Notes on Article 19: In pursuit of a more coherent standard

In late 2021, the Court of Arbitration for Sport denied 15-year-old American David Kelley’s[1] attempt to sign with Fehervar, one of Hungary’s top clubs. The player had argued he fell within the “not linked to football” exception to Article 19 of FIFA’s RSTP – the rule that, in most cases, prevents clubs from signing foreign players under age 18. Though he rejected the player’s claim, the arbitrator clarified how future decisionmakers should apply the exception – in particular, the test for determining whether a move was linked to football and the player’s burden of proof to establish the exception. This roadmap could make resolution of future claims more predictable and, possibly, more often favorable to players.

ARTICLE 19 – EXCEPTIONS AND JURISPRUDENCE

Article 19 bars clubs from signing foreigners under age 18, except in five circumstances. The most often litigated of these is exception (a) – “The player’s parents move to the country in which the new club is located for reasons not linked to football.”[2] Not surprisingly, then, the CAS has built a robust jurisprudence addressing this provision:

In 2005, the CAS ruled the exception did not apply to 16-year-old Paraguayan Javier Acuna – whom Spanish club Cadiz was attempting to sign. The panel ruled Acuna’s move was linked to football because he signed his contract with the club prior to his mother being authorized to work in Spain.[3]

In 2013, the CAS granted the exception to an unnamed American who joined Atletico Madrid. Atletico first discovered the player at an open tryout, after his family had completed their move from Chicago to Madrid.[4]

In 2015, the CAS affirmed denial of the exception for a 13-year-old Venezuelan player Real Madrid wanted to sign. Like the Acuna case, the move was “linked to football” because the player’s parents were not authorized to work in Spain at the time the player moved there.[5]

In 2016, the CAS ruled against 16-year-old American John Hilton’s move to Ajax because the club had shown interest in him years prior to his family’s move to Amsterdam.[6]

The most recent Article 19 case involved then 12-year-old Norwegian Oscar Bobb. In 2017, a CAS arbitrator denied FC Porto’s attempt to sign him because the club and Bobb’s mother made contact before the mother initiated plans to further her theater career in Porto.[7]

FACTUAL BACKGROUND

The latest “not linked to football” case involves the then-15-year-old Kelley.[8] In July 2020, Kelley left a US academy to sign with Hungarian club Fehervar.[9] As he was under 18, he needed the “not linked to football” exception to cross the Atlantic.[10]

Only Kelley’s mother accompanied him on the move. Her ties to Hungary are substantial. For one, she is Hungarian. She was born there and, at least from the record, appears to hold only Hungarian citizenship.[11] She also owns a home in Siofok, Hungary – the same town where her parents still live.[12] As might be expected, the mother often takes her family on summer vacations to Siofok.[13]

Though born and raised in Seattle, Kelley himself holds Hungarian citizenship.[14] He also speaks the language.[15] And from his frequent summer trips, he is familiar with Hungarian culture. In more recent years, those trips have had to accommodate his soccer training. To this end, he spent the summers of 2017 and 2018 training with Fehervar.[16]

Kelley’s father is the CEO of a Seattle-based company.[17] He planned to remain home and continue his work there. Kelley’s mother worked for the same company. She planned to work remotely while living in Siofok.[18]

According to her declaration before the CAS, primarily, the mother was returning to Hungary to care for her parents. Both were advanced age, and her mother had recently tested positive for COVID.[19]

OBSERVATIONS

The arbitrator settled on the balancing test

The Kelley arbitrator held that to determine whether a move was linked to football, the decisionmaker should weigh the football reasons for the move against the non-football reasons. By taking a firm stand in favor of this balancing test, the arbitrator untangled the mess of contradictory standards that obscured previous Article 19

Previous CAS arbitrators struggled to craft a test for judging whether a move was “not linked to football.” The confusion began with the early Article 19 cases. Those arbitrators expressed the rule as two inconsistent principles, which they lumped together. First, the exception could only apply if the parent moved to the foreign country for reasons “entirely independent of the footballing activity of the minor.” In other words, soccer could not be even a small factor in the move. Second, if soccer was one of several reasons for a move, the arbitrator(s) would “assess the weight of the football-related reason.”^[20]

The contradiction is obvious and the confusion, predictable. If, on the one hand, any soccer-related reason nixes the exception, there would be no need to weigh it against other factors. Conversely, if the arbitrator weighed a soccer motive against other factors, he or she would have to ignored the “entirely independent” language.

