Balogun's World Cup Red Card Is Suspended -- Justly

(Yes: This is another post touching not only on legal issues but also on soccer. If you are one of the unfortunate few missing out on the “beautiful game” during the World Cup, you can just skip this post.)

Last week, I blogged about the straight red card suspension given to the “striker” (attacker) on the U.S. Men’s National Team (USMNT), Folarin Balogun. I took the view that the red card for stepping on the ankle of his Bosnian opponent was incorrect—primarily because the simple act of leaping in a legitimate attempt win the ball could not be viewed as reckless behavior endangering an opponent, even if Balogun ended up accidentally landing on the opponent’s ankle. Ordinarily a red card in one game leads to an automatic suspension in the following game. In my previous post, I noted that (as described by various commentators), there was no possibility to “appeal” the apparently incorrect red card decision. I therefore assumed that Balogun would automatically miss the USMNT’s next game against Belgium.

Early on Sunday, however, FIFA surprised me and most other observers by “suspending” the implementation of Balogun’s suspension. As a result, Balogun will now take the field today with his USMNT teammates. Belgium’s coach was furious, saying at a press conference Sunday morning: “I didn’t know that at the World Cup, the 5th of July is actually the first of April—it’s April Fools’ [Day].”

Other criticism of the decision has centered around President Trump’s lobbying for the U.S. team. Astute American soccer commentator Mark Ogden has argued that that FIFA’s decision has hints of “the U.S. benefiting from special privileges. There is a process that appears to have been thrown in the bin for an outcome that suits the co-hosts.”

I support FIFA’s decision. I will concede my bias. The USMNT is my favorite sports team. I’m typing this post in a USMNT jersey (#15 Kyle Beckman, the standout defender from my home state of Utah who played for the U.S. during the 2014 World Cup.) But my reaction to FIFA’s decision—and to the U.S. lobbying effort—focuses primarily on the outcome. To me, the central fact about FIFA’s decision is that it is substantively correct. American fans—and soccer fans around the world—should get to watch a full-strength American squad battle Belgium today, rather than having Balogun sit because of his accidentally misplaced foot as he landed in a game last week. Because the parallels between soccer and the legal process are interesting, I write this blog post explaining my view.

To be clear, I don’t claim specialized expertise in soccer’s disciplinary rules. But I do claim some expertise, as a lawyer and a previous trial court judge, in applying legal provisions to factual situations. So let’s follow the standard legal approach (hat tip to Justice Scalia) of turning first to the relevant text.

The basis for FIFA’s suspension of the suspension is Article 27 of the FIFA Disciplinary Code. Entitled “suspension of implementation of disciplinary measures,” Article 27 provides:

The judicial body may decide to fully or partially suspend the implementation of a disciplinary measure. By suspending the implementation of the sanction, the judicial body subjects the person sanctioned to a probationary period of one to four years. If the person benefiting from a suspended sanction commits another infringement of a similar nature and gravity during the probationary period, the suspension shall be revoked by the judicial body and the sanction enforced without prejudice to any additional sanction imposed for the new infringement. Disciplinary measures relating to match manipulation cannot be suspended.

Applying this rule to Balogun’s situation, FIFA concluded that it is more just to allow Balogun to play in Monday’s game than to suspend him. As someone who teaches criminal law, my mind immediately races to a criminal law analogy to describe what is happening. Essentially Balogun has been placed on probation for one year—and if he commits a similar offense (“another infringement of a similar nature”), then he has to serve the one-game suspension at that time,

The Royal Belgian Football Association responded to the suspension of the suspension by citing another provision in the same FIFA rules, Rule 66.4.  This Rule provides:

A sending-off automatically incurs suspension from the subsequent match. The FIFA judicial bodies may impose additional match suspensions and other disciplinary measures.

The Belgian argument highlights the word “automatically”, taking the position that Rule 66.4 prevents FIFA from using Rule 27 to suspend the suspension.

As a lawyer, two problems immediately spring to mind about the Belgian argument. The first is what American lawyers would commonly describe as the “standing” problem—that is, does the claimant have a right to advance a legal argument? In the U.S., the law surrounding “standing” is well developed, if complex. In general, as well summarized by my co-blogger, Eugene Kontorovich, standing restricts the universe of persons who are entitled to challenge a (government) decision. Without diving into all the details of the doctrine, the essential question is what right does the claimant have to complain?

