U.S. Soccer, FIFA lose antitrust appeal; defense shows short-sighted strategy to develop soccer in America

Cristiano Ronaldo plays for Real Madrid against Barcelona in 2011.
Jan S0L0 via Flickr CC BY-SA 2.0

U.S. Soccer and the Fédération Internationale de Football Association (FIFA) will have to defend an antitrust action in federal court for refusing to permit a Spanish La Liga match on U.S. soil, the Second Circuit ruled in March. 

In 2017, world famous football (soccer) clubs Real Madrid and Barcelona faced off in an exhibition game in Miami. The match was fabulously lucrative for the commercial interests behind it, including organizer Relevant Sports, LLC, based in New York.

World sport likes the United States, because our infrastructure practically prints money. Americans, especially the top echelons of the wealthy, have been habitualized by our unregulated and often subsidized sport-and-entertainment monopolists to pay more than people elsewhere in the world to see live events, both directly for seats and indirectly in media rights.

Incidentally, that's the principal reason that bringing the FIFA (men's) World Cup back to North America in 2026 was not really a hard sell, notwithstanding modest public enthusiasm and the theater of the global bidding process. The 2026 co-hosts, the United States, Canada, and Mexico, likely did not even have to pay the half-billion dollars that Qatar apparently spent, mostly to FIFA executive committee members, in, uh, let's say, "incentives," in siting the 2022 World Cup (about my World-Cup-2022-contemporaneous lecture; Qatar on this blog): check out the investigative exclusive by Armin Rosen for Tablet (link from inset), published late last month, using U.S. court records in collateral matters.

Understandably, then, Relevant Sports wanted to maintain the momentum of the 2017 exhibition match. The company proposed that the Spanish La Liga subsequently might site a regular-season, full-stakes match in the United States. 

However, FIFA rules say that a match cannot be held in a country foreign to both sides without the approval of the football federation in the host country. U.S. Soccer said no.

Relevant sued, alleging that the rule improperly protects domestic football from being overshadowed, and therefore diminished in interest and income, by high-profile competitors. U.S. Soccer and FIFA defend the system on the merits under antitrust law, and, saliently in this intermediate disposition, argued that the FIFA "rule" is not really a rule, because FIFA doesn't make the decision for U.S. Soccer or La Liga. They're free to make their own decisions, notwithstanding potential adverse consequences, such as exclusion from international competition for players, teams, or federations that don't play ball.

The instant Second Circuit decision is limited. The court remanded the antitrust claim to proceed, recognizing that FIFA's rule is rule enough to represent the kind of concerted action in violation of antitrust law that Relevant alleges.

Earlier this week, I wrote about Cory Doctorow's enthusiasm, which I share, for the federal government's antitrust agenda—including the Justice Department investigation of Google. (I canceled my Google Nest Aware subscription upon the 25% rate hike. Google's not the only game in town. Yet.) U.S. Soccer's loss in the Second Circuit represents a judicial step in the same right direction.

I'm not an antitrust expert. But to my relatively lay eyes, the fact that the federal district court dismissed the case in 2021 on the faint theory that U.S. Soccer was not formally bound by FIFA's command demonstrates how appallingly far U.S. antitrust law has strayed from basic fair-market principles. Or maybe the court just didn't understand the governance system in world sport and its facility for subverting the laws of nations.

USWNT celebrates in times happier than this year's World Cup.
rachael.c.king via Flickr CC BY 2.0

The U.S. Soccer position in the litigation to me demonstrates furthermore a fundamental misunderstanding of what it will take to make football successful in America. American soccer advocates often wonder aloud why the sport seems to stall again and again, even after the men's World Cup in the United States in 1994 and the astonishing run of the U.S. Women's team in an unprecedented four World Cup titles.

To be sure, there are many, many reasons for the frustrating cycle of revving and stalling. But equally surely, one of those many reasons is the short-term greed of commercial actors that works a detriment to long-term development. 

I've written previously about this problem in the context of media rights. When NBC acquired the rights to English Premier League football, the broadcaster divvied up matches among its many media properties based on the popular appeal of each. NBC's strategy was to leverage interest in the league to sell separate subscriptions to multiple services: NBC, NBC Sports, (at one time, "NBC Gold,") Peacock, USA, Telemundo, Universo.

The network either didn't consider or doesn't care what that model looks like from the customer's perspective. Football in a place such as its home U.K. (at least before U.K. media companies such as Sky started merging with U.S. media giants and took sport away from the publicly minded BBC; that's another story) maintains a multi-generational foothold because supporters follow their teams.  

Divvying up the matches makes it impossible in the United States for a viewer to follow a team. Each week, one gets whatever match a selected service happens to carry, based on its level of market appeal.  If you subscribe to a middle-tier service and your team starts to lose, you might get more matches. If your team starts winning, and you start becoming more engaged, you find yourself suddenly deprived of matches.

That market behavior doesn't build a fan base. For American football or basketball, maybe there are enough viewers who will watch any game because they love the sport. But Americans don't yet love soccer that much. Sport-market development requires fostering two interrelated conditions at the same time: public enthusiasm for the sport, and public enthusiasm for a team. Neither can thrive without the other.

U.S. Soccer's refusal to permit La Liga to play a match on U.S. soil also is self-defeating, if for the converse strategic blindness. Both media rights usurpers and U.S. Soccer, focused on short-term profits, are dampening American enthusiasm by impeding U.S. viewers' access to the highest level of play in the world, in the Premier League and La Liga. While NBC's strategy deprives Americans of the opportunity to root for a team, the U.S. Soccer strategy deprives Americans of the opportunity to root for the sport.

Again, neither can thrive without the other.  U.S. Soccer is trying to protect Major League Soccer and the federation's underage and lower divisions. The federation reasons coldly that someone who buys a $500 La Liga ticket will skip five or ten $48 Tampa Bay Mutiny matches.

