(Yes: This is another post touching not only on legal issues but also on soccer. If you are one of the unfortunate few missing out on the "beautiful game" during the World Cup, you can just skip this post.)
Last week, I blogged about the straight red card suspension given to the "striker" (attacker) on the U.S. Men's National Team (USMNT), Folarin Balogun. I took the view that the red card for stepping on the ankle of his Bosnian opponent was incorrect—primarily because the simple act of leaping in a legitimate attempt to win the ball could not be viewed as reckless behavior endangering an opponent, even if Balogun ended up accidentally landing on the opponent's ankle. Ordinarily a red card in one game leads to an automatic suspension in the following game. In my previous post, I noted that (as described by various commentators), there was no possibility to "appeal" the apparently incorrect red card decision. I therefore assumed that Balogun would automatically miss the USMNT's next game against Belgium.
Early on Sunday, however, FIFA surprised me and most other observers by "suspending" the implementation of Balogun's suspension. As a result, Balogun will now likely take the field today with his USMNT teammates. Belgium's coach was furious, saying at a press conference Sunday morning: "I didn't know that at the World Cup, the 5th of July is actually the first of April—it's April Fools' [Day]."
Other criticism of the decision has centered around President Trump's lobbying for the U.S. team. Astute American soccer commentator Mark Ogden has argued that that FIFA's decision has hints of "the U.S. benefiting from special privileges. There is a process that appears to have been thrown in the bin for an outcome that suits the co-hosts."
I support FIFA's decision. I will concede my bias. The USMNT is my favorite sports team. I'm typing this post in a USMNT jersey (#15 Kyle Beckman, the standout defender from my home state of Utah who played for the U.S. during the 2014 World Cup.) But my reaction to FIFA's decision—and to the U.S. lobbying effort—focuses primarily on the outcome. To me, the central fact about FIFA's decision is that it is substantively correct. American fans—and soccer fans around the world—should get to watch a full-strength American squad battle Belgium today, rather than having Balogun sit because of his accidentally misplaced foot as he landed in a game last week. Because the parallels between soccer and the legal process are interesting, I write this blog post explaining my view.
To be clear, I don't claim specialized expertise in soccer's disciplinary rules. But I do claim some expertise, as a lawyer and a previous trial court judge, in applying legal provisions to factual situations. So let's follow the standard legal approach (hat tip to Justice Scalia) of turning first to the relevant text.
The basis for FIFA's suspension of the suspension is Article 27 of the FIFA Disciplinary Code. Entitled "suspension of implementation of disciplinary measures," Article 27 provides:
The judicial body may decide to fully or partially suspend the implementation of a disciplinary measure. By suspending the implementation of the sanction, the judicial body subjects the person sanctioned to a probationary period of one to four years. If the person benefiting from a suspended sanction commits another infringement of a similar nature and gravity during the probationary period, the suspension shall be revoked by the judicial body and the sanction enforced without prejudice to any additional sanction imposed for the new infringement. Disciplinary measures relating to match manipulation cannot be suspended.
Applying this rule to Balogun's situation, FIFA concluded that it is more just to allow Balogun to play in Monday's game than to suspend him. As someone who teaches criminal law, my mind immediately races to a criminal law analogy to describe what is happening. Essentially Balogun has been placed on probation for one year—and if he commits a similar offense ("another infringement of a similar nature"), then he has to serve the one-game suspension at that time.
The Royal Belgian Football Association responded to the suspension of the suspension by citing another provision in the same FIFA rules, Rule 66.4. This Rule provides:
A sending-off automatically incurs suspension from the subsequent match. The FIFA judicial bodies may impose additional match suspensions and other disciplinary measures.
The Belgian argument highlights the word "automatically", taking the position that Rule 66.4 prevents FIFA from using Rule 27 to suspend the suspension.
As a lawyer, two problems immediately spring to mind about the Belgian argument. The first is what American lawyers would commonly describe as the "standing" problem—that is, does the claimant have a right to advance a legal argument? In the U.S., the law surrounding "standing" is well developed, if complex. In general, as well summarized by my co-blogger, Eugene Kontorovich, standing restricts the universe of persons who are entitled to challenge a (government) decision. Without diving into all the details of the doctrine, the essential question is what right does the claimant have to complain?
Applied to the Balogun situation, the question becomes what right does Belgium have to complain about FIFA's review of the consequences of a foul in the game against Bosnia? The USMNT coach, Mauricio Pochettino, alluded to this issue in his comments yesterday:
For me, there isn't much debate here, though I do understand Belgium's perspective and Rudi's [the Belgian coach's] point of view. I understand why people conflate issues—people always do, because there's often an agenda to mix things up—but in this case, I don't think it's right.
If anyone was harmed in this whole situation, it was the United States. Can anyone justify the idea that we weren't punished? I mean, playing 30 or 35 minutes a man down in a World Cup knockout match? It's not as if we're benefiting. No, no. There's no extraordinary gain we're getting out of all this.
To be sure, Belgium would prefer that the U.S. play perhaps it most important soccer game in several decades without one of America's key players. But the Belgium team is, essentially, a bystander to the issue of what is the proper disciplinary result for a foul called during the game against Bosnia.
Perhaps one could argue that Belgium is harmed by the fact that it was practicing this week on the assumption that Balogun would be unavailable, and thus they should have "standing" to complain about FIFA's suspension of the suspension less than 48 hours before the kickoff. That seems like a bit of a stretch. But even if Belgium can argue it should be heard on issues surrounding that earlier red card, the decisive issue should be whether it is just for Balogun to be suspended for the additional game against Belgium. And that issue must ultimately be assessed against the backdrop of whether the initial red card was proper.
In my earlier post, I explained why the decision was incorrect. And I pointed out that many knowledgeable, neutral, and expert commentators agreed— including former Premier League referee Mark Clattenburg here and former Select Group referee Andy Davis here.
USMNT coach Pochettino nicely described the central point about whether the red card was just:
My reaction is everyone who really loves the sport and trusts the integrity, we celebrate that decision [to allow Balogun to play]. We were punished enough against Bosnia to play with 10 men for 30 minutes, in a decision that was unfair. It's not because I'm the head coach of the USA…. I think 99.9% of people agree it was an unfair red card.
The decision [to suspend the suspension] is fair because it was never a red-card offense. Call [the red card] a mistake—whatever you want to call it—but there was an error, and the resulting sanction was excessive, especially for an action that was unintentional. Everyone—99.9% of the football community—has said it was an unfair punishment.
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