The vast majority of countries operate their soccer leagues through promotion and relegation. This means that the leagues are stratified, and clubs can rise to higher leagues or fall to lower ones based on their results. Each spring, it makes for an exciting scene, as teams at the bottom of the standings fight to avoid the drop and teams at the top fight for passage into a higher division.

This system is not a mere gimmick. Indeed, FIFA has enshrined promotion and relegation in its rules. That is, FIFA statutes mandate that “entitlement to take part in a domestic championship shall” be determined by promotion or relegation based on “sporting merit.” And soccer’s world body has defended the concept with vigor, lauding it as the “very essence of football.”

The United States is one of the few countries that does not use promotion and relegation. Thus, teams in our country’s top league, Major League Soccer, cannot be relegated to a lower one. Promotion is slightly more complicated, as some lower division teams can ascend to MLS. But on-field success is not the determinant. Rather, MLS accepts expansion teams based on their ability to demonstrate three, non-sporting, factors: (1) a “committed local ownership group”; (2) an “attractive” market with a history of supporting soccer; and (3) a “comprehensive stadium plan.” The new team does not have to exist in the lower divisions before entering MLS. Instead, ownership groups can create new teams and petition the league for membership.

FIFA has not indicated that the U.S. system violates its promotion and relegation rule. But at least on the surface, there is conflict between the U.S. format and the language in the rule. So this begs the question: Does U.S. Soccer’s league set-up run afoul of FIFA’s rules?

Plain Language

When interpreting statutory language, courts (or other adjudicatory bodies) rely on the plain meaning. Further, they will interpret the statute as a whole, trying to give effect to all of its provisions. Thus, courts will not interpret one provision in a way that renders another meaningless.

Here, Article 9, Paragraph 1 of FIFA’s Regulations Governing the Application of [its] Statutes mandates promotion and relegation. Specifically, the article provides that a “club’s entitlement to take part in a domestic league championship shall depend principally on sporting merit. A club shall qualify for a domestic league championship by remaining in a certain division or by being promoted or relegated to another at the end of a season.” These conditions have wiggle room — most notably, as set forth in Paragraph 2 of the same article. That provision allows that “in addition to qualification based on sporting merit,” participation in a league championship can be subject to other criteria “within the scope of the licensing procedure, whereby the emphasis is on sporting, infrastructural, administrative, legal and financial considerations.”

The most natural reading of Article 9 is that “sporting merit” must be the most important factor in determining whether a club plays in the top division. Indeed, Paragraph 1 states that sporting merit “shall” be the “principal” factor. The word “shall” is important, as it indicates a requirement rather than a guideline. Paragraph 2 only qualifies Paragraph 1’s requirements by allowing that, “in addition to…sporting merit,” federations can also consider some non-sporting factors. In other words, the non-sporting factors may have influence, but they must be subordinate to “sporting merit.”

This puts the U.S. system in conflict with Article 9. Namely, according to MLS, the league consults three non-sporting factors in determining whether to admit a new team. Sporting merit plays no role in the decision. As such, U.S. Soccer has no argument that sporting merit is the most important factor in whether a team plays in its top division.

Nor could U.S. Soccer argue that Paragraph 2 provides cover to exclude, or even de-emphasize, on-field performance. This would render Paragraph 1’s requirement that membership in the top division “shall depend principally on sporting merit” meaningless. Obviously, a team’s promotion to the top division cannot depend “principally” on sporting merit if sporting merit plays no role at all. Further, even if MLS’ three-part criteria were not exhaustive, sporting merit’s absence from the list is a good indication that it is not the principal factor in league membership.

The Policy Behind Article 9

Typically, when a statute’s plain meaning is clear, the court will not consult outside sources to aid its interpretation. But in this instance, FIFA would be the body ruling on any claim that the U.S. structure violates Article 9. So if it wanted to, FIFA could look beyond the plain meaning to its actual intentions. Therefore, its reasons for creating the rule may hold extra weight.

Specifically, in 2008, shortly after the precursor to Article 9 was implemented, FIFA’s Executive Committee issued a public statement clarifying its rationale for the rule. In the statement, the Committee explained that “[r]esults on the pitch decide whether a club goes up or down a level in every championship around the world except 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 that this cannot happen again.” The Committee added an example from Spain, which it believed illustrated the problem. There, the owner of fourth division Granada bought second division Murcia, and moved the club to Granada. Essentially, this moved Granada to the second division without having to earn promotion. So with Article 9, FIFA was targeting situations like this — where clubs misused promotion and relegation in a way that tarnished on-field competition.

Based on this, Article 9 does not appear aimed at the United States. Instead, it seems to target countries where promotion and relegation already exists. In fact, one could even argue that the language in the Committee’s statement exempts the United States and Australia because they operate “closed leagues.” This would fit with the Committee’s example from Spain, which, theoretically, would not create the same injustice in closed leagues.

On the other hand, since 2008, MLS has changed in a way that could impact whether the U.S. still falls outside the Committee’s concerns. In 2009, for the first time, MLS accepted a team from a lower division — the Seattle Sounders. Since then, MLS has accepted nine new teams (including the Sounders). Six of them were existing clubs from lower leagues. So unlike in 2008, it would now be fair to doubt whether the U.S. still operates “closed” leagues. The more accurate description might be that U.S. Soccer operates open leagues that do not determine membership through sporting merit.

Recent events support this new label. Starting with the upcoming season, MLS has accepted Minnesota United as an expansion team. Last year, Minnesota played in the North American Soccer League, which U.S. Soccer sanctions as the second division. The team finished fifth. None of the four teams ahead of Minnesota moved up. As a result, Minnesota did not earn the right to play in the top U.S. league principally due to sporting merit. Further, this process — where one team was able to leapfrog teams with better records — resembles scenarios FIFA was trying to prevent when it enacted Article 9.

The Bottom Line

While there are arguments to be made on both sides, the U.S. system does not fit neatly into Article 9’s regime. From one perspective, it conflicts with the rule’s plain language. Nonetheless, when it implemented Article 9, FIFA was not trying to overturn the “closed” league set-up that prevails in this country. So there is no clear road map for how a challenge to U.S. Soccer’s system would unfold and what the ultimate result would be.

For now, the debate is hypothetical. No lower division team has shown interest in filing a grievance. This is not surprising given that pursuing the case could be expensive and winning would be uncertain.

So the question of whether U.S. Soccer’s league structure violates FIFA rules is likely to remain academic — at least for the foreseeable future.