They're wrong. One of my U.S.-based family is a card-carrying member of the Toon Army, a dedicated supporter of Newcastle (U.K.) United FC. He traveled domestically to see Newcastle play an exhibition match in the United States this summer. Being a Newcastle supporter has made him a more, not less, enthusiastic supporter of his nearby D.C. United and the U.S. men's and women's national teams. With access to the matches of each, live and on TV, he's more likely to spend money on all of them.

Antitrust law is not a device to make commercial actors prioritize long-term interests over short. To the contrary, if NBC and U.S. Soccer put themselves out of business, that's a healthy outcome for the free market. But if antitrust inadvertently compels U.S. Soccer to up its game and compete for eyeballs by actually developing the sport, rather than constraining consumer choice, then that's an outcome I can get behind.

The case is Relevant Sports, LLC v. U.S. Soccer Federation, Inc. (2d Cir. Mar. 7, 2023). U.S. Circuit Judge Raymond J. Lohier, Jr.., wrote the opinion of the unanimous panel that also comprised Chief Judge Livingston and Judge Lynch. In 2017's "El Clásico Miami," Barcelona bettered Real Madrid 3-2.

Politics complicates football: Sympathy for ... Iran

As advertised, last week in Kraków, Poland, I had the great privilege to talk law, development, and the FIFA World Cup, with the group stage under way in Qatar.

Students and faculty of the American Law Scientific Circle (KNPA) and American Law Program at Jagiellonian University (Koło Naukowe Prawa Amerykańskiego TBSP UJ and Szkoła Prawa Amerykańskiego UJ), in collaboration with the Columbus Law School at the Catholic University of America, generously hosted me.  The talk kicked off a KNPA lecture series on "Law and Sustainability." My especial thanks to KNPA President Zuzanna Maszniew and her leadership team.

Photo © Zuzanna Maszniew, used with permission.

I was no John Oliver, to be sure, but I hope I stimulated thinking about the Gordian Knot of sport and politics and its implications for the Middle East and North Africa's place at the table.

Today, November 29, the United States will round out its play in the group stage in Qatar with a match against Iran, simultaneously with a high stakes stand-off between England and Wales. It's a big day, football fans.

Meanwhile, coming home to the States this week, I've been disappointed that Americans are not more in tune with the fascinating stories of geopolitics that are unfolding under the sporting tents of the Qatar World Cup. I admit, what's happening now in China dangles meritorious distraction. But with the USMNT facing Iran today, I want to mention one of the stories from Qatar that has gripped me.

In Iran's opening match with England last week, Iranian footballers refused to sing their own national anthem (BBC).  Stony faced, the players apparently chose to stand in silent solidarity with rights protestors against the government at home (N.Y. Times). Subsequently, Iranian authorities arrested a former national-team footballer known for occasional anti-regime sentiments (Guardian). At Iran's second match, the lads toed the line.

The anthem stunt was extraordinarily courageous. The players had to have known the disgrace they brought on the regime would have consequences when they go home, if not sooner.

Iranian footballers in 2018.
Mahdi Zare/Fars News Agency via Wikimedia Commons CC BY 4.0

More, though, I was struck by the reminder that people and their governments are not the same thing.

I'm a reasonably bright person, as people go, and I've seen a lot of the world. I come from an immigrant family myself. I grew up with a dear Iranian friend. Her stepmother taught me how to make tahchin, and her dad eagerly gave me his own well worn copy of All the Shah's Men. I shouldn't need to be reminded that people are just people, much the same around the world, just trying to make the best of things and find some joy where we can; and that it's wrong to ascribe the Machiavellian motives of states, whether others or our own, to their citizens. The protests now in China say the same.

Yet, I admit, I had followed the USMNT into the World Cup with something of a Cold War mentality, maybe because of the era when I grew up. Yellow ribbons, burning effigies, and "Death to America" chants all bounce around my long-term memory. I was determined that we and our Group B compatriots from England and Wales should beat Iran to make some kind of political point. A Miracle on Ice or Rocky IV situation.

The Iranian men's demonstration unsettled my unconscious prejudice. As a result, a part of me has been pulling for Iran in their last matches, even while, still, I had to favor the England squad, which features some of my beloved Manchester City stars, and Wales, which invokes Lasso-esque Wrexham affections. And even while, of course, I support my home USMNT today, there will be a part of me that wants to see the Iranian side make a pride-worthy showing.

With FIFA World Cup under way in Qatar, law students study sport and soft power, law and development

I'll be talking law, development, and the World Cup today in Kraków, Poland.

Thanks to the American Law Scientific Circle (KNPA) and American Law Program at Jagiellonian University (Koło Naukowe Prawa Amerykańskiego TBSP UJ and Szkoła Prawa Amerykańskiego UJ), in collaboration with the Columbus Law School at the Catholic University of America, for hosting me. This talk kicks off a KNPA lecture series on "Law and Sustainability" and begins at 3 p.m. CET at Pałac Larischa 203, Bracka 12.

I'll share some of the subject matter later.  Too much football to watch!

Qatar World Cup opens Sunday; meanwhile, Netflix series stokes embers of FIFA corruption scandal

I visited CONMEBOL HQ in Asunción, Paraguay, in October.
The South American angle on the FIFA corruption scandal
was engagingly fictionalized in El Presidente in 2020.
(Photo by RJ Peltz-Steele CC BY-NC-SA 4.0.)

The sport world is abuzz over the Netflix documentary series, FIFA Uncovered, dropped November 9, just weeks before the FIFA World Cup opener in Qatar.

Many in Qatar are crying foul by filmmaker Miles Coleman for dredging up the ugliness of the FIFA corruption scandal, the focus of this docuseries, right now. But in an interview with renowned MENA scholar James Dorsey, Coleman, who created This Is Football for Amazon Prime in 2019, said he had no motive other than historical documentation. The timing of the release, Coleman said, is to bring football fans up to speed on the facts, so they can have informed conversations around the Qatar World Cup.

