Up the Academies

Okay, here is the prerequisite reading material. 

Jorge Arangue reported that three youth clubs are suing the MLS Players Union and three of its members

The MLS Players Union is not amused.

And here's Will Parchman defending the academies' point of view. 

There's a lot to argue about here, and I'm happy to do so. But there are really only two things to take away from this.

1.  I'm supposed to capitalize VICE Sports?  Really?  Is it an acronym?  "Very Interesting Contemporary Events"?  No?  Then I don't have to god-damn capitalize it, do I?  God save us from branding consultants.

2. We're done here.

I respect some of the people who sincerely believe that this is a noble effort by youth clubs to safeguard their liberties - by no means all, but, y'know, more than I usually do with people who dare to disagree with me.  But the players don't agree. 

So you'd better have a pretty damn compelling reason why you think the players have the wrong opinion on this.  Because they're the experts here, not us.

Sure, we can talk about what solidarity and training compensation payments are, what they're supposed to do, and what they actually do.  The union probably has heard and read a lot of the same arguments already, is the thing.  They don't seem impressed.

I know, I know - it's only their money and their livelihoods.  It's only the people who really did make the sacrifices necessary to achieve professional status.  Why would mere professional players know anything about who should get paid for professional soccer. 

The defendants - remember, the academies are taking this fight to the players, not the other way round - have pretty strong feelings about this topic.  A lot of people dismiss that out of hand, based on what I assume is their expertise and their cogent analysis.   Me, I'm going to agree with the people whose skin is literally in the game. 

"But what about the academies? Are you saying they're stupid for filing a suit like this? Are you saying they don't know their own interests?  Why can the players do what's best for themselves, but not the academies?"

That's the other reason we're done.  The academies are suing the wrong people, because they can't sue the right people.

"The US Youth Clubs had to name the players, Dempsey, Yedlin and Bradley, as well as the defendant class of players, solely for a legal reason to maintain the Complaint. Our clubs have no desire to, in essence, sue their own kids and don't really believe the players are needed here to resolve this, but the law is what it is. The US Youth Clubs have asked the MLSPU to stipulate that the players are not needed to maintain this action and if they agree, the US Youth Clubs will immediately drop the players."

In other words - our suit is a public relations nightmare, we have to stretch the legal code in order to get the thing filed in the first place, and could the defendants do us a solid and take the players out of the hole we've thrown them into. 

And the suit isn't against something MLSPU (let alone the players) have actually done.  It's about, in the youth clubs' words, the "threat" that they would take a compensation payment system to court.  The youth clubs are basically accusing MLSPU of precrime.

I don't actually recommend going through the whole suit at the end of the vice article, because its writing style lacks a certain joie de vivre.  But a lot of things stood out to me and my unpracticed, unlawyerly eye.

51. At the May meeting, Mr. Foose claimed that it would be unlawful and an antitrust violation for the US Youth Clubs to enforce any award of training compensation from the FIFA DRC, specifically including the potential award in the forthcoming decision of Crossfire v. Tottenham Hotspur at the DRC.

52. Mr. Foose stated that the imposition of any training compensation or solidarity fee, either internationally or domestically, is an illegal restraint of player trade. Mr. Foose argued that the purchase and professional signing of a soccer player involves a “finite amount” of money, and that any money from that transaction that is forced to go to the youth training clubs is money that is directly taken from the player in the transaction. Mr. Foose’s position was, in essence, that a player transaction is a zero-sum game between the player and the youth training club, and US antitrust law inures to the benefit of the player to block the imposition of a solidarity fee or training compensation.

The May meeting was a negotiation, not the drafting of the Magna Carta. And Mr. Foose is entitled to his freaking opinion.  If the USSF is intimidated enough by that threat to block these payments? That would be something to sue over. 

Why don't the academies sue the USSF?  My guess is that they can't.  As much as FIFA may or may not care about solidarity payments, they care a great deal about law courts infringing on their jurisdiction. 

More to the point, the academies' case rests on the absolute power of FIFA over all things soccer.  I wish them luck in convincing an American court that FIFA takes precedence over American law, who doesn't?  The problem is, if FIFA controls world soccer, USSF controls domestic soccer just as absolutely.  Hail the king, hail the viceroy.

The MLSPU, amusingly, is not answerable to FIFA.  In theory, I suppose, FIFA could use their absolute power to ban the union's members for daring to stand in the way of solidarity payments.  Given the academies' enthusiasm for filing administrative suits with FIFA, it's interesting that they instead decided to go through an American court system to get at the MLSPU.  Maybe asking FIFA to drop a nuke on American soccer is Plan B.  In any case, the youth clubs are asking both MLSPU and the American court system to obey FIFA statutes.  Again, have fun with that.

