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FIFA legal North America

Breaking Down The CAS Decision Against Compelling Promotion and Relegation In US

Court of Arbitration For Sport (“CAS”) denies claim brought by Miami FC and Kingston Stockade FC

CAS interprets Article 9, rules FIFA never intended the promotion-relegation principle to apply to the U.S. and Australia.

MIAMI, Fla. (March 30, 2020) —

This year has already seen a couple of interesting legal cases in the football world. While the sports world is on hold and world economies sink, it seems like a good time to revisit a recent development in the subject of promotion and relegation in the United States. It involved an attempt to force promotion and relegation in the United States and, by extension, upon Major League Soccer.

The Court of Arbitration for Sport (“CAS” French: Tribunal arbitral du sport, or “TAS”), the Lausanne, Switzerland-based judicial body seen as the highest authority in the adjudication of international sporting disputes, heard the appeal on a long-awaited decision in a case which had the potential to alter the organisational structure of soccer in the United States and which would have begun the process of bringing it in line with the rest of the football world.

Many observers and insiders in the soccer business saw the case as the best possible chance of having judicial intervention align the US Soccer pyramid with customary league structures around the world. To date, neither FIFA or Concacaf have pushed the issue.

The main proponent behind the case was the Miami FC’s owner Riccardo Silva, who was the former head of media rights agency MP & Silva. He was joined by Kingston Stockade FC, a small Upstate New York club, led by chairman Dennis Crowley, an American entrepreneur who was the co-founder of Foursquare. Collectively, the Miami FC and Kingston Stockade FC were referred to as the “Claimants.”

Riccardo Silva, Owner, The Miami FC

After hearing the appeal, the CAS ruled against the Claimants, ruling that FIFA’s Article 9 does not compel the body to require the US Soccer Federation to implement promotion and relegation into the US Soccer league structure.

Reaction from the Miami FC was swift. Upon hearing their claim was denied. Riccardo Silva, confirmed the defeat and expressed disappointment in the ruling.

“Two and a half years after the filing of this case, the CAS arbitral tribunal has finally rendered its decision. The CAS panel found that the wording of Article 9 of the FIFA Regulations could arguably lead one to believe that the rule is universally applicable, and that the system implemented in the United States is not compliant with Article 9.

However, the tribunal ruled that FIFA has considerable discretion and deference when it comes to the interpretation of its statutes, and concluded that FIFA didn’t intend for the rule to apply to US soccer.  We are proud to have raised an issue which has been affecting soccer in the USA for many years. We respect the CAS ruling, but we still believe that an open, merit-based system would bring major benefits to the quality of the game, and would create inclusive, competitive and non-discriminatory soccer in the USA.”

Riccardo Silva, Owner, The Miami FC

In addition to ruling against the Clainants, the court ordered both clubs to each pay 15,000 Swiss francs ($15,350) toward USSF’s legal costs and 7,500 Swiss francs ($7,675) to each of FIFA and Concacaf.

Quick Summary: What The CAS Ruled

  • FIFA never intended the promotion-relegation principle to apply to the U.S. and Australia;
  • Although FIFA may not like closed leagues, they can be allowed if a domestic professional championship never had promotion and relegation between divisions;
  • Closed leagues are the norm in the United States and lawyers for the two clubs ”did not argue why such practice could not be maintained in soccer.”

Background and Travel of the Case

The legal battle against U.S. Soccer lasted for over two-and-a-half years.

In 2017, the Miami FC, a second-division club currently in the United Soccer League Championship (USL), and Kingston Stockade FC, a semi-professional club playing in the National Premier Soccer League (NPSL), collectively referred to as the “Claimants,” brought claims in the CAS against FIFA, Concacaf, and the USSF (collectively referred to as the “Respondents”) to require that FIFA enforce promotion and relegation in the United States. The three separate demands for arbitration against each of the Respondents were then consolidated into one arbitration.