FIFA was rocked by scandal in 2015 when investigators led by the U.S. Department of Justice (DOJ) arrested top officials in Zurich and issued an avalanche of indictments. It was revealed then that corruption practically poisoned every part of world football governance, especially the bidding process for the world's top sporting event and its 2010 award to Russia for 2018 and Qatar for 2022.

Qatar narrowly edged out a bid from the United States in 2010, and disgraced FIFA President Sepp Blatter and his allies accused the United States of spite. Purportedly relieved of corrupt process, FIFA in 2018 awarded the 2026 World Cup to the joint bid of the United States, Canada, and Mexico.

When issues remain controverted, the docuseries presents all voices, Coleman told Dorsey. Indeed, the interviews are what makes the series worthwhile. Most of the story has been told already and well; I read and reviewed a number of books on the subject in the first pandemic summer. The docuseries, though, includes interviews with just about every key player, including Blatter himself, as well as Qatar bid chief H.E. Hassan Al Thawadi; "Qatar whistleblower" Phaedra Al-Majid, featured recently on Norwegian television; and Mary Lynn Blanks, romantic partner of corrupted American football official Chuck Blazer, who died in 2017.

Among the revelations, or at least confirmed suspicions, arising from the docuseries interviews is the fact, borne out by evidence besides his own testimony, that Blatter favored the United States rather than Qatar to host the 2022 World Cup. For all Blatter's failings, he was outmaneuvered by the colossal corruption machine that he helped to create. African Football Confederation President Issa Hayatou, a rival of Blatter's within FIFA, was key to securing the Qatari win. Hayatou was joined in his efforts by Jack Warner, president of the North, Central America and Caribbean Association, whose defection infuriated Blazer.

On Wednesday next week, November 23, at Jagiellonian University in Kraków, Poland, I will lead a discussion, "Law, Development, and the World Cup."  The program, in English, begins at 3 p.m. local time at Pałac Larischa 203, Bracka 12.

The World Cup opens Sunday night in Doha, Nov. 20, at 1100 US EST/1600 GMT, when Qatar hosts Ecuador in Group A. The United States MNT plays its Group B opener against Wales on Monday, Nov. 21, at 1400 US EST/1900 GMT. Poland plays its Group C opener against Mexico on Tuesday, Nov. 22, at 1100 US EST/1600 GMT/1700 CET.

Hat tip to Alessandro Balbo Forero, an alum of my Comparative Law class who wrote his final paper on football and Brexit, for alerting me to the drop of FIFA Uncovered. He's an Arsenal supporter, but nobody's perfect.

Here is the trailer for FIFA Uncovered:

And here is the Dorsey interview of Coleman:

Crisis worsens in Lviv; FIFA at last suspends Russia

Stand with Ukraine rally at the Lincoln Memorial, Washington, D.C. (image by Victoria Pickering CC BY-NC-ND 2.0)

ABC News has published a list of aid organizations supporting Ukraine, including the U.N. High Commissioner for Refugees itself.  The number of persons fleeing the war has now exceeded a half million.  Matt Gutman's latest report from Lviv, not yet freely available, is heartbreaking, including a train interview with a little boy and images of a sobbing girl, both contemplating fathers left behind.  A TikTok video gives a flavor.

@abcnews Matt Gutman reports from the train station in #Lviv, #Ukraine, where hundreds of people are waiting to board to leave the country. #news #russia ♬ original sound - ABC News

Recent days have seen moving recognition of the war in professional football (soccer).  My own Manchester City's Oleksandr Zinchenko, who hails from Ukraine, met Everton countryman Vitaliy Mykolenko on the pitch for an embrace before the Saturday match-up, as the stadium overflowed with azure and gold.

💙💛

With their homeland Ukraine still under attack by Russia, Vitaliy Mykolenko and Oleksandr Zinchenko embraced ahead of Everton's match with Man City in the Premier League.#BBCFootball

— BBC Sport (@BBCSport) February 26, 2022

Born in Radomyshl in Ukraine, about 70 miles west of Kyiv, Zinchenko perfected his skills with the youth squad of FC Shakhtar Donetsk, where he became captain.  Then, with his family at age 17, he was forced to flee the conflict in the Donbas region, according to the BBC.

The support at the Etihad on Saturday brought Zinchenko to tears. Subsequently, he had harsh words for Vladimir Putin and joined a statement demanding Russia's expulsion from international football. After some earlier ambiguous statements, FIFA, the world governing body of football, yesterday at last settled on suspending Russia from all competitions, including ongoing qualifiers for the World Cup in Qatar late this year.

Manchester City chief Pep Guardiola said Saturday that Zinchenko wanted to play, despite the circumstances. He is set to start today in Man C's FA Cup match against Peterborough, 1915 GMT, on ESPN+ in the United States.

RIP Andrew Jennings, legendary investigative sport reporter who exposed corruption in FIFA, IOC

Andrew Jennings testifies in a Brazilian legislative probe  of the national football
federation (photo by Waldemir Barreto/Agência Senado CC BY 2.0).

A pause today to take stock of the work of investigative reporter and anti-corruption advocate Andrew Jennings, publisher of Transparency in Sport, who died on January 8.

Jennings was a tireless and cantankerous thorn in the side of Big Sport.  It would be difficult to overstate the role he played in precipitating the sea-changing revelations of corruption in the administration of the Olympics and international football.  He broke new ground with his books, The Lord of the Rings (1992) and Foul! The Secret World of FIFA (2006).  The "fall of the house of FIFA" and boss Sepp Blatter in the 2015 corruption scandal probably would not have happened had Jennings not sewed the seeds a decade earlier.

Jennings was a prolific writer across media, his many books besides.  Notwithstanding a more-than-fair share of earned global acclaim and enmity, Jennings also was a tirelessly supportive colleague in his crusade.  Email to his blog's contact address went directly to him; he personally and kindly answered a query of mine when I was researching on sport accountability.  He penned a foreword and praise for Whatever It Takes: The Inside Story of the FIFA Way, the book (reviewed) by Australian whistleblower (and friend of The Savory Tort) Bonita Mersiades.