Applied to the Balogun situation, the question becomes what right does Belgium have to complain about FIFA’s review of the consequences of a foul in the game against Bosnia? The USMNT coach, Mauricio Pochettino, alluded to this issue in his comments yesterday:

For me, there isn’t much debate here, though I do understand Belgium’s perspective and Rudi’s [the Belgian coach's] point of view. I understand why people conflate issues—people always do, because there’s often an agenda to mix things up—but in this case, I don’t think it’s right.

If anyone was harmed in this whole situation, it was the United States. Can anyone justify the idea that we weren’t punished? I mean, playing 30 or 35 minutes a man down in a World Cup knockout match? It’s not as if we’re benefiting. No, no. There’s no extraordinary gain we’re getting out of all this.

To be sure, Belgium would prefer that the U.S. play perhaps it most important soccer game in several decades without one of America’s key players. But the Belgium team is, essentially, a bystander to the issue of what is the proper disciplinary result for a foul called during the game against Bosnia.

Perhaps one could argue that Belgium is harmed by the fact that it was practicing this week on the assumption that Balogun would be unavailable, and thus they should have “standing” to complain about FIFA’s suspension of the suspension less than 48 hours before the kickoff. That seems like a bit of a stretch. But even if Belgium can argue it should be heard on issues surrounding that earlier red card, the decisive issue should be whether it is just for Balogun to be suspended for the additional game against Belgium. And that issue must ultimately be assessed against the backdrop of whether the initial red card was proper.

In my earlier post, I explained why the decision was incorrect. And I pointed out that many knowledgeable, neutral, and expert commentators agreed— including former Premier League referee Mark Clattenburg here and former Select Group referee Andy Davis here.

USMNT coach Pochettino nicely described the central point about whether the red card was just:

My reaction is everyone who really loves the sport and trusts the integrity, we celebrate that decision [to allow Balogun to play]. We were punished enough against Bosnia to play with 10 men for 30 minutes, in a decision that was unfair. It’s not because I’m the head coach of the USA…. I think 99.9% of people agree it was an unfair red card.

The decision [to suspend the suspension] is fair because it was never a red-card offense. Call [the red card] a mistake—whatever you want to call it—but there was an error, and the resulting sanction was excessive, especially for an action that was unintentional. Everyone—99.9% of the football community—has said it was an unfair punishment.

Moreover, the Belgian argument that the “automatic” suspension could not itself be suspended seems inconsistent with the structure of the FIFA rules. To be sure, the initial issuance of the red card “automatically” produces a one-game suspension, as explained in Rule 66.4. That additional one-game suspension becomes the default consequence of the red card. But under Rule 27, FIFA’s disciplinary committee has the right to suspend that suspension. Rule 27 describes this result as “suspending the implementation of the sanction.”

And allowing such a suspension of the implementation of the sanction is the best way to read the text of both provisions in a way that makes them both fully operative, a common approach to determining how to interpret text.

Note that the FIFA decision does not mean that Balogun could never serve a one-game ban. The decision just suspends the “implementation” of that sanction to see how things shake out over the next year. As FIFA explained:

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 about wrap things up, right? A mistake was made in issuing the red card, and FIFA corrected it—as it was explicitly allowed to do by Rule 27. Indeed, just last November, FIFA suspended a suspension of another player, Portugal’s Cristiano Ronaldo, under Rule 27.

Not so fast, various folks have argued. These folks complain that President Trump complained about the suspension. As has been widely reported, Trump called FIFA’s President, Gianni Infantino, asking him to review the suspension situation. This call from Trump, the counterargument goes, tainted the process.

One of the most eloquent eloquent explication these counterarguments comes from my fellow Scalia clerk, Richard Bernstein, who read my earlier post and emailed me to explain the counterargument. I will quote his argument in full, so that readers have the  benefit of his thinking:

I agree with you that Folarin Balogun should not have received a red card. Indeed, I’d go further.  Change the FIFA rules so that a red card should generally not result in a next-game ban where, as here, it was not a last minute play, the foul was neither intentional nor reckless, the injured player did not leave the game, and neither the fouler nor his team has a history of lots of red cards.  All that applies to Balogun’s foul.  He is as fine a person as a player.

