A familiar American story has unfolded over the past few days: A famously corrupt judicial body made an unprecedented decision on Sunday, granting an emergency request by President Donald Trump to set aside an adverse ruling made by the official closest to the facts.
I am referring, of course, to the phone call Trump placed on July 1 to FIFA President Gianni Infantino, shortly after the U.S. Men’s National Team’s match against Bosnia-Herzegovina. During that game, the country’s leading goal-scorer, Folarin Balogun, received a controversial red card, and under FIFA rules, a red-carded player is “automatically” suspended from the next match. The U.S. defeated Bosnia, allowing the men’s team to advance and face Belgium in the Round of 16—without, in theory, the benefit of its star striker.
But on Sunday, after Trump’s conversation with Infantino, FIFA announced that it was suspending the implementation of Balogun’s match ban pursuant to its authority under Article 27 of the FIFA Disciplinary Code, which empowers FIFA to “fully or partially suspend” any disciplinary measure unrelated to match manipulation. As a result, Balogun became eligible to play on Monday night. Trump celebrated the decision as the correct one, and told reporters that without Balogun’s reinstatement, the match would have been “rigged, just like the election was rigged in 2020.”
People who follow the Supreme Court will not find any of this especially surprising. In FIFA, as in the Supreme Court, the rules on paper and the rules in practice are not the same thing. Both FIFA and the Supreme Court have policies, for example, of deferring to the fact-finders’ decisionmaking. FIFA rules state that referees’ decisions regarding “facts connected with play” are “final and not subject to appeal,” unless the FIFA Disciplinary Code says otherwise. And Supreme Court precedent similarly says that appeals courts are supposed to accept the factual determinations of district court judges, unless there was a clear error.
In Balogun’s case, FIFA was at least able to point to Article 27’s explicit “we can do what we want” provision. But the Supreme Court had no such excuse for ignoring a district court’s documented evidence in its rulings allowing Trump to implement a racist immigration policy, or permitting Alabama to impose a racist congressional district map, or authorizing racial profiling in Los Angeles, or any of the other myriad cases where the Court ignored a lower court’s meticulous fact-finding and opted to live in a right-wing alternate reality instead.
Both FIFA and the Supreme Court exercise vast discretion, and have woefully opaque decisionmaking processes. The Royal Belgian Football Association put out a statement on Monday indicating that it asked FIFA for a copy of the decision in Balogun’s case and an explanation of FIFA’s deviation from its normal process of letting refs do their jobs, but received neither one. At the Supreme Court, too, the justices increasingly make decisions via the shadow docket, foregoing oral argument and briefing. The Court has repeatedly used the shadow docket to block lower court orders without any written explanation, leaving judges to guess how the Court would like them to change the law instead. FIFA even explained its denial of Belgium’s request with a classic Supreme Court trick: declaring that Belgium is “not a party to the proceedings and, as such, has no standing to appeal the decision.”
FIFA’s and the Supreme Court’s decisionmaking have one significant effect in common, too: further degradation of trust in the institution, as professional soccer players and regular people alike learn that politics takes priority over everything else. The Union of European Football Associations, the governing body of European soccer, put out a statement on Monday that could have come from any Democratic official in recent months, with only a few words changed: “When the certainty of rules is no longer guaranteed by its guardians, the integrity of the game is at stake and the credibility of a competition is undermined.” The biggest difference between this story and the stories I usually write about is that this time, the United States might benefit from that result.