Andrew Jennings has been widely memorialized, e.g., Sports Illustrated. His death leaves a gaping hole in the agencies of accountability for the quasi-corporate behemoths of transnational sport.  But his work has shown the world irrevocably that corruption thrives in the dark soil of secrecy.

Report from a Social Distance Week 8: Speaking of Football, Magic, and Beer ...

Del's is a Rhode Island tradition.  (Photo by Lady Ducayne CC BY-NC 2.0.)

This will be my last weekly report for a while.  I've tried to make it extra savory.  My law school cut summer compensation, so my lemonade from lemons will be much less screen time in the next three months.  These eight "Reports from Quarantine" / "Reports from a Social Distance" have been a lot of fun to write, and I'm grateful for the positive feedback you've sent, dear reader.  Nevertheless, it feels like work anytime a laptop is staring back at you.

Though still experiencing a record-cold spring, the temperature here is at last topping 60°F (15.5°C) as many days as not.  My sprained ankle seems healed, thanks to my Instagram medical team, so I'm looking forward to more time out of the house.  We're reopening in Rhode Island, but there's not yet any timeline for phase 2, much less phase 3.  As I wrote yesterday, people's patience is wearing thin even here in staid New England.  Here's hoping that falling infection numbers bear out our anxious economic plan.

This has been my week 8 since coming home from Africa, and week 8 at home.  Literally, at home.

What I'm Reading

Mary Sidhwani, How to Find the True Self Within: Secrets of Relieving Stress and Anxiety (2019).  I'm not the self-help sort.  But my aunt wrote this book.  I can't imagine a more fitting title to kick off my time away from work.  I'm only as far as the introduction, and I'm keeping an open mind.  Audio chapters are available also.  Dr. Sidhwani is the compassionate soul behind the Women's Therapeutic Health Center, based in Ellicott City, Maryland.

John Maynard, The Aboriginal Soccer Tribe (2019).  This unusual nonfiction selection was a gift—name drop ahead 🤭—from Bonita Mersiades, whom I met last year at Play the Game, and of whom I became an instant admirer.  Mersiades is known in world sport circles as "the Australian whistleblower" for exposing FIFA corruption in soliciting nations' World Cup bids years before the 2015 indictments made whistleblowing fashionable.  She suffered enormously for the perceived betrayal, persecuted both professionally and personally.  Watch her talk about it at Play the Game, or read my account of the session.  A powerful personality already schooled in fighting the establishment as an executive in women's sport, Mersiades was not so easily deterred.  She wrote her own book, aptly titled Whatever It Takes: The Inside Story of the FIFA Way (2018); started her own boutique publishing house, Fair Play; and became a renowned commentator on the global business of football.

Knowing my interest in comparatism and sport and society, including research on Australian indigenous media, Mersiades gifted me the 2019 Maynard release.  John Maynard hails from a Worimi Aboriginal community on coastal New South Wales. He is a professor of indigenous history at the University of Newcastle in Callaghan.  Maynard's cultural-comparative work has set Aboriginal politics alongside African American and Native American policy problems.  He's also an avid football fan, and this book is a definitive biography of soccer and Aboriginal society.  The 2019 book from Fair Play is actually a revised update of an out-of-print 2012 original.  If you're a football fan, or you want to buy a gift for one, check out Fair Play's many other titles, too.  They include histories of Aston Villa, Liverpool, and Everton, as well as other socio-cultural studies of Asia and Brazil.

The 12 Minor Prophets.  With our church, we continue our year-long reading program, moving on to the intriguing teachings of the 12 minor prophets.  As usual, the BibleProject has fabulous drawing videos, starting with Hosea, Joel, Amos, and Obadiah.  Worship services are continuing online for now, and, as always, all are welcome, 0930 EDT on Sundays.

What I'm Watching

The English Game (2020).  This limited series was developed for Netflix by none other than Julian Fellowes (Downton Abbey).  Its six episodes are sometimes in a clumsy rush to deliver its upstairs-downstairs social message.  Overall, though, this story about the origins of association football (soccer) in late-1870s England makes for a thoroughly rewarding work of television.  The series uses football, today the world's game, as a lens through which to view evolving society.  The show brings within its scope not only thinning social strata, but emerging women's and labor rights.  Football itself was at a pivotal point of development at this time, transitioning from elite pastime to professional play, and introducing a more sophisticated form of passing play, recognized as the norm today, relative to a simple strategy of dribbling attack.

The story of a working-class mill team making an unprecedented run to steal the FA cup from elite-establishment collegiate players is very loosely based on real events.  Read more at the publication of your choice: Daily Mail, Digital Spy, Esquire, Express, i news, Mirror, Radio Times, The Spectator, or The Telegraph.  Kevin Guthrie is stately as earnest Scottish footballer Fergus Suter; Guthrie was Abernathy in Fantastic Beasts.

The Great (2020).  I watched the first few episodes of HBO's Catherine the Great with the resplendent Helen Mirren, who received a Golden Globe nomination for the lead role.  I've been embarrassed to admit that I found the show too slow and didn't finish it.  Now comes Hulu's The Great to tell me, it's OK, and to make Catherine's remarkable story so much more delightfully digestible.  This dark comedy features Elle Fanning (Maleficent's Princess Aurora and Dakota Fanning's sister) as Catherine and Nicholas Hoult (X-Men's Beast, the big screen's J.R.R. Tolkien, and the most recent Watership Down's Fiver) as Peter III.

At times laugh-out-loud funny and taking great liberties with history—TV Catherine only arrives in Russia for her wedding to the already-emperor, whereas the real Princess Sophia had been brought to court decades earlier—the story is, as the show's title card disclaims, "occasionally true"—as in portraying Count Orlov, played ably furtively by Sacha Dhawan (Doctor Who's latest Master), as an enlightened co-conspirator in Catherine's inevitable coup. The magnificent sets meant to emulate 18th-century Russian imperial opulence include one real Italian palace and several English castles and houses.  Be warned, there are brief and highly fictionalized portrayals of violence against animals.