But at least directly, no Article 19 case has hinged on resolution of this logical battle. Rather, in most cases, the arbitrator ignored both sides and made a common-sense judgment as to whether the move was linked to football. Often, the main issue was chronology – that is, whether the club’s interest in the player predated the family’s plans to move.[21] So the contradictory standards avoided scrutiny.

The CAS began cleaning up the rule in Bobb, which I analyzed in a previous article. There, Bobb’s mother moved with her 12-year-old son from their native Oslo to Porto. Upon arrival, she tried to register Bobb with FC Porto – one of several clubs who had been recruiting him since he was about 10. Bobb’s mother was a theater actor, who made the not implausible claim that the move allowed her to pursue a unique job opportunity in Porto.

When the case reached the CAS, the sole arbitrator rejected Bobb’s claim to the exception. While the arbitrator cited the contradictory principles in the earlier decisions, he did not evaluate Bobb’s move under either of them. Instead, he held that the move did not qualify for the exception because it could not be “excluded that the mother’s move to Portugal was heavily influenced by the fact that her son had already a realistic prospect to join FC Porto and to continue his training and his football activity with an important club.”^[22] Effectively, this meant that a move was “linked to football” if it could not “be excluded” that football “heavily influenced” it. So the arbitrator staked a position somewhere between the complete independence of the one principle and the nebulous balancing of the other.

In Kelley, the sole arbitrator went a step further and designated the balancing test as the prevailing standard.[23] As for why he chose the more flexible approach, the arbitrator did not rely on deep legal analysis. Instead, he reasoned that “Life teaches us that the change of country is never, or very rarely, based on a single cause.”[24] And in his view, the balancing test allowed arbitrators to tailor their decisions to the unique circumstances each case would present.[25]

“Comfortable satisfaction” is the player’s burden of proof

In Bobb, the arbitrator took a strong stance on the evidentiary burden the player must meet to obtain the exception: “beyond a reasonable doubt.”[26] That is, the player had to demonstrate “beyond a reasonable doubt” that the move was not linked to football.

In most jurisdictions, “beyond a reasonable doubt” is the highest standard the law can demand. Nonetheless, the Bobb arbitrator viewed it as appropriate for the exceptions because FIFA and previous CAS jurisprudence required strict application of Article 19.[27]

The Kelley arbitrator found “beyond a reasonable doubt” too strong. Instead, he opted for “comfortable satisfaction” – as in, the player must demonstrate, to the comfortable satisfaction of the arbitrator, that his parent’s move was not for football-related purposes.[28] The arbitrator noted that this was the burden in doping cases.[29]

The arbitrator applied the balancing test

At least functionally, this arbitrator used the balancing test. In fact, it was the initial stage in his analysis – ahead of the chronological test.

Specifically, the arbitrator first concluded that advancing her son’s football career was a significant reason Kelley’s mother took him to Hungary.[30] On this point, the supporting evidence was direct. In communications with Fehervar, the mother identified her son’s career as a principal basis for the move.[31] Further, in her declaration before the FIFA Player Status Committee, she made a similar admission: She wanted to take Kelley to Hungary to give him “the opportunity to continue to improve his talent in soccer.”[32]

The arbitrator then compared this motivation to the mother’s claim that she was moving to Hungary to care for her parents.[33] Unlike the direct evidence linking the move to Kelley’s football career, the evidence supporting this rationale was sparce and weak. As the arbitrator emphasized, there were no witnesses, such as the mother’s relatives, to support her position. In fact, she did not mention her parents’ health in her initial submission to the FIFA Players Status Committee – instead, raising it for the first time in her CAS declaration.[34] And even here, the arbitrator did not deem the mother’s statement strong evidence that her parents needed her in Hungary.[35]

Chronology still played a role in the decision

While the arbitrator led with the balancing test, the chronological test was not far behind. After using the balancing test to glean the intention behind Kelley’s move, he examined the move under the chronological test – which, to him, also illuminated the family’s reasons for moving.[36]

In her declaration to the Player Status Committee, Kelley’s mother listed the sequence of events relating to her move. The following three entries proved detrimental to Kelley’s claim:

(iv) during the summer breaks of 2017 and 2018 the Player trained with [Fehervar]; (v) prior to move to Hungary the Mother was in contact with Mr. Gold of [Fehervar] to discuss her son’s football training experience and his future possibilities at [Fehervar]; (vi) the Player and the Mother have only moved to Hungary after receiving positive feedback from [Fehervar] that the Player could join [Fehervar] for training.[37]

Clearly, the player and club expressed mutual interest prior to the move. So the arbitrator cited this as another reason the move was “linked to football.”[38]

In the end, the arbitrator bundled these conclusions with his findings on the balancing test and ruled Kelley had not met his burden to establish football was a “secondary element” in his mother’s move.[39] As such, Kelley did not qualify for the exception.

