US immigration policy negatively impacts US Soccer

Published 12 January 2014 By: Roger Pielke, Jr

USA Soccer Team

Issues related to immigration and citizenship have long been debated in the United States, and are reemerging as a political issue, with calls for reform coming from both Republicans and Democrats.

President Obama says that "the US immigration system is broken ... there are 11 million people living in the shadows."1 One consequence of the broken immigration system can be seen in US soccer, where certain immigrants to the United States are deemed ineligible to represent Team USA, despite meeting FIFA criteria for eligibility. This article explains this situation and recommends several alternative ways forward to better align the intent of FIFA regulations with their implementation in a US context by US Soccer.

Consider the case of Diego Fagundez, an 18 year old player for the New England Revolution. Diego scored 13 goals in 2012-2013, making him the youngest player ever to score more than 10 goals in a MLS season.2 Faugudez has consequently received a lot of attention, and naturally questions have arisen about a possible role playing for the US national team.

But there is one big problem. Fagundez is not eligible to play for the United States because he is not a citizen, despite having lived in the United States since he was 5 years old. Born in Uruguay, Fagundez grew up playing for various youth teams in Massachusetts before entering the Revolution's youth academy, and has since expressed a desire to play at the international level.3 Fagundez is apparently not presently a top interest of Uruguay, for whom he would be eligible under FIFA rules because of his birth in that country. That level of interest could of course change, if he were to develop further as a player, while he awaits US citizenship.

Fagundez, like many children of US immigrants lives in the shadows of citizenship, as a citizen of America but not an American citizen. Yet, as Ryan Rosenblatt, a reporter for SB Nation Soccer, has written, "he is as much an American as he is a soccer player."4 Fagundez has recently received his Green Card, which gives him permanent residency status, but which also requires a five-year wait to attain citizenship (unless he marries a citizen, in which case it is a three-year wait). But the Green Card status comes with some fine print. Most importantly, there are various residency requirements during the five-year waiting period which might come into play if Fagundez is offered a contract to play overseas.5

Consider also Darlington Nagbe, of the Portland Timbers MLS team. Nagbe's family fled civil war in Liberia and wound up in the United States at age 11. He attended high school near Cleveland and played soccer for the University of Akron, winning a national championship before joining the Timbers where he has excelled as a player. Nagbe, like Fagundez, has a Green Card (which meant that he avoided playing in Canada, lest he risk violating US residency requirements). He is also married to an American, which shortens his wait for citizenship.6 But he still has to wait for U.S. citizenship if he wishes to play for the United States.

The citizenship requirement for participation on the US national team is a policy of the US Soccer Federation (USSF), which in its bylaws states that "a player representing the Federation shall be a citizen of the United States."7 The USSF policy is actually stricter than what FIFA, which oversees international soccer, requires of its member associations. In fact, the FIFA statutes do not even mention the words "citizen" or "citizenship."8 FIFA Regulation 5.1 states, "Any person holding a permanent nationality that is not dependent on residence in a certain country is eligible to play for the representative teams of the Association of that country."9

The issue of eligibility to represent a FIFA member association has a long and complicated history, and one in which FIFA explicitly decided not to equate "nationality" with legal "citizenship." In 2004, in the wake of several countries in Africa and the Middle East granting immediate citizenship to top class Brazilian soccer players in an effort to boost their national teams, FIFA departed from legal citizenship as a sole test of player eligibility. At the time, FIFA President Sepp Blatter explained to the BBC, "Naturalization that allows players with no obvious connection to the new country to play for that country's national team is not the aim and object of the [FIFA] statutes."10

Formal, legal citizenship is also problematic for FIFA because many of its members are not sovereign nations. Consider that more than 10% of FIFA's member associations represent regions that are not recognized as independent countries, such as Puerto Rico and Guam, both of which are part of the United States and whose residents follow US laws for citizenship. Consequently, FIFA has implemented a policy for eligibility which focuses on both nationality and the relationship that the player has to the territory, such as through family or residency.

Consequently, FIFA's statutes use the word "nationality" rather than "citizenship."11 FIFA's statutes -- under its guidelines for players with multiple nationalities or wishing to change nationalities -- provide further guidance on criteria of eligibility – in other words, what FIFA means when it uses the term "nationality."