The Politician s1 (2019).  This creation from Glee trio Ryan Murphy, Brad Falchuk, and Ian Brennan was much hyped, but ... weird.  I was interested enough to watch it all the way through.  But Glee it is not.  The Politician lives somewhere amid a wicked ménage à trois of Napolean Dynamite, My So-Called Life, and Alex P. Keaton.  Dear Evan Hansen's defining stage star Ben Platt snagged a Golden Globe nomination for the lead role, and he's terrific.  But the story of a socially awkward teen hell-bent on winning his high school presidency as a ticket-punch on his life-road to the White House is more aimless in the execution than the funny trailers suggest. Season two is expected in June; I'll probably skip it.

Good Eats Reloaded s1-s2 (2018-2020).  Devoted fans of the 14-season Food Network phenomenon that was Good Eats (1999-2012), we went twice to see cinematographer-turned-food-guru Alton Brown share his scientific approach to the culinary art on stage, in 2014 and 2016.  At the latter show, Brown caused an eruption of audience elation upon a cryptic clue that Good Eats might be coming back.  It has, and season 15, retitled Good Eats: The Return, is now free to view in 13 episodes at the Food Network online.  In the interim, Brown made two seasons of Good Eats Reloaded, the second coming out weekly now from the Cooking Channel, available there and on other platforms.  At first I did not want to watch Reloaded, because they looked like just rebroadcasts of the old show.  I was wrong; they're much more.

Hosted by Brown, Good Eats Reloaded is an often hilarious, sometimes MST3K-like look back at Good Eats highlights with plenty of new content.  Contemporary Brown mercilessly mocks his younger self, often breaking away to tell us, for example, how he cooks a burger now, with decades' more experience, or that he no longer uses rolling pin rings because, what seemed like a good idea at the time, they broke soon after the show was filmed.  Sometimes there are all new recipes; he cuts out early from s1e01 Steak Your Claim: The Reload to show us how to make my favorite Korean comfort food, bibimbap.  But, I say, leave out the fish sauce 😝 for the authentic urban-Seoul variant.  Speaking of eats ....

What I'm Eating

Lasagna.  My wife made her incomparable vegetable lasagna (pictured before the oven) for Mother's Day.  Get off my case.  I made breakfast.  She likes to cook.  It's her escape.  Heaven knows she deserves to escape.

Antoni's baked turkey mac'n'cheese.  Furthermore for Mother's Day, we had a family Zoom on my wife's side, wherein everyone made mac'n'cheese comfort food, feat. ground turkey, from Antoni's cookbook, Antoni in the Kitchen.  (That was just one of three Mother's Day Zoom calls.)  The product was tasty, but heavy.

Crepe cake.  Another self-sacrifice 😉 in the #SaveOurRestaurants campaign, we went back to neighbor-owned Crepelicious for its signature, 14-layer, green-tea crepe cake.  Speaking of heavy...

I'll lose weight after lockdown.  Promise.

What I'm Drinking

Mardi Gras King Cake.  My last order from Community Coffee brought Mardi Gras King Cake to my door.  It tastes almost sweet on its own, flavored as it is with cinnamon and vanilla.  It recalls my wife's king cake from March and reminds us of our beloved New Orleans, an especially welcome nostalgia since the cancellation of this summer's AALL conference there.

Koloa Estate.  We took an interlude from Community to visit the far side of the continent with medium-roast Koloa Estate from Kauai Coffee.  Kauai brands often get a bad rap because they're not 100% Hawaiian grown.  You're forgiven if the package led you to think otherwise.  Still, if you don't overpay, it's a solid coffee, for a blend, with some of that nutty flavor that characterizes beans grown in Pacific Rim soil.

Sharish Blue Magic Gin.  I brought this gin back from Lisbon.  Its name is the Arabic name of its home town, Monsaraz, in the southeastern Alentejo region of Portugal, and the unusual whale-fin bottle shape pays homage to the region's easterly hills.  Sharish is made by António Cuco, who, according to various accounts, was an unemployed teacher when he started experimenting with distillation in his home pressure cooker in 2013, set to head a multimillion-euro operation in a few short years.

Sharish's defining feature is its brilliant blue color, more indigo in brighter light and undiluted density, and its "magic" is that this color turns to pink in the presence of tonic.  I experimented, and it was fun. The blue color comes from the flower of the blue pea blossom, clitoria ternatea, in fact named for its, uh, feminine shape.  Tonic really does change the color, not just dilute it, shifting the acidity balance to alkaline, like when we played with pH paper in grade-school science class.  When the novelty wears off, a gin with a rewarding and summery flavor remains.  Sharish leads with its fruits, raspberry and strawberry, and they're backed up by a palette of Alentejo-grown botanicals: angelica, cardamom, cinnamon, ginger, and licorice, besides the blue pea and juniper.  Sharish goes down so pleasantly, even straight, that its 40% ABV sneaks up on you.

Clitoria ternatea is not a European native, and this is not the only gin that uses it.  The flower goes by many names around the world, including butterfly pea and Asian pigeonwings.  It's an Asian native and has long been known in Asian cuisine, notably Thai blue rice.  The flowers give Empress 1908 gin an indigo hue and a savour overlapping with Sharish.  Made in British Columbia and shipped worldwide, Empress is easier to find in North America, though I think a rung below Sharish in finish.

French 75.  I wanted to make a special cocktail for my wife for Mother's Day.  The French 75, a champagne-and-gin mix, was the signature favorite of Count Arnaud Cazenave in 20th-century New Orleans, according to the John DeMers book, Arnaud's, that I wrote about two weeks ago.  I used a Bon Appetit recipe, a French champagne, and New Amsterdam gin.  My French 75 made me feel like a high-class continental cultural import.  I was so carried away that I briefly joined the neighbor's bichon frisé in looking down (figuratively) on our lab mix.

