Taking it to the experts: Exploring the Canadian “domestic” question in MLS

MLS has publicly claimed that it can’t change its domestic-player because of labour-law issues in the U.S. Over the next couple of weeks, The 11 will try and steer its readers through labour law, and understand why an American CAN be a domestic player in Canada, but why a Canadian player CAN’T be considered a domestic in the United States.

There have been rising cries from Canadian MLS followers about the roster rules, which require the three Canadian teams to carry domestics outside of the eight designated international slots per team roster. Under MLS rules, those domestics who can be Canadian OR American. (Of those, a Canadian team must carry a minimum of three Canadian citizens or permanent residents). But, in the U.S., a Canadian takes up one of the international slots, and cannot be a domestic.

In a halftime interview during the March 2 First Kick match that saw Toronto FC lose to the Vancouver Whitecaps, MLS Commissioner Don Garber responded to commentator Jason DeVos’s question about the domestic distinctions between the two countries. Why can’t Canadians be “domestic” in the U.S.? 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.”

Fair enough. And you can’t find anything in the P-1, O-1 or H2B U.S. work visa applications that specifically mention Canadians. But this begs another question — if it’s considered discriminatory for Americans to single out Canadians for preferential treatment, why is it NOT discriminatory for Canadian teams to give that same preferential treatment to Americans?

Yes, we can argue that MLS is an American league, for Americans. No doubt about that. But, what is it about our Canadian labour laws that allow for MLS to make a rule that forces Canadian teams to recognize Americans as domestics, something which the league’s own commissioner maintains would be ILLEGAL to reciprocate in the U.S.?

The 11 took this question — and the MLS rulebook — to the governments of Canada and British Columbia.

From the B.C. level, we got a simple answer. The province doesn’t have jurisdiction over this. “There is nothing in provincial legislation that differentiates between an athlete’s country of origin,” read a statement from B.C.’s Ministry of Jobs, Tourism and Skills Training department.

As long as the athlete is a Canadian or a foreigner legally entitled to work in this country, it’s all OK on the provincial level.

But the next step is the feds. Work permits, and the interests of Canadians working abroad, is under the purview of Citizenship and Immigration Canada.

Here is a statement we got from CIC after its officials had a look at the MLS rulebook: “To respond to your question, U.S. citizens who are working in Canada as professional athletes do not have special designations under Canadian immigration law. Foreign national professional athletes, regardless of their nationality, require work permits to play for Canadian-based teams. According to the Immigration and Refugee Protection Regulations (IRPR) section 8(1) ‘a foreign national may not enter Canada to work without first obtaining a work permit’ unless they are exempt based on section 186 of IRPR, which is not the case here.”

Basically, what this confirms is that MLS league rules — even if they are negotiated with the Canadian Soccer Association and the United States Soccer Federation — don’t give any special status to American workers in Canada. Americans workers can’t be treated any differently than any other foreign national.

So, legally, it’s like this on the Canadian side. The league sets the rules, and Toronto FC, Vancouver Whitecaps and Montreal Impact (plus the CSA) voluntarily agree to abide by them. They understand to be eligible in the league, they must play by the rules. But this is simply a matter of soccer regulations, and should not be confused with labour law. But, according to Garber’s public interpretation of labour laws in the United States, it’s not that the same south of the border.

The NASL also has different distinctions between domestics when it comes to Canadians and Americans. In NASL, each club is allowed a maximum roster size of 30 players, and no more than seven can be non-domestics. But what makes a domestic? From the NASL rulebook:

“A domestic player for teams based in the United States and Puerto Rico is either a U.S. citizen, a permanent resident (green card holder) or the holder of other special status (e.g. refugee or asylum status). A domestic player for teams based in Canada is either a Canadian citizen, a permanent resident, or qualifies as a domestic player in the United States as set forth in the guidelines above.”

Over the next week, we’ll take our legal questions across the border, and ask American officials why a Canadian can’t legally be a domestic with any of the American teams in MLS.