TAKEAWAYS

This decision may indicate that the standards for the “not linked to football” exception will be fluid. The Kelley arbitrator’s firm reliance on the balancing test and his alteration of the burden of proof were departures from earlier cases. It is unclear whether future arbitrators will follow his path, return to the old one or clear their own.
If followed, the arbitrator’s analysis may give life to a scenario that, previously, did not seem likely to earn the exception. Consider an elite youth player whose family did not intend to move until some non-soccer factor gave them a reason to do so. As part of the moving process, the family needs to find a good soccer environment for their son. This leads to them reconnecting with a foreign club that had previously expressed interest in him. Under a strict chronological test, the move would not qualify for the exception because the club’s interest predated the family’s moving plans. Under the strict independence standard, the player may also fail because the club’s interest would at least look like one of multiple factors that spurred the move. But if the arbitrator sticks to the balancing test, the player has a chance. He could emphasize the importance of the non-soccer factors and argue that connecting with the club was simply on the family’s to-do list for the move. Depending on the facts of a given case, this argument may or may not work. But it could be more viable after the Kelley decision.
Regarding this exception, the only relevant issue is what drove the move in question, not whether other reasons could have justified it. Here, Kelley’s mother was moving to the place where she was born, she owned a second residence and her parents still lived. Undoubtedly, she could have had plausible reasons to move there. But those were not the reasons she did, in fact, move. She moved to further her son’s soccer development. And that motive does not get the exception. While the plausible reasons were more debatable, Bobb also highlights this distinction. There, it could have made sense for Bobb’s mother to advance her acting career in Porto – independent of her son’s football talent. But her son’s football talent was the reason she moved. The benefits to her acting career were incidental.
Through a different Article 19 exception, Kelley may soon be able to play for Fehervar. Exception 19.2(b) authorizes transfers “within the territory of the European Union” if the player is at least 16 years old. Hungary is in the EU, and Kelley has citizenship. In fact, the arbitrator may have hinted at the 19.2(b) exception when he concluded the opinion by mentioning Kelley could reapply under 19.2(b) when he turns 16.[40]

[1] The name “David Kelley” is a pseudonym.

[2] The other four exceptions are the following: (b) a transfer “within the territory of the European Union” when the player is between 16 and 18 years old; (c) the player and the club are each within 50 km of a mutual national border and less than 100 km apart; (d) the player flees his home country for humanitarian reasons; (e) the player is in the new country temporarily as an exchange student. Until 2021, Article 19 had three exceptions, with 19.2(d) and (e) added in the most recent version of the RSTP.

[3] Acuna et al v. FIFA, CAS 2005/A/955 & 956, ¶7.3.6 (Consolidated cases)

[4] A. v. Atletico Madrid, CAS 2013/A/3140, ¶¶8.31, 8.33

[5] Real Madrid v. FIFA, CAS 2014/A/3611, ¶¶10-13 (Appeal dismissed for lack of timeliness)

[6] Hilton v. FIFA, CAS 2015/A/4312, ¶¶88-89

[7] Bobb et al v. FIFA, CAS 2017/A/5244, ¶64

[8] Officially, this case is titled N. v. FIFA,CAS 2020/A/7503, with the player not identified by either his real name or the pseudonym “David Kelley” (which I made up). Nonetheless, for clarity, I will call this matter the “Kelley” case.

[9] N. v. FIFA,CAS 2020/A/7503, ¶¶32, 35, 37

[10] Kelley has a European passport. So once he turns 16, he can activate exception 19(b). This allows players over 16 to sign with European clubs as long as they have a European passport. That said, Kelley was only 15 when the arbitrator decided this case.

[11] Id. at¶32

[12] Id. at ¶¶32-33

[13] Id. at ¶32

[14] Under Hungarian law, any person with at least one Hungarian parent is automatically a Hungarian citizen.

[15] Id. at ¶32

[16] Id. at ¶38

[17] Id. at ¶36

[18] Id.

[19] Id. at ¶¶34, 39

[20] See e.g. A., CAS 2013/A/3140, ¶¶8.32, 8.33; Hilton, CAS 2015/A/4312, ¶¶79, 81

[21] See e.g. Id. at ¶80

[22] Bobb, CAS 2017/A/5244, ¶62