Edit: I joined Kevin and Duane on SoccerToday to discuss the story. Enjoy!

The Ottawa Fury won a reprieve in their fight to play in USL Championship in 2019. Whether it’s a commutation or merely a stay is still to be decided. The Canadian-based team went to the Court of Arbitration for Sport in a bid to fight an initial ruling from CONCACAF, the governing body of North American and Caribbean soccer, which would have prevented the team from playing in the U.S. based league.



On December 21st, the Fury announced that CONCACAF had backed down, and will sanction Ottawa for USL Championship. CONCACAF later confirmed this in a letter critical of the action the Fury had taken, and pointed out that pending final approval from FIFA, the Fury will be able to play as expected in 2019. But, only for 2019.



So as the Fury begin their 2019 preseason training, the road to get to this point has exposed potholes in the ways which governing authorities determine these issues, and there remain hazards which could imperil the Fury’s ability to play in the USL in later years, and could impact Major League Soccer down the line as well.



It’s also unclear why CONCACAF initially decided to pull what multiple sources described as a “power play” to strong-arm Ottawa into moving from the established USL Championship to the nascent Canadian Premier League, which is scheduled to begin play in 2019.



When the Fury announced that CONCACAF was not going to sanction them to play in the United States, it sent off shockwaves in both Canada and the United States. As a Canadian club playing in a non-domestic league, they are required to get permission from each of the following governing bodies: The Canadian Soccer Association (CSA), the United States Soccer Federation (USSF), CONCACAF and ultimately FIFA.



Since 2014, when the Fury formally joined the NASL (and later the USL), they have applied for and been given permission to play in leagues based in the United States. The reasons are both simple and complicated, given the limited guidance that the FIFA Statutes provide.



“Associations, leagues or clubs that are affiliated to a member association may only join another member association or take part in competitions on that member association’s territory under exceptional circumstances. In each case, authorisation must be given by both member associations, the respective confederation(s) and by FIFA.” -Fifa Statute 73



The statute itself is succinct, but extremely vague. “It does not appear that the term ‘exceptional circumstances’ has been interpreted by CAS before under Art. 73 or its predecessors under the FIFA Statutes and Regulations,” said UCLA Law Professor Steven Bank, an expert on governance issues in soccer.



Since there does not appear to be any precedent, it is difficult to say what CAS would have said about a team playing outside its domestic borders when a new domestic league is created, had the petition proceeded. There are cases where teams play outside of their domestic leagues, but none of the recognized “exceptional circumstances” seem to apply here.



According to Professor Bank, “These exceptions generally fall into a few major categories: (1) clubs that are in close proximity to another member’s territory and have been long-standing members of the other league, (2) clubs that have moved because of political conflict or civil war in their homes countries, (3) clubs located in member associations where there isn’t currently a professional league, and (4) clubs in disputed territories.”



In this case, there wasn’t a sanctioned Canadian league, so the obvious exception (lack of a domestic league) applied. Multiple sources with knowledge of the situation described the process by which Ottawa began to deliberate their future in the wake of the imminent arrival of the CPL. In 2017, when the prospects for the CPL began to look up, Ottawa had discussions with about their future. Joining the CPL for the 2019 season was also discussed, according to those sources.



The CPL will be the first national Canadian league since the CSA de-sanctioned the Canadian Soccer League in 2013, after allegations of match-fixing surfaced. Victor Montagliani, then the president of the CSA (and who was intimately involved in the de-sanctioning of the CSL) was instrumental in the creation of the CPL before he took over as president of CONCACAF.



Ottawa was clearly a desired team for Montagliani and the CPL, but last July, Fury President and CEO Mark Goudie declined to join for the 2019 season, citing previous commitments and the stability of the USL. The Fury’s agreement with USL requires six months advance notice should they decide to withdraw from the league, according to sources with knowledge of the arrangement.



From there, the Fury began the process of obtaining the required permission from the CSA and USSF. Discussions about the Fury remaining in the USL, even with the CPL set to start had been ongoing for at least a year, with the Fury presenting documentation to support their position.



Around November 2018, the CSA gave their consent, at which point U.S. Soccer began to consider the request. On December 12, the day that the USSF board was set to vote on their approval (which was since confirmed), the Fury received a letter from CSA officials, who informed the team that CONCACAF was not going to authorize the Fury playing in USL.

The letter expressed some confusion over how CONCACAF could come to a decision before the USSF had formally approved of the Fury playing in USL, or before the CSA had submitted the request (and reasons for it) to CONCACAF.

