Asking For a Friend: The Supreme Court Considers Granting Cert to Relevent Sports, LLC v. U.S. Soccer Federation, Inc.

By: Mallory Brown*                                                                      Posted: 03/25/2024

Introduction

As the Fédération Internationale De Football Association (“FIFA”) World Cup prepares to come to North America in 2026, one of its member organizations, the United States Soccer Federation (“USSF”), may be preparing to go to the Supreme Court.[1]  FIFA is familiar with controversies and legal challenges.[2]  However, a Supreme Court review of the Second Circuit’s holding in Relevent Sports, LLC v. U.S. Soccer Fed’n, Inc.[3], has far-reaching implications and the power to refine American antitrust law.[4]   

Background

As the international governing body for soccer, FIFA includes over 200 national associations, which are themselves comprised of professional soccer teams and leagues.[5]  FIFA has an internal legislative body, FIFA Congress, through which the national association may vote on governing rules and policy, known as FIFA statutes.[6]  National associations, and their members, must follow all regulations, statutes, directives, or other FIFA decisions.[7]  Critically, FIFA statutes require soccer clubs who are associated with FIFA to acquire approval from their national associations before playing in a match.[8]

Relevent Sports, owned by Stephen M. Ross, also an NFL franchise owner, is a United States soccer promoter, that plans and advertises soccer matches. [9]  However, under current rules, soccer clubs must obtain approval from FIFA before they compete in official matches, approval Relevent has been unable to secure.[10]  In 2018, Relevent unsuccessfully sought to host a game in the United States between teams from Ecuador, Mexico, and Spain, and in response, FIFA announced a formal policy effectively prohibiting the game from occurring.[11]

The District Court’s Decision and The Second Circuit’s Reversal

In 2018, Relevent sued alleging violations of Sections 1, 4, and 16 of the Sherman Antitrust Act.[12]  Section 1 of the Sherman Antitrust Act is an absolute bar on “conspiracy, in restraint of trade or commerce” and a plaintiff suing under this section must present direct or circumstantial evidence that the defendants intended to engage in an illegal scheme.[13]  The district court, on USSF’s motion, dismissed the complaint, finding that Relevent did not allege that USSF and FIFA illegally agreed to adopt the 2018 policy, that the complaint did not otherwise allege a conspiracy between USSF, FIFA, and other foreign leagues, and that the 2018 policy was not an impermissible “agreement to agree.”[14]  Notably, the Department of Justice published a statement during the litigation, cautioning that bans prohibiting international marches were a possible violation of antitrust laws.[15]  In overturning the district court, the Second Circuit emphasized that intermediaries’ actions do not shield a party from antitrust liability so adopting mandatory rules, such as the 2018 policy which prevent competition, is ‘direct evidence’ of concerted action.[16]

Potential Impact on Antitrust Law

In recent years, antitrust actions have seen renewed attention.[17] Consequently, this lawsuit presents a key legal question on which lower courts have produced differing results: what liability do members of an organization, or the organization itself, incur for adopted rules?[18] The Second Circuit answered that anticompetitive industry association rules incur Sherman Act section 1 liability.[19] Trade and industry associations are organizations that direct members engaged in a common enterprise.[20] Despite the Second Circuit’s ruling, other circuits are divided about whether these associations can be liable for anticompetitive rules.[21] Given the stage of this litigation—pleading—the Supreme Court’s decision could clarify what allegations are sufficient to make a plausible case of trade association Sherman Act violations.[22] Upholding the Second Circuit’s decision would lead to increased scrutiny for trade associations, while a lower pleading standard would require plaintiffs to show member organizations had direct involvement in anticompetitive rulemaking.[23]

Potential Impact on Sports Leagues

Federal antitrust laws and sports leagues are inherently at odds; antitrust laws seek increased competition but sports leagues are inherently concerned with the effect of increased economic leverage of players on teams within their leagues.[24]  The Second Circuit’s ruling in Relevent has the potential to increase sports associations’ antitrust liability, as well as that of other kinds of associations.[25]  Should the ruling stand, national soccer organizations could see their membership obligations to FIFA and their legal obligations within the United States come into conflict.[26]

