Notes on Article 19: Hilton v. FIFA

On this blog, FIFA Article 19 has been an occasional subject of discussion (see here and here). The controversial rule bans clubs from signing foreign players under age 18 except in three limited circumstances. As litigants have had no success overturning Article 19 through the courts, attempts to sign foreign minors now rely on these three exceptions — most notably, the first exception: a player moves to the new country for reasons “not linked to football.”

Last month, the Court of Arbitration for Sport released its written award in a prominent case analyzing the “not linked to football” exception: Hilton v. FIFA. The case involved John Hilton, a 16-year-old right back from southern California. Last year, the CAS rejected Hilton’s attempt to register with famed Amsterdam club, Ajax. Because the CAS does not release written opinions until well after its decisions, the complete rationale for the Hilton award was unknown until this July.

The Decision

Hilton is considered a special talent. He has been competing, and excelling, in international tournaments since he was 8 years old. In 2013, at age 12, he was named MVP of the United Jeugd Cup in the Netherlands, a youth tournament featuring many of the world’s biggest clubs. Hilton participated as a guest player for Manchester City, which won the tournament. Notably, twice that same year, Hilton played on teams that faced Ajax at major youth competitions.

Shortly after his United Jeugd Cup performance, Hilton, along with his mother and two sisters, relocated to Manchester. The official reason was that Hilton’s mother was developing her international catering business and wanted to give her children a more multicultural experience. After the move, the family took up residence in Wilmslow, a Manchester suburb, less than 20 km from Man City’s training ground. Hilton promptly enrolled at the St. Bede’s School, where Man City sends its youth players. But Hilton did not enroll in City’s academy, choosing instead to play for the school’s team.

In 2015, Hilton and family moved to Amsterdam. His mother claimed that Manchester was too expensive.

The Hiltons settled in Amstelveen, an Amsterdam suburb. Their new home was a mere 8 km from Ajax’s training facility. Hilton began playing futsal with a local team called Veerhuys FC. Ajax “discovered” him there. At that point, the club, claiming that it had not previously known about Hilton, moved to register him with its youth academy.

Based on this history, Ajax and Hilton argued that Hilton’s mother moved the family to Amsterdam to develop her business and promote a multicultural experience for her kids. Further, because Ajax first discovered Hilton after he had established himself in Amsterdam, he could register with the club using the “not linked to football” exception.

The FIFA Dispute Resolution Chamber rejected Hilton and Ajax’s story and ruled that Article 19 barred the club from signing him. According to the DRC, Hilton’s family moved with him to take advantage of Ajax’s offer to play at the club. A CAS panel affirmed the DRC’s ruling.

Below are some noteworthy aspects of the CAS Panel’s written decision.

The standard is tough

The bar for demonstrating an Article 19 exception is high. In previous cases, FIFA and the CAS have treated the rule as vital to the protection of minors and, accordingly, pledged that any claim for an exception would meet intense scrutiny. The Hilton Panel reaffirmed this approach. Specifically, the Panel called Article 19 a “very important provision, which sets key principles designed to protect the interests of minors.” As such, the Panel vowed to apply the rule in a “strict, rigorous and consistent manner.” In short, an attempt to register a foreign minor needs to be free from any serious doubts to shelter under the “not linked to football” exception.

A confusing test that works

On paper, the Hilton Panel muddled the test for determining whether a player’s move was for reasons “not linked to football.” But in practice, it merely confirmed that any move appearing suspicious (from an Article 19 perspective) will not succeed.

Determining whether a claimant falls under the “not linked to football” exception is a case-specific inquiry. The overriding issue is the intention behind the parents’ move.

Through its Article 19 decisions, the CAS has built a test for determining whether a move was for reasons “not linked to football.” According to previous panels, the exception would only apply if the family moved for reasons completely independent of soccer. In other words, if soccer was any part of the decision, the panel would deny the registration.

On paper, the Hilton decision made this test more confusing. First, the Panel agreed with the “completely independent” standard. But then it added that, when the move stemmed from a mixture of reasons, those reasons would have to be weighed against each other. This new wrinkle would seem to contradict the “completely independent” rule. Consider that, under the Hilton Panel’s formula, a family could move for several reasons, one of them being soccer, without automatically violating Article 19. By contrast, under the “completely independent” standard, this family would violate Article 19 because soccer would have played some role in the decision to move. So by embracing both of the above tests, the Hilton Panel left the prevailing standard unclear.