As a follow-up to my call yesterday, I wish to advise you that we have received correspondence from Concacaf indicating that Concacaf will not be in a position to consider sanctioning Ottawa Fury to participate/play in the USL for season 2019. Concacaf have taken the position that, as the CSA has a sanctioned league (the CPL) which is scheduled to play in 2019, the “exceptional circumstances” as described in FIFA Statute, Article 73 no longer apply. Excerpt from letter received by Ottawa Fury re: 2019 sanctioning.

Additionally, the decision to reject the Fury’s sanctioning application before they submitted it also raises questions regarding CONCACAF’s decision making process. When the Fury first joined the NASL in 2014, they were approved for sanctioning, and weren’t required to re-apply (essentially, the approval rolled over). That changed when the team moved to USL, but the approvals were rubber-stamped.



CONCACAF’s initial decision to deny the Fury sanctioning would have set up an unprecedented legal confrontation. “There doesn’t appear to have been a case where CAS considered whether a regional confederation abused its discretion to deny authorization for a club to play in a league located in another Member’s territory when authorization had been granted by the respective Members.” Bank said.



It’s also unclear what the procedure is for CONCACAF to consider the request in the first place. Goodie cited CONCACAF Article 22 (p) of the CONCACAF statutes as requiring the CONCACAF council to consider the request from Member associations, but it’s far from obvious that actually applies. “[CONCACAF] has the authority under Article 22(p) to act upon proposals submitted by the Member Associations, but I’m not sure if that’s what is meant here.” Bank said. Discussions with sources involved in this situation were unable to say for sure what the procedure for such a request was.



The initial decision to deny sanctioning also caught the USL by surprise. The league had worked with Ottawa as they came into the league, consenting as part of the agreement with the Fury to let the team leave with no fee if they decided joining the CPL would be in their best interests. Initially the agreement required twelve months notice, which was later shortened to six.



Either way, that notice period ahead of the 2019 season had long since lapsed, and the USL has since announced their schedule–with Ottawa included. The de-sanctioning of Ottawa would have had serious detrimental effects on the league according to sources. With the schedule released, losing Ottawa would have required substantial changes, which likely would forced the league to incur financial penalties due to fewer games and potentially breaking existing contracts, sources said.

While USL was monitoring the situation and was supportive of the Fury’s plight, there were no plans to intervene in any litigation, or pursue any legal remedies of their own. Presumably with Ottawa able to provide six-months of notice if they decide to leave to join the CPL in 2020, USL’s concerns regarding this issue affecting the league in the future are mostly mitigated.



The same cannot be said for the Fury. As the CONCACAF letter notes, the Fury are only sanctioned for the 2019 season. Should they wish to play in the USL in 2020 (and beyond), they will have to renew their sanctioning application at some point this year. At that time, some uncomfortable conversations will need to be had. There is no example of “exceptional circumstances” including financial considerations which would allow a team to play outside its domestic league.



Bluntly, according to people with knowledge of the discussions between all of the parties, the Fury’s concerns about joining the CPL stem from potential financial impacts of joining a league with no history in a country where soccer is growing, but not as popular as other sports, and also not at a level of established teams playing in MLS. Which is why in consideration of the Fury’s application, documentation was provided to the parties to understand the nature of their request to play in the USL in 2019.



With no guarantee of success (or viability), sources noted the Fury were concerned about being made to join a league that could be out of business after a year or two, or suffering through the loss or relocation of teams. That said, it’s unclear if this qualifies as an “exceptional circumstance.” Similarly, it’s no one can cite any examples of disparity in quality of players or play on the field providing a sufficient reason to play outside ones domestic league.



Further, it raises the question about the future of MLS teams based out of Canada continuing to play stateside. Several sources involved in this situation wondered why MLS was not being subjected to the same scrutiny as the Fury were. If the CPL survives (or thrives), more questions will be asked about why MLS teams based in Toronto, Vancouver and Montreal aren’t required to move.



There could be any number of reasons why MLS teams aren’t being pressured at this time. Several sources have indicated that MLS has an agreement to be exempt for sanctioning on this issue for a set amount of time. This would make the most sense, though it’s unclear who this agreement is with, and the basis for it.



It should be pointed out that it’s unlikely that those teams would be “moved” to the CPL, given the single-entity nature of MLS. It’s more likely that per MLS operating rules, those ownership groups would cash out and sell their interests back to MLS, thus opening those markets for Canadian ownership groups. But the idea that Toronto FC, the Vancouver Whitecaps or Montreal Impact, whose trademarks and intellectual property are owned by MLS LLC, will be participating in the CPL barring a hefty sale or licensing fee to MLS, is wishful thinking.



In any case, there has not been any further word from CONCACAF regarding this issue, so as far as the Fury are concerned, the issue will keep for now. However, with a six-month deadline to withdraw from USL, the issue is sure to come back to the forefront as summer approaches.



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