This ruling also has important implications for soccer in the United States.[27]  This lawsuit represents a new kind of clash as, ahead of the World Cup businesses attempt to capitalize on the rapidly growing popularity of soccer.[28]  One analyst characterized this dispute as a “clash between commercialization and traditions of the game.”[29]  By limiting what leagues can do, FIFA and its national associations can retain control of revenue and the global perception of soccer.[30]

If the Supreme Court considers this case, its ruling could affect several other kinds of lawsuits related to sports.[31]  A similar lawsuit recently filed by professional ‘Call of Duty’ players against Activision Blizzard, the creator of Call of Duty, could be impacted by a national ruling.[32]  Additionally, Major League Baseball, a historically exempt entity, saw three antitrust suits in 2023.[33]  The NCAA also faces an antitrust suit, an allegation that may have increased weight in light of recent name, image, and likeness decisions.[34]  Finally, in February 2024, a class of junior hockey players sued the National Hockey League for alleged antitrust violations.[35]  A Supreme Court ruling that lowers, or raises, the bar to pleading an antitrust violation, especially a decision involving a sports league, could have concrete consequences in other lawsuits.[36]

Conclusion

If the Second Circuit’s decision is not reviewed, it will join the four other circuits in the growing split on trade associations’ potential violations of antitrust law.[37]  However, if the Supreme Court decides to hear the case, it will be an important decision to watch, both in the antitrust and sports world.[38]  Interested parties should follow what opinion the Solicitor General provides, as the Supreme Court often follows that recommendation.[39]

*Staff Writer, Jeffrey S. Moorad Sports Law Journal, J.D. Candidate, May 2025, Villanova University Charles Widger School of Law.

[1] See Greg Stohr, Supreme Court Seeks US Views on Billionaire Ross’s FIFA Suit, BL

(Nov. 13, 2023, 9:57 AM), https://news.bloomberglaw.com/antitrust/supreme-court-seeks-us-views-on-billionaire-rosss-fifa-suit (noting Supreme Court asked solicitor general to make recommendation about whether Court should hear Relevent Sports, LLC v. U.S. Soccer Fed’n, Inc.). Relevent Sports, LLC v. U.S. Soccer Fed’n, Inc. is a recent decision from the Second Circuit clarifying what evidence is necessary during the pleading stage for antitrust litigation against trade associations.  See id. (describing Second Circuit’s key holding).

[2] See e.g., Ian Ward, The Many, Many Controversies Surrounding the 2022 World Cup, Explained, Vox (Nov. 19, 2022, 8:00 AM), https://www.vox.com/world/23450515/world-cup-fifa-qatar-2022-controversy-scandals-explained (analyzing variety of corruption and human rights violations allegedly committed or overlooked by FIFA during 2022 World Cup); see also Yi-Jin Yu, Spanish Soccer Federation President Luis Rubiales Banned by FIFA After World Cup Controversy, ABC News (Oct. 30, 2023, 11:58 AM), https://abcnews.go.com/GMA/News/spanish-soccer-federation-president-luis-rubiales-banned-fifa/story?id=104474782 (reporting on controversy after Spanish soccer federation president kissed female player during victory parade); see also Owen Gibson & Damien Gayle, FIFA Officials Arrested on Corruption Charges as World Cup Inquiry Launched, The Guardian (May 27, 2015, 12:41 PM), https://www.theguardian.com/football/2015/may/27/several-top-fifa-officials-arrested (describing arrest of fourteen FIFA Officials by US Department of Justice for corruption during World Cup location selection process).

[3] See Relevent Sports, LLC v. United States Soccer Fed’n, Inc., 61 F.4th 299 (2d Cir. 2023).

