Play On? An Evaluation of FIFA's Legal Regime and Its Foundation in Alternative Dispute Resolution.

• Author: Sanders, Blaine

TABLE OF CONTENTS I. INTRODUCTION 284 II. FIFA's INFLUENCE AND ORGANIZATION 286 A. FIFA's Stature in World Soccer 286 B. Understanding FIFA's Power and the Appeal of FIFA Membership 290 III. KEY FEATURES OF FIFA'S LEGAL REGIME 292 A. Alternative Dispute Resolution 292 B. Article 50 Committees 293 C. The Transfer Market and FIFA's Football Tribunal 294 D. Enforcement of FIFA's Legal Regime 298 IV. FIFA AND THE COURT OF ARBITRATION FOR SPORT 300 A. How Does CAS Hear FIFA-Related Cases? 300 B. Issues with FIFA's Reliance on CAS: The Seraing Case 301 V. EVALUATING THE EFFICACY OF FIFA'S LEGAL REGIME 304 A. Where FIFA's Legal Regime Succeeds 304 B. Shortcomings of FIFA's Legal Regime 305 VI. MOVING FORWARD: MODEST PROPOSALS FOR REFORM 308 VII. CONCLUSION 313 I. INTRODUCTION

The United States Women's National Soccer (1) Team has transcended sport in America, not only through its triumphs in international tournaments but also off the field. With its stars persistently shedding light on the players' unequal pay scale (relative to the men's team) and the US Soccer Federation's (USSF) discriminatory treatment, the team now represents a part of the social justice movement in the United States. (2) The US Women's National Team has garnered much attention for its federal lawsuits alleging pay inequality and gender discrimination against the USSF, with President Joe Biden even encouraging the women to not "give up this fight" and threatening the USSF with funding cuts in the future. (3) Perhaps most noteworthy about the US Women's National Team's litigation is the jurisdiction: the United States' federal court system. In the world of soccer, domestic courts adjudicating employment law disputes is a rarity, making the litigation involving the US Women's National Team an outlier. (4) Rather than delegate rule-making and adjudicatory powers to domestic legal systems, the Federation Internationale de Football Association (FIFA) has gone to great lengths to establish and maintain its own private system of governance to regulate and resolve disputes in soccer. As this Note will explore, FIFA has designed its own legal regime to keep soccer-related disputes and lawsuits out of domestic court systems, potentially to the detriment of involved parties.

FIFA has unparalleled power in the world of sport. Simply put, soccer is the world's most popular game. FIFA tasks itself with governing national soccer federations, clubs, and competitions around the globe. (5) In a world full of national teams and clubs willing to invest millions in players, coaches, youth development, and stadiums, legal disputes arise with regularity. These conflicts often involve parties from different countries, creating complicated legal disputes that domestic courts and arbitral tribunals struggle to adjudicate and oversee. Unwilling to abdicate such authority to other judicial bodies, FIFA has created its own legal regime. This model of self-governance contains the FIFA Statutes, various FIFA codes, internal quasi-judicial committees, and an effective system of enforcement. Moreover, if its internal mechanisms of dispute resolution and/or adjudication prove insufficient, FIFA obligates confederations, member associations, leagues, teams, players, and other involved actors to arbitrate disputes in the Court of Arbitration for Sport (CAS). (6)

Parties in FIFA-related disputes enjoy certain advantages under FIFA's legal regime. FIFA and CAS have developed an advanced body of soccer law that provides parties with certainty when legal disputes arise. Moreover, parties to FIFA-related disputes, often located in differing jurisdictions, are subject to FIFA's various codes, which apply transnationally so as to reduce transaction costs for parties in the course of business and dispute resolution. FIFA's adoption of alternative dispute resolution mechanisms has facilitated greater flexibility and speedier adjudications of cases. Finally, given that its quasi-judicial bodies handle hundreds of cases each year from parties around the world, FIFA's legal regime deserves credit for its durability and consistency.

Though FIFA succeeds in supervising the conduct and legal disputes of countless actors throughout the world, the expansive nature of its legal regime is subject to justifiable criticism. FIFA's rules and regulations conflict with other jurisdictions' labor and contract law, potentially reducing the rights of actors in the soccer sector. The dominance of FIFA's institutions operates in tension with the European Union's (EU) competition law, though FIFA has yet to be formally challenged. Lastly, FIFA prevents parties from filing lawsuits in domestic court systems, functionally reducing access to justice for vulnerable parties. Given these shortcomings, FIFA should welcome reform proposals that further increase the legitimacy of its institutions.

