There has been some grumbling about the process, but the aim of arriving at the correct result remains the priority.
(Yes: this piece touches on legal matters as well as football. If you’re among the few who aren’t following the World Cup and its “beautiful game,” you can feel free to skip this one.)
Last week I wrote about the straight red card that sidelined Folarin Balogun, the attacker for the U.S. Men’s National Team. My position was that issuing a red card for stepping on a Bosnian opponent’s ankle was mistaken—mainly because a legitimate leap aimed at winning the ball cannot reasonably be treated as dangerous, reckless conduct, even if Balogun’s body happened to land on the opponent’s ankle by misfortune. Typically a red card in one match triggers an automatic ban in the next match. In my prior post I noted, as several commentators did, that there appeared to be no avenue to appeal the apparently erroneous red-card decision. I therefore assumed Balogun would miss the United States’ upcoming match against Belgium.
Yet early Sunday, FIFA surprised many observers by “suspending” the enforcement of Balogun’s suspension. Consequently, Balogun will now play today alongside his USMNT teammates. Belgium’s head coach reacted with fury, telling reporters on Sunday morning: “I didn’t realize that at the World Cup, July 5 is actually April Fool’s Day.”
Criticism of the decision also focused on the role of former President Trump in pressuring the U.S. team. Substantive American soccer commentator Mark Ogden contended that FIFA’s ruling bears the hallmarks of “special privileges for the U.S.,” suggesting that a process meant to be impartial had been set aside to fit the co-hosts’ interests.
I support FIFA’s move. I’ll acknowledge my own bias: this USMNT is my favorite club team. I’m drafting this post while wearing a U.S. jersey (No. 15 Kyle Beckerman, the standout defender from my home state of Utah who played for the U.S. in the 2014 World Cup). But my response to FIFA’s decision—and to the U.S. lobbying effort—centers on the outcome. For me, the key fact is that FIFA’s call is substantively correct. American fans and spectators worldwide deserve to watch a full-strength United States side take on Belgium, rather than Balogun sitting out simply because his foot ended up where it did in that earlier game. Since the parallels between football and the legal process are intriguing, I’ll lay out my view in this post.
To be clear, I’m not claiming specialized expertise in soccer’s disciplinary rules. But as a lawyer and a former trial judge, I do claim a degree of proficiency in applying legal provisions to real-world facts. So I’ll adopt the standard lawyering method—begin with the exact text that governs the issue.
The basis for FIFA’s choice to suspend the suspension lies in Article 27 of the FIFA Disciplinary Code, titled “suspension of implementation of disciplinary measures.” Article 27 states that a disciplinary sanction may be fully or partially suspended, and during the suspension, the sanctioned person enters a probationary period of one to four years. If the sanctioned individual commits another offense of a similar nature and gravity during the probationary period, the suspension is revoked and the sanction is enforced, with any additional sanction for the new offense remaining in effect. Note that sanctions relating to match manipulation are not subject to suspension.
When applied to Balogun, FIFA concluded that it was more equitable to allow him to play in Monday’s match rather than suspend him. As someone who teaches criminal law, I’m reminded of a comparable criminal-law situation: Balogun effectively sits on probation for a year, and if he commits another offense of a similar character, he would then have to serve the one-game ban then and there.
The Royal Belgian Football Association countered with another provision from the same FIFA rules, Rule 66.4, which says: “A sending-off automatically incurs suspension from the subsequent match. The FIFA judicial bodies may impose additional match suspensions and other disciplinary measures.” Belgium’s interpretation emphasizes the word “automatically,” arguing that Rule 66.4 prevents FIFA from using Rule 27 to delay the suspension.
As a practicing attorney, two immediate objections arise concerning Belgium’s position. First is what American lawyers would describe as a standing problem: does Belgium have the right to challenge FIFA’s review of the consequences of Balogun’s foul in the Bosnia game? In the United States, standing is a well-developed and intricate area of law. In general, standing limits who may challenge government decisions. Without delving into every nuance, the essential question is what stake the claimant has in the matter.
For Balogun’s case, the question becomes what stake Belgium has in FIFA’s review of the World Cup game’s foul. The U.S. men’s coach, Mauricio Pochettino, addressed this matter in remarks made yesterday:
“I don’t see much room for debate here, although I understand Belgium’s perspective and Rudi’s point of view. I understand why people conflate issues—people often do, because cases carry their own agendas—but in this instance I don’t think it’s right. If anyone was harmed in this entire sequence, it was the United States. Can anyone justify the idea that we weren’t punished? Playing 30 or 35 minutes with a man down in a World Cup knockout match isn’t a windfall. There’s no extraordinary gain we’re getting from this.”