And then there's this:

53. The US Youth Clubs disagreed and showed that FIFA RSTP for international transfers is applicable all over the world and the applicability of these fees is already recognized in all international player transfers. Furthermore, agreements can be made and are currently made between professional clubs and youth training clubs regarding the potential payment of training compensation on a case-by-case basis that do not follow the award system of the FIFA RSTP.

Again, I'm not a lawyer.  In case of personal injury, call someone else to get a big settlement.  But if I'm building a case around how FIFA statutes must be followed, I probably think twice about including a sentence about how FIFA statutes don't have to be followed.

In any case, here's what the youth clubs are asking for:

(a) enter judgment declaring that the receipt by US Youth Clubs of solidarity fees and training compensation from professional soccer clubs for international US player transactions which the US Youth Clubs are entitled to receive under the FIFA RSTP does not violate antitrust laws; (b) enter judgment declaring that the implementation of a reward system of solidarity fees and training compensation, similar to that of the FIFA RSTP, for player transactions within the US does not violate antitrust laws; (c) issue an order determining that the claims alleged herein may be maintained as a defendant class action under rule 23(a), (b)(1)(A), (b)(1)(B), and/or (b)(2) of the Federal Rules of Civil Procedure and certifying the Class as defined above; and (d) grant such other and further relief as the Court shall deem just and proper.

Told you this was boring.  But this suit is about ordering the USSF to grant these payments, and about the court declaring these payments legal without the input of either league or federation - let alone FIFA.  The youth clubs seem to hope that the comparatively weak MLSPU will put up a less effective fight, and that they can get a sweeping exemption from antitrust before FIFA or the USSF decide something inconvenient...as a result of a process the youth clubs started themselves. 

I mean, look at this:

26. On or about January 15, 2014, Eric Pothast, then a US amateur soccer player, signed a contract with Angelholms FF of the Swedish Football Association. Pothast is a US youth player that trained several years at the Sockers.

27. On October 14, 2015, the Sockers petitioned in the FIFA DRC for the award of training compensation from Angelholms FF arising from the signing of Pothast. The petition is  pending resolution at the DRC.

This is a non-MLS player and a non-MLS club.  What, exactly, is the MLSPU supposed to do about this?  Kick Pothast out of the union?  I guess what the youth clubs are trying to say is that MLSPU has the power to block every compensation payment, even ones they're not a part of.  If only there were agreements that could be made between pro clubs and youth training clubs regarding potential payment of training compensation on a case-by-case basis that do not follow the award system of the FIFA RSTP.

Furthermore, agreements can be made and are currently made between professional clubs and youth training clubs regarding the potential payment of training compensation on a case-by-case basis that do not follow the award system of the FIFA RSTP.

Oh.

Assuming the MLSPU doesn't file a countersuit, but simply fights this on its own terms - two large elephants in the room are completely and utterly deprived of peanuts.  One is the NCAA, an organization as blindly uncaring as FIFA to the affairs of us lesser mortals.  We'll try to deal with that, but it's like trying to psychoanalyze a tornado.  There's a reason nobody's touching that subject until they absolutely have to.

Pachyderm the second:  The key word in US youth clubs is "youth."  You are cordially welcome to browse through legal and public policy on whether contracts with minors are binding after adulthood, but the basic answer is they're agin' it. 

Sure, the youth clubs could (and do) make the point that the contracts aren't actually with players, but with clubs buying the players.  Someone probably should have thought of that before deciding to sue the players, I suppose.

So you'd better really, really be in love with the idea of solidarity and training compensation payments to justify this.  Most of the defense of the academies' are based on whether this statute is a Good Thing.

Once again - the MLSPU sure as hell don't think so.  And I've been cheering for those guys for twenty years now.  The least I can do is give them the courtesy of understanding what they want and what they don't.

But, again, maybe they're violently misguided.  Or it may simply be that the players' interests should take a back seat to Player Development.

I don't quite know how you get there - I mean, the actual guys being developed are going all in that it shouldn't.  But let's indulge the thought.  The academies are suing the wrong people, they're backing away from processes they started, and they're glossing over a great deal of pertinent information.  The ends justify the means, however bizarre.

So do academies deserve a double-dip?

I'm old enough to remember my last blog post, where we once again went over Clint Dempsey's youth soccer history.  You will notice that I have not yet used the term "pay-to-play."  This is because I'm an unusually generously-minded person willing to see the good in all.  But the Dallas Texans, Chicago Sockers, and Crossfire Crossfirers or whatever are all, indeed, pay-to-play.  In many cases, pay and pay and pay and pay.