There is a four-part test, of which the player must meet at least one:

  1. He was born on the territory of the relevant Association;
  2. His biological mother or biological father was born on the territory of the relevant Association;
  3. His grandmother or grandfather was born on the territory of the relevant Association;
  4. He has lived continuously on the territory of the relevant Association for at least two years [or for switching nationalities, for at least five years after the age of 18]

Under FIFA's statues, both Fagundez and Nagbe would be eligible right now to represent the United States, if US Soccer were to change its citizenship requirement to a "nationality" requirement consistent with the FIFA Statutes.

While scholars and others have long recognized a clear difference between "citizenship" and "nationality,"12 fine academic distinctions probably would not be enough for USSF to make the case forplayers like Fagundez or Nagbe to assert US "nationality."

However, US law is very explicit on this point, and makes a legal distinction between US citizenship and US nationality. US Code (specifically, Title 813), offers the following legal definitions:

  • "The term "national" means a person owing permanent allegiance to a state."
  • "The term "national of the United States" means (A) a citizen of the United States, or (B) a person who, though not a citizen of the United States, owes permanent allegiance to the United States."

In fact, the US State Department even issues passports to US non-citizen nationals, however at present this practice is limited to those originating in several US territories in the Pacific, notably Western Samoa. The US Congress could pass legislation which expands the eligibility for "non-citizen national" passports to include those who are (a) permanent residents on a path to citizenship (b) who have potential to represent the US in elite international athletics competitions such as the World Cup or Olympics.

Such legislation would not be de novo, but rather would expand a practice that the US government already applies to the awarding of Green Cards to individuals with "extraordinary abilities,"14 including athletes. Foreswearing an opportunity to represent any other nation in international athletics competition is a strong indication of "permanent allegiance" found in the statutory definition of "national of the United States."

Such Congressional action may not even be necessary. US Soccer could amend its bylaws with two words to eliminate the longstanding problems with immigrants who are clearly American but not legal citizens: "a player representing the Federation shall be a citizen OR NATIONAL of the United States." Citizen and national would be defined as under Title 8 of US Code, giving the change a legal basis.

A Green Card and oath of allegiance (as administered by the State Department) could be certainly used as evidence of such "permanent allegiance," or other metrics could be used. Whichever criteria are used, once a player appears for a US squad in international competition, he would then be tied permanently to the US team under FIFA Statutes.15 Defining players as US nationals without full legal citizenship could result in a challenge to that practice under FIFA Statutes, which if challenged ultimately would have to be adjudicated before the Court for Arbitration of Sport (CAS) in Switzerland.16

A dispute in 2000 before the CAS – Perez vs. IOC -- involving a Cuban athlete who defected to the US suggests that there may be a relevant precedent.17 In that decision the CAS noted, "it appears to be the case that under US law a person may become a US national [i.e., acquire a "green card"] before being granted citizenship." The CAS also noted that, under the Olympic charter in this case, "the word "nationality" ... should be construed broadly." More fundamentally, it simply seems common sense that players like Fagundez and Nagbe are Americans according to the spirit and intent of FIFA Statutes, so the USSF should welcome any challenge under CAS.

To better meet the spirit of what it means to be a nation of immigrants, while at the same time conforming with US laws and FIFA Statues, US Soccer could take several simple steps to fix the broken parts of US immigration laws that affect it most directly. It could do this via a trial balloon announcement of intent, offering little risks, or even by playing one of these players in an international friendly as a test case. The worst case outcome would be the forfeiture of a largely meaningless match and a return to the status quo ante, but maybe generating greater attention to some of the shortfalls in US immigration laws and the spirit of sport as reflected in FIFA's regulations for player nationality.

While US Soccer can't fix the broken US immigration system, it does not have to let that broken system limit the potential of youths like Fagundez and Nagbe who have grown up as Americans and along the way learned that this is a nation where fairness and achievement are widely recognized metrics of success. Usually sport is at the mercy of larger political forces. US Soccer has a rare opportunity to help shape those larger political forces in a positive way.

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Roger Pielke, Jr

Roger Pielke, Jr

Roger Pielke, Jr. has been on the faculty of the University of Colorado since 2001 and is a Professor in the Environmental Studies Program and a Fellow of the Cooperative Institute for Research in Environmental Sciences (CIRES).

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