Death by King Cake.  I ventured to the "essential" liquor warehouse to bring my wife two new beers to try for Mother's Day.  We love whites and sours.  Both of these were indulgent treats.  Death by King Cake let us end the day the way we started it.  From Colorado-based Oskar Brewing, King Cake is a 6.5% ABV white porter brewed with vanilla, cinnamon, nutmeg, cacao nibs, orange peel, and pecans.  Oskar promises Death by Coconut coming soon, an Irish-style porter in the same "series."

Key Lime Pie Sour.  Of all the food and bev I've tried around the world, I remember vividly my first frozen-key-lime-pie-slice-dipped-in-chocolate-on-a-stick in Key West, Florida.  That was the moment I realized that humanity had achieved Roman Empire-level gluttony on a global scale, and that our fall is inevitable, probably coming sooner than later, but that it would be a helluva ride down.  This is that in a beer.  From New Hampshire-based Smuttynose Brewing Co., there's an adorable seal visage on the back of the can. 6.3% ABV.

It was a Zoom Mother's Day


Stay thirsty, my friends!

Eating and Drinking images by RJ Peltz-Steele CC BY-SA 4.0 with no claim to underlying works
Zoom captures by RJ Peltz-Steele CC BY-NC-SA 4.0 with no claim of data protection waiver

Football is universal

Football in the Jamestown district of Accra, Ghana (CC BY-SA 4.0 RJ Peltz-Steele)

I'm a believer in sport and development and a participating researcher at the International Sport and Development Platform.  Read about the great work done around the world by Boston-based Soccer Without Borders, winner of, inter alia, the 2017 FIFA Diversity Award.

Whistleblowers call foul, Play the Game

Marcus Carmichael
(Chris Turner CC BY-NC-ND 2.0)

Whistleblowers are basking in an adoring limelight in the United States right now. They better enjoy it while it lasts, because the American taste for whistleblowing is fickle.

All the attention being paid to whistleblowing in Washington, you would think that whistleblowers are heroes of democratic liberty, Paul Reveres on midnight rides of revelation. Now there’s a second whistleblower, and maybe a third, and, why, people just can’t get in line fast enough to become whistleblowers.

I have to roll my eyes when I hear people waxing poetic over the great tradition of the American whistleblower. Catch those same people on a different day, different issue, or different side of the fence, and they’ll be lashing the whistleblower to the stake and setting their torches to the kindling like it’s the Spanish Inquisition. For much of American history, whistleblowing has been synonymous with disloyalty and treachery.

The Washington whistleblower caused WNYC’s On the Media to replay a 2015 segment in which Brooke Gladstone interviewed language writer Ben Zimmer and consumer protection advocate and civil rights crusader Ralph Nader. The early-20th-century word whistleblowing, Zimmer explained, comes from what it sounds like: a referee blowing the whistle to stop play in event of a penalty. (See Transparency International for the word’s translations, born of other cultural contexts.) No sooner did the word come about that it acquired a dark connotation. It meant, Gladstone said, “to snitch, to rat, to steal.” You can hear that usage, Zimmer pointed out, in the classic film On the Waterfront (1954), in reference to the enemies of organized labor. In this sense, Trump’s “spy” notion is not so far off the mark.



Nader was responsible for turning the word around in the 1970s. He pleaded for insiders to break ranks in his public safety crusade against Big Auto, and he repurposed the term whistleblowing with the positive spin of serving the greater good, despite disloyalty in the short term. So the word is not the thing. Gladstone nailed the salient distinction, which is whether the whistleblowing accords with one’s value judgments. Trump’s traitor is Pelosi’s star witness. Ed Snowden deserves either a presidential medal or an espionage prosecution. Even Upton Sinclair was a duplicitous meatpacking worker.

Blow the Whistle

Our ambivalence about whistleblowers finds expression in law. When we protect whistleblowers at law—common law usually does not—it’s usually a legislative reaction to something awful that happened, when we wonder why no one in the know said anything. While whistleblower protection statutes are prevalent in the United States at state and federal levels, they are often controversial, hardly comprehensive, and likely to pertain only to the public sector. Protection tends to be narrow and sectoral in scope; to depend upon abundant and variable technical prerequisites; and to offer scant shield from the full range of consequences, formal and informal, that the whistleblower faces. Woe to the would-be whistleblower who fails to hire a lawyer in advance to navigate the legal process. The Washington whistleblower was meticulous. The person either is a lawyer or consulted one.

Far from the glamorous escapades of the Hollywood Insider, the real-life whistleblower’s lot in life is lousy. More whistleblowers become infamous than famous, and most become no one significant at all. Typically whistleblowers find themselves, through no fault of their own, in a catch-22. Behind door number one, go with the flow, stay with the pack, look the other way, and sell out your principles. Behind door number two, stand on principle, and probably lose your job, your livelihood, your home, and your friends, alienate your family, and maybe put your life at risk.

To be fair, not all whistleblowers are motivated by altruism, and not all whistleblower motives are altruistic. Sometimes whistleblowers themselves are victims of the misconduct they are reporting. Sometimes they are grinding an unrelated ax against a perpetrator—which doesn’t make the perpetrator less an offender. Whistleblowers’ motives can be complicated. People are complicated. Altruism is a factor. Courage is a constant.

Play the Game

Last week, I had the extraordinary experience of meeting some whistleblowers in world sport. For me, it was the highlight of Play the Game, an initiative and biennial conference of the Danish Institute for Sports Studies, its first meeting outside Europe.  Play the Game aims to raise ethical standards and to promote democracy, transparency, and freedom of expression in world sport.

Whistleblowing in sport might not sound like a big deal, but it is. Consider that transnational sport governors such as the Fédération Internationale de Football Association (FIFA) and the International Olympic Committee (IOC) are among the most powerful non-governmental organizations in the world. Technically they are “nonprofits,” but no one says that with a straight face. Until recently, FIFA and IOC execs sashayed into the offices of presidents, prime ministers, governors, and mayors like they were Regina George’s mean girls on a tear at North Shore High. There were real costs to their shameless greed: global contrails of worthless constructions, impoverished populations, and broken dreams.