[4] See Timothy Z. Lacomb, Second Circuit Reaffirms Association Rules are Concerted Conduct Subject to Section 1, Nat’l. L. Rev. (Mar. 14, 2023), https://www.natlawreview.com/article/second-circuit-reaffirms-association-rules-are-concerted-conduct-subject-to-section (noting Second Circuit’s reversal of district court represents return to traditional anti-trust standards); see also Amy Howe, Justices Take Up Expert Testimony Question in “Blind Mule” Drug-Trafficking Case, SCOTUSBlog (Nov. 13, 2023, 10:45 AM), https://www.scotusblog.com/2023/11/justices-take-up-expert-testimony-question-in-blind-mule-drug-trafficking-case/ (adding Supreme Court would be required to decide legality of certain trade associations agreements under current federal antitrust laws).

[5] See FIFA, U.S. Soccer, https://www.ussoccer.com/history/organizational-structure/fifa (last visited Feb. 17, 2024) (describing FIFA as member body for national soccer organizations).  Additionally, FIFA has over 209 national association members.  See id. (explaining national associations govern domestic leagues and teams, making FIFA soccer’s ultimate authority).

[6] See Relevent Sports, 61 F.4th at 303-04 (presenting FIFA’s governance structure).  These are, in turn, interpreted by another body, the FIFA Counsel, which also has independent authority to implement policies not authorized by the FIFA Congress.  See id. (explaining secondary avenue for FIFA to implement binding rules).

[7] See id. (referencing USSF’s bylaws in holding that USSF and FIFA are in impermissible agreement to agree); see also Bylaws of the United States Soccer Federation, Inc., U.S. Soccer Fed’n, Inc, 1, 6 (Apr. 30, 2022), https://www.ussoccer.com/governance/bylaws (establishing that FIFA rules are binding on member organizations to extent allowed under governing law).

[8] See Relevent Sports, 61 F.4th at 303-04. (adding that violation of FIFA rules could result in sanction or exclusion from World Cup); see also U.S. Soccer, FIFA Must Face Antitrust Lawsuit, Appeals Court Rules, ESPN (Mar. 7, 2023, 8:18 PM), https://www.espn.com/soccer/story/_/id/37636946/us-soccer-fifa-face-antitrust-lawsuit-appeals-court-rules#:~:text=U.S.%20Soccer%2C%20FIFA%20must%20face%20antitrust%20lawsuit%2C%20appeals%20court%20rules&text=A%20promoter%27s%20lawsuit%20against%20FIFA,federal%20appeals%20court%20ruled%20Tuesday (reporting that FIFA policy requiring clubs to play official matches in their own countries is in tension with global soccer fanbase, and potentially, United States antitrust laws).

[9] See About Relevent, Relevent Sports Grp., https://releventsportsgroup.com/about-us/ (last visited Feb. 7, 2023) (representing Relevent as international privately-owned soccer organization company); see also Samuel Agini, Relevent Sports, the Billionaire’s Media Group Selling Football to America, Fin. Times (Aug. 20, 2023), https://www.ft.com/content/18f1a34b-22e4-4ee1-b522-403eeec073a7 (reporting that Relevent is seeking to increase its market share of soccer promotion before 2026 World Cup by hosting club and league competitive matches).

[10] See Relevent Sports, 61 F.4th at 303-04 (describing central dispute between Relevent, USSF, and FIFA); see also Kevin Draper, Relevent Sports Sues U.S. Soccer, Escalating Fight Over Sanctioning, N.Y. Times (Apr. 22, 2019), https://www.nytimes.com/2019/04/22/sports/relevent-sports-us-soccer-lawsuit.html (reporting that winning lawsuit is key to Relevent’s long-term business strategy).

[11] See Relevent Sports, 61 F.4th at 304 (quoting policy).  Specifically, the policy read:

[f]ollowing a request for guidance . . . the FIFA Council discussed La Liga's proposal to host an official 2018/19 regular season league match outside Spain (in Miami). Consistent with the opinion expressed by the Football Stakeholders Committee, the Council emphasized the sporting principle that official league matches must be played within the territory of the respective member association.

See id. (adding that any team who violated it could be sanctioned).

