USSF/FIFA payments - Solidarity Among Thieves

We've heard a lot recently about the distinct but related concepts of training compensation and solidarity payments.  For those of you just joining us, now that an American professional soccer player is slightly less rare than an ice sculpture on Venus, this means that your local youth soccer academy can sell the dream of, and in a few cases claim credit for, something more than college scholarships.  FIFA regulations say that youth clubs deserve a piece of future contracts, and now American youth academies want a percentage of future success based on the time, training and expertise they invested in the player. 

In other words, basically the plot of “Don’t You Want Me, Baby” by the Human League, only with soccer instead of synthesizers.

This only became an issue recently, even though some of these youth soccer academies are decades old.  The USSF didn't need to worry about enforcing its policy against providing training and solidarity payments to future professionals from these academies, because American youth players were only slightly more likely to turn pro than be bitten by radioactive spiders.  It's almost as if producing professionals wasn't, and isn't, the business model of these academies. 

If you want an analogue - there are such things as lacrosse academies.  They are not, obviously, subsidized by payments from international lacrosse player transfers.  Yet, they stay in business.  The carrot in this case is the hope that Mommy and Daddy's little prodigy will go to college, not become the next...[Googles a lacrosse player]...Sterling Archer.

Well, maybe lacrosse academies will one day demand a piece of future international lacrosse stars, too.  The point is, from the academies' point of view, FIFA specifically provides for such payments - even for academies that only produce professionals by accident. 

Our starting point should probably be page 19 of Regulations on the Status and Transfer of Players, which reads:

Article 20 - Training compensation

Training compensation shall be paid to a player’s training club(s): (1) when a player signs his first contract as a professional and (2) each time a professional is transferred until the end of the season of his 23rd birthday. The obligation to pay training compensation arises whether the transfer takes place during or at the end of the player’s contract. The provisions concerning training compensation are set out in Annexe 4 of these regulations.

Article 21 - Solidarity mechanism

If a professional is transferred before the expiry of his contract, any club that has contributed to his education and training shall receive a proportion of the compensation paid to his former club (solidarity contribution). The provisions concerning solidarity contributions are set out in Annexe 5 of these regulations.

Annexes 4 and 5 are long and boring – read them for yourself, if you don’t believe me.  But both end with similar phrasing:

Article 7 - Disciplinary measures

The FIFA Disciplinary Committee may impose disciplinary measures on clubs or players that do not observe the obligations set out in this annexe.

Clubs and players...not leagues and associations.  According to the letter, but obviously not the spirit, FIFA could rule that they have no jurisdiction over how a national association structures its payments.

Let's assume, however, that will not be FIFA's decision.

What you don't read is any reference to academies that charge players to attend.  That's largely because such a thing is very nearly unheard of.  I say "very nearly," because it does come up occasionally - as a sign of a shady, unlicensed academy more concerned with hope trafficking, if not human trafficking.

This has not stopped us, via our elected representatives on Capitol Hill, from taking on this ridiculous, tangential, proxy agenda-laden - I mean, this very important issue.

It would be easy to mock Maria Cantwell (D-Crossfire), like Richard Blumenthal before her, as minority-party time-wasters.  But the Third Amendment is clear on the issue - British troops cannot be quartered on American citizens.  Soccer was invented in England, so soccer, like cricket, rugby and Madchester music, are constitutional issues.    Either that, or a couple of Senators are posturing on a topic they have no intention of acting on.  I know, how weird would that be?

Sports Illustrated has also taken the lead on writing down glorified press releases from academies’ attorneys – er, I mean, reporting on this topic.

The majority of youth clubs in the U.S. maintain nonprofit status.

Okay, hold up one second.  The USSF is non-profit, too.  So is Real Madrid.  Non-profit is a tax designation.  It is not the same as a charity.  You only bring up something like this if you’re trying to color the conversation.  It’s irrelevant to the case, since as we’ve seen, FIFA doesn’t even contemplate charging players for academy status – let alone making a profit off it. 

It’s an even sillier thing to bring up, because the majority of youth clubs will never in four hundred years develop a player who would qualify for international pro status.  The majority of youth clubs have only a distant, theoretical interest in this. 

[Dallas Texans President Paul] Stewart said training and solidarity fees would help reduce the burden on players’ families and incentivize continued player development.

Okay, hold up two seconds.  If the Texans lose this case, they won’t have incentive to train players?  What were they doing before?  If an academy is going to stake out this claim, then they should be asked to refund fees to players who don’t become pros. 

And what's this about players' families and their burdens?  If only we could hear more about that....

“It’s a matter of reward, but also giving them greater resources, particularly when we’re competing against an MLS club,” he said.

Okay, hold up three seconds.  Crossfire, like many of the other complainants, have joined the US Soccer Development Academy – a network of academies that includes those from MLS teams.  What if I wanted to open a youth soccer facility, only to have to compete against an academy now literally sponsored and supported by the same licensing agency I have to pay fees to?  AND the competition gets a cut off the top for players years after they've left?  I'd be careful about throwing around terms like "competition" and "anti-trust," were I a USSDA academy.