That started to change when FIFA and IOC were exposed as corrupt at their cores. Their corruption was exposed by whistleblowers.

Bonita Mersiades (Play the Game CC BY-NC-SA 2.0)

Bonita Mersiades was a top exec with the Australian Football Federation from 2007 to 2010, when she worked on Australia’s failed bids for the 2018 and 2022 FIFA World Cup tournaments. She blew the whistle on the extraordinary demands that FIFA placed on would-be hosts and her own country’s willingness to bend the public interest to conform. Those tournaments we know now were awarded to Russia and Qatar upon such rank corruption as resulted in a 2015 raid by U.S. and Swiss law enforcement and dozens of criminal indictments. Mersiades herself was outed when the investigative report of Assistant U.S. Attorney (now N.Y. Judge) Michael Garcia was made public.

At Play the Game, Mersiades described social ostracism in her community, loss of her career in sport administration, burglary of her home, and hacking and online harassment. She wrote about FIFA corruption and her experience in a 2018 book, Whatever It Takes: The Inside Story of the FIFA Way.

Yuliya and Vitaly Stepanov (Play the Game CC BY-NC-SA 2.0)

Also on the whistleblower panel (below in full) were Yuliya Stepanova and Vitaly Stepanov. Yuliya was a Russian Olympic runner, and Vitaly worked for the Russian anti-doping agency. Together they blew the whistle on Russian doping, breaking open a massive scandal that rocked Russia and the world, exposing not just systematic Russian doping but reckless, if not criminal, indifference in the World Anti-Doping Agency. With good reason, the Stepanovs feared for their lives.  They applied for Canadian asylum and now live in the United States (with their adorable little boy, also in attendance).

Vitaly told a spellbound audience that the stress of the couple’s situation had them on the verge of divorce when, at last, they took the leap into whistleblowing history together. They would have to leave homeland and family behind, and their lives would never be the same. But it was OK, he said, because “after that, … we were united.”

My dinner companions: Mersiades and Dr. Joel Carmichael,
chiropractor to U.S. Olympic athletes

When, over dinner, I lamented the state of patchwork American whistleblower protection law, Mersiades was quick to correct me. It’s much better than Australia, she said. [See UPDATE below.]  In the United States, we do have a somewhat vigorous qui tam field. (Read more at Troxel, Krauss, & Chapman.)  And the federal whistleblower law now at the heart of the impeachment inquiry is better than the yawning void of jeopardy into which FBI Special Agent Coleen Rowley stepped when she testified in the Senate on 9/11 failures in 2002. She retired from the FBI two and a half years later.

Mersiades book

Still, it seems to me that as a society, we should be able to do better. When the dust settles around the peculiarly technically adept Washington whistleblower, we might ought wonder why whistleblowers aren’t all around us—at every level of government, and in the private sector. Did no one at Purdue Pharma know about aggressive opioid peddling? We should wonder why, in the land of the First Amendment, there are so many disincentives—legal, social, economic—for anyone to speak out as a citizen on a matter of urgent public interest.

“It is difficult to get a man to understand something, when his salary depends upon his not understanding it,” Sinclair said in 1934. That’s why the rule of law must support the apostate who speaks the truth.

The documentary Icarus tells the Russian doping story.
Director Bryan Fogel also spoke on the whistleblowing panel (above) at Play the Game 2019.

For more from Play the Game 2019, see the conference website and the #ptg2019 Twitter feed.

[UPDATE, Oct. 21, at 10:50 a.m. U.S. EDT: A testament to Mersiades's lament that Australian whistleblower protection lags behind democratic demands, witness today's remarkable protest action by Australian newspapers.] 

UIA Congress studies global legal issues: irresponsible journalism, anti-corruption in sport, and intellectual freedom in fashion

Just this week I returned from the annual world congress of the Union Internationale des Avocats, which did not disappoint.  Lawyers from around the world gathered in Toronto to exchange experiences and ideas on a range of cutting-edge themes.

Highlights of this year’s UIA for me included the media law and sports law panels.  The media law panel was coordinated by Emmanuel Pierrat, of Cabinet Pierrat, and Jean-Yves Dupeux, of Lussan & Associés, both in Paris.  The sports law panels were coordinated by Fernando Veiga Gomes, Abreu Advogados, Lisbon; Robert J. Caldwell, Kolesar and Leatham, Las Vegas; and Emanuel Macedo de Medeiros of the International Centre for Sport Security, an NGO based in Doha.

Liability for Journalism

The media law program asked panelists to examine how "irresponsible" and "responsible" journalism are faring in today's legal systems.  Thierry Bontinck of Daldewolf SCRL in Brussels ran through recent developments in the European Court of Human Rights.

We’ve always known that the European approach to freedom of expression is characterized more by balance than the presumption-rebuttal approach of the U.S. First Amendment.  That tension goes a long way to explain U.S. reluctance to enforce foreign libel judgments over the decades, a reluctance codified in the SPEECH Act during the Obama Administration.  But Bontinck’s analysis shows a recent trend in the ECtHR to further downplay the primacy of free speech, putting it on par with competing interests, such as privacy, fair trial, and law enforcement.

It is not clear to me whether this trend will further alienate Europe from fundamental rights analysis in U.S. constitutional law, or might be running in parallel to a trending subordination of free speech in our own courts.  Frankly I would welcome the change here were rights of reputation and privacy to elbow a little more room for themselves in our First Amendment law.  But I would be less eager to embrace a free speech trade-off with more abrupt implications of state power, such as surveillance by law enforcement.

Litigation against Saudi Arabia and the FBI

Also on the media law panel was Thomas Julin of Gunster Yoakley & Stewart, P.A., Miami.  Julin gave an expert overview of developments in American media law.  Yet most captivating was his update on the efforts of families to sue Saudi Arabia in S.D.N.Y. for September 11 losses, more than US$100bn in damages, under Congress’s remarkable waiver of the Saudis’ foreign sovereign immunity.