[12] See id. (rehashing Relevent’s claims and adding that Relevent specifically argued FIFA and USSF entered into illegal ‘agreement to agree’); see also Michael Keeley, Soccer Antitrust Case Looking Like a Vehicle for Supreme Court to Prune Section 1 Antitrust Cases, JPSupra (Nov. 16, 2023), https://www.jdsupra.com/legalnews/soccer-antitrust-case-looking-like-a-1812581/ (arguing that Relevent’s lawsuit could be critical for resolving when antitrust law applies to associations).

[13] See 15 U.S.C. § 1 (1890) (imposing criminal sanctions for violations); see also Jeff Birren, Relevant Sports, LLC v. U.S. Soccer Fed’n., Inc.: If You Don’t Succeed at First, Replead, Sports L. Expert (Mar. 28, 2022), https://sportslawexpert.com/2022/03/28/relevant-sports-llc-v-u-s-soccer-fedn-inc-if-you-dont-succeed-at-first-replead/ (adding critical determination is if there was agreement or if alleged conspiracy was only independent action).  Additionally, if a court determines that there was an agreement, that agreement must also be unreasonable.  See id. (adding district court used Rule of Reason analysis, which requires identification of market and adverse effect to make antitrust determination).

[14] See Relevent Sports,  61 F.4th at 304-05 (adding that district court found there was no circumstantial evidence of agreement nor was FIFA’s policy alone enough to validate Relevent’s complaint); see also Keeley, supra note 12 (noting that change in evidentiary standard by holding membership alone is sufficient to survive pleading stage, is critical ruling for antitrust litigation).

[15] See Larry Neumeister & Ronald Blum, Appeals Court Restores Promoter’s Lawsuit Against FIFA, AP (Mar. 7, 2023, 7:38 PM), https://apnews.com/article/soccer-relevent-fifa-ussf-684b60fa799f98b33538edad1f07b13c (adding DOJ statement was warning about department’s potential position on how FIFA rules intersect with American antitrust law); see also Relevent Sports v. US Soccer Federation, Latham & Watkins, https://www.lw.com/admin/upload/SiteAttachments/Non-Cartel%20Defence.pdf (last visited Feb. 18, 2023) (interviewing counsel for USSF about effect of “unusual” DOJ letter on litigation).  Specifically, USSF’s counsel noted that because DOJ had only indirectly weighted in, the parties could mostly avoid the effect of the letter.  See id. (adding that district court litigation focused on only facts pertinent to Relevent’s lawsuit, not broader antitrust implications).

[16] See Relevent Sports, 61 F.4th at 306-07 (adding Relevent need not show any “agreement to agree” _— 2018 policy was enough). Additionally, the Second Circuit qualified their ruling by noting that some associations may take collective action without violating antitrust laws.  See id. (exempting certain trade associations or sports associations such as NCAA for their need to establish basic rules).

[17] See Marcia Brown, The Next Generation of Law Students Is Obsessed With Lina Khan, Politico (Nov. 6, 2023, 5:00 AM), https://www.politico.com/news/magazine/2023/11/06/law-students-antitrust-lina-khan-00124240 (describing impact of Lena Khan’s appointment to FTC and renewed national interest in FTC); see e.g., Nico Grant, Google Settles Smaller Lawsuits as It Prepares for More Antitrust Fights, N.Y. Times (Mar. 4, 2023), https://www.nytimes.com/2024/03/04/technology/google-settlements-antitrust-fight.html (reporting on increase in litigation against Google for antitrust violations).

[18] See Mike Scarcella, US Supreme Court Seeks Biden Administration View on US Soccer Antitrust Case, Reuters (Nov. 13, 2023, 12:02 PM), https://www.reuters.com/legal/us-supreme-court-seeks-biden-administration-view-us-soccer-antitrust-case-2023-11-13/ (identifying core issue).