This is especially curious coming from clubs that say the USSF is using their USSDA status to threaten them into backing off these claims- reading this, it’s very easy to sympathize with the USSF here.  If Crossfire wants to compete with MLS, let them compete – don’t join a program largely subsidized by MLS and cry oppression.

SI’s reporting on this has been problematic throughout.  For example:

FIFA’s regulations on training compensation and solidarity payments came into existence in 2001. That would make decisions based on Fraser v. MLS and any subsequent agreement one or two years later outdated as far as FIFA’s updated statutes are concerned.

This is just about impossible to parse, especially since the appeal for Fraser ended in 2002.  SI seems to be saying, and relying on the reader to know, that the first Fraser decision did come before FIFA's revised regulations, and therefore have been superseded.  But unless I’m badly mistaken, the appeal decision should have reaffirmed the consent decree (assuming it exists). 

More to the point, which came first doesn’t come into the question, if one set of guidelines is legal and the other isn’t.  FIFA and/or the courts aren’t going to decide which came first, they’re going to decide which aligns with their regulations and/or US law.

From the same article:

Recently, Jamaican clubs asked to be compensated for players selected in the MLS SuperDraft. Portmore United contacted the league after the Montreal Impact took Romario Williams with the No. 3 pick in 2015, as did Cavalier SC for Andre Lewis, taken by the Vancouver Whitecaps in 2014. MLS stymied both with what Portmore called “bullying” behavior.

SI published that in July.  You would never have guessed, reading that little snippet, that MLS and the Jamaican clubs had settled the issue back in February.

It’s not against the law to pick and choose facts to advance an argument – I’m doing it right now! – but there's a difference between advocacy and journalism.

It would also be interesting to hear from the University of Akron, Furman University, and the University of Maryland.  After all, they each had strict rules against accepting professional players, and none of Deandre Yedlin, Clint Dempsey or Omar Gonzalez could become professional until after they leftcollege – long after their youth academy training.  I don’t think anybody wants the NCAA to plug into a revenue stream that should, for the good of American soccer, go almost anywhere else – but how would you justify Svengali payments to academies, but not universities?

Some of the other facts that would be interesting to know is how the players themselves feel about this topic.  In one case, we can make an educated guess.

I was born with the drive/I got that from no coaches

From a Clint Dempsey poem about the inadvisability of treading.  That doesn’t exactly sound like the words of someone who feels he owes the Dallas Texans much.  Nor does this:

"My parents were crazy," he reflects. "They just wanted to do everything they could for their kids. With the gas prices now it would be impossible but, back then, they did everything they could to make it happen. It was really tough for them because it was 'pay-to-play' in club football and it was expensive. But my family did it somehow."

To this point it seems like just another story of an all-American kid making good. But it is here that his world turned upside down. As he dreamt of making it in Major League Soccer, his elder sister Jennifer developed a talent for tennis and the family, operating on a tight budget as it was, had to pull him out of his league so they could pay for all the travelling as she turned professional.

"I was really upset and angry," he recalls…. "I had to go from playing club football to a recreational side and [screws his face up] with a girl on my team. But the simple fact was we couldn't afford it."

Nor do the words of Dempsey's family:

Aubrey [Dempsey, Clint's father] said he and Debbie gave plenty of thought to scaling back on the soccer. But eventually, he sold his boat and hunting guns.  "It was hard at first, but I didn't need them anymore" said Aubrey, who napped in the Suburban during practices.  "Once we were there watching the games, it was all good."

It’s extremely difficult to read Dempsey’s biography, and feel the Texans deserve a penny.  But, nevertheless:

The Texans also filed a claim for solidarity on Dempsey’s transfer to the Seattle Sounders from Tottenham in August 2013. Based on a $9 million transfer fee and the fact that Dempsey played four seasons with the Texans, the club claims it is owed $157,500 by the Sounders and MLS.

So how do pay-to-play academies justify their actions?  Not just about solidarity payments, but in general?

Some don’t even pretend to invoke the well-being of the player – for instance, the Fullerton Rangers.

“To say that, ‘Well, they’ve already been compensated,’ well no, we haven’t,” he said. “Because although they may have paid the club fees to play the season, they haven’t paid the light fees and the field fees and even the effort [from the coaches]. There has to be something for the time and effort that you put into it.”

What’s more, Obleda believes that the much-maligned pay-to-play model in fact offers a major incentive to the average player: sacrifice.

“What motivates players in [other parts of the world] is their hunger to survive. Their hunger to get out of their poverty. Their social economic shortcomings, right? That’s their motivation. That is their drive. That is what keeps them having to survive and play soccer to make enough money to save the family. In this country, who has to suffer? Who suffers? Who says, ‘I have to train because I have to make it. I have to make it for my family. And if I don’t make it, my family’s not going to eat?’”