Julin represents the award-winning Florida journalist Dan Christensen in FOIA litigation against the FBI, now going to the Court of Appeals, for records related to 9-11 investigation of the Saudis.  Needless to say, plaintiffs in the New York litigation are carefully watching the collateral FOIA litigation, which could unlock a vault of evidence.

Julin pointed out that Saudi moves toward commercial and political liberalization, such as a planned IPO of the oil industry in New York and even the recent announcement that Saudi women would be allowed to drive cars, might be a function of U.S. liability exposure.

Whither Goes Sullivan?

In running down U.S. legal developments, Julin talked of course about the Hulk Hogan case, Bollea v. Gawker ($140m verdict, $31m settlement) and the Pink Slime settlement (Beef Products, Inc. v. ABC, Inc.).  Although the Pink Slime settlement was confidential, Julin said that SEC filings disclosed a $177m pay-out from ABC News parent Disney to the beef industry (on its $1.9bn claim), and that doesn’t include losses covered by insurance.  That might be the biggest defamation settlement in the world, ever, Julin noted.

From the audience, Jim Robinson of Best Hooper Lawyers, Melbourne, Australia, added to the mix Rebel Wilson’s record-setting A$4.57m win in Victoria.  All this led Julin to express some concern about whether New York Times v. Sullivan today carries waning cachet (a mixed blessing in my opinion).

Arbitration in Sport

In sports law, a first panel compared case outcomes across international dispute resolution systems.  Moderated by Caldwell, the panel comprised David Casserly of Kellerhals Carrard in Lausanne, Switzerland; Paul J. Greene of Global Sports Advocates, LLC, in Portland, Maine; Roman E. Stoykewych, senior counsel for the National Hockey League Players Association in Toronto; and Clifford J. Hendel of Araoz & Rueda in Madrid.

One case the panel examined involved the hit of NHL player Dennis Wideman on linesman Don Henderson in January 2016.  The video (e.g. SportsNet Canada) is not pretty, but it turns out there is much more than meets the eye.  In the video, at first blush, Wideman seems quite deliberately to hit the linesman from behind.


In context, however, Wideman was coming off of a concussive blow into the boards himself.  Stoykewych explained that Wideman was woozy, and what looks like a raising of his stick to strike Henderson can in fact be explained as a defensive maneuver whilst skating into an unidentifiable obstacle, if not a perceived opponent on the attack.  Casserly moreover suggested that Wideman’s plight might be likened to the exhausted fighter who inexplicably starts beating on an intervening referee.  The NHL rule on intentional strikes is all the more confounding, as it seems to define intent with an objective reasonableness test.

Ultimately the players’ union won reduction of Wideman’s heavy sanction to something like time served.  The case occasioned a vibrant discussion of evidentiary procedures, decision-making standards, and review standards in sport arbitration.  In the bigger picture, the case makes for a fascinating study of civil culpability standards and comparative dispute resolution mechanisms.

Integrity in Sport

Moderated by Macedo de Medeiros, the second sports law panel comprised Randy Aliment of Lewis Brisbois Bisgaard & Smith LLP in Seattle, Washington; Matthew Shuber of the Toronto Blue Jays Baseball Club; and Veiga Gomes.  The panel occasioned introduction of the Sport Integrity Global Alliance, a meta-organization born in 2015 to bolster integrity in global sport governance.  Not many people need to persuaded any longer, since the FIFA Sepp Blatter fiasco, of the problem of corruption in world sport.  Boston's and Hamburg’s disgruntled withdrawals from Olympic contention spoke volumes about skepticism of sporting mega-events, and I for one wonder at Eric Garcetti’s embrace of Olympic promise for Los Angeles.

Yet the corruption problem infects more than just the highest echelons of sport governance, as money filters through so many political layers and across so many social sectors.  Veiga Gomes illustrated for example:  Ninety percent of European footballs clubs do not publish their books, enjoying utter opacity in their accounting.  At the same time, 77% of European clubs are insolvent or “close to insolvent.”  Meanwhile, FIFA, UEFA, and the European football associations generate more than US$3bn in annual revenue.  So where is all that money going?  Thus, Veiga Gomes concluded, a “major transparency problem” renders football vulnerable to corruption and organized crime.

Strike a Pose

Though I was not able to spend as much time there as I liked, the UIA commissions on contract law, fashion law, and intellectual property law put on a fabulous full-day working session on “launching a fashion label business,” ranging across the areas of law practice implicated by a fashion-label client.  Sharing the helm of this ambitious program was an IP lawyer whom I admire, Gavin Llewellyn, of Stone King LLP, London. 

Taking part in the program was my friend and esteemed colleague from UMass Dartmouth Public Policy, Professor Nikolay Anguelov.  Dr. Anguelov talked essentially about the thesis of his book, The Dirty Side of the Garment Industry: Fast Fashion and Its Negative Impact on Environment and Society.  His talk made a vital and unusual contribution by making lawyers in the business think about the externalities of their commercial work in many dimensions, including social, economic, and environmental.  Credit to Llewellyn for bringing in Anguelov.

For every snippet of the fashion law program I was able to catch, I learned something.  My favorite takeaway was a discussion by Renata Beržanskienė, of the Sorainen law firm in Vilnius, Lithuania, about the “Jesus Jeans” case.  The case involves clothing and its advertising by the Robert Kalinkin fashion house.  Provocative images of a shirtless Jesus wearing Kalinkin jeans drew a public morals fine from the Lithuanian consumer protection authorities under national advertising law.  Presenting issues in free expression, commercial speech, and public authority to regulate morality, the case is pending before the European Court of Human Rights.

Compare Mark 4:14 (ERV) (“‘They will look and look but never really see.’”) with Jordache 1983 (“You’ve got the look.").