Breaking the Rules: How the USSF Presidential Election is in Violation of FIFA Mandates That Prohibit Third Party Influence.

“Objectives:
To promote integrity, ethics and fair play
with a view to preventing
all methods or practices, such as corruption…
which might jeopardise the integrity of…member associations
or give rise to abuse of association football.”
– FIFA

Author’s depiction of FIFA mandating USSF to comply with FIFA statute – Definitions – Part II. Membership – Article 19 Independence of member associations and their bodies. Logos courtesy of the respective organizations.

The 2018 United States Soccer Federation (USSF) Presidential election is upon us and will officially take place this coming Saturday, February 10^th, at the USSF Annual General Meeting (AGM) in Orlando, Florida at the Renaissance Orlando at SeaWorld. This election has been a much anticipated hot-topic within the soccer community in the USA as well as in Zurich, Switzerland – the home of the Fédération Internationale de Football Association (FIFA) which is the international governing body of 211 member associations around the world, including the USSF. After being in power for 12 years as the USSF President, Sunil Gulati is not running for reelection. Eight new candidates – Paul Caligiuri, Kathy Carter, Carlos Cordeiro, Steve Gans, Kyle Martino, Hope Solo, Michael Winograd, and Eric Wynalda  – are competing for the important quadrennial term executive leadership position that can help shape the future of the game in the USA and immediately both put the USSF in full compliance with FIFA mandates, which includes national promotion and relegation, and ensure the equal and fair representation and treatment of all USSF members.

So far, the election has been filled with a series of unethical and willful misconduct, which violate FIFA statutes, under major conflicts of interest. Some include, but not limited to, friendly dinners – that mirror aggressive lobbying patterns – by leading members of USSF, including Mr. Sunil Gulati (a current “Special Advisor” / “Consultant and Strategist” to Kraft Sports Group which is a part owner of MLS and SUM) and Mr. Don Garber (who is the Commissioner of Major League Soccer (MLS) and CEO of Soccer United Marketing (SUM) – the joint marketing arm of MLS and USSF; as well as a top USSF BOD member; the USSF Chair of the Nominating and Governance Committee of the USSF BOD (which votes on the ethics, governance, and nominations of USSF); and the USSF Pro Council leading representative (who, along with MLS, has the majority of votes on the issues relating to professional club soccer in the USA)). Two major third-parties, MLS and SUM, led by Mr. Don Garber, are deeply entrenched in USSF governing decisions. This violates FIFA statutes (a) Definitions – Part II. Membership – Article 15. Member Associations’ Statutes; (b) Definitions – Part II. Membership – Article 19. Independence of member associations and their bodies; and (c) Definitions – Part II. Membership – Article 14. Member Association’s Obligations.

The active “intense lobbying” suggestively done for one candidate to win – Ms. Kathy Carter, who is also the President of SUM and a top executive in MLS – is a sign of conflict of interest which deserves FIFA investigation for the purpose of transparency and ethics compliance. More importantly, the fact that Don Garber, (1) who has been Kathy Carter’s boss for almost two decades, (2) who is the top leader of MLS and SUM, (3) who is arguably the most influential power in USSF, (4) who casted the USSF vote in the 2016 FIFA Presidential election as opposed to Sunil Gulati, the USSF President, doing it, and (5) who is the Chair of the amalgamated USSF “ethics committee”, “governance committee”, and “nominating committee” (fused as the Nominating and Governance Committee of the USSF BOD) has been able to put forth proposals and voting on the procedures affecting the election (See the USSF Board Meeting on Jan 14^th, 2018: Executive Session: Professional Council Voting Structure) and getting them passed is an emphatic conflict of interest. MLS, who Kathy Carter works for, which will vote at the USSF Presidential election, has approximately 14.5% of the overall vote. It’s business partner for the past five years, the United Soccer League (USL), will have approximately 4.8% of the votes. Meanwhile, the National Women’s Soccer League (NWSL), which is financially supported by USSF (in part through the USSF’s $150 million surplus garnered from their business relationship with SUM), and has five out of nine NWSL team owners (55.5% of NWSL in-league vote) also being either MLS or USL team owners, will have 4.8% of the overall USSF Presidential vote. Together, the three closely related leagues equal to approximately 24%, or nearly a quarter, of the entire vote of the USSF Presidential race. This urgent matter needs to be immediately addressed and rectified by FIFA for the sake of the future of the game in the USA, the thousands of US clubs not being equally represented in USSF, and the ethics and governance of football around the world.