But a core belief of Justice Scalia, with which I agree, was that to do the right thing for the wrong reason is wrong. Or as we were taught as children, the end doesn’t justify the means. It is wrong for an international sports decision to be brought about by the means of private pressure from or influence by the political leader of a country. For President Trump to wield such political pressure or influence puts him in bad company: Russia, China, the former East Germany, and the most egregious, Germany in 1936.

Before the President’s intervention in the World Cup, the world was falling in love with the U.S. for its hospitality, warmth, passion, food, etc.  And the U.S. was learning that it is essentially universal for all peoples to love their own country.  Every player is proud to play for his country and every fan is proud of his or her team and the nation it represents.  And every one was learning the joys of competing full bore on a level playing and accepting both victory and defeat with grace.  Think of Argentina and Cape Verde after that classic contest.

Now President Trump will have made many feel that once again, the U.S. does not play by the same rules as everyone else.  That the U.S. is a might makes right nation that prospers because it is a might makes right world.  After all, FIFA has apparently never suspended a next-game ban after an ejection within the same tournament, much less in response to a political leader’s pressure and influence.  (FIFA used Rule 27 to lift the ban for Ronaldo’s red card, but his red card was for a foul in a qualifying game, before the World Cup itself started.) That is no accident.  Until 1962, there was no next-game automatic ban after an ejection in the World Cup.  In the 1962 semi-final in the 83rd minute, a Brazil star committed a bad foul and was ejected. Back then, whether to ban an ejected player from the next game was discretionary and decided by officials before the next game. According to the BBC and AP, politicians and others wrangled Brazil’s ejected player into the final and Brazil won.  The world was not pleased.  FIFA was forced to change its rules, adding the automatic next-game ban and setting up a process that was supposed to be immune from political lobbying.  And so it worked until President Trump’s recent intervention.

Unfortunately, President Trump again has substituted a corrupt influence for institutions and norms.  Who lost this time?  We all did. Foreign commentary and reports already show the reversal of much of the prior harmony and mutual understanding between the US and the world–indeed, the world’s admiration–that had emerged from this marvelous World Cup.  That is bad for the world and the U.S.  Our country could use some friends.

In my view, Bernstein’s arguments are unpersuasive. In responding to Bernstein, I am not trying to engage in some broad debate about foreign policy or American presidential politics. I just think that FIFA’s decision was correct and thus is good for the game of soccer.

For starters, Bernstein rushes to attribute FIFA’s final decision to an effort to please to Trump. Perhaps he is correct to attribute that motive to FIFA. But it is important to understand that Trump’s phone call was only one part of a larger American effort to overturn the unjust red card, following the normal process of pressing FIFA when an incorrect decision is made. Just as Trump’s call has been reported, it has also been widely reported that U.S. soccer federation officials were, quite understandably, deeply engaged. As coach Pochettino described the broad U.S. effort:

[It was a] normal process and, of course, the federation for sure was working really hard. [U.S. Soccer CEO] J.T. [Batson] and the whole federation were working on trying to defend our situation and that’s it. I wasn’t involved. I was focusing on trying to prepare the team to face to Belgium working in different [areas], working in trying to be focused and to play tomorrow with our best, in our best condition.

So the U.S. Soccer Federation was pushing for Balogun to play, and President Trump joined in. But what if President Trump hadn’t joined in. What would have been the fair result? Bernstein concedes that Balogun’s foul was neither intentional nor reckless and that Balogun is fine person and soccer player. Surely Balogun deserves to be treated fairly in the process. If the fair outcome is for Balogun to play, why would should that fair result be disregarded because of President Trump’s phone call?

I also have a hard time agreeing with Bernstein that the lobbying effort by President Trump on the Balogun issue was somehow unprecedented. Sporting events and their results are important to citizens in many countries, and it would hardly be a novelty to learn that elected leaders would push for results helpful to their national teams.

As one example, after France eliminated Ireland from 2010 World Cup qualifying following Thierry Henry’s infamous handball, Irish Taoiseach Brian Cowen called on FIFA for a replay and raised the issue with French President Nicolas Sarkozy. Irish ministers also publicly pressed FIFA on “fair play,” and the Football Association of Ireland later even sought admission as a 33rd team at the 2010 World Cup. FIFA rejected the effort, but reportedly paid the Irish Football Association $7 million not to pursue an appeal.

