UEFA-FIFA football war spills into U.S. courts as European lawyers wield discovery 'superpower'

A powerful American legal tool is a weapon of choice in a brewing legal battle between two of the world's most powerful transnational sporting organizations.

Soccer might not be on the minds of Americans on a daily basis, but that won't stop the global corporate landscape from shifting under our feet as two behemoths of football governance wage world war on one another. Battles in that war erupted in three U.S. federal courts at the end of August.

RJ Peltz-Steele with Google Gemini CC0 1.0

UEFA, the governing body of football in Europe, filed ex parte applications in U.S. courts on August 27 with expansive discovery demands in anticipated litigation against world-governing FIFA. FIFA fought back last week with counter-filings as a would-be intervenor. Dirty laundry is close to spilling out, and the mechanism making it possible is a section of the U.S. code that bestows on foreign lawyers a "little-known superpower."

First, some context. Americans might remember from the waning days of the World Cup news cycle—and thus the waning days of Americans caring about soccer, despite the summer hype, and owing significantly to the self-inflicted wound of allowing profit-thirsty NBC to fragment Premier League matches across disparate network bundles, but that's another story—that FIFA chief Gianni Infantino, apparently intoxicated by the refined air inside his mega-millionaire bubble, proposed selling shares in the people's game to private investors. 

The proposal was akin to a company going public, except not at all public and, being above the laws of nations, hardly regulated. After schmoozing States-style, Infantino wanted to do his part to firm up the global wealth gap and to locate himself at its rich-ward extreme. No joke: Infantino's vision looks like it was modeled on President Trump's Board of Peace, with which Infantino's FIFA in fact formally partnered. Infantino would have set himself up as the head of a World Cup company, sidestepping the inconveniently quasi-democratic and term-limiting features of the FIFA presidency, and shaken down private investors and member associations for minority stakes.

There apparently is some limit to what even the supra-national, mega-rich can do, as Infantino's plan drew worldwide rebuke. Of course there was objection from watchdogs, such as Reboot FIFA, a campaign I signed on to that holds out hope for socially responsible sporting governance and issued a July statement condemning the Infantino plan. But tellingly, FIFA's member associations led the chorus of boos; UEFA pledged a boycott of FIFA. The limit might be when rich people step on the toes of other rich people, because UEFA is no stranger to the profit-engine-masquerading-as-for-the-commoner MO of professional football governance.

Longer memories will recall when Swiss police raided FIFA headquarters in 2015 at the behest of U.S. investigators, and the U.S. Department of Justice filed a 47-count federal indictment in Brooklyn targeting top FIFA brass. Mighty FIFA President Sepp Blatter fell from grace, and it looked for a moment like democracy might be bigger than corporatocracy.

Infantino shows Trump the World Cup trophy in the Oval Office, 2025.
U.S. Government (public domain) photo from the White House

The moment didn't last. It only proved the old adage, cut the head off the hydra, and two more take its place. Infantino inaugurated a new era of next-level corruption. Of course, the U.S. prosecution had been motivated in part by the FIFA hijinks that saw the U.S. bid for the '22 World Cup founder in the face of Qatar's, let's say, "procurement." The '26 World Cup was our payoff. Washington meanwhile changed lanes to go all in on pay-to-play, and FIFA awarded President Trump his personally tailored Peace Prize. Plutocratic order was restored.

Infantino backed off of the private-investment plan. Yet hell hath no fury like a sporting cartel scorned. UEFA persists, demanding that FIFA oust Infantino and threatening legal action. 

Meanwhile, because there's a grain of truth to the offensive assumption that all rich people know each other, there's a U.S. connection to the FIFA scandal that runs even deeper than Trump and Infantino's mutual social grooming. New York-based Thrive Capital, a venture capital firm, was set to pour $4.2 billion into Infantino, Inc. And the co-founder and soul of Thrive Capital is Joshua Kushner.

You think I mistyped Jared Kushner, the President's son-in-law who solved the Middle East. No. Josh is the other Bennet sister, an entirely different offspring of tax fraud, etc., convict Charles Kushner. Not that I'm judging a book by its author; a billionaire deserves a chance to write his own story.

Since the Infantino deal went up in glorious flames, Josh Kushner has tried to distance Thrive and himself from it. He says he never would have gotten involved had he known, and that he thought the deal would funnel more capital to promote socioeconomic development. Shoulda coulda woulda.

Well, UEFA wants to know more about that. Which is why its breathtaking range of documents filed in the U.S. District Court for the Southern District of New York includes, very much inter alia, a proposed subpoena for the deposition of one Joshua Kushner.

RJ Peltz-Steele with Google Gemini CC0 1.0

The legal tool at the heart of the UEFA filings is 28 U.S.C. § 1782. The law opens up the discovery process of U.S. civil procedure for litigants in other countries to access records and to depose persons in the United States. Though section 1782 is implicated here, as it usually is, in connection with business disputes, it can be used just as well in ordinary tort litigation, from fraud to personal injury. 