Nonetheless, despite the confusion on paper, a more reliable standard has emerged in practice. Essentially, CAS panels will deny any attempt to game the system. Every time a panel denied registration, it was apparent that the club or family was crafting a story to justify a signing that would otherwise violate Article 19. Such was the case with Hilton, who (regardless of whether Article 19 makes sense) made an almost laughable attempt to show he moved for his mother’s business and happened to be discovered by one of the world’s most prestigious youth academies.

FIFA is famous for betraying its stated principles when money and power show up. But its enforcement of the first Article 19 exception is airtight. Unless the family truly moves for reasons other than soccer, the registration will be denied.

Chronology is the most important factor

The CAS focuses on the point in the family’s moving process when the player and the club made first contact. If the family began preparations for the move before the club knew about the player or made contact with him, it increases the chances that the signing will fit within the exception. On the other hand, if the player and club are in contact prior to the move, or preparation for the move, the CAS is unlikely to apply the exception.

In A v. Atletico Madid, the only case where the CAS allowed the exception, the player’s family began the moving process well before the club knew about the player. The player lived in Chicago, with his parents, who were independently wealthy and did not need to work in any particular place. The family decided to move to Madrid in 2012, began the visa process later that year, obtained visas in early 2013 and moved in July 2013. In August 2013, after the move, the player attended an open tryout at Atletico Madrid’s training facility. Based on this tryout, the team offered him a place on one of its many youth teams. Atletico argued that it did not know about the player until he showed up for the tryout. This was believable given that the club had made no contact with him and the player had not appeared in any tournaments that may have alerted Atletico to him. As a result, the CAS panel found that that the family’s intention to move predated Atletico’s interest in the player. So the exception was appropriate.

Compare this to Hilton, who was coveted by the world’s largest clubs at least 2 years before his family moved. Although Ajax claimed otherwise, the ruling panel determined that it must have known about Hilton as early as 2013, when he played against Ajax in two tournaments and was named MVP of another that Ajax attended. At the same time, there was no evidence that Hilton’s family had taken any steps to move to Amsterdam prior to 2015. So here, the chronology did not match up. The club’s interest predated interest in a move abroad.

Earlier cases followed this pattern. In 2005, the CAS denied CF Cadiz’s attempt to sign 16-year-old Paraguayan Javier Acuna, in part, because Acuna signed his contract with the club prior to his mother being authorized to work in Spain. In 2013, the CAS denied Real Madrid’s attempt to sign a 13-year-old Venezuelan player for a similar reason: the player’s parents were not authorized to work in Spain at the time the player moved there.

All told, in determining whether the player’s parents intended to move for non-soccer reasons, the CAS relies heavily on the chronological relationship between the initial steps toward a move and the club’s interest in the player. And unless the initial steps come first, it is unlikely that the club will be allowed to sign the player.

Better players will be more difficult to fit within the exception

A striking distinction between Hilton’s case and the Atletico case was that Atletico claimed the player it wanted to sign was just another prospect in its vast youth apparatus. Atletico found him at its open tryout and planned to put him on one of its many youth teams. If the club couldn’t sign the player, it would move on, without much disappointment. In short, for Atletico, bending the rules to sign the player would have been more trouble than it was worth.

On the other hand, Hilton was a targeted acquisition. Ajax and several other big clubs identified him long before he moved to Europe. He was not just another prospect, but one who had the potential to be a first team player or an attractive asset. So a club (a) would know about Hilton before he moved and (b) might try to bend the rules to sign him.

This distinction gave Atletico credibility Ajax lacked. And it played a role in its case succeeding where Hilton’s failed. One might find it somewhat perverse, but if Hilton had only been a more marginal prospect, one who no one noticed, he would have had a better chance of beating Article 19 and pursuing his dream abroad.

Bottom Line

The Hilton case confirms a theme running through the cases addressing the “not linked to football” exception. Clubs cannot seek out foreign youth players. Instead, fortune must drop those players in their laps. Anything more coordinated will violate Article 19.

Random Observations Unleashed

1. Two of the three Hilton panelists are becoming Article 19 veterans. Efraim Barak from Israel and Prof. Urlich Haas from Germany also served on the panels for the cases addressing Article 19 sanctions against Barcelona and Atletico, respectively.
2. Hilton prefers the nickname “Xuxuh.” Despite minor effort, I could not uncover what this means. Still, I think it sounds pretty cool.
3. After being forced to leave Ajax, Hilton joined the LA Galaxy Academy. He was called into the U.S. Under-16 National Team as recently as June of this year.