It is also interesting to think about how the U.S. sought to protect Israel from being expelled from the World Cup.  Last year, the Trump Administration pressured FIFA to avoid having Israel banned from qualification, something FIFA was threatening to do because of Israel’s war in Gaza. Here again, this example suggests that a call to FIFA was hardly unprecedented.

After President Trump made the call, we then get to the issue of attempting to disentangle motives and arguments that ultimately explain why FIFA reached its decision on Balogun. Here, like Bernstein, I would turn to Justice Scalia’s jurisprudence for guidance. The Justice famously refused to rely on legislative intent to determine the meaning of a law, because of the indeterminacy that an inquest into motives inevitably generates. Justice Scalia’s dissent in Edwards v. Aguillard, 482 U.S. 578 (1987), makes this point about the futility of determining a single “motive” with characteristic brilliance in a case involving legislation on education:

The number of possible motivations, to begin with, is not binary, or indeed even finite. In the present case, for example, a particular legislator need not have voted for the Act either because he wanted to foster religion or because he wanted to improve education.

He may have thought the bill would provide jobs for his district, or may have wanted to make amends with a faction of his party he had alienated on another vote, or he may have been a close friend of the bill’s sponsor, or he may have been repaying a favor he owed the majority leader, or he may have hoped the Governor would appreciate his vote and make a fund-raising appearance for him, or he may have been pressured to vote for a bill he disliked by a wealthy contributor or by a flood of constituent mail, or he may have been seeking favorable publicity, or he may have been reluctant to hurt the feelings of a loyal staff member who worked on the bill, or he may have been settling an old score with a legislator who opposed the bill, or he may have been mad at his wife, who opposed the bill, or he may have been intoxicated and utterly unmotivated when the vote was called, or he may have accidentally voted ‘yes’ instead of ‘no,’ or, of course, he may have had (and very likely did have) a combination of some of the above and many other motivations.

To look for the sole purpose of even a single legislator is probably to look for something that does not exist.

So too with attempting to determine FIFA’s sole motivation. Perhaps FIFA’s disciplinary committee wanted to appease President Trump. But perhaps it simply wanted to do the right thing for soccer. Or perhaps the right thing for Balogun.  Or perhaps it wanted to avoid criticism for suspending one player (Balogun) but not another (Messi). Or perhaps a little bit of all of these things. It is better to focus on substance—was FIFA’s decision correct?

Similarly, avoiding an inquest into FIFA’s motivations also avoids an inquest into the motivations of Raphael Claus, the referee who showed Balogun the red card. According to press reports, Claus was named in reporting about a Brazilian Senate inquiry into match manipulation and sports betting after accusations involving red cards. However, available reporting also says those allegations were not proven.

At the end of the day, all FIFA did with Balogun was to leave the referee’s past red card  in place but go on to determine that a one-game additional suspension was disproportionate punishment for the unintentional conduct involved. The additional suspension issue was never before referee Claus, of course, since the only issue Claus had jurisdiction to decide was whether to give a red card to Balogun during that game.

Bernstein is also forced to concede that FIFA previously used Rule 27 to lift the ban for Cristiano Ronaldo’s red card this past November. Bernstein attempts to distinguish that precedent by arguing that Ronaldo’s red card was for a foul in a qualifying game, before the World Cup itself started. True enough—but the World Cup generally follows the same rules using during World Cup qualifications. There is no reason for treating qualifiers differently than World Cup matches.

Focusing exclusively on the World Cup, in determining what is normal practice, the question immediately becomes what is the relevant comparator. As I see things, the salient question is whether FIFA has ever before faced a situation where a player was going to serve a one-game suspension in a World Cup elimination match for a straight red card for unintentional conduct? I’ve watched a lot of World Cup matches over the years and can’t recall such a situation. And quick internet research suggests that Balogun’s situation was unique.

