OK, Rossi's situation (where his ineligibility comes from a conscious act to work for a competitor, and therefore is not all that unlike all sorts of other non-compete contracts that exist in other walks of life) is not analogous and is a distraction to that debate . . . but you have said something that makes me wonder. Freedom from discrimination based on national origin certainly applies to workers that have a presumptive right to work in the United States, citizens and green card holders. But it may not apply with non-immigrant visa holders, and it almost certainly doesn't with people who mere applicants for non-immigrant visas. The US government itself plays this sort of game all the time: for instance, the H-1B visa program creates reservations for Chilean and Singaporean nationals. Could the government really deny on grounds like fair treatment a prerogative that it uses itself which ignores that principle? If (and I'm thinking there's a real chance) they couldn't, then rather than treat CONCACAFs as 'domestics', what you could probably get away with is X domestics plus Y CONCACAFs plus Z everyone else. Wherever that discussion goes, though, I should say that I very much doubt the original source of this rumor has waded through US immigration and labor law enough to have a good grasp of whether it would be compliant.
Really? Everton may decide not to go through the effort of enforcing the contract if Howard left for MLS, but if they did I'm pretty sure U.S. courts would uphold the law regardless of the existence of FIFA rules. Now FIFA rules make it so Everton wouldn't have to enforce the contract, but in the absence of them Everton would still have options. Again, this is still not a parallel to the original question.
our hypothetical rossi has never agreed to any nn-compete clause, in any contract. he would be deemed to have given up his right to work (play) for the usnt for some reason that remains mysterious. and there is no giving up of one's rights. in the hypothetical case, rossi decides he wants to play for usnt. let's add for argument's sake that a senior ussf official were heard saying 'he'll never play for us because he played for them.' this might undermine simple 'coach's choice' as justification for not being called into the nt. let's also assume, again for argument's sake, that rossi were willing to do a 'curt flood' and face the fifa suspension that would fall on him. the case then could proceed. and it would become an issue of 'country of origin' because rossi has two countries of origin, and it's the foreign one that's making him excluded. it's a little like a person who's born in the u.s. but doesn't get hired because a firm's owner has been heard to say 'i don't hire wops.' country of origin can be a slippery concept and questions about it shouldn't be assumed away. the h- 1b visa example is moot because it takes place in the area of 'national interest,' which is a threshold no mls rules could meet.
i agree that fifa rules could provide a safe harbor in some instances. with enough assumptions in place, it's possible to construct a rossi-hypothetical where the fifa rule would have to provide the only way out of the conundrum. and there's no problem with a u.s. court deciding that in international competition that by necessity must be governed by an international body, the (fifa) rules are valid. but the problem in our case, is that i doubt a fifa rule which ad hoc stipulated domestic status for concacaf players in mls, would pass that muster. such a rule wouldn't be a rule of international competition, but rather interference in the domestic workings of a domestic league. fifa rules as such do not provide safe harbor. they do so only within a narrow scope. and since the 'h-1b visa' analogy also can't be applied ('national interest' may stand up in court, but 'mls interest' will not) we're still at square one...
Yes, IF he wanted to play for the U.S. and IF he accepted the suspension, and IF and IF and IF then yes, maybe, there might be a case to make but you're now so far removed from reality then what's the point of the hypothetical exercise? And no "he'll never play for us because he played for them" isn't exactly grounds for a discrimination lawsuit, because he's not be discriminated against for who/what he is, he's being discriminated against for a decision he chose to make.
First of all, you have no way of knowing that. Players who sign for National Teams certainly sign a contract, and neither you nor I know what's in it and what isn't. Regardless, the Rossi scenario has no relevance to this idea no matter how it's sliced and diced.
I can't believe this has gone this long. He took about the most ridiculous angle possible to some how prove MLS could rely of FIFA or Concacaf to break US law.
a hypothetical by definition is not 'reality.' but it does show that ultimately you could rely on fifa rules being upheld in a court of law. which is a pretty obvious legal outcome. again: fifa rules would be upheld in a u.s. court of law. the point after that, is how far fifa rules could go in shaping the operating framework for mls, in matters of foreign players. and as i said, it's not likely that some ad hoc fifa rule could open the doors to unlimited concacaf players on mls rosters. that would have to come under mls rules. and mls rules cannot create a safe harbor for mls from u.s. law. that too is really pretty obvious, if you take the time to think it through...
btw, excluding a hypothetical rossi from usnt on the basis that he chose to play for another country, would be like excluding him because of his choice of sexual practice or religious worship. the hypothetical rossi did not give up his employment rights because of a lifestyle choice. so yeah, you need fifa rules.