This is important, because U.S. discovery is famously more expansive than production in other legal systems. Fittingly, U.S. civil procedure takes a sort of free-market approach to discovery, upon a truth-will-out philosophy. The system, articulated in the relevance-and-proportionality standard of Rule 26(b) of the Federal Rules of Civil Procedure, does not grant carte blanche for fishing expeditions, especially since 2015 amendment tried to rein it in a bit. But it goes a lot farther than the they-didn't-ask-so-don't-tell approach that is the norm in Europe.

Section 1782 on its face requires that (1) the domestic respondent can be found in the U.S. district in which discovery is sought, (2) the discovery is for use in a foreign or international tribunal, and (3) the section 1782 requester has an interest in the foreign proceeding. The statute won some notoriety in 2022 when the U.S. Supreme Court resolved a circuit split by deciding that arbitral panels are not eligible tribunals under the second element.

Section 1782 compliance by U.S. district courts is discretionary, not required, by the statute. So the U.S. Supreme Court in 2004 set out factors to guide court discretion: (1) whether the domestic respondent is subject to the foreign proceeding, so discovery might rather be sought against the respondent there; (2) whether the foreign tribunal is receptive to U.S. court assistance; (3) whether the requester is trying to circumvent an intended limitation on discovery in the foreign system; and (4) whether the request is especially intrusive or burdensome. The third factor especially tends to be a contested point, and it is sometimes difficult for U.S. courts to find the line between a foreign limitation on discovery by design and the mere happenstance that the foreign discovery system is more conservative than the U.S. system.

In a 2020 empirical study, Penn Carey Law Professor Yanbai Andrea Wang concluded that section 1782 is an "increasingly pervasive practice that is transforming civil litigation worldwide." With 90% of ex parte 1782 requests granted, Wang found that the law raises due process concerns. Potential adversaries in the home litigation are not always given proper notice of their right to intervene in the United States and object to the discovery. In the instant matter at least, the 1782 petition is part of UEFA's public relations strategy. And FIFA had no trouble intervening in New York and mounting a public relations offensive of its own, accusing UEFA of a "smear campaign." 

Properly employed, section 1782 does open the door for a foreign actor to poke around in the business of an adversary or potential adversary, to bolster a legal theory back home, in a way that it could not without the U.S. hook. Sometimes what the requester can discover with the aid of U.S. law is valuable enough to shift public opinion or a case on its merits so significantly as to obviate or dispose of the matter back home. It's not a stretch to figure that UEFA hopes to find Infantino-Kushner correspondence so damning or embarrassing as to compel Infantino's ouster.

Watching the battles unfold in UEFA vs. FIFA, and In Re Union Des Associations Europeennes de Football (S.D.N.Y. filed Aug. 27, 2026) in particular, is a bit like being on a rowboat between battleships. But the stab at arrogant corporate impunity, even if thrust by a fellow titan, is nonetheless prone to induce a satisfying schadenfreude, especially if UEFA can bring Infantino down.

RIP, football transparencist Andrew Jennings. Your mouth would be watering.

Legislative privilege shields Raimondo records against trucker subpoena in dormant Commerce Clause case

Toll gantry on a bridge in Washington
(Flickr by Wash. State DOT CC BY-NC-ND 2.0)

The First Circuit has quashed a subpoena against Rhode Island state officials, including now-U.S. Commerce Secretary Gina Raimondo, in a dormant Commerce Clause lawsuit over highway tolls supporting infrastructure.

Back in the 2010s, under the leadership of then-Governor Gina Raimondo (I'm a fan), my home state of Rhode Island was looking for cash to help with infrastructure needs.  The smallest state and an essential throughway for road and rail traffic in the vital I-95 corridor of America's Atlantic coast, "Ocean State" Rhode Island bears a burden in maintaining highway and bridge infrastructure that is disproportionately larger than the state's tax base.  The Raimondo administration installed a network of electronic truck tolls to beef up coffers.

My family travels often up and down the east coast to visit relatives, and the parade of tolls through the Atlantic states adds up to a significant expense.  But there are no passenger-car tolls in Rhode Island.  States that wish to impose tolls on federal highways had to strike a sort of deal with the devil, the devil being Uncle Sam, and Rhode Island, exemplifying founder Roger Williams's independent streak, opted out.  We held ourselves clear of Uncle Sam's sticky fingers, but then we found ourselves undermined by potholes and overrun with decaying bridges.

So when I heard about the Raimondo truck-toll plan, I admit, it sounded great to me.  The possible dormant Commerce Clause issue did gather in the dark recesses of my mind.  Anyone who tells you that we Rhode Islanders were not keen to have through-trucks pay their fair share for wear and tear on our roads and nerves as we circulate on our congested connectors is lying.  If the boon could be had without adding to my family's toll bills, I was willing to suppress any nagging concern I might have otherwise about a made-up constitutional rule.

Lawyers for the trade industry in trucking were not so generous of mind or pocket, and, after the tolls went live in 2018, they sued.  The plaintiffs argue violation of the dormant Commerce Clause, the constitutional theory that implies a federal prohibition on state action that excessively burdens interstate commerce even when Congress has not legislated a prohibition under its Article I power.

