FIFA Lurks Under the Bridge

Two weeks ago, FIFA’s Disciplinary Committee punished two French clubs – Angers and Paris FC – for their roles in a so-called “bridge transfer.”  This is a multi-step transaction where clubs arrange for the same player to be transferred twice, over a short time, so they can avoid some rule or regulation.  While clubs have been doing this for years, FIFA did not ban the practice until 2020.  The ruling against Angers and Paris marked the first time FIFA enforced the ban. 

At least in the short term, the new rule may close some routes that used to help clubs and players finalize transfers.  In turn, this may force both to adjust – especially in the United States.

FIFA v. Paris FC and Angers

Facts

The case examined two transfers of then-22-year-old French winger Kevin Bemanga.  The first occurred on July 3, 2020, when Bemanga left Deportivo Xerez, in Spain’s fourth tier, on a free transfer to Ligue 2’s Paris FC.  Upon arrival, he signed his first professional contract with the club.  Five weeks later, without playing for Paris, Bemanga moved again – this time, on a free transfer to Angers.  The Ligue 1 club then completed a new contract with him.  

FIFA viewed this awkward two-step exchange as a bridge transfer, with Angers always meant to be the final stop.

The bridge transfer ban

The ban on bridge transfers first appeared in FIFA’s Regulations on the Status and Transfer of Players in 2020.  Speaking practically, the ban consists of three provisions: (1) Definition 24, which defines a bridge transfer; (2) Article 5(1)bis, which bans the practice; and (3) Article 5(2)bis, which establishes the standard of review for alleged bridge transfers.

First, the RSTP defines “bridge transfer” as any “two consecutive transfers, national or international, of the same player connected to each other and comprising a registration of that player with the middle club to circumvent the application of the relevant regulations or laws and/or defraud another person or entity.”

Second, Article 5(1)bis bans clubs and players from being “involved in a bridge transfer.”

Third, Article 5(2)bis establishes a rebuttable presumption of a bridge transfer where the same player is transferred twice within 16 weeks.  Specifically, the provision states that when “two consecutive transfers, national or international, of the same player occur within a period of 16 weeks,” the clubs and the player are presumed to have engaged in a bridge transfer.  Those parties can then challenge the presumption with evidence.

Specifically, in the Bemanga case, the transfers were only five weeks apart.  So at least based on the rule’s language, the presumption applied.

Ruling and legal reasoning

To this point, FIFA has only explained the Bemanga decision through a short press release.  From this, we know the following: The FDC ruled that neither Paris nor Angers refuted the presumption of a bridge transfer.  In particular, the panel found that the transfer to Paris was not born of a desire for Bemanga to play football there.  Rather, the purpose was to “circumvent” FIFA’s rules on training compensation.  As punishment for their roles in the transaction, FIFA fined Paris and Angers CHF 30,000 each and issued each of them a one-window transfer ban.  No further analysis has been made public. 

Most notably, FIFA did not explain how the transfers circumvented the training compensation rules.  As attempting to skirt applicable regulations is an element of a sanctionable bridge transfer, this would seem too important of a point to address with a conclusory statement.  That said, the available evidence does offer some insight into what Angers could have been thinking.

Essentially, the two-stage transfer allowed Angers to reduce the amount of training compensation they would owe for acquiring Bemanga.  Consider the following:

For transfers within Europe, training compensation depends on whether the player moves from a lower to a higher category club, or vice versa.  If the move is from lower to higher, training compensation is calculated off the average of the two clubs’ training costs. (For a primer on the basics of training compensation, try these posts).

Here, France and Spain are among the countries with clubs in the highest category: Category I.  Typically, in these countries, each club’s category matches their current level in the pyramid.  In this instance, that would place Xerez in Category IV, Paris in Category II and Angers in Category I.

So if Xerez transfers Bemanga to Angers, training compensation would be calculated off the average of Category I and Category IV’s training costs – €90k and €10k per year, respectively.  This makes the relevant amount €50k per year (except for ages 12-15, which are always €10k per year).  For the sake of argument, assume every club Bemanga has played with since age 12 can accept training compensation.  Under those conditions, Angers would owe €340k – €40k for ages 12 through 15, and €300k for ages 16 through 21.

But if the transfer is between Xerez and Paris, the calculation would work off the average of Category II and IV’s training costs – €60k and €10k, respectively.  Here, the relevant amount is €35k.  So if, again, all Bemanga’s former clubs qualify for training compensation, Paris would pay €250k – €40k for ages 12 through 15 and €210k for ages 16 through 21.  This amount is still significant, but it is €90k less than a direct transfer from Xerez to Angers.

So Angers could send €250k to Paris, which Paris would give Bemanga’s former clubs as training compensation.  Angers could then grant Paris a small benefit – like a sell-on.  All told, the bridge transfer would save Angers €90k.  Thus, it could be why they structured the transaction this way.   

Further Issues

Evidentiary standard

Article 5bis’ rebuttable presumption is a unique feature of the bridge transfer ban.  According to FIFA jurisprudence, the burden of establishing a claim lies with the party making it.  The rebuttable presumption swings that responsibility to the accused.  As such, the parties charged with engaging in a bridge transfer must now establish that their transactions were legitimate.

To see the contrast, take a recent case before the Player Status Committee involving a different kind of suspicious transfer.  In Newel’s Old Boys v. Roma, Roma and Spartak Moscow transferred two players to Spartak Moscow, each for €3M: (1) valuable Argentine striker Ezquiel Ponce and (2) valueless Italian keeper Andrea Romagnoli.  Because Newel’s Old Boys held a sell-on for Ponce, transferring him for €3M, instead of €6M, halved Roma’s obligation to Newel’s.  In their ruling, the PSC panel acknowledged that the timing of the transfers was suspicious.  Nonetheless, they declined to void them because Newel’s presented no direct evidence that Roma and Spartak coordinated the move.

But if the suspicious transfer were a bridge transfer, the result might have been different.  There would have been no need to establish Roma and Spartak coordinated.  It would have been assumed based on the timing.  Roma and Spartak would then have to put on convincing evidence that the transfers were innocent.     

Effect on US Market

The bridge transfer rule may cloud a strategy that has helped some US youth players get to Europe.  Because training compensation can scare off European clubs, MLS can use the threat to keep their academy players from escaping.  Some players have responded by signing their first pro contracts with lower division teams, who may waive training compensation.  The domestic transfer wipes away the MLS team’s training compensation claim, thus, making the player more attractive to foreign clubs. 

But now, might this be a bridge transfer?

The answer probably depends on the situation.  In some cases, the player does not immediately move from the lower division US team to the European club.  Rather, he remains with the US team (usually, for at least half-a-season) and plays with them until the European opportunity is ripe. 

In that hypothetical situation, the rebuttable presumption would not attach because the transfer are more than 16 weeks apart.  Theoretically, this does not immunize the clubs and player from the bridge transfer ban.  But it would eliminate the aspect of the ban that is the most difficult to overcome.

Bottom Line

True bridge transfers are going to occur over the same transfer window.  So the 16-week period in Article 5bis is likely to catch them.  And from there, the rebuttable presumption may be too tough for most parties.

That said, the ban is very new and the regulation itself only offers general guidelines.  Consequently, to have a better idea of how far the ban reaches and how difficult the presumption is to beat, we will need more case law.  So pay attention as the FDC and, potentially, the Court of Arbitration for Sport attempt to fill in these gaps.

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