Well legally speaking if Rossi sued the USSF to be allowed to play and won, then the USA National team would lose every FIFA official game (when Rossi plays) by disqualification. Also in the case of Howard and Everton, MLS could sign him even if he were to just walk away from his contract, but FIFA thru Concacaf could then ban any team from the league that would sign him with out compensating Everton. FIFA can only ban teams / leagues in FIFA related tournaments (and the FIFA subsidiaries like UEFA / Concacaf /etc.) so MLS could lose official status with in the FIFA organization (if Everton and FIFA really pushed hard). So technically, Rossi, Howard, MLS could win in USA courts, but they would lose in the FIFA organization.
No government, player or club gets to sue or interfere with a federation. The moment they do so, FIFA brings out the big international ban club.
Yes, really. If the FIFA rules didn't exist Everton would have no case. Contracts usually include clauses specifying under which laws they are made and where they are enforceable. US courts frown on specific performance (requiring the fulfillment of the contract) in employment cases. The remedy is damages, ie cash. Howard would have to return any salary advances. Otherwise he is free to walk. Deion Sanders and Bo Jackson played in MLB and the NFL the same year. They made arrangements with their teams for when they would show up for the NFL (in both cases after the baseball season). But if they were willing to burn bridges with MLB, they could have left and gone to the NFL without any recourse by baseball.
Pretty much. The whole idea of an international federation is that it will set binding rules for all members regardless of local customs or laws. If US courts started trying to enjoin against FIFA rules, the USMNT would be suspended from international competition until USSF got the rulings overturned or the law changed.
True and that is enough to bring most countries to their knees, just ask Peru (or maybe it was Ecuador) when they tried to investigate their FA for corruption and Conmebol/FIFA threatened them with suspensions, the Government backed out. But this is 'Merica, we love to sue and Soccer is not politically important, so MLS/USA getting suspended by FIFA would not be a big enough reason for law suits to not go forward (if someone is willing to do it).
This is just a reminder not to take legal advice from strangers on the internet. For the record: contracts typically include jurisdiction and choice of law clauses, yes. These are typically enforceable and determine where a case can be heard and what jurisdiction's law applies. So if Howard's Everton contract included UK choice-of-law and consent-to-jurisdiction clauses, Everton could sue him in the UK, under UK law. Any judgment they obtained in the UK would likely be enforceable in the United States. United States law is not quite irrelevant, but close to it. More practically, it's almost certain that Howard's contract includes an arbitration clause specifying the Court of Arbitration for Sport. These clauses are enforceable in U.S. courts, as are awards handed down by agreed-upon arbitration agencies. And finally, while it's true that courts are reluctant to enforce contracts by requiring someone to work for a specific employer, the courts in many jurisdictions regularly enforce non-competition clauses prohibiting people from working from certain employers, as long as the terms are reasonable. I don't know if there are clauses like this in Howard's contract, but in a world without FIFA regulations, there almost certainly would be. Obviously none of these cases are ever going to get to a U.S. court, because FIFA regulations would stop the hypothetical second club from making the offer in the first place. But the idea that Howard can simply walk out of a UK contract to take a US job with no consequences of any kind except not getting paid his next month's salary is not plausible.
Thank you, you made the point I was attempting to make much better than I did (for I am not a lawyer, or anything close to one). Its laughable to think that without FIFA any soccer player could leave his team in one country and go play for a team in another country, particularly ones so closely allied as the UK and US, with no consequences.
Well that was the reasoning behind the soccer wars in the 1920's right? American teams signing UK players under contract. Then again the law and relations have come a long way since then.