The thrust of the argument put forth by the Claimants is that the Respondents, by operating MLS (or by allowing MLS to operate) as a “closed league”, deprive the Claimants of any (realistic) chance to “climb the ladder”, as teams from lower divisions have no chance to gain access to MLS through their on-field performance. Consequently, teams from lower divisions have in effect no realistic chance to qualify any international club competition. The Claimants argue that this is in contravention of FIFA rules where participation is to be based on sporting merit, and, as a result has the effect of depriving the Claimants of any right to access premium competitions in the USA, CONCACAF and FIFA. The inability to access these markets causes severe financial damage to the Claimants.

The case was heard in a one-day session in New York on May 7, 2019. It included witness statements from former FIFA secretary general Michel Zen-Ruffinen and two former USSF presidents, Alan Rothenberg and Sunil Gulati.

After a decision in favour of FIFA, the two clubs appealed. That appeal was considered on February 3, 2020 by the CAS.

Analysing The CAS Decision:

Provision Invoked

The Claimants’ case cited a sub-section of the FIFA statutes stating ”a club’s entitlement to take part in a domestic league championship shall depend principally on sporting merit.” [It is worth noting that the FIFA article also notes participation ”may be subject to other criteria.”]

On May 30, 2008, the FIFA Congress adopted Article 9 of the FIFA Regulations Governing the Application of the FIFA Statutes (the “RGAS”). This provision (headed “Principle of promotion and relegation”) provides as follows:

9 Principle of Promotion and Relegation

1.
A club’s entitlement to take part in a domestic league championship shall depend principally on sporting merit. A club shall qualify for a domestic league championship by remaining in a certain division or by being promoted or relegated to another at the end of a season.
2.
In addition to qualification on sporting merit, a club’s participation in a domestic league championship may be subject to other criteria within the scope of the licensing procedure, whereby the emphasis is on sporting, infrastructural, administrative, legal and financial considerations. Licensing decisions must be able to be examined by the member association’s body of appeal.
3.
Altering the legal form or company structure of a club to facilitate its qualification on sporting merit and/or its receipt of a licence for a domestic league championship, to the detriment of the integrity of a sports competition, is prohibited. This includes, for example, changing the headquarters, changing the name or transferring stake holdings between different clubs. Prohibitive decisions must be able to be examined by the member association’s body of appeal.
4.
Each member association is responsible for deciding national issues, which may not be delegated to the leagues. Each confederation is responsible for deciding issues involving more than one association concerning its own territory. FIFA is responsible for deciding international issues involving more than one confederation.

Background To The Enactment of Article 9

Promotion and relegation predates the adoption of Article 9 by many years, so it’s interesting to add the proper context into why FIFA would feel it necessary in 2008 to codify an already well-established concept.

That context behind the enactment dates from 2007. Club de Fútbol Ciudad de Murcia, a club that had been formed in 1999 and had reached the Spanish second division, was sold. The new owners decided to relocate the team to Granada, some 277 kilometres away, and change its name to Granada 74 CF. The players still under contract with Ciudad had the option to cancel their contracts or stay on with the newly formed club.[1] Not only is relocation very rare in Spain, but to give the matter further controversy, the team also wanted to retain its second division status. The RFEF (Spanish FA) attempted to stop this, but lost after the dispute was heard by the CAS.

Having lost in court, FIFA set out to prevent such incidents in the future. Thus, FIFA drafted language, which was later adopted. It is this “sporting merit” provision that has formed the basis of the pro/rel movement in the United States ever since.

Criteria For Admission To MLS

Major League Soccer is the officially sanctioned First Tier League in the United States and Canada. It operates as a limited liability company, whereby the individual franchise owners are members (i.e. investors) in MLS itself. It is a closed league, meaning no teams can be relegated to a lower division or promoted into MLS due to finishing top of the second-tier. New teams enter by being accepted by the league’s expansion committee comprised of owner/operators, pursuant to its own criteria, and by the payment of a hefty expansion fee that increases with each new team. That criteria is not publicly available information, but a glimpse at a post on the league’s website from December, 2016 is informative:

Qualified applicants will submit documentation that focuses on the following three areas: 1) Ownership – Structure and Financial Informations 2) Stadium – Details on proposed site, financing, approvals and support; and 3) Financial Projections, Corporate Support and Soccer Support – A business plan, projections and commitment letters for naming rights and a jersey front sponsor, along with an overview of support from the soccer community.

