The MLS “domestic” rule: Why allowing more Canadians in wouldn’t run afoul of U.S. Immigration

americanflagMLS Commissioner Don Garber has gone on the record stating that allowing Canadian players to be recognized as domestic players on the rosters of the 16 U.S.-based teams would cause legal issues south of the border for the league.

The 11 has been working to get legal opinions on the commissioner’s statement. Last week, we offered the Canadian side of the argument (CLICK HERE). Now, to the real meat of the matter — U.S. law and how it affects Canadian workers, and athletes in particular.

And the opinion that The 11 has heard is that — when it comes to U.S. immigration laws — the distinction in roster rules between the three Canadian MLS teams and the 16 American teams are solely the jurisdiction of the league. To break that down? That MLS could change the rules if it wished, and wouldn’t run afoul of U.S. immigration law. (That’s not to say changing the rules wouldn’t open up other legal issues: More on that, later.)

Let’s go back in time to First Kick, 2013. During the TSN broadcast of the season opener between Toronto FC and the Vancouver Whitecaps, colour man and former national-teamer Jason DeVos asked Garber if there would ever be a time that the American clubs would recognize Canadians as “domestics” on their rosters.

Garber’s answer? “…in the United States, if you are considered an international from a labour perspective, you can’t discriminate between one nationality and another. So we would have a challenge if a Colombian player believed that they were treated differently than a Canadian player.”

The first real distinction is that America has far more categories of work visa than Canada does. The Americans can get very specific on their visas depending on the line of work the applicants are in.

For most foreign athletes working in the U.S., they will enter under P-1 visas. (There is another visa out there, for those who are internationally recognized as being exceptional in their field. That visa is available for athletes who are seen as the best of the best — so if Lionel Messi or Cristiano Ronaldo wanted to play in MLS, they could go down this road. This wouldn’t be available for the likes of Kyle Porter or Nana Attakora.)

How does the P-1 work? Getting that visa follows a very specific process. First, the team (or in the case of centrally controlled MLS, the league office) offers a foreign player a contract, then the player applies for the visa. You see this all the time in MLS, a foreign player’s signing is announced, with the addition of “pending visa and/or work permit” as a line in the press release. The contract always comes before the visa. And this is important from the “discrimination” part of Garber’s argument. The coach or manager has offered the job BEFORE going to the U.S. government. In the eyes of the legal authorities, the club is simply asking to approve a foreign worker who has ALREADY made the team.

So, this is what happens. If an team wants to sign a Canadian, the deal is offered (centrally by MLS) and THEN the paperwork is taken to U.S. Immigration for a P-1 visa.

“With the P-1 visa there is no requirements to show there are no qualified and willing U.S. workers to fill the job,” wrote Joe Kirkwood, a specialist in U.S immigration law. His California-based firm, Leibl & Kirkwood, has worked to bring foreigners into the NHL and MLS. “That is an aspect of some immigration categories but not the P visas for the major professional sports. Not sure why the league varies the number of eligible foreigners permitted in the U.S. vs. Canada but maybe they can explain. You could have a full team of foreign players on P-1 visas issued by U.S. Customs and Immigration.”

More from Kirkwood: “Your inquiry doesn’t sounds much like an immigration-related matter. I understand the domestic player rules and reasoning for most leagues. Most of those rules are in place based on league policy. As for the assertion that labour laws restrict things, not sure exactly what they are referring to. There are individual state labour laws and federal labour laws but if there is something restrictive there, a labour-law expert would have to advise on that. As for federal immigration laws, they restrict any foreigner from working in the U.S. without authorization. However for MLS there are very specific visas available to their players regardless of what country they come from and the rules would allow them to secure a P visa and reside in the U.S. for the term of their employment contract as a professional player.

“A U.S. team could put any percentage of their team on P visas and qualify them for employment. So, I don’t think immigration laws are the restricting aspect here. Unless I am not fully understanding your inquiry or there is something in the labour laws in particular, it sounds to me like the limited number of foreign players permitted is more of a league policy.”

To be clear to the readers, I’ll point out that I sent Kirkwood the paragraphs in the MLS rulebook that deal with the import and domestic rules. And, this is someone who deals with pro sports leagues.

The 11
also sent this question to U.S. Customs and Immigration, and we were told to ask MLS about the rulebook, that USCIS wouldn’t officially comment on it. Why? Because U.S. Immigration doesn’t see the rulebook of a sports league as really having anything to do with its department. If a team comes to USCIS with a contracted player, all immigration cares about is if that player doesn’t have a criminal record or any other barriers to him working in America. U.S. Immigration doesn’t care if a team decided to offer a contract to a Canadian rather than a Swede or a Mexican or a Colombian. And, because a P-1 doesn’t require a team to prove that an American CAN’T do the job, the feeling is that U.S. Immigration wouldn’t care if the New York Red Bulls had 24 foreigners on its roster.

So, based on that logic, if MLS was to allow Canadians to be registered in America as domestics, well, all that U.S. Immigration would care about is if the Canadian player coming in was legally entitled to work in the U.S. or not.

Basically, to put this all into an immigration-law nutshell, the import rule is a league rule. That is all. Let’s face it, if U.S. Immigration really cared about pro sports teams and their ratio of Canadians in the workplace, the NHL wouldn’t exist in that country.

But there is more to the issue — as Garber suggests, would the league be challenged by a Colombian player or a Mexican player or any other foreigner if it was seen as giving prejudicial treatment to Canadians as “domestics?” And, as Kirkwood stated, the arguments made in this article refer to immigration law, not labour law.

More questions — would a U.S. court even hear that case?

But, assuming it would, let’s be clear — EVERY league is open to lawsuits at all times. Daniel Hernandez is currently suing FC Dallas for wrongful dismissal. Former NFL players are suing that league over what they feel were misdiagnosed or unreported concussions. Steve Moore sued the Canucks and Todd Bertuzzi over the hit from behind that ended his career. The Bosman rule came about in Europe after a player, well, sued. Whether it’s on-field or off-field, pro sports, where players are hired and fired depending on the decisions of coaches, is a lawyer’s paradise.

The issue could really be that if MLS (and NASL, too, it has a similar distinction in rules between FC Edmonton and the U.S.-based teams) were to include Canadians as domestics, the lawsuits would come — and then the whole import rule would come down like a house of cards. We have to remember that these import rules don’t exist in the other major pro sports in North America, so we don’t have a lot of precedent, here. And we know that P-1 allows teams to have as many foreigners as they choose. The import rule is the one bar Americans have in the door, for the USSF to protect its own. By opening the door a crack to allow Canadians in — which would be fine by U.S. Immigration — is it creating a chance for a lawsuit, one that challenges the distinction between Canadians and anyone other foreigner, that eventually blows the door open and leads to the end of the import rule?

Maybe the real issue here is the way Garber is dealing with that question. MLS needs to answer this more specifically and not simply say “we could have legal issues” and leave it at that. Canadians would be more forgiving of the rulebook differences if we could better understand the legal issues surrounding them.

But this we know: It’s not an immigration issue.


About Steven Sandor

I'm currently the colour commentator for FC Edmonton broadcasts on Sportsnet, and TEAM 1260. I've covered the Toronto FC beat for four years, worked for the Edmonton Aviators of the USL for a season, covered the Edmonton Drillers of the NPSL and started covering Canadian World Cup qualifiers in 1996. I've covered the CONCACAF Champions League and the U-20 World Cup. I'm passionate about soccer in North America.