Taking Major League Soccer to FIFA Court

sepp and don

Sepp, I told you homeboy: U can’t touch this.

OTF’s Alex White sets the record straight on MLS expansion and FIFA compliance…

What you are about to witness is not real. The participants are, but this whole thing is a farce. Your Prosecutor today is Sepp, head of a humble nonprofit in Switzerland, who claims the very integrity of association football is at stake — and he’s a man who knows about integrity. Your Defendant today is Donny, a start-up entrepreneur who says FIFA’s regulations just aren’t suited to the North American game, and he’s a man who knows about suits. Both parties haven’t dropped their nonexistent claims and haven’t agreed to settle their disputes here, in the honorable [cough] Judge Joseph Blatter’s forum: The FIFA Court!

PLAY OUR MUSIC!!!

What’s that you say? The prosecutor and judge are the same?

Welcome to FIFA.

It’s long-standing soccer tradition that the laws of the game exist to be stretched, obscured, and twisted. This is true of players who feel the sting of a phantom foul; of clubs discretely enquiring about player eligibility through agents and the media; of leagues struggling to survive and thrive while pressured by power players on and off the field; and it’s true of its governing body, FIFA, an organization of shady, undisclosed election results, spontaneous voting deadline extensions, and strong-armed awards and seasonal switches of marquee tournaments.

Major League Soccer commissioner Don Garber has often argued that MLS is a horse of a different color when compared to the rest of the global game, and fans like to believe in that exceptionalism, whether regarding their players’ honor or the league calendar. (For the record, I like the summer schedule.)

Still, as the division designated top in the United States by the US Soccer Federation, a FIFA member, all FIFA rules and regulations should trickle down onto the league. Typically, whenever MLS and FIFA differ, matters are settled through vocal media statements. Here we’re going to take a look at the rules themselves, specifically with regard to the latest round of MLS expansion. Expansion, along with a flurry of star-player acquisitions, has dominated US soccer coverage lately, as cities vie to advance in the MLS pecking order.

MLS has set its sights on reaching 24 teams by 2020, and several of those spots have already been filled by the soon-to-be-fielded New York City FC, Orlando City SC, and an unnamed Miami club (I’m praying for “Miami Spice”).

In all three circumstances, a substantial buy-in fee was involved, and from certain quarters the cry arises that MLS has engaged in a most distasteful practice: the purchasing of promotion from a lower league.

In most leagues such a promotional fete is earned through the effort of winning the league immediately lower. Of the three clubs brought into the MLS fold this offseason, two franchises have been plucked from the ether, but the third, Orlando City, finds itself leap-frogging from the USSF’s third Division, USL Pro (where they finished as champions last season, it should be noted), into the top flight.

But is there even anything wrong with the way things played out?

Let’s take a deeper dive into FIFA’s Regulations Concerning the Application of the Statutes, which explicitly address circumstances of promotion and relegation (Section 9 “Principle of Promotion and Relegation” on page 66). Note: I’m no Swiss attorney, so there may be nuances that go unnoticed here.

  • Paragraph 1 draws a metaphorical line under the key to a league spot: “sporting merit,” which seems to go counter to MLS’s oft-stated goals. Their emphasis has been much more on “market merit” — both the market in which the team will play, and the market for expansion fees. Still, Orlando City can make an argument for sporting merit, having shown well in the US Open Cup against MLS teams and having won their division. After all, there’s no mention that promotion must be from the immediately lower league. But worry not about impending scandal MLS fans because…
  • FIFA provides a nicely broad and vague Paragraph 2, stating the league may take into account “sporting, infrastructural, administrative, legal and financial considerations,” all of which amount to pretty much exactly what MLS does when it considers an expansion team. (As an aside, what “sporting consideration” is there besides the “merit” up in Paragraph 1?)
  • Paragraph 3 could get interesting, because it forbids changing a club’s legal structure to the detriment of the competition, but while there are lots of arguments about the benefit and detriments of OCSC going from an independent club to MLS franchisee, it’d be a hard sell to say it is definitively bad.
  • But, finally, Paragraph 4 settles things once again: It is the USSF’s job to settle any national issues, such as those potentially arising in this expansion, and they have been, to put it mildly, silently permissive of MLS’s activities. (Interestingly, the USSF is also forbidden from delegating these matters to the league, but whether their current deference goes that far is highly debatable.)

So there you have it, folks. The game has spoken: The most important thing is sporting merit — unless you need to take into account other details — and it’s the national federation’s job to step in if things are getting wonky. While MLS’s fundraising expansion fees appear unseemly at times, there doesn’t seem to be anything in the FIFA regulations definitively prohibiting this course, and the rules give MLS plenty of wiggle-room to argue.

Judge Blatter bangs the gavel, reiterates statement on growth-and-protection-of-the-game-in-America with a backhanded twist, makes an ill-timed and likely sexist remark, and rules for the Defendant.  

FIFA Court dismissed.

FOOTNOTES:

While I had the regulations open, there were a few more MLS tidbits to unpack. General Provisions, Section 18, “Status of Leagues and other groups of Clubs” (Page 15) makes an interesting read in the context of the MLS Single Entity.

Per Paragraph 2: Individual clubs must be allowed to make independent decisions on membership (including, one assumes, any decision to leave) “regardless of an affiliated Club’s corporate structure”. But most interestingly, the paragraph goes on to state that no person or “legal person” (like a company) may have “control over more than one Club whenever the integrity of any match or competition could be jeopardised.”

An interesting thought, with debatable meaning, in context of MLS player distribution, but it brings me back to an even more fundamental question: Are MLS clubs really truly even “Clubs?” If they are simply a subpart of MLS, is MLS both a league and a member club as affiliated with the USSF? Curiouser and curiouser…

Lastly, part of the inspiration for taking a look at FIFA’s regs was the rumbling that FIFA had a limit on the number of clubs that could be in a league, and how that limit would bump up against MLS’s expansion plans. Upon investigation, I can’t find any evidence of one in the rules, and the only rationale I’ve seen given online is protection of players by limiting matches. (If you’ve come across something, feel free to reach out to me or leave a comment!) I’m dubious in general, but it seems unlikely MLS will run into issues any time soon.

There are several 24-team leagues who also play multiple cup or Champions League matches on top of individual players’ international requirements. If FIFA was trying to limit games for player safety, they should look to Britain and Europe first. For example, In 2012-13, Chelsea (with a squad full of internationals) played 69 matches in all competitions immediately after Euro 2012 with World Cup qualifying sprinkled in all year. Targeting the US league first would be a clear mark of FIFA hypocrisy, and so, I suppose, it is highly likely.

****

OTF’s Alex White is a Georgian-in-exile who’s fallen for the Windy City, and an Illinois attorney — but for the love of all that is Good, do not get your legal advice from something you saw once on the internet, including anything he says. Follow Alex for non-legal opinions @A1exWhite or send him an email at alexander.mc.white@gmail.com

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