[19] See Relevent Sports, 61 F.4th at 608 (holding 2018 Policy is sufficient evidence for pleading stage of antitrust violation); see also Winston Scores Precedent-Setting Second Circuit Win for Relevent Sports, Reviving its Antitrust Challenge Against FIFA and U.S. Soccer Federation, Winston & Strawn LLP (Mar. 7, 2023), https://www.winston.com/en/insights-news/client-success/winston-scores-precedent-setting-second-circuit-win-for-relevent-sports-reviving-its-antitrust-challenge-against-fifa-and-us-soccer-federation (characterizing impact of Second Circuit decision as important for protecting against anticompetitive behavior by trade associations).

[20] See Geoffrey Green, Antitrust By Association(s), FTC (May 1, 2014) https://www.ftc.gov/enforcement/competition-matters/2014/05/antitrust-associations (describing antitrust implications of collective action by trade associations).  The article adds that an early FTC decision was aimed at an association of flag manufactures who colluded to raise prices.  (describing impact of FTC v. Association of Flag Manufacturers of America, 1 FTC 55 (1918)).

[21] See Jim Morsch & Jason McElroy, FIFA Case Would Shift Trade Group Members’ Liability if Affirmed, BL (Jan. 30, 2024, 4:30 AM), https://news.bloomberglaw.com/us-law-week/fifa-case-would-shift-trade-group-members-liability-if-affirmed (noting Third, Fourth, Ninth, and DC Circuits all held that membership in trade association is sufficient for violation of Sherman Antitrust).

[22] See id. (describing increase in antitrust litigation if Second Circuit’s standard were applied nationally).  See also Keeley, supra note 12 (adding that this would strength plaintiff’s antitrust suits and, potentially, affect how often organizations join associations).

[23] See id. (adding decision about certiorari will likely be announced in spring with oral arguments in fall).

[24] See Claudio G. Catalano, Application of Federal Antitrust Laws to Professional Sports, 79 A.L.R. Fed. 2d 1, § 2 (2023) (explaining basic dilemma between leagues and antitrust law and adding baseball is only sport historically excluded from antitrust laws).

[25] See Supreme Court Seeks Biden View On Relevent Suit vs. U.S. Soccer, ESPN (Nov. 13, 2023, 11:21 AM), https://www.espn.com/soccer/story/_/id/38889597/supreme-court-seeks-biden-view-relevent-suit-vs-us-soccer (describing USSF’s statement about effects of Second Circuit’s ruling).

[26] See Miki Turner & Paul Tenorio, How Relevent Sports’ Federal Suit Against U.S. Soccer Could Change How League Games Are Sanctioned, The Athletic (Sept. 10, 2019), https://theathletic.com/1200304/2019/09/10/relevent-sports-us-soccer-federal-lawsuit/ (noting that Court of Arbitration for sport has previously ruled that FIFA cannot intercede in United States lawsuits, which would create conflict between USSF and FIFA if Second Circuit decision stands).

[27] See Susan Lingeswaran, Signal: US Soccer, Relevent Lawsuit Reaches US Supreme Court, Sportcal (Aug. 15, 2023), https://www.sportcal.com/features/signal-us-soccer-relevent-lawsuit-reaches-us-supreme-court/?cf-view (highlighting that if Relevent could defy FIFA and host soccer matches within United States, it would be highly profitable).  Additionally, leagues like Spain’s LaLiga see the United States as a path to building fanbases comparable to that of the English Premier league.  See id. (adding that this emphasis has only increased in time leading to 2026 World Cup).

[28] See id. (adding that there have been proposals to host exhibition matches in United States which FIFA has rejected)

[29] See id. (explaining that Spanish fans are unhappy with idea that LaLiga would play games away from home).

[30] See id. (describing that any money from Relevent-LaLiga deal in United States would not produce revenue for USSF or FIFA).

[31] See Katie Arcieri, Supreme Court Request on FIFA Match Suit Boosts Cert Odds (1), BL (Nov. 13, 2023, 2:46 PM), https://news.bloomberglaw.com/antitrust/supreme-court-requests-us-input-on-fifa-match-antitrust-suit (describing wide impact of legal question on both athletics and trade associations under revised antitrust pleading standard).  The article quoted USSF, who argued that under the Second Circuit’s rule, trade associations would become subject to anti-trust law, to the detriment of these otherwise legal associations.  See id. (adding members of these associations could incur tremendous liability simply for joining trade association).