FIFA statute – Definitions – Part II. Membership – Article 14 Member Association’s Obligations. Image courtesy of FIFA.

FIFA statutes are clear about the obligations from its member associations, like the USSF:

“Definitions – Part II. Membership – Article 14 Member Association’s Obligations

1. Member associations have the following obligations:
a) to comply fully with the Statutes, regulations, directives and decisions of FIFA bodies at any time as well as the decisions of the Court of Arbitration for Sport (CAS) passed on appeal on the basis of art. 57 par. 1 of the FIFA Statutes;
d) to cause their own members to comply with the Statutes, regulations, directives and decisions of FIFA bodies;
f) to ratify statutes that are in accordance with the requirements of the FIFA Standard Statutes;
i) to manage their affairs independently and ensure that their own affairs are not influenced by any third parties in accordance with art. 19 of these Statutes;
j) to comply fully with all other duties arising from these Statutes and other regulations.

2. Violation of the above-mentioned obligations by any member association may lead to sanctions provided for in these Statutes.

3.Violations of par. 1 (i) may also lead to sanctions, even if the third-party influence was not the fault of the member association concerned. Each member association is responsible towards FIFA for any and all acts of the members of their bodies caused by the gross negligence or wilful misconduct of such members.

The USSF is in explicit violation of Article 14: Member Associations’ Obligations. By having Don Garber, and through him both MLS and SUM – two major third-parties, sit on the BOD of USSF and influencing the process of the USSF Presidential election, USSF as a member association of FIFA is in complete violation of FIFA laws – Article 14, section i / par. i. Furthermore, USSF “is responsible…for any and all acts of the members of their bodies caused by…wilful misconduct of such members”. As I demonstrated in a recent article titled Breaking the Rules: How the FFA, CSA and USSF are in Direct Violation of FIFA Mandates for Pro / Rel, MLS, which Don Garber is Commissioner of, is selling the FIFA national D1 for $150 million dollars and more, when it is supposed to be earned by merit through promotion and relegation as stipulated under FIFA statute Article 9: Principle of promotion and relegation. USSF is responsible towards FIFA for this wilful misconduct and is absolutely in violation of Article 14. MLS, after 10 years without complying with Article 9 while simultaneously financially benefiting from the selling of D1 should be stripped by FIFA of international D1 recognition, and USSF should be held accountable for not fulfilling their duty and responsibility as a member association.

FIFA statute – Definitions – Part II. Membership – Article 15 Member Associations’ Statutes. Image courtesy of FIFA.

FIFA statutes furthermore require that FIFA member associations, like USSF, must have good governance in their own statutes and must follow them:

“Definitions – Part II. Membership – Article 15 Member Associations’ Statutes
– Member associations’ statutes must comply with the principles of good governance, and shall in particular contain, at a minimum, provisions relating to the following matters:

a) to be neutral in matters of politic and religion;
b) to prohibit all forms of discrimination;
c) to be independent and avoid any form of political interference;
d) to ensure that judicial bodies are independent (separation of powers);
e) all relevant stakeholders must agree to respect the Laws of the Game, the principles of loyalty, integrity, sportsmanship and fair play as well as the Statutes, regulations and decisions of FIFA and of the respective confederation;
g) that the member association has the primary responsibility to regulate matters relating to refereeing, the fight against doping, the registration of players, club licensing, the imposition of disciplinary measures, including for ethical misconduct, and measures required to protect the integrity of competitions;
i) to avoid conflicts of interests in decision-making;”

Like Article 14, the USSF is in clear violation of Article 15: Member Associations’ Statutes. The fusion of the USSF “ethics committee”, “governance committee”, and “nominating committee” into the “Nominating and Governance Committee of the USSF BOD”, which Don Garber is the Chair of, is completely unethical and goes against the principles of good governance while creating a glaring conflict of interest. Furthermore, by not following their own statutes to be neutral and independent plus regulate ethical misconduct and protect the integrity of competitions, which are vested upon by FIFA statutes, USSF is violating Article 15 through their own internal conflict of interest.

FIFA statute – Definitions – Part II. Membership – Article 19 Independence of member associations and their bodies. Image courtesy of FIFA.

