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The probably counterproductive promotion/relegation legal action

“Wow, it really looks like things might be happening with promotion/relegation in this country! Peter Wilt’s third-division league, intending to link D2 with the top amateur/semipro leagues, seems to be getting a good reception. And most of the responses to my survey are positive. Granted, a lot of those responses are self-selected — the USL, NASL and most of the NPSL clearly deleted the email — and I had a good talk with a PDL manager who reminded me that the vast majority of PDL clubs are in no position to move up, so we’ll still have to be cautious …”)

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OK then. Let’s just take the smattering of progress the pro/rel movement is making and lob a grenade at it.

Miami FC (or “The Miami FC,” as they’re billed in the press release) already made waves in the pro/rel scene with a clever PR stunt — owner Riccardo Silva’s “offer” of $4 billion for 10 years of MLS media rights if the league would go pro/rel. Kingston Stockade owner Dennis Crowley is part of a new breed of soccer owner who throws open the books and shows how things are really going. He’s learning the business side, and he wants us all to learn with him. It’s an undeniably cool experiment.

But this filing has several issues. In no particular order (some major points, some picayune):

1. The FIFA statute. This isn’t the first time we’ve heard pro/rel proponents citing page 73 of the current FIFA statutes. Under “Sporting Integrity” in “The Regulations Governing the Application of the Statutes,” Article 9.1 reads: “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.”

But then Article 9.2 says this: “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.”

An analysis by lawyer Terry Brennan suggests 9.2 doesn’t totally overrule 9.1. But he also raises a few interesting contextual issues about why this was put in place — namely, to keep clubs within pro/rel leagues from pulling all sorts of shenanigans to shuffle clubs from place to place and division to division. (He doesn’t mention Mexico but cites an example from Spain that drew a clarification from FIFA that mentions, without objection, “closed leagues” such as those in the USA and Australia.)

Here’s the bottom line: Leagues clearly have leeway to set standards. FC Small Town United can’t grab MLS status with a 5,000-seat stadium. And there’s that word “legal.”

MLS was founded by soccer-loving lawyers, some of whom are still there. You want to bet against their legal team in this argument?

2. Court of Arbitration for Sport. If they were eager to wade into a U.S. legal issue, wouldn’t we have heard something about the issue of solidarity payments — to me and surely others, a more pressing issue — by now? Besides, they still have a global dispute over American football to handle. Seriously.

3. U.S. Soccer. The federation might have the power to end this right away by saying they’re committed to it at the right time. Here’s the precedent from Australia. (Thanks, First Eleven!)

4. Curious bits of the filing. First — there is no official fourth division designation in the United States, so the filing probably shouldn’t say it does on page 7. (Correct me if I’m wrong, but I’ve checked with people in a position to know, and I’ve never come across it in reading years and years of USSF papers.)

Also, I love Wikipedia, but is that really how you want to identify one of the parties in this?

wiki-concacaf

Next — it’s rather curious to appeal to a FIFA statute to impose “sporting merit” as the sole criterion for division status and then complain that lower-division clubs can’t make to the Club World Cup because MLS clubs keep winning the U.S. Open Cup.

5. Tons of countries have firewalls between the amateur and pro ranks. In England, the system was rigged against amateur clubs joining the 92-club Football League for decades. (That’s why I think we can do it better.) Ireland has two pro tiers (barely) and no formal pro/rel between that and the amateur ranks. (Yes, I know I’m citing Wikipedia soon after saying it’s odd to see such a citation in a legal document, but lawyers get paid a lot more than I do, I have no reason to dispute Wikipedia on this, and why are lawyers citing Wikipedia to tell us where CONCACAF exists?) The Netherlands, where soccer reigns supreme and travel costs are nil, only started forcing amateur clubs up the pyramid last year.

Add it all up, and the likelihood of this filing succeeding seems minimal.

Of course, it’s possible that the filers know they’re not going to win, just as Silva surely knew he wasn’t going to walk out of MLS HQ with the league’s future media rights in exchange for a pro/rel pyramid. This smells like a PR stunt.

So here’s the question: What’s the harm? There was no harm in Silva’s media-rights bet. How about this?

If it goes away quietly, no harm done. But there’s a danger in having an ongoing legal battle. MLS’ growth was hindered, quite substantially, by a lawsuit from its players that dragged on far longer than anyone anticipated. If you’re thinking of investing in soccer on any level in this country, would a legal dispute make you hesitate?

And lawsuits have a way of making each side bunker in.

So I have to ask: Given all the progress being made on pro/rel (check out next week’s Ranting Soccer Dad podcast), why was this considered a good idea?

 

 

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