According to that same source, MLS considers the following three aspects to be key when reviewing candidates: 

  1. A committed local ownership group that has a passion for the sport, a deep belief in Major League Soccer and the resources to invest in the infrastructure to build the sport in their respective market;
  2. A market that has a history of strong fan support for soccer matches and other sporting events, is located in a desirable geographic location and is attractive to corporate sponsors and television partners;
  3. A comprehensive stadium plan that ensures the club will have a proper home for their fans and players while also serving as a destination for the sport in the community.

The financial requirements can best be described as “onerous” — the expansion fee alone has risen to $325,000,000 (Charlotte, NC) to say nothing of requirements for stadium and academy investments. Tellingly absent on the list of bona fides is “sporting merit,” which is a source of eternal frustration among those who would like to see the top second or third division teams, like the Miami FC and Kingston Stockade, have the opportunity to rise up through the ranks based on performance on the field. 

Arbitral Award

The 67-page CAS Decision Can Be Read In Its Entirety Here

Did the Miami FC and Kingston Stockafe FC have standing? 

Going behind the ruling, here is what the court said and its justifications. At the outset, there was a discussion of whether The Miami FC had standing to sue at all (i.e. were they a party who could properly bring this case to the court in the first place?) It is a general principle of most legal systems that a court will not hear a party or entertain any of that parties’ allegations if the party does not have “standing” to sue.

CAS noted that at the time the petition was brought, the Miami FC was a member of the NASL, a professional soccer league having second division status within U.S. Soccer. The club thus had standing to bring the petition. However, while this case was pending, the Miami FC left the NASL, and both U.S. Soccer and FIFA argued that this meant the club lost its standing, as it was then not a member of any professional league sanctioned by U.S. Soccer.

As for Kingston Stockade FC, at no time during these proceedings was the club a member of a professional league sanctioned by U.S. Soccer. The NPSL is not a professional league member of U.S. Soccer, bur rather a member of the United State Amateur Soccer Association, which governs adult amateur soccer in the United States, and, which in turn, is a member of U.S. Soccer. Thus, U.S. Soccer and FIFA argued that Kingston Stockade FC did not have and never had standing to pursue the pending
claim.

The CAS tribunal said that the issue of standing “has nothing to do with Claimants’ right to sue the Respondents in a CAS arbitration. Rather, the question of standing is relevant to determine whether the Panel has to uphold or deny the Claimants’ prayers for relief.” USSF confuses the issue
of “standing” pursuant to Swiss law with the interest that needs to be shown for filing an appeal in proceedings before the CAS. The correct test to assess standing, according to the CAS, was whether or not the Claimants are “indirect members” of the Respondents and hence can rely on the statutes.

In analysing this issue, the Panel held that Kingston Stockade FC had standing because it is a member of a league sanctioned by the USASA, which in turn is a member of the USSF. Kingston Stockade FC therefore is an indirect member of USSF. As an indirect member, Kingston Stockade FC has the right to sue the Respondents to force them to act in line with their statutes and by-laws.

The arbitration panel also found that the Miami FC had standing. While the club withdrew from the NASL, it joined the NPSL and fielded a team under the name of Miami FC 2. Hence, Miami FC, like Kingston Stockade FC, qualfied as an indirect member of all three Respondents and therefore had – in keeping with the jurisprudence of the Swiss Federal Supreme Court and the CAS – the right to sue the Respondents. It is interesting to point out that the CAS noted that the Miami FC did not withdraw from the NASL by choice. The Panel inferred that the the USSF acted arbitraily in sripping the NASL of its second division status, thus forcing the league to cancel both its 2018 and 2019 seasons: “In September 2017, USSF stripped the NASL of its Division II professional status. The criteria on which this assessment was based are, however, purely arbitrary. Unlike what USSF claims on page 6 of its Motion, USSF’s league classification into divisions currently has nothing to do with the level of play… It is highly abusive for the Respondents to argue that Miami FC has lost its standing due to withdrawing from the NASL when USSF’s (deliberate) actions are the very reason why the NASL has ceased to operate,
which in turn forced Miami FC to withdraw.” [Decision, page 34.]

