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Tuesday, August 03, 2021

FIFA as state actor and other bad arguments

Another entry in the "Bad § 1983 Takes" File: Siasia v. FIFA in the Southern District of New York. Samson Siasia is a U.S. citizen and international soccer coach who got caught up with a match-fixer while trying to land a coaching job in Australia; FIFA imposed a lifetime ban from coaching, which the Court for Arbitration of Sport in June reduced to five years, backdated to 2019. The Complaint alleges a due process violation in the FIFA proceedings and that FIFA acted under color by performing the traditional and exclusive government function of investigating and adjudicating bribery and imposing a sanction (the complain says "punishment" over and over).

This fails on so many levels.

First, FIFA is a Swiss association with its PPB in Switzerland, so it does not seem possible for it to act under color of the law of any state of the United States; it does not act in or as a replacement for any one state. The U.S. Soccer Federation is one of the 200+ national federations that comprise FIFA, providing a U.S. hook. But USSF is not a defendant (and was not involved in the Siasia case). Getting at FIFA through USSF runs afoul of Tarkanian v. NCAA, where SCOTUS said the NCAA did not act under color of law of any state when it was comprised of schools from multiple states.

Second, private entities can make internal decisions concerning the enforcement administration of internal rules, including by investigating alleged violations and rendering decisions through adjudicative processes. Sometimes the conduct violating those internal rules also violates a society's criminal laws. A private entity does not become a state actor when enforcing its internal rules and imposing internal sanctions, where it imposes no societal consequences (conviction and imprisonment). If it did, no private organization could maintain and enforce internal rules for conduct that also could be criminal. Under this theory, MLB is a state actor with respect to the investigation and suspension of Dodgers pitcher Trevor Bauer for sexual assault, because sexual assault is a crime.

The Complaint argues that FIFA should have followed the NCAA as to former basketball coach Lamont Evans. Having received information that Evans was accepting bribes to route players towards certain financial advisers, the NCAA turned the information to the federal government, which prosecuted Evans. The NCAA punished Evans with a 10-year ban after Evans had been convicted and sentenced in the federal criminal proceeding. But the distinction is incoherent, at least as it affects becoming a state actor. The NCAA cooperated with the government to allow it to prosecute and jail the person, something FIFA chose not to do. But the NCAA and FIFA otherwise engaged in identical conduct--imposing internal sanctions on someone for conduct that also violated a criminal law. The decision to also assist the government in having the person convicted and jailed should not affect the nature of the organization's internal proceedings and thus of the organization.

Alternatively, the argument means that a private entity cannot enforce internal rules and impose internal sanctions if the government declines to press criminal charges or if the person is acquitted. This has never been how the law requires private organizations to operate.

Third, I am not sure FIFA is subject to the 14th Amendment (or the 5th Amendment, as the complaint also cites for no reason) or to U.S. due process requirements for proceedings in Switzerland, even as they apply to a U.S. citizen. A U.S. citizen subject to foreign proceedings must abide by the rules of the foreign proceeding. At best, he might limit the domestic effects of those proceedings.

State action aside, there are some fun jurisdiction and venue issues here. Siasia is a Georgia citizen, while FIFA is a Swiss citizen. The Complaint alleges that venue is proper in the Southern District because FIFA is "an alien corporation and has significant contact in this District and is currently organizing the 2026 FIFA World Cup in this District." The Complaint does not cite the correct provision, but I believe it is basing venue on § 1391(b)(1) (where any defendant resides) as developed in (c)(2) (association resides where it is subject to personal jurisdiction) and (d) (in states with multiple districts, determine jurisdiction in the district as if it were a state).

Is FIFA subject to personal jurisdiction in the Southern District as if it were a state? The "significant contacts" language sounds in the pre-Daimler/pre-Good Year general jurisdiction, which no longer exists; FIFA is neither created in nor has its PPB in the Southern District, so is not subject to general jurisdiction there. Organizing the 2026 World Cup in the Southern District* and other contacts with the district have nothing to do with Siasia or his suspension, at least as indicated in the complaint; the complaint does not allege that anything related to Siasia occurred in New York or the Southern District. The Court of Arbitration for Sport has a location in New York City, so that might have been where Siasia appealed the FIFA decision; the complaint does not say. I doubt that is enough, since the alleged violation is the FIFA proceeding, not Siasia's partially successful appeal.

[*] A separate question is whether the 2026 World Cup will be in the Southern District as to be a contact. One of the eleven U.S. cities under consideration is "New York/New Jersey." Games would be played at Met Life Stadium in New Jersey (in a different district), although FIFA will pitch people to stay in and visit New York while in town for the games. What is the relevant place for jurisdiction based on FIFA's "organizing" activities--where the game is played or all the places that fans and teams will use?

Based on the complaint, there is specific jurisdiction in Georgia under Walden and Calder. The emails that formed the basis for the alleged bribery were sent to Siasia while he lived in Georgia. The emails notifying Siasia of the charges against him (which he alleges he never received, part of the due process violation) and of his sanctions were sent to his emails in Georgia. FIFA investigated a Georgia citizen about actions taken in Georgia, thereby directing its actions at Georgia. Because Siasia is an Atlanta citizen, venue is proper in the Northern District of Georgia.

Even if SDNY is proper, there is a good argument that NDGa is better and a § 1404(a) transfer is in order. Siasia does not reside in SDNY, so he cannot claim venue privilege. The relevant acts as to Siasia, to the extent they occurred in the United States, took place in NDGa, which is where the one relevant witness--Siasia--is located. Other than Siasia's lawyer being from Connecticut and barred in SDNY, I am not sure why the suit was filed there.

Alternatively, FIFA could try to get the case out of the U.S. and to Switzerland on forum non conveniens grounds. FIFA's actions in initiating and holding the proceedings and suspending Siasia's license occurred in Switzerland, so that would be the situs of the actions and location of witnesses and evidence concerning the propriety of the proceedings.

Fun stuff.

Posted by Howard Wasserman on August 3, 2021 at 12:19 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Sports | Permalink

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