[32] See Maria Spoto, Activistion Accused of Call of Duty Tournament Monopoly (1), BL (Feb. 16, 2024, 8:28 AM), https://news.bloomberglaw.com/us-law-week/activision-blizzard-accused-of-call-of-duty-tournament-monopoly (describing player suit against game creator after tournaments and leagues were brought under control creator’s control and are subject to its approval); see also Jordan Novet & Lauren Feiner, FTC Sues to Block Microsoft’s Acquisition of Activision Blizzard, CNBC (Jan. 25, 2023, 4:41 PM), https://www.cnbc.com/2022/12/08/ftc-sues-to-block-microsofts-acquisition-of-game-giant-activision-blizzard.html (adding that Activision Blizzard is subject of another major antitrust lawsuit against FTC).

[33] See Karen M. Lent & Anthony J. Dreyer, The Current State of Major League Baseball’s Antitrust Exemption, Reuters (July 20, 2023, 10:43 AM), https://www.reuters.com/legal/legalindustry/current-state-major-league-baseballs-antitrust-exemption-2023-07-20/ (describing three antitrust suits filed in 2023 against Major League Baseball).  The first, Nostalgic Partners v. Office of the Commissioner of Baseball, alleges that acting in an illegal horizontal agreement, the MLB disbanded forty minor league teams.  See id. (adding that NCAA v. Alston changed MLB’s antitrust exemption).  The second lawsuit was brought by a player alleging a league conspiracy to set a minimum wage.  See id. (explaining that suit was dismissed but judge questioned validity of MLB antitrust exemption).  Finally, Casey's Distributing Inc. v. Office of the Commissioner of Baseball is a challenge to anticompetitive merchandise licensing practices.  See id. (noting MLB may struggling to apply exemption in this case).

[34] See John Raby & Aaron Beard, Lawsuit Accuses NCAA of Antitrust Violation in College Athletics Transfer Rule, AP (Dec. 7, 2023, 6:55 PM), https://apnews.com/article/ncaa-transfer-rule-lawsuit-west-virginia-945c1c2c365eeef9d0148915a7445f6c (reporting on Sherman Act suit against NCAA for its transfer eligibility rule); see also Paige Sutherland & Meghna Chakrabarti, The NCAA, Antitrust and the Future Of College Sports, WBUR (Oct. 31, 2023), https://www.wbur.org/onpoint/2023/10/31/the-ncaa-antitrust-and-the-future-of-college-sports (arguing Supreme Court’s decision in Alston v. NCAA creates increased antitrust liability for NCAA’s historically accepted per se violations of Sherman Antitrust Act).

[35] See Stephen Whyno, Class-Action Suit Says North America’s Major Junior Hockey System Violates US Antitrust Law, AP (Feb. 14, 2024, 9:53 PM), https://apnews.com/article/junior-hockey-antitrust-lawsuit-fc7dd93d32e8fd802dbb97848eb4bc27 (describing allegation that NHL illegally restricts what minor league teenage players make and where they play).

[36] See generally, Milind Khurana, Moneyball: The Landscape of College Athletics in the Wake of NCAA v. Alston, Univ. Mia. L. Rev. (Mar. 1, 2022), https://lawreview.law.miami.edu/moneyball-the-landscape-of-college-athletics-in-the-wake-of-ncaa-v-alston/#:~:text=In%20NCAA%20v.,payments%20for%20academic%2Drelated%20expenses. (explaining broad, ongoing impact of Supreme Court’s antitrust ruling in NCCA v. Alston on sports).

[37] See Morsch & McElroy, supra note 21 (counting number of circuits who have held association incurs liability).

[38] For further discussion on the impact of the case on antitrust, see supra notes 17-23.  For further discussion of the impact of the case on sports, see supra notes 24—36.

[39] See Stohr, supra note 1 (noting Supreme Court often follows recommendation of solicitor general).