“Listen, in this country [pay-to-play] serves a place because that’s where you get the true sacrifices of parents who say, ‘Look, I’m paying a lot of money for this, you better make it happen.’”

Obleda’s club targets, and I use the term literally, working class Latino youth players and their families.

Well, it’s not my job and say people like Jimmy Obleda and other glorified babysitters in tracksuits are a blight, not just on the sport but on America itself, and that the nation would be just that much better if they were to instantly vanish from the Earth.  The USSF should be putting guys like this out of business, not making sure they get to scrape off the top of transfer payments.

I’m going to say it anyway, but it’s not my job.

Cory Roth, an attorney for the Westside Timbers academy, offered more of a carrot in an interview with Mike Woitalla:

SA: Why should youth clubs that charge parents -- quite a lot of money in many cases -- to coach their children be entitled to compensation? And when the clubs claim that the players in question were “scholarshipped” -- doesn’t that just mean the parents of the clubs’ other players were footing the bill? Can’t one argue that the parents of the other kids are the ones who should be compensated?

CORY ROTH: Pay-for-play youth soccer clubs should be compensated because of the tangibles and intangibles. You have pride, community, sacrifice, coaches and trainers who might not be fairly compensated. You have fields that are dangerous. You have clubs with no futsal courts. You have families scraping money together to send their kids to soccer so that they stay out of trouble, learn valuable life lessons, and possibly secure college and a career.

If “pay-for-play youth soccer club X” gets paid however-many thousands of dollars in training compensation or solidarity, maybe that means 20 more scholarships a year, or a futsal court can be constructed, or lowered fees for everyone, or a new field named in the player’s honor.

You are right, the parents of the other players are footing the bill. I’m sure those parents would appreciate not footing the bill when a training compensation check rolls in.

These youth clubs are non-profits, they aren’t in it to get rich. To answer your last question, no. That is a nice law school contracts final exam question, but there is no reasonable argument to support the claim that the parents of the other kids should be compensated. What it all boils down to is this: It’s for the kids.

Well, there’s the non-profit thing again.

Except, training compensation and solidarity money is a windfall, not income these clubs were dependent on.  I know this, because these clubs haven’t folded years ago, nor have they been sued for malpractice.  I would hope that an elite academy was already making sure their fields were safe.  If it’s Mr. Roth’s premise that former youth player Rubio Rubin became a pro after playing on dangerous fields, then the Timbers deserve compensation money that much the less.  It sounds like Rubin was lucky to survive.

And as a fan of hard-knuckle negotiating, I love the bracing honesty of the scholarship issue.  Yes, other families pay for scholarships.  Now, hand over the money or the families get it worse.  I didn’t read any promise that fees would go down, either – especially interesting in light of Obleda’s claim that pay-to-play builds character through suffering.  If I or any of my loved ones should stray from the straight and narrow, Mr. Roth is exactly the sort of person I’d wantto make sure society didn’t take its revenge.  But I’m not sure “for the kids” is going to work on the USSF, let alone FIFA.

 Sports Illustrated’s public relations campaign added a different wrinkle to the moral issue:

To underscore that the club isn’t trying to be greedy, [Lance] Reich [Crossfire’s attorney] said it has agreed to donate any solidarity it receives in this particular case [Yedlin] to the U.S. Soccer Foundation, the federation’s charitable arm.

“Crossfire would like everyone to know that it is standing on principle in seeking the solidarity fee from the Yedlin transfer and not just making a money grab,” Reich said. “Crossfire is only seeking fairness in the implementation of the solidarity mechanisms of FIFA for U.S. youth soccer clubs.”

Hmm.  I think we have a way forward here.

The USSF has announced that next month they will hold a meeting addressing all this.  Between FIFA and the US Senate poking their snouts in this issue, US Soccer has a strong incentive to settle this (a) in-house and (b) for good. 

Or, FIFPro may succeed in overturning the entire transfer system, at least in the European Union – and whither yon solidarity payments then?  The EU has already ruled on whether a former club gets to claim a player forever in the Bosman ruling, and the US Supreme Court has also ruled similarly years before thanks to American hero Curt Flood.

One solution is that all of these training and solidarity payments go to the US Soccer Foundation.  If Reich and Crossfire are willing to do it in Yedlin’s case, then the same principle should apply across the board. 

Providing payments for players who did not pay would be a tempting compromise, but still an unfair one.  We’ve already seen that the costs of scholarships fall on the families of the player’s teammates.  It’s not in the best interests of the sport to continue to encourage this.

A third option is to ask the player where they would like the money sent.  If the answer is to the academy, wonderful.  If the answer is to the US Soccer Foundation, equally wonderful.  If the answer is “In my pocket” or “for my family,” then just as wonderful.  It was the player who earned the money, after all. 

Or, the academies can hold their ground.  The FIFA regulations, regrettably, are clear.  They didn't imagine anything like the American model as something that would exploit those regulations, but that doesn't invalidate them.  They have every right to demand those payments.

And the USSF would have every right to kick them out of USSDA.  I doubt we'll miss them.