 19 of FIFA's RSTPs, pertinent stakeholders can steer clear of sanctions, thereby paving the way for the realisation of their aspirations in recruiting the player of their dreams. Simultaneously, this approach facilitates an environment wherein aspiring players can effectively embark on the journey toward their envisioned careers.

6. Conclusion

'Project Mbappé,' born from humour, has illuminated the labyrinthine legal landscape of minor recruitment in football. From its playful origins, this concept has evolved into a beacon guiding our understanding of the complexities surrounding young talent's journey to the top. At its heart lies FIFA's Article 19, an embodiment of the organisation's unwavering commitment to shielding the rights and well-being of young players within the realm of international transfers. SAFA's alignment with these regulations reinforces the unity of purpose across nations to protect minors.

In the midst of celebrations for emerging football prodigies, the regulatory framework remains a steady hand that guides their development responsibly and ethically. 'Project Mbappé' symbolises not only a dream but also a concerted endeavour to forge an environment where the future stars can radiate without compromise. As the beautiful game evolves, these regulations stand as sentinels, ensuring that the pursuit of excellence never overshadows the well-being of those who carry the future on their shoulders.

Bibliography

1. FIFA ‘Protection of Minors: Guide to submitting a minor application’ 2020 https://digitalhub.fifa.com/m/2130eb84c31cf4e4/original/lb2t6bqgmi2a1x1pr5xs-pdf.pdf.
2. FIFA ‘Chelsea FC, The Football Association sanctioned for international transfers of minors’ 22 February 2019 https://www.fifa.com/legal/football-regulatory/media-releases/chelsea-fc-the-football-association-sanctioned-for-international-transfers-of-mi (Accessed 17 June 2023).
3. FIFA ‘Commentary on the Regulations on the Status and Transfer of Players’ 2021 https://digitalhub.fifa.com/m/346c4da8d810fbea/original/Commentary-on-the-FIFA-Regulations-on-the-Status-and-Transfer-of-Players-Edition-2021.pdf.
4. FIFA ‘FIFA publishes its Guide to Submitting a Minor Application’ 30 September 2020 https://www.fifa.com/legal/media-releases/fifa-publishes-its-guide-to-submitting-a-minor-application (Accessed 17 June 2023).

5. FIFA ‘Regulations on the Status and Transfer of Players’, 2021 https://digitalhub.fifa.com/m/cb37201b05fe8f7/original/Regulations-on-the-Status-and-Transfer-of-Players-July-2022-edition.pdf.
6. FIFA Disciplinary Code https://digitalhub.fifa.com/m/59dca8ae619101cf/original/FIFA-Disciplinary-Code-2023.pdf.
7. National Soccer League (PSL) Handbook http://images.supersport.com/content/NSL-Handbook-updated-20-November-2019.pdf.
8. SAFA ‘Regulations on the Transfer and Status of Players’ 2020 https://www.safa.net/wp-content/uploads/2017/03/RegulationsontheStatusandTransferofPlayersMay12.pdf.

Endnotes

[1] FIFA ‘Regulations on the Status and Transfer of Players’, 2021, thereafter ‘FIFA RSTPs’.

[2] FIFA RSTPs, Article 19.1.

[3] FIFA RSTPs, Article 19.3.

[4] FIFA RSTPs, Article 19.2.

[5] FIFA RSTPs, Article 19.2a.

[6] FIFA RSTPs, Article 19.2b.

[7] FIFA, n 5 above.

[8] FIFA, n 5 above.

[9] FIFA RSTPs, Article 19.2c.

[10] FIFA, n 9 above.

[11] FIFA, n 9 above.

[12] FIFA, n 9 above.

[13] FIFA RSTPs, Article 19.3.

[14] SAFA ‘Regulations on the Transfer and Status of Players’ (2020), thereafter ‘SAFA RSTPs’.

[15] SAFA RSTPs, Article 19.1.

[16] SAFA RSTPs, Article 19.2a.

[17] SAFA RSTPs, Article 19.2b.

[18] SAFA RSTPs, Article 19.3.

[19] SAFA RSTPs, Article 19.4.

[20] National Soccer League (PSL) Handbook, Article 36.

[21] PSL, n 20 above.

[22] PSL, n 20 above.

[23] FIFA ‘Commentary on the Regulations on the Status and Transfer of Players’ 2013 231.

[24] FIFA Disciplinary Code Article 35.3.

[25] FIFA (n 23 above) 267-268.

[26] FIFA ‘Chelsea FC, The Football Association sanctioned for international transfers of minors’ 22 February 2019 https://www.fifa.com/legal/football-regulatory/media-releases/chelsea-fc-the-football-association-sanctioned-for-international-transfers-of-mi (Accessed 17 June 2023).

[27] FIFA, n 16 above.

[28] FIFA, n 16 above.

[29] FIFA, n 16 above.

[30] FIFA, n 16 above.

[31] FIFA (n 23 above) 268.

[32] FIFA (n 23 above) 268.

[33] FIFA  ‘Protection of Minors: Guide to submitting a minor application’ 2020.

[34] FIFA ‘FIFA publishes its Guide to Submitting a Minor Application’ 30 September 2020 https://www.fifa.com/legal/media-releases/fifa-publishes-its-guide-to-submitting-a-minor-application (Accessed 17 June 2023).

[35] FIFA, n 34 above.

[36] FIFA, n 34 above.

[37] FIFA, n 34 above.

[38] FIFA, n 34 above.

[39] FIFA, n 34 above.

DISCLAIMER: The views and thoughts expressed in this article are those of the author and don't necessarily reflect those of Javelin Sports Consulting. The information provided in this article is for general informational purposes only and should not be construed as legal advice. It is not a substitute for consulting with a qualified legal professional. The content is based on general knowledge and research up to the publication date and may not reflect the most current legal developments. No attorney-client relationship is formed by reading this article. Always seek the independent advice of a legal practitioner regarding your specific legal concerns.