Of course Belgium would have preferred that the U.S. team play what could be the most consequential match in decades without one of its key players. But Belgium is, at bottom, a bystander in the question of what constitutes a fair disciplinary outcome for the Bosnia foul.
One might contend that Belgium has been harmed in that it prepared this week assuming Balogun would be unavailable, and thus should have “standing” to challenge FIFA’s temporary lifting of the suspension less than 48 hours before kickoff. That claim seems like a stretch. Yet even if Belgium could argue it should be heard on issues tied to the red card earlier in the Bosnia game, the pivotal question remains: was it just to suspend Balogun for an additional match against Belgium? That question must be weighed against whether the initial red card was proper.
In my earlier post I explained why the decision was wrong. And I noted that many knowledgeable, neutral commentators agreed—including veteran Premier League referee Mark Clattenburg and former Select Group referee Andy Davis.
Pochettino captured the central point about whether the red card was just:
“My reaction is that anyone who loves the sport and trusts its integrity should celebrate the decision to let Balogun play. We were punished enough against Bosnia, playing with ten men for 30 minutes, in a decision that was unfair. It’s not because I’m the USA head coach… I think 99.9% of people agree it was an unfair red card.”
The suspension of the suspension, it seems, is fair because the red-card foul was never truly a red-card offense. Call the red card whatever you want, but it represented an error, and the resulting punishment was excessive, given that the foul was unintentional. The vast majority of the football community—roughly 99.9%—agrees that the punishment was unjust.
Moreover, Belgium’s argument that the “automatic” suspension cannot itself be suspended appears inconsistent with the overall structure of FIFA’s rules. The initial red card “automatically” produces a one-game suspension, as Rule 66.4 explains. That default consequence is the one-game suspension. However, under Rule 27, FIFA’s disciplinary committee reserves the right to suspend that suspension. The interpretation that harmonizes both provisions—allowing a temporary delay in the implementation of the sanction—makes both rules operable in a coherent way.
This does not mean Balogun will never face a one-game ban. The decision merely postpones the “implementation” of that sanction for a year to observe how things develop. FIFA’s statement was explicit:
“In line with article 27 of the FIFA Disciplinary Code, the implementation of the match suspension is suspended for a probationary period of one year. If Folarin Balogun commits another infringement of a similar nature and gravity during the probationary period, the suspension shall be revoked and the sanction enforced without prejudice to any additional sanction imposed for the new infringement.”
So, that should be the end of the matter, right? A mistake was made in issuing the red card, and FIFA corrected it—as the text of Rule 27 authorizes. In fact, just last November FIFA suspended a suspension in Cristiano Ronaldo’s case under Rule 27.
Not everyone agreed, however. Critics argue that President Trump’s involvement tainted the process. As has been widely reported, Trump spoke with FIFA President Gianni Infantino to urge a review of the suspension. The counterargument goes that the call injected political leverage into the decision-making process.
One of the sharpest articulations of this critique came from my fellow Scalia clerk, Richard Bernstein, who read my earlier post and offered a detailed counterpoint. I’ll quote his argument here in full to preserve the essence of his reasoning:
“I agree that Balogun shouldn’t have received a red card. I’d even go further: revise the FIFA rules so that a red card generally doesn’t trigger a next-game ban when the offense isn’t a last-minute play, wasn’t intentional or reckless, and there’s no pattern of red cards by the player or team. Balogun fits all of that. He is a good person and a good player.
But a fundamental tenet of Justice Scalia’s approach—one I share—is that doing the right thing for the wrong reason is still wrong. Or, as we were taught, the end does not justify the means. It would be improper for an international sports decision to be shaped by private political pressure from or influence by a national leader. For President Trump to wield such influence places him in questionable company: Russia, China, the former East Germany, and the worst example, Germany in 1936.
Before the President’s intervention, the world admired the U.S. for its hospitality, warmth, passion, and cuisine. It was becoming clear that it is widely accepted that people love their own country and that players are proud to represent their teams and nations. Everyone was learning to compete hard and to accept victory and defeat with grace. Think of the Argentina–Cape Verde match as an example.
