Form and Substance: Why FIFA and FC Barcelona Are Both Right About Youth Transfers

Yesterday, FIFA released a relatively well-anticipated (and relatively harsh) batch of sanctions against FC Barcelona (and the RFEF) for violating Article 19 of FIFA’s Regulations on the Status and Transfers of Players (regarding the rather stringent rules surrounding the transfer of international players under the age of 18). Barcelona was slapped with a (relatively small) fine—around €300K—and (in much bigger news) banned from engaging in any transfers of players for the next two transfer windows. Much ink has been spilled about why this sanction comes at the worst possible time for Barça, and I won’t go into it now. What I want to talk about is why FIFA is right to take a hard stance on this issue and—big reveal—why Barça is right to be furious about it.

The entire disagreement comes down to a classic point of contention in legal disputes: the difference between the form of the law (that is, the literal text, or the occasionally arbitrary lines drawn in statutes—for Americans out there, think Justice Antonin Scalia’s formalism) and the substance of the law (that is, what the law was intended to prohibit—think Justice Thurgood Marshall’s penumbras).

I’m going to start with the more controversial argument—at least on a Real Madrid blog—that Barcelona is right to be furious about FIFA’s actions in this circumstance. Reading through Barça’s press release responding to the sanctions, it’s clear that they don’t have a strong formal argument against FIFA—that is, it seems relatively clear that they did commit some violations of Article 19.

But it’s also clear that they don’t think that they violated the substance of Article 19, which, according to them, was created to protect young players from being exploited by clubs simply looking to mine their talent. For Barça, la Masia isn’t just a place for young players to practice and improve their football skills—it’s a place for young people to learn and grow.La Masia "incorporates educational training programs, accommodation, meals, medical care, attention to the needs of children and sports development plans," they argue. "FCB forms people before athletes."

You know what? That seems like a reasonable argument. These kids want for nothing: they’re given schooling, meals, top-flight medical care and a chance to have a career in professional football. Not a bad gig if you can get it. And this regulation seems designed to prevent teams from flying in poor kids from the slums in Rio, yanking them from their families to stick them in overstuffed dormitories, forcing them to play football all day (and depriving them of education), just for the chance of getting to play third division football one day. That’s not really what’s going on at these top-flight academies.

Fair enough, right?

Well, sorta. But that’s not the end of the story.Looking at the text of the regulation we see a rather stringent rule ("International transfers of players are only permitted if the player is over 18." Art. 19(1)) with three narrow exceptions: (a) if the parents move to the new country for reasons "not linked to football"; (b) if the transfer takes place within the EU, the team has to (i) train the player (ii) educate the player (iii) adequately house the player and (iv) prove that it’s complying with (i) through (iii); and (c) if the player lives within 50km of the national border and the team is also within 50km of the national border (what??).

So here’s the thing: this is pretty damn straightforward—and not that hard to comply with. And (some of) it makes sense! This is a useful regulation to have (as I talked about earlier)—it prevents the most vulnerable, risky people (kids) from being taken advantage of by predatory clubs. Yes, the form of the regulation might seem a bit nonsensical or arbitrary—what’s the difference between 49km and 51km?—but ultimately it serves a valid purpose, and if clubs think they can just snub their noses at it, then it might as well not exist. Which is exactly FIFA’s point—and it’s why I understand what FIFA is doing.

And seriously, if you’re Barça and a 15 year-old Leo Messi is sitting in Argentina, aren’t you going to figure out a way to get his parents to move to Spain for reasons "not linked to football"? Like, is it really that hard to comply with that?