The First Circuit explained, "the Supreme Court has recently reiterated that the dormant Commerce Clause 'reflect[s] a "central concern of the Framers that was an immediate reason for calling the Constitutional Convention: the conviction that in order to succeed, the new Union would have to avoid the tendencies toward economic Balkanization that had plagued relations among the Colonies and later among the States under the Articles of Confederation"'" (quoting 2005 and 2019 precedents).

Flickr by Taber Andrew Bain CC BY 2.0

If the truckers can show that Rhode Island officials calculated the tolling program to burden out-of-state payers while sparing Rhode Islanders, the showing will strengthen—but significantly, not dispositively prove—the plaintiff position in the dormant Commerce Clause analysis.  I've kind of already admitted that burdening through-traffic was my reason for liking the toll program, but I'm just a taxpayer.  Unfortunately, there are some public statements by state officials indicating that they viewed the tolls the same way.

The plaintiff-truckers understandably want to dig deeper.  So they sent subpoenas to state officials, including the Office of the Governer and legislators, and to CDM Smith, a key private consultant to the state in the toll program, "RhodeWorks."  The First Circuit enumerated:

Specifically, the subpoenas sought materials relating to: (1) any efforts to mitigate the economic impact on Rhode Island citizens; (2) the expected or actual impact of the toll caps on in-state vs. out-of-state truckers; (3) the expected or actual impact of tolling only certain classes of trucks on in-state vs. out-of-state truckers; (4) the potential impact on interstate commerce; (5) alternative methods for raising funds; (6) drafts of RhodeWorks and related, failed bills, including mark-ups, comments, red-lines, revisions, etc.; (7) communications between the former Governor and legislators regarding RhodeWorks or other methods of raising funds; and (8) the public statements made by the movants and others.

State officials argued that legislative privilege required quashing of the subpoenas.  The district court was willing to override the privileges, ruling that the discovery interest outweighed officials' need of confidentiality in deliberative process.  On interlocutory appeal, the First Circuit disagreed and reversed.

The First Circuit began its discussion with the Speech or Debate Clause of the federal Constitution.  That's interesting, because the D.C. Circuit just recently applied the clause to thwart the efforts of Judicial Watch to probe the congressional investigation of the Trump Administration.  That decision made waves in the FOI community not so much for the result, but for a passionate concurrence in which U.S. Circuit Judge Karen LeCraft Henderson thoughtfully indulged the potential scope of common law access to the legislature.

However, the First Circuit opined:

Assertions of legislative immunity and privilege by state lawmakers stand on different footing. For starters, they are governed by federal common law rather than the Speech or Debate Clause, which by its terms applies only to federal legislators.... And the common-law legislative immunity and privilege are less protective than their constitutional counterparts....  That is because the separation-of-powers rationale underpinning the Speech or Debate Clause does not apply when it is a state lawmaker claiming legislative immunity or privilege.

In other words, the court recognized a constitutional constraint in horizontal separation of powers, but not, here, in vertical separation of powers, or federalism.  Nevertheless, the court reasoned that "federal common law" was constrained by the principle of comity, "[a]nd the interests in legislative independence served by the Speech or Debate Clause remain relevant."

The court was not impressed with the truckers' assertion that a federal interest in dormant Commerce Clause enforcement bolstered the private cause of action.

[Plaintiff's] argument suggests a broad exception overriding the important comity considerations that undergird the assertion of a legislative privilege by state lawmakers. Many cases in federal courts assert violations of federal law by state legislators who are not joined as parties to the litigation. Were we to find the mere assertion of a federal claim sufficient, even one that addresses a central concern of the Framers, the privilege would be pretty much unavailable largely whenever it is needed.

Here it mattered that the Governor's and lawmakers' alleged discriminatory intentions would not be dispositive of the constitutional question.  Rather, the court opined, the Supreme Court has emphasized the primacy of discriminatory effect over discriminatory purpose in dormant Commerce Clause analysis.  Intentions would prove only the latter and not necessarily amount to a constitutional offense.  Moreover, the court recited a familiar conundrum in the construction of legislative intent, that individual motives do not necessarily reveal the purpose of "the legislature as a whole."

In sum, even assuming that a state's legislative privilege might yield in a civil suit brought by a private party in the face of an important federal interest, the need for the discovery requested here is simply too little to justify such a breach of comity. At base, this is a case in which the proof is very likely in the eating, and not in the cook's intentions.

The court refused, however, to quash the subpoena against the private consultant, CDM Smith, even if state records might be revealed.  The provision of state records to a third party diminished the claim of privilege, the court reasoned, and thus rendered the question unripe for interlocutory appeal.

The case is American Trucking Associations, Inc. v. Alviti, No. 20-2120 (1st Cir. Sept. 21, 2021).  U.S. Circuit Judge William Kayatta wrote the opinion for a unanimous panel that also comprised U.S. Circuit Judge O. Rogeriee Thompson, a Rhode Islander, and, sitting by designation, U.S. District of Massachusetts Judge Douglas P. Woodlock.