FIFA statutes are clear on third-party influence within the member associations body:

“Definitions – Part II. Membership – Article 19 Independence of member associations and their bodies
1. Each member association shall manage its affairs independently and without undue influence from third parties.
2. A member association’s bodies shall be either elected or appointed in that association. A member association’s statutes shall provide for a democratic procedure that guarantees the complete independence of the election or appointment.
3. Any member association’s bodies that have not been elected or appointed in compliance with the provisions of par. 2, even on an interim basis, shall not be recognised by FIFA.
4. Decisions passed by bodies that have not been elected or appointed in compliance with par. 2 shall not be recognised by FIFA.

Like Articles 14 and 15, the USSF is in violation of Article 19: Independence of member associations and their bodies. With Don Garber as the Commissioner of MLS and CEO of SUM, while simultaneously being a USSF BOD member, the USSF Pro Council leading representative, and the USSF Chair of the Nominating and Governance Committee of the USSF BOD (which votes on the ethics, governance, and nominations of USSF), even superseding Sunil Gulati as the USSF voting delegate at the FIFA Presidential election, there is no way possible for USSF to manage its affairs independently, under good governance, in equal and fair representation of the best interest for all its affiliated members (millions of players, thousands of clubs, dozens of leagues, dozens of regional associations, etc, that are not directly connected to MLS) in the USA. Don Garber’s presence in USSF is the embodiment of the third-party influence which FIFA condemns in Article 19. USSF is furthermore violating Article 19 because it can not uphold its own statutes, vested upon by FIFA, to provide “a democratic procedure that guarantees the complete independence of the election or appointment.” With MLS, USL, and NWSL, recently, just a fews week ago in January, getting a quarter of the entire USSF Presidential vote through a USSF BOD meeting, while Kathy Carter is a top executive of MLS, there is no way possible for USSF to faithfully uphold Article 19 and therefore are in violation of it. If Kathy Carter, or another handpicked candidate wins, FIFA must act under Article 19 section 3 / par. 3 and section 4 / par. 4 in compliance with its own statutes in order to uphold its own good governance within the international football community.

FIFA statute – Definitions – Part II. Membership – Article 16 Suspension. Image courtesy of FIFA.

FIFA statute – Definitions – Part II. Membership – Article 17 Expulsion. Image courtesy of FIFA.

FIFA statutes are ultimately clear on Suspension and Expulsion of its member associations:

“Definitions – Part II. Membership – Article 16 Suspension

1. The Congress may suspend a member association solely at the request of the Council. Notwithstanding the foregoing, the Council may, without a vote of the Congress, temporarily suspend with immediate effect a member association that seriously violates its obligations. A suspension approved by the Council shall be in effect until the next Congress, unless the Council has revoked such suspension prior to such Congress.”

“Definitions – Part II. Membership – Article 17 Expulsion
1. The Congress may expel a member association only at the request of the Council if:
a) it fails to fulfil its financial obligations towards FIFA; or
b) it seriously violates the Statutes, regulations or decisions of FIFA; or
c) it loses the status of an association representing association football in its country.”

For its combined “gross negligence”, as characterized in Article 14 and demonstrated in this analysis, the USSF is in danger of Suspension or Expulsion from FIFA.

In order for USSF to immediately start being in compliance with USSF,
1) Kathy Carter should honorably step down from the race, for the greater good of the game in the USA.
2) Don Garber should step down from USSF.
3) MLS and by extension the USL and NWSL should not be allowed to vote by USSF due to their relationship with SUM which is completely entrenched in USSF financial interests.

USSF needs absolute reformation. Meanwhile FIFA can no longer turn the cheek or be unaware of what’s really happening in USSF, which is neglecting the vast majority of its affiliated members whose voice is not equal to the MLS/SUM influence. As the international governing body, which USSF is bound by and must comply with all of its statutes, FIFA must intervene and make sure that there is a fair and democratic election. The 2018 USSF Presidential election must be free of the third party influence that is present in the member association. If it isn’t, then FIFA has all the power to delegitimize USSF as stipulated in Article 19, 16, and 17 primarily based on Article 14. Rather than wait for the controversy to blaze the USSF with massive division between its vast constituents, FIFA should act now while they can to ensure a fair and democratic process. All member associations around the world are watching and FIFA has the power and responsibility

To promote integrity, ethics and fair play
with a view to preventing
all methods or practices, such as corruption…
which might jeopardise the integrity of…member associations
or give rise to abuse of association football.

#ReformUSSF

Sincerely,
Isaac Payano
Economist, Urban Planner, and Educator
@ReimagineNYC