Quick read of the longggggg U.S. Soccer reply in the NASL suit

U.S. Soccer deserves blame for many things. The organization is fundamentally arrogant and stubborn, and that may have played a role in the men’s national team’s failure to qualify for the World Cup — along with recent failures in the Olympics and a plateau or decline (depending on whose numbers you use) in youth soccer that threatens to undo decades of progress.

But are they really obliged to do any more than they already have for the NASL?

A few questions I’ll have as I go through this:

• What does U.S. Soccer have to say about the 2015 Pro League Standards (PLS) proposal that the NASL seems to regard as the last straw?
• How much info will U.S. Soccer spill about all the NASL’s missteps?
• Does U.S. Soccer present a viable case that it can legally determine who’s a FIFA-sanctioned league under U.S. law (Stevens Act), and if not, are we headed toward U.S. Professional Soccer Armageddon (USPSA)?

Here we go …

SUMMARY

Literally the bullet points …

INTRO, translated to English

“Look, what do you want from us? We created PLS in 1995, when the NASL was still as much a synonym of 70s excess as Pele and Mick Jagger stumbling out of Studio 54. Then you guys decided to revive the brand name in 2009, and we held your hand through endless turnover and a racketeering scandal that engulfed your biggest owner?

“And it’s not as if Don Garber and a bunch of MLS/SUM guys are sitting here revising the PLS to sabotage you. It’s an independent task force, and directors affiliated with pro leagues can’t vote on whether to change the standards or let you guys have your precious D2 status or your more precious (ha!) D1 status. You really want to tell us Goldman Sachs alum Carlos Cordeiro, Clinton administration alum Donna Shalala and WNBA/Big East exec Val Ackerman are conspiring against you?

“Oh, and they’ve based all their “showing of harm” on the declaration of an owner (NY Cosmos’ Rocco Commisso) who just joined this sinking ship a few months ago. Now they’re crying about how impossible life would be in D3, to which we offer three letters: USL.

“Your Honor, if you grant this, you’ve undermined our entire organization, and you should get ready to serve as the de facto decider of divisional structures for the foreseeable future because everyone’s just going to sue.”

INTRO, crux of the legal argument (verbatim)

The preliminary relief NASL seeks—an injunction requiring USSF to sanction it as a Division II league for 2018—conflicts with the ultimate relief NASL seeks: an order striking down the PLS altogether. Indeed, NASL asks this Court to order something that it argues violates the antitrust laws. And in doing so, it wants the Court to reengineer the core activity of a legitimate sports governing body—something the antitrust laws and abundant precedent do not permit.

INTRO, recurring grammatical error

The commas are not needed here …

INTRO, new-ish stuff

ABOUT USSF GOVERNANCE

A bit of history we all know but is necessary for the legal record — World Cup in 1994, MLS in 1996, etc. Highlights:

• Yes, USSF is willing to have multiple leagues in the same division. Just meet the standards.
• Many references to Professor (Steven) Solomon, a governance expert at Berkeley who got his law degree from … Columbia! Is it hidden in the bylaws somewhere that everyone involved in U.S. Soccer must have passed through there at some point? My brother did a medical residency there — can he join the board?
• The process for new PLS: The Task Force includes no reps from leagues or the USSF Board of Directors, the proposed revisions go out to all pro leagues (including NWSL, for the record) for comment, the revised revisions go to the Board, and the Board (with any pro league people recused) votes. Footnote: The NASL didn’t object to the “time zone” standard in 2014. When it (and other leagues) objected to the 2015 proposal, the task force withdrew it, and the Board never even voted. (I think the NASL reply may hammer at the claims of independence of this task force. If not — that would be a major omission.)

“HEY, YOU USED TO LIKE US!”

Parts F and G of the Statement of Facts run through the USSF/NASL relationship over the years. As stated:

• 2011: The league nearly fell apart before it started, but the USSF kindly helped the NASL to its feet and gave it D2 status with a bunch of waivers, and CEO Aaron Davidson said he took the standards seriously.
• 2012-15: The NASL still didn’t meet D2 standards, but the league assured us it was progressing, and nobody complained.
• 2015-16: The NASL, still not meeting D2 standards, applied for D1 and started complaining about the standards. “In ensuing discussions,” the USSF asked pointed questions about Traffic Sports, which owned several teams and was the league’s marketing agency … until it pleaded guilty to racketeering in May 2015. NASL said it was dissociated from Traffic, so the USSF gave it another year as D2 in 2016.

Then USSF drops the bomb:

The Task Force advised the Board not to grant the NASL a D2 sanction for 2017. The Board (again, minus recused members) gave it anyway.

The application for 2018: NASL had “at best” commitments from seven teams and no detailed plan for complying with the PLS.

MORE LEGAL ARGUMENTS

Roughly translated, but I think the two Legal Steves — Bank and Holroyd — can do a much better job dissecting this part:

• Given the USL’s success as a D3 league, there’s no evidence of “irreparable harm” if the NASL plays D3.
• There’s some hair-splitting about what a mandatory injunction can or cannot do.
• There’s no conspiracy among USSF, MLS and SUM because:
  • Recusals on votes
  • The PLS existed waaaay before the NASL
  • “MLS’s participation in USSF does not evidence conspiracy as a matter of law.” (Several precedents cited)

“Put simply, unless the Court is willing to conclude that decisions made by the disinterested members of the USSF Board (directors such as Ms. Ackerman, Mr. Cordeiro, Ms. Shalala, and directors affiliated with youth soccer) are somehow part of a supposedly decades-long conspiracy aimed at driving the NASL out of business, there is no evidence of any unlawful agreement.”

• A 1988 suit against NASCAR is cited as precedent that a lawsuit cannot “reengineer the core activity of a legitimate sports governing body.”
  • “Here, the NASL asks the Court to decide the right structure