Which, great, yay capitalism.  We now have a couple of problems.  Should the academies wet their beaks against their players' will?  And does a contract that promises future earnings run afoul of the NCAA?

The answer to the second question is yes, of course.  If the youth clubs were even able to make parents sign a contract that tried to bind them to FIFA whim - er, "statute" - the player would lose his amateur status before the ink dried.  I'm going to guess that the business model of these youth academies does not allow for the removal of the scholarship carrot. 

"Sign with us. You'll have to give up college, but you might get to play for Angelholms!  $1,500, please."

Come the glorious day, the NCAA will be razed and all trace of it will be erased from human memory.  Everyone agrees about that.  But until then, the NCAA is the molten iron core of the pay-to-play business model.

Because Little League coaches have so much say in how baseball is run, it's only natural that youth soccer coaches are equally experts in how to build the professional game.  Here is Parchman:

What I would argue is that pay-to-play only really exists because payment mechanisms from the top down for player sales don’t exist in any form in this country. MLS pockets them. This creates an intractable cycle the clubs will be unable to escape without help. When I spoke with Akron coach Jared Embick on this topic in April, he made a point that has rattled inside my head for months.

Incentive.

“A huge part of it I think is, there’s no incentive in this country for the development of players,” Embick said. “In Europe, that’s how some clubs survive. They promote youth, they stay mid-table, sell their kid off for $20 million when they get a special one and that funds the club for a while. They might not have the funds to compete and win it all, but they can develop.

“Here, the Cleveland Internationals have I think eight guys in MLS. Well, their kids have to pay to play in their academy because there’s no funding to help it. If they would’ve gotten money for those eight kids in MLS, that means another 40 kids don’t have to pay. Those things I think over time help. The message is hey, we might not win this, but we can produce maybe another Darlington Nagbe we can sell, and things are different.”

Whether you can build a legal case on something like that? I don’t know. But I do know that providing that incentive makes everyone better, most of all MLS and U.S. Soccer and the top of the ladder everywhere else. If the MLSPU wins because their argument is that it’ll take dollars out of players’ pockets in the interim, well, I’d say that view is myopic and shortsighted. It also does not take into account that most of the best players in the country are on scholarships or play for a free-to-play academy. Like the Dallas Texans’ Development Academy setup.

Let's do talk about incentive. 

Blaming MLS for youth academies' failure to develop stars up to the lofty standards of Juergen Klinsmann apologists is tempting indeed.  Except all three of the academies bringing this suit predate MLS.  It's interesting now that MLS has established itself, and suddenly all these academies got a lot better at their jobs.

The scholarship argument has been shot down like Snoopy vs. the Red Baron before, but let's jog through it.  Suppose the youth academies win.  Scholarships aren't, and won't be, borne by the sudden flood of pro transfer cash.  They will be borne by other families.  So what we will potentially have is a player not on scholarship, summoning up the drive and talent to turn pro - then watching the club take even more of his money. 

Of course, fees aren't determined by who turns pro, who goes to college, or who files what ridiculous lawsuit.  They are determined by the market.  We've heard a great deal the past couple of days about how "non-profit" doesn't mean these clubs don't require money.  Well, these academies have been conflating "non-profit" with "charity" for months now, so I was delighted to see Bob Foose throw that back in their faces.

If turning pro - hell, if getting a scholarship in the first place - rated better than a lottery, then maybe the academies would have a point.  But there's a consistent refusal to credit players for their own achievements, just like there's a consistent desire to see players as commodities.  (Try going an hour with an academy mandarin without hearing about "poaching.")

And there's nothing that says clubs will spend the windfall on improving coaching, even if they were capable of it.  The money might go into funding, to pick an example not entirely by chance, frivolous lawsuits against players' unions.

The incentive to train a player up to pro level should already be there.  If not, it should definitely be present once a parent signs a check.  And yet, inexcusably, we hear how without a vacuum attached to players' wallets, these academies won't have the incentive to train players as well as they otherwise could.  I would suggest that if youth coaches and academy directors find themselves hindered by the Dallas Texans' inability to siphon more money from Clint Dempsey and his loved ones, that they go into the exciting field of HVAC repair. 

The nation's pay-to-play youth clubs, enjoying decades of financial success and professional failure, are making bad arguments in bad faith against the wrong targets on the theory that yet more money to pay-to-play academies will help them to eventually wither away.  The hell with them.

[EDIT - acronym, not anagram, Dan, you idiot]