Now President Trump’s involvement may have left many feeling that the U.S. does not obey the same rules as everyone else—that might makes right, and power wins. After all, FIFA has seemingly never suspended a forthcoming ban after a red card in a World Cup match, much less under political pressure from a national leader. (Ronaldo’s earlier case was suspended under Rule 27, but that red card happened in a qualifying match before the World Cup.) That is not incidental. Up until 1962 there was no automatic next-game ban after an ejection in the World Cup. In the 1962 semi-final, a Brazilian star was sent off in the 83rd minute for a foul. Back then, whether to ban him from the next game was left to officials, and Brazil used influence to advance to the final, which provoked public outcry. FIFA subsequently changed the rules to add the automatic next-game ban and to cultivate a process designed to be immune from political lobbying. It appears that process held until President Trump’s intervention.
Regrettably, President Trump has again substituted political influence for institutional norms. Who loses here? All of us. Foreign commentary and reporting already reveal a retreat from the prior harmony and mutual understanding—indeed, from a global admiration—that had arisen during this remarkable World Cup. That is detrimental both to the world and to the United States. Our country could use more friends.
In my view, Bernstein’s arguments do not persuade me. I’m not trying to engage in a broad debate about foreign policy or American politics. I simply think FIFA’s decision was correct and therefore beneficial for the game.
To begin with, Bernstein rushes to attribute FIFA’s final decision to a desire to please Trump. He may be correct about that motive, but it’s important to recognize that Trump’s call was only one piece of a broader American effort to overturn an unjust red card, following the usual route of pressing FIFA when a wrong decision is made. As has been widely reported, U.S. Soccer officials were actively involved—understandably so. As Coach Pochettino described the broad U.S. effort:
“It was a normal process, and of course the federation was working very hard. The CEO and the entire federation were trying to defend our situation, and that’s it. I wasn’t involved. My focus was on preparing the team to play Belgium in the best possible shape.”
So, the U.S. Soccer Federation pushed for Balogun to play, and President Trump joined in. But what if Trump hadn’t spoken up? What would be the fair outcome then? Bernstein concedes Balogun’s foul was neither intentional nor reckless and that Balogun is a good person and player. Surely Balogun deserves fair treatment in the process. If the desired outcome is for Balogun to play, why should that be set aside because of a presidential phone call?
I also have trouble embracing Bernstein’s claim that Trump’s lobbying on Balogun’s case was unprecedented. Sports outcomes matter to citizens worldwide, and it would not be unusual for elected leaders to press for outcomes favorable to their national teams.
As one example, after France eliminated Ireland from 2010 World Cup qualifying due to Thierry Henry’s infamous handball, Irish officials contacted FIFA and raised the issue with French President Nicolas Sarkozy. The Football Association of Ireland later even sought to secure Ireland’s admission as a 33rd nation at the 2010 World Cup. FIFA rejected the bid, but reports indicate the Irish FA was paid around $7 million to forgo an appeal.
There are other illustrations, too. The U.S. recently sought to shield Israel from expulsion from World Cup qualification—an example of political involvement that MOVED Washington to pressure FIFA, given Israel’s conflict in Gaza. That instance shows that political calls to FIFA are not unheard of.
Having considered the call’s role, we must separate motives from the end result and ask what the decision means in practice. Here, like Bernstein, I’d look to Justice Scalia’s jurisprudence for guidance. Scalia declined to rely on legislative intent to interpret a statute because the search for motives too often yields endless ambiguity. His dissent in Edwards v. Aguillard, 482 U.S. 578 (1987), powerfully warns against fixating on a single motive when interpreting law. Motives can be varied, complex, and multiple: a legislator may act for district interests, personal relationships, fundraising considerations, reputational concerns, or political pressure.
In trying to discern FIFA’s single motive, one could imagine a mix: FIFA may have wanted to appease Trump, but it may also have desired justice for soccer, for Balogun, or to avoid inconsistency with other cases. The prudent path is to look at substance: was FIFA’s decision correct?
Likewise, it’s unnecessary to reopen every question about the referee, Raphael Claus, who showed Balogun the red card. Articles about Claus have noted that his name has surfaced in discussions about a Brazilian Senate inquiry into match manipulation and sports betting after red-card accusations. But those allegations have not been proven.
In the end, FIFA did not erase Balogun’s prior red card from the record; rather, it maintained the red card on the books and concluded that the additional one-game sanction was disproportionate for the unintentional foul. The question of whether Claus erred is separate from whether the sanction was appropriate.