Part II of this Note will analyze FIFA's hegemony over soccer and outline its organizational and membership structure. Part III will explore internal institutions involved in rulemaking and adjudication and then provide an overview of the transfer market system and the Football Tribunal. Part IV will discuss the primary appellate body for FIFA-involved decisions, CAS, and its critical role in FIFA's legal regime. Part V will elaborate on the efficacy of FIFA's legal regime, focusing on the advantages and disadvantages of FIFA's embrace of alternative dispute resolution. Lastly, Part VI of the Note will propose that FIFA adopt certain statutory supplements and amendments to its FIFA Statutes to further enhance its legal regime.

2. FIFA's INFLUENCE AND ORGANIZATION

   1. FIFA's Stature in World Soccer

      To begin to understand FIFA's influence around the globe, one must recognize soccer's popularity, importance, and wealth. Soccer's position as the world's biggest sport remains "uncontested." (7) While soccer has long been the favored sport in Europe and the Americas, soccer now continues to grow due to significant increases in interest and fandom in China and India. (8) With this uptick in popularity in Asia, coupled with its steady emergence in the United States, soccer now appeals to more people than ever in the biggest markets in the world. As a point of comparison, estimates peg soccer as having more followers than both Christianity and Islam, the two largest religions in the world. (9) Indeed, a study found that 60 percent of all European soccer fans considered soccer to be "like a religion to [them]." (10) From the infamous 1969 "Football War" between El Salvador and Honduras to the underlying sectarian conflict in Scotland's "Old Firm" soccer rivalry, (11) soccer's cultural impacts evidence not only the passion for the sport but also its enduring role in geopolitical conflicts. Given the mass appeal of soccer and its cultural importance throughout the world, there must be an economy to support and buttress the growth of the sport. This "soccer economy" exists, and its financial might cannot be understated. Once euphemistically considered a "working man's game," soccer no longer revolves around local communities. (12) While clubs may still reflect neighborhood loyalties, industrial towns, or some other sense of local pride, soccer is now a global business. Largely due to globalization and commercialization, soccer is now a massive industry employing millions of people: players, coaches, agents, referees, club personnel, and countless others. The ultra-wealthy in soccer are mostly centralized in Western European nations, especially England, but the financial reach of these clubs and leagues span the globe. The player transfer market provides the best illustration of the limitless spending that now characterizes soccer's elite. (13) Hampered by the COVID-19 pandemic, international player transfers in 2020 accounted for $3.92 billion of spending according to FIFA's transfer monitoring system; in 2019, clubs spent $5.8 billion on the transfer market. (14) Over the past ten years, clubs have spent a combined $48.5 billion on transfer fees, involving 66,789 players and 8,264 clubs in over two hundred nations. (15) Keep in mind that the transfer market is only one aspect of the global soccer economy. Soccer clubs and leagues also sell and spend billions in salaries, stadiums, television rights, and sponsorship deals. With soccer more popular than ever and a worldwide market for its players and broadcast coverage, soccer-related legal disputes are inevitable. Cognizant of the need for clear rules and regulations in the soccer industry, FIFA enters the picture.

      FIFA is principally considered the governing body of soccer worldwide, but its greatest success may be its organization of professional soccer into a semi-functional, pyramidal network. (16) FIFA resides at the top of the pyramid, just above six confederations that roughly represent the six inhabitable continents in the world. (17) The confederations are also governing bodies; they do not have soccer teams that compete in international competitions. (18) Within each of the six confederations belong member associations, each member association representing one sovereign nation. (19) In total, there are 211 affiliated member associations, each of which has a national soccer team. (20) The member associations, also commonly referred to as national federations, are the governing bodies of soccer in that specific nation and "involve all relevant stakeholders in football in their own structure." (21) Each member association recognizes and oversees soccer leagues operating in the country, which then contain the soccer clubs that employ the players, coaches, and many other personnel. (22)

      The structure of FIFA is outlined in its principal legal code, the FIFA Statutes. (24) This code delineates how FIFA governs all levels of global professional soccer. FIFA obliges the six confederations, and thus, all 211 member associations, to fully comply with the entirety of FIFA's...