It appears that there is no precedent for a player being forced to miss a World Cup elimination round game for a red card for unintentional conduct. Here are the arguably closest situations in recent years (according to my AI-assisted scan, which seems generally accurate, but I’d be happy to have any corrections or additions in the comments):

• Ronaldinho, Brazil v. England, 2002 quarterfinal (a straight red, but Ronaldinho left his foot in, so not an accidental/non-reckless suspension precedent).
• Thomas Muller, Germany v. Argentina, 2010 quarterfinal (Muller got a yellow for a ball coming off Messi’s chest, but the suspension was for yellow-card accumulation and, in any event, by definition a hand ball involves intentional conduct).
• Thiago Silva, Brazil v. Colombia, 2014 quarterfinal (Silva got a second yellow for impeding goalkeeper David Ospina’s kick; Brazil appealed but FIFA rejected it. Note that Silva’s second yellow was for deliberate obstruction).
• Laurent Blanc, France v. Croatia, 1998 semifinal (Blanc was send off in the semifinal, but the referee determined that he raised his hands in a tussle with Slaven Bilic, who fell, and the incident involved clearly intentional conduct).
• Michael Ballack, Germany v. South Korea, 2002 semifinal (yellow-card suspension for a “tactical foul”, which by definition is deliberate and deterrence considerations are important)
• Luis Suarez, Uruguay vs. Ghana, 2010 quarterfinal (infamous red card for a famous goal-line handball, a DOGSO [denial of an obvious goal-scoring opportunity], where deterrence issues are important).

Against this backdrop, Balogun’s case appears unprecedented. And in an unprecedented situation, FIFA should be commended for carefully reviewing the situation and achieving what might be called “substantive justice”—that is, the right result. Requiring Balogun to serve an additional one-game suspension for an unintentional foul would be to miss the point that the procedural rules surrounding red cards are designed to make a soccer match fair by protecting players. They are not ends in and of themselves.

My friend, law professor William Pizzi, made observations along these lines in an interesting law review article entitled “Soccer, Football, and Trial Systems.” Pizzi compared the European and American criminal justice systems to their favorite sports—Europeon football (what we call “soccer”) and American football. Pizzi found that Americans tended to overemphasize proceduralism. Here’s Pizzi’s conclusion:

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 is appropriate for a professional sport is not appropriate for a national trial system. A trial system does not exist for the purpose of entertaining the public or showcasing the skills of its legal players. A trial system must strive to achieve and keep in balance much more difficult and important objectives. No trial system is a strong system (1) if it cannot be trusted to acquit the innocent and convict the guilty with a high degree of reliability; (2) if it fails to treat those who come in contact with the system including victims and witnesses as well as defendants – with dignity and respect; or, (3) if it fails to make wise use of limited judicial resources. I question how well the American trial system is meeting any of these objectives.

Today trials in the United States are prepared for, officiated, and even reported on much like actual football games. More and more the media approaches important trials as if they were sports events, and the coverage of those trials on television is almost identical to that which is used for football coverage: it includes video replays, color commentators, sideline reporters who prowl the corridors of the courthouse, and plenty of Monday morning quarterbacking. That may make for a trial system that is entertaining and exciting, and one that certainly emphasizes winning and losing, but does that make for a strong trial system? I don’t think so.

I think Justice Scalia would have found much to phrase in Pizzi’s article, and in particular its reminder that the overarching goal of procedural rules is to achieve just substantive outcomes. In contrast to American proceduralism, European football/soccer is called the “beautiful game” because it tries to emphasize athletic achievement. Pizzi made this point nicely in contrasting soccer and American football:

Part of the tremendous difference between the numbers of rules that govern soccer and football and the numbers of officials thought necessary to enforce those rules stems from the very different pace which is thought desirable for the two games. In soccer, there is a strong preference for not interrupting the flow of the game if possible and for letting the players play. Consequently, it is expected that minor infractions of the rules will be ignored and the referee is supposed to be in the background as much as possible. Because football is governed by a much more complicated set of rules that need to be enforced by a comparatively large “officiating crew,” the pace of the game is completely different from soccer. The game is frequently interrupted by the fluttering of little yellow flags often followed by conclaves of officials trying to reach agreement on the appropriate ruling in the particular situation.

Unfortunately, the VAR who produced the Balogun red card can be viewed as injecting American proceduralism into a free-flowing game that will not benefit from it. At the very least, mitigating that proceduralism by suspending Balogun’s suspension is a just outcome. Quibbles over the procedures that lead to that outcome miss the main point. Let the beautiful game proceed … with all the best players from both teams on the field.

The post Balogun’s World Cup Red Card Is Suspended — Justly appeared first on Reason.com.

Source: https://reason.com/volokh/2026/07/06/baloguns-world-cup-red-card-is-suspended-justly/