Pro-Rel to CAS: The hurdles proponents face

Pro-rel is a subject that will not go away. The latest: the NASL's Miami FC and amateur Kingston Stockade FC of the NPSL are taking U.S. Soccer, Concacaf and FIFA to the Court of Arbitration forSport, filing a claim to require promotion and relegation be adopted across all U.S. divisions.

The case comes a little more than a week after a report that international media company MP & Silva (whose founding partner is Miami FCowner Riccardo Silva) offered $4 billion for MLS's global media rights on the condition that MLS institute a system of promotion and relegation. With a binding television contractthat prohibits it from negotiating with others, MLS did not consider the offer.

The case will face several hurdles.

1. Have the parties exhausted their legalremedies?

CAS could throw the case out, saying that the pro-rel proponents must exhaust their administrative remedies through FIFA first (or as FIFA states in Article 58 of theFIFA statutes, "internal channels").

2. Does FIFA require promotionand relegation?

Miami FC and the amateur Kingston Stockade hang their hat on Article 9 of the FIFA statutes, which states:

“A club's entitlement to take part ina domestic league championship shall depend principally on sporting merit. A Club shall qualify for domestic league championship by remaining in a certain division or by being promoted or relegated toanother at the end of a season.”

FIFA goes on to state:

"In addition to qualification on sporting merit, a club’s participation in a domestic leaguechampionship 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."

The licensing requirements in countries like France and Germany are indeed quiterigorous for teams seeking to gain promotion. Indeed, the likely outcome of promotion and relegation in the United States, at least between D1 and D2, would be that the "licensing requirements" --e.g. similar to U.S. Soccer's sanctioning requirements or MLS's requirement of expansion bidders -- would exclude most promoted teams as things exist now.

A key question is whether FIFAeven requires leagues to operate pro-rel or whether those operating pro-rel must abide by the requirements it set out.

In March 2008, FIFA specifically mentioned "closed leagues" likethose that operate in the United States and Australia when it stated the purpose of institutingnew rules for other leagues -- those using promotion and relegation:

Concept: Results on the pitch decide whether a club goes up or down a level in every championship around the worldexcept in the United States and Australia, where there are "closed" leagues. Recently it has been possible to achieve promotion artificially by buying or moving a club. FIFA wishes to make sure thatthis cannot happen again.
Objective: To protect the traditional promotion and relegation system for clubs based purely on sporting criteria - which is the very essence offootball.

FIFA then used the example of a Spanish fourth division club buying a second division club to claim promotion. (The same thing has happened in Mexico where relegated clubshave bought other clubs to stay up.)

The legislative history of Article 9 suggests it covers leagues that use promotion and relegation, not that it requires promotion and relegation.Since 2008, India has adopted a "closed system," at least for the top-level Indian Super League.

In the long term, the only case a club like Miami FC might have is to take U.S. Soccer toU.S. Federal court on antitrust grounds to attack U.S. Soccer's sanctioning authority to classify a league like MLS as "Division I" and in effect create barriers for other competitive leagues toattract investment.

U.S. Soccer and MLS have won every legal battle up until now, though their antitrust protection has not been fully confirmed because of the peculiarities of the cases.In any event, such a new legal battle would be lengthy and costly, likely beyond the capacity of the plaintiffs to survive.