No question Everton could win a case vs Howard in the UK. Not sure what British policy is on specific performance in employment cases but even if a British magistrate ordered Howard to return to Everton to finish the season, that wouldn't be enforceable in the US. US courts generally don't honor foreign court judgments, preferring to decide matters independently. The UK has strict libel laws for example so people like to sue there but US publishers are only exposed to the extent they have assets there. There are lots of child custody disputes where one parent has won in a foreign court and a US court has ignored the decision. US courts won't honor Pakistani awards of damages to victims of drone strikes when the defendants are people in or formerly in the chain of command. Choice of law does matter a good bit, see the difference in value of Greek sovereign debt issued under UK law vs that issued under Greek law or the wrangling between Argentina and Elliott Management. Agree an arbitration clause might be enforceable in the US but that's a contract term, not a matter of US law. It might also not be enforceable. More to the point what could Everton win? Not the return of Howard, even if Everton went on a summer tour of the US during preseason. The worst case for Howard would be damages that result in the loss of his house or other assets in the UK. Non-compete clauses are regarded skeptically by US courts to begin with. Everton claiming to be a competitor of NYRB or whoever Howard signs with would be laughed at. You arrive at the truth that it is the FIFA transfer regulations that keep a US team from offering a job to Howard. My view is that the FIFA regulations are valid in the US and don't constitute illegal restraint of trade. Some on this thread seem to think otherwise, that US labor laws trump FIFA regulations and that Howard could get them tossed.
imo they'd lose in u.s. court. a u.s. court would back fifa's rules, within a specific scope. but 'choice of country of origin' is. he couldn't choose just any nt to play for, absent country of origin (in terms of u.s. law) status for that country. spot on. and a u.s. court likewise could recognize the validity of fifa rules in things like nt eligibility for international competition. which is not to say fifa could help mls by an ad hoc ruling that concacaf nationals in mls count as domestic. that would be beyond the proper scope of fifa rules. and courts are very careful about the scope of legal decisions.
Not sure if someone has replied to this but according to U.S. law Rossi is a U.S. citizen. Period. Any other passports he holds don't matter as far as U.S. govt is concerned.
u.s. law does recognize double citizenship at this point, does it not? but it doesn't even matter. 'country of origin' doesn't refer strictly to citizenship or passport. 'country of origin' is a much looser term than 'place or birth' or 'citizenship.' otherwise, the anti-discrimination law would have very little bite. if it doesn't apply to people because they are 'u.s. citizens, period,' or because they are 'born in the u.s.,' who would it cover? hypothetical rossi didn't just choose a soccer team. he chose a country. but if he were to sue for the right to play for usnt the court imo would say something like: "the manner in which players qualify to play for a nt always has been adjudicated by fifa's rules. the court recognizes the custom and long-standing tradition of such practice, and is not not inclined to wade into such waters. within their proper scope, the court recognizes the validity of those rules." very sensibly, the court would not throw a wrench into these fifa nt rules. and that's the only really safe ground on which to stand. even a 'coach's choice' defense might run into problems where the implausibility of such a claim reached a degree of which the court would have to take note.
Yeah, this thread went off the rails of the plausible a long time ago. I would be legitimately interested if national origin as a protected class affects people who don't have a presumptive right to work in the US, as I actually suspect it might not. This Rossi silliness. . .
it seems to me we already know that people without a 'presumptive right' to work in the u.s. are not a protected class, so i don't see why the question is being asked. the court told mls it could not differentiate btwn citizens and green card holders, but let stand the distinction to everybody else. mls roster limits discriminate against people without a 'presumptive right' to work in the u.s.. they're not a protected class. but that doesn't get you past the status quo, to where you try to include concacaf nationals in mls as 'domestic.' the court would say that the only admissible distinction is btwn holders of the 'presumptive right,' and everybody else. all or nothing. otherwise the holders of a 'presumptive right' would be in one competitive position against certain nn-holders, and a different (weaker) competitive position against others. and you'd be discriminating against the holders of the 'presumptive right' where their position is weaker than it would be absent the special tag for concacaf nationals. the problem here isn't whether you can bring in anybody you like who previously had 'no presumptive right' to work in the u.s.. of course you can, regardless of which countries you keep using as your source, and there's no discrimination squabbles. mls can introduce into the legal labor force all the panamanians it likes without bringing in a single colombian, just because it feels like it. the problem is whether after having gone through all the legal steps in order to hire the panamanians, mls can give them 'domestic' status.