Merits Of The Case

Beyond a discussion of standing, there are three substantive portions of the ruling which outline the reasoning behind the decision:

  • i. Does Article 9 of the FIFA Regulations Governing the Application of the Statutes require that the principle of promotion and relegation be implemented in US professional soccer?
  • ii. Do the Respondents violate Swiss law on associations by not enforcing the principle of promotion and relegation?
  • iii. Do the Respondents violate Swiss competition law by not enforcing the principle of promotion and relegation?

The Panel made a point of stating that it was not in dispute among the Parties that their relationship is not contractual in nature. Therefore, Article 9 RGAS was not to be interpreted according to the general principles applicable to interpretation of contracts, but rather by the methods of interpretation applicable to statutes and articles or by-laws of legal entities. [Decision, page 48] The starting point would be the literal words of the text. From there, if there are reasons to believe that the core meaning of the text is not clear, then attention could turn to other methods to interpret the statute, including sich items as the drafting history of the provision.

Does Article 9 require that the principle of promotion and relegation be implemented in U.S. professional soccer? 

To support their petition, the Claimants argued that Article 9 of the RGAS requires that FIFA’s member associations implement a promotion/ relegation pyramid, that such a system be based principally on sporting merit and that FIFA’s failure to enforce its own statutes exceeds its authority.

FIFA, on the other hand, countered that promotion-relegation is not mandatory, but, where it is put into place by a national association, the primary consideration should be sporting merit.

The panel initially found under Swiss law and the Swiss Constitution, that as a private Swiss association, FIFA is afforded a significant amount of deference in interpreting its own rules and regulations. Because FIFA’s argument is that Article 9 does not apply to the USSF, the threshold to show that their lack of enforcement is unreasonable and exceeds its authority “is rather high,” according to the ruling.

Why does FIFA not believe that Article 9 applies to the United States? 

While the system of promotion and relegation “shall principally depend on sporting merit,” the panel found that this does not mean all FIFA member associations are required to implement the pro-rel system. At the same time, it also does mean they are exempt, either:

“The provision however does not say that all FIFA member associations are obliged to implement a system of promotion and relegation, nor that certain member associations are exempted. Furthermore, Article 9(2) RGAS gives guidance as to other factors that may be taken into account in a system of promotion and relegation besides the principal factor of sporting merit.”

CAS 2017/O/5264 Miami FC & Kingston Stockade FC v. FIFA / CAS 2017/O/5265 Miami FC & Kingston Stockade FC v. CONCACAF / CAS 2017/O/5266 Miami FC & Kingston Stockade FC v. USSF, Par. 201.

Given the fact that Article 9 RGAS on its face does not mention promotion and relegation, the court turned to other methods in an attempt to provide context and interpret the meaning of the Article. To that end, the panel noted that pursuant to Article 9(2), any club — even one participating in a conventional pyramid system — could be prohibited from playing in a particular league if they do not comply with other requirements, “such as sporting, infrastructural, administrative, legal and financial….” Thus, the tribunal found there are other reasons beyond play on the field that could prevent a team from ascending or descending a given country’s football ladder, criteria such as the financial viability of the owenrship group or stadium requirements. To take but one example from within the Concacaf region, Mexico has repeatedly struggled with teams who gained promotion through on-field performance (i.e. “sporting merit”) but were unable to be promoted from the second division to Liga MX due to a failure to meet minimum financial and stadium standards. The inference to be drawn is that Article 9(1) must be read in conjunction with Article 9(2).

However, the inference is just that, an inference, and the words of Article 9(1) and 9(2) do not, on their face, resolve the ambiguity as to whether pro-rel is an actual requirement of FIFA. While conceding that sporting merit “should be the principal criterion,” and that “the wording of Article 9 RGAS could arguably lead one to believe that Article 9 RGAS is universally applicable and that the closed system in place in the United States is therefore not compliant, the tribunal found this is not a deciding factor, in light of the fact that some FIFA members did not utilize the pro-rel system when Article 9 was enacted. Therefore, to take it one step further and try to solve this ambiguity, the panel initiated an historical analysis behind the enactment of Article 9 to assess not only its meaning but the intent of the drafters of the statute.

To accomplish this, the panel turned to a set of documents known as “working documents,” (les traveaux préparatoires) consisting of communications between various FIFA executive committee members, minutes of committee meetings and interviews with then-FIFA president Sepp Blatter after the 2008 FIFA Congress prior to the enactment of the statute.

FIFA’s position on this was that the statute was only implemented to
prevent “Granada-like” situations from being repeated, but never to require member associations to implement a system of promotion and relegation. In examining FIFA’s working documents, the court found a significant volume of these were available which touched on the implementation of Article 9 RGAS, consisting of minutes of FIFA’s Strategic Committee, the FIFA Legal Committee, the FIFA Executive Committee and the FIFA Congress, as well as various documents distributed by FIFA to its members (i.e. a Circular, an interview with then FIFA President Sepp Blatter after the 2008 FIFA Congress, a communication published on 12 March 2008).

The minutes from an October 28, 2007 meeting of FIFA’s Bureau of the Legal Committee supported FIFA’s position, showing that the organisation was primarily concerned with a potential reoccurrence of the “Granada situation,” whereby a team would again be sold and relocated, while trying to keep its division status:

“After a prolonged discussion, the members agreed that the proposal was an initial milestone in preventing future ‘Granada’ cases. They decided to recommend that the executive committee accept the proposal (Article 9) without any amendments.”

CAS 2017/O/5264 Miami FC & Kingston Stockade FC v. FIFA / CAS 2017/O/5265 Miami FC & Kingston Stockade FC v. CONCACAF / CAS 2017/O/5266 Miami FC & Kingston Stockade FC v. USSF, Par. 212.

The very next day the FIFA Executive Committee met. The minutes of this meeting note that the Legal Committee had drafted “a new article concerning the promotion and relegation of clubs for inclusion in the [RGAS] in order to ensure clubs were promoted on sporting merit alone and to prevent a repeat of the recent case in Spain.” Chuck Blazer (who passed away in 2017), the former FIFA executive committee member, CONCACAF general secretary and executive vice president of the U.S. Soccer Federation was in attendance. Blazer raised concerns about the impact the language might have on clubs within leagues “that did not have promotion and relegation.” (a direct reference of course to the United States). [Blazer was more known for his extravagant lifestyle and legal problems that eventually led to him becoming an FBI informant.] He wanted assurance that the language in Article 9 would not have any effect on the structure of soccer in the U.S. 

The minutes from the meeting on October 29 further show that Blazer’s argument carried the day: “Following a comment from Chuck Blazer, it was agreed that the wording would be reviewed to ensure that it did not have any effect on the movement of clubs within leagues that did not have promotion and relegation.” The meeting minutes further state:

Nevertheless, in order to avoid any misunderstandings, the Executive Committee unanimously agreed that the existing set-up of the leagues in the USA and Australia would not be affected by the new provisions.

CAS 2017/O/5264 Miami FC & Kingston Stockade FC v. FIFA / CAS 2017/O/5265 Miami FC & Kingston Stockade FC v. CONCACAF / CAS 2017/O/5266 Miami FC & Kingston Stockade FC v. USSF, Par. 214.

Blazer even tried to get the phrase “where promotion and relegation exists” into the statute, but that phrasing wasn’t used because the FIFA Congress determined it would be “superfluous.” Had the Congress listened to him, it’s likely this issue could have been avoided altogether. 

At the conclusion of the FIFA Congress on May 30, 2008, as Article 9 was adopted, the panel notes that then-FIFA president Sepp Blatter gave a press conference where he declared, “We have clearly said that the decision taken by Congress will not affect existing leagues, although it will send a strong indication for them to adopt (Article 9).”

FIFA’s post-passage conduct

Would any actions of FIFA after the adoption of Article 9 RGAS demonstrate the intent of the statute that the claimants advance? Miami and Kingston argued that after passage of Article 9, FIFA contradicted their position by their actions in pressuring the Australian FA to institute promotion and relegation. Referred to as the “Australia Letters,” Miami and Kingston argued that FIFA responded to the announcement that A-League clubs in Australia would be granted licenses to remain A-League clubs until 2034, despite the introduction of a second-tier league in Australia known as the National Premier League, according to the ruling.

The claimants cite approximately eight letters between February 2014 and May 2016 which show that FIFA informed, and pressured, the Australian federation to make sure that promotion and relegation was a part of their plans.

To counter that, as it pertains to the United States, the panel says there is no indication that FIFA did or was planning to pressure the U.S. to implement promotion and relegation. In fact, with an excerpt from an August 28, 2013 letter from FIFA director of legal affairs Marco Villiger to then-U.S. Soccer president Sunil Gulati, the panel finds that FIFA provided assurances that they would not push to institutie promotion and relegation. “Good news, attached the ExCo minutes of December 2007 and under 11.1 you are safe regarding promotion and relegation,” the excerpt reads. [CAS 2017/O/5264 Miami FC & Kingston Stockade FC v. FIFA / CAS 2017/O/5265 Miami FC & Kingston Stockade FC v. CONCACAF / CAS 2017/O/5266 Miami FC & Kingston Stockade FC v. USSF, Par. 233.]

Additionally, the Panel cites a passage from a September 2014 FIFA Associations Committee meeting regarding cross-border leagues, in which a so-called exemption for MLS is referenced. It reads: “In any case, MLS is so to speak already an “exception” for the FIFA statutes (promotion and relegation principle)….” [Par. 234.]

Gulati’s role in those email exchanges is particularly interesting, and begs the question why he was seeking assurances about promotion and relegation. A source with knowledge of the situation indicates the reason is that a representative from Concacaf had started to circulate draft regulations that 1) would have recognized the status and importance of Article 9 as it pertains to promotion and relegation, and 2) would have required CONCACAF members to develop a timetable to implement the system. Gulati, who long eschewed implementing the system, then went to FIFA to seek assurances that the governing body would not enforce Article 9. 

In the years since, the Panel said FIFA essentially abandoned its push to have the Australian federation immediately install promotion and relegation, especially when it became clear that the system was not likely to be implemented any time in the near future. The A-League currently has only 11 teams, and appears to be in a slow-growth phase that will see it grow to 12 teams by the start of the 2021 season. There appears to have been no further discussion on the topic between the Australian federation and FIFA since 2016.

Conclusion

The conclusion from the Panel seems to be based in part on an interpretation of Swiss law that private Swiss associations enjoy a large degree of autonomy in interpreting their internal laws, combined with some practical concern over the implications of forcing FIFA to impose their will regarding Article 9. 

“Recognized by the Swiss federal Constitution and anchored in the Swiss law of private associations is the principle of autonomy, which provides an association with a very wide degree of self-sufficiency and independence. The right to regulate and to determine its own affairs is considered essential for an association and is at the heart of the principle of autonomy. One of the expressions of private autonomy of associations is the competence to issue rules relating to their own governance, their membership and their own competitions. However, this autonomy is not absolute.” (CAS 2011/O/2422, para. 55 of the abstract published on the CAS website; see also CAS 2014/A/3828, para. 143 of
the abstract published on the CAS website)

Essentially, the Panel concludes that 1) Article 9 did not literally mandate that every FA impose promotion and relegation, particularly where it didn’t already exist; 2) While “sporting merit” should principally govern whether a team ascends or descends a given country’s soccer pyramid, other factors exist which could prevent such moves; 3) The historical record shows that the FIFA Congress declined to include language which would mandate federations without promotion and relegation to implement such a system; 4) Nothing that FIFA did in the aftermath of the 2008 Congress indicates they sought to mandate that any of the so-called “rogue” federations to implement the system; 5) the failure to require promotion and relegation in member associations neither violated Swiss laws on private associations nor Swiss competition law, and 6) there are public policy grounds which weigh against forcefully mandating promotion and relegation.