Bernstein’s concession that FIFA previously relied on Rule 27 to lift Ronaldo’s ban last November complicates his critique. He tries to distinguish Ronaldo’s case by noting Ronaldo’s red card occurred in a qualifying match before the World Cup proper. True, but the World Cup is generally governed by the same rules that apply to qualifiers; there is no solid reason to treat qualifiers differently from World Cup matches.
When you view this through a World Cup lens, the question becomes: has FIFA ever faced a situation in which a player was going to miss a World Cup elimination match because of a straight red card for unintentional conduct? My memory of countless World Cup games doesn’t yield a direct precedent, and a quick internet search suggests Balogun’s case is quite unique.
There appears to be no established precedent for a World Cup elimination-stage dismissal due to an unintentional red card. Below are what are arguably the closest parallels from recent years (per my AI-assisted scan, which seems broadly accurate; I welcome corrections or additions in the comments):
– Ronaldinho, Brazil vs. England, 2002 quarterfinal (a straight red, but Ronaldinho kept his foot in, so it wasn’t an unintentional/non-reckless suspension precedent)
– Thomas Muller, Germany vs. Argentina, 2010 quarterfinal (Muller received a yellow for a ball off Messi’s chest; the suspension was for yellow-card accumulation and, in any event, the handball is intentional)
– Thiago Silva, Brazil vs. Colombia, 2014 quarterfinal (Silva earned a second yellow for impeding goalkeeper David Ospina’s kick; Brazil appealed but FIFA rejected it; note that the second yellow was for deliberate obstruction)
– Laurent Blanc, France vs. Croatia, 1998 semifinal (Blanc was sent off for raising his hands in a scuffle with Slaven Bilic; the incident involved clearly intentional conduct)
– Michael Ballack, Germany vs. South Korea, 2002 semifinal (yellow-card suspension for a “tactical foul,” which is by definition deliberate and influenced by deterrence considerations)
– Luis Suárez, Uruguay vs. Ghana, 2010 quarterfinal (the famous goal-line handball, a DOGSO—denial of an obvious goal-scoring opportunity—where deterrence issues are central)
In this context, Balogun’s case stands out as unprecedented. And in a truly unprecedented moment, FIFA deserves credit for carefully reevaluating the situation and reaching what one might call “substantive justice”—the right result. Requiring Balogun to serve an extra one-game ban for an unintentional foul would miss the point that the rules governing red cards exist to preserve fairness in the game by protecting players; they are not, in themselves, ends in the process.
My friend and law professor William Pizzi offered thoughts along lines similar to these in a thought-provoking law review piece titled “Soccer, Football, and Trial Systems.” Pizzi compared European football and American football with the European and American justice systems. He observed that Americans tend to over-emphasize proceduralism. His takeaway:
“Our American trial system reflects many of the cultural values encoded in the rules and traditions of professional American football: the worship of proceduralism, the attempt to rationalize every aspect of the decision-making process, the distrust of spontaneous action, the heavy preference for managerial control over participants, and, above all, the daunting complexity of the rules that such a system requires.”
But what works for a professional sport is not necessarily appropriate for a national legal system. A trial system isn’t designed to entertain the public or showcase legal drama; it must, instead, achieve and balance far more significant aims. It must reliably acquit the innocent and convict the guilty, treat victims and witnesses with dignity, and make wise use of scarce judicial resources. I question how well the American system accomplishes these goals.
Today, trials in the United States are staged and reported with the same theater as big sports events. The media frequently treats pivotal trials as entertainment, complete with video replays, color commentary, courthouse sideline reports, and Monday-morning quarterbacking. That may create excitement and highlight the thrill of victory and the sting of defeat, but it doesn’t necessarily produce a robust judicial system.
Justice Scalia would probably have appreciated Pizzi’s pointed observation that the overarching aim of procedural rules is to secure just substantive outcomes. By contrast, European football is celebrated as the “beautiful game” because it prioritizes athletic achievement and a smoother flow of play. Pizzi contrasted soccer with American football to highlight the pace and enforcement differences: soccer relies on a lighter touch by officials to maintain the game’s rhythm, whereas American football requires a more elaborate officiating structure because of its dense rule set. The game’s tempo and the need to keep the action going often mean minor infractions are tolerated and referees operate largely in the background.
Regrettably, the VAR decision that produced Balogun’s red card can be read as an example of importing American proceduralism into a game that benefits from a more free-flowing style. Even so, suspending Balogun’s suspension can be seen as a measured concession that aligns with the spirit of the game. The important point is not an endless debate about process but allowing the best players to compete on the field.
Let the beautiful game continue, with the finest players from both sides showcasing their talents.