“It is therefore apparent that the FIFA executive committee did not have the intention to impose a duty on all of its members to implement the principle of promotion and relegation,” the ruling says. “Rather, the principle was only mandatory for those member associations that had already implemented the principle.” The panel concludes that FIFA is “sympathetic” to conditions in some countries where promotion and relegation has yet to be implemented.

Although FIFA may not like closed leagues, it condones closed leagues in member associations as long as such member has not previously implemented the principle of promotion and relegation in its professional leagues. Accordingly, unlike in member associations with open leagues, clubs in the United States do not have a right to
participate in the MLS even if sporting merit would justify that they do.

CAS 2017/O/5264 Miami FC & Kingston Stockade FC v. FIFA / CAS 2017/O/5265 Miami FC & Kingston Stockade FC v. CONCACAF / CAS 2017/O/5266 Miami FC & Kingston Stockade FC v. USSF, Par. 276.

The Panel’s “public policy considerations argument” in denying the claim is also significant. Therein, they note that a “sudden obligation for USSF to implement the principle of promotion and relegation” would have a disruptive effect on U.S. professional soccer, according to the ruling. Additionally, the panel concludes that such a change would potentially cause risk to the investments made by owners and “could very well have triggered lawsuits from the clubs prejudiced by this sudden change of rules.” [Par 242.]

Implications And Moving Forward

It would be safe to say that motivating FIFA to compel promotion and relegation in the United States soccer system is a moot issue now. The CAS was able to string together a conclusion why Article 9 does not apply to the US or Australia (i.e. member associations where promotion and relegation have never been followed). And, with the CAS decision in this case there is also legal precedent against compelling pro-rel in the U.S. Some will see this as permanent. If FIFA were to change course now, there would certainly be additional litigation.  

But it would be foolish to think that the fight to bring pro-rel to the United States is over. Rules are made to be changed, and a future body of FIFA executives could certainly give Article 9 the same interpretation that the claimants argued in this case. Further, as the CAS noted, FIFA has wide discretion in how it conducts its affairs.

No, the fight for pro-rel is far from over in the United States. Even if the U.S. Soccer Federation will not pressure MLS, fearful of lawsuits, it could always sanction another league in the future that have the pro-rel principle baked into its business models. For example, the United Soccer League (USL) have already discussed possible movement between their USL Championship, League One and League Two divisions in the coming years. There has also been speculation that all USL teams that are directly owned by MLS might need to be placed in USL One, which would be the highest league they could play in. While there likely wouldn’t be a push by USL for promtion- relegation with MLS, given the constant growth in quality and infrastructure in the USL Championship, might they apply some time in the future, as USL already did once, for an “upgrade” in status in the U.S. Soccer pyramid? It is not an inconceivable possibility.

Meanwhile, Riccardo Silva’s representatives are “proud of their fight” and still believe that “an open, merit-based system would bring major benefits to the quality of the game, and would create inclusive, competitive and non-discriminatory soccer in the USA.” It’s hard to argue aginst that point.


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AP News, Feb 7, 2020

By Ken Russo

My work in the business of soccer applies skills acquired in law practice with the commercial, communications and team operations side of the sport. Russo Soccer aims to inform, educate and engage in dialogue on the business and sporting side of the world's game.

Um advogado por formação, concentro meu trabalho nos negócios, comunicações e operações de equipes no futebol mundial. | Abogado con fundación avanzada en comunicaciones, enfocado en los negocios del fútbol y las comunicaciones. | Je suis un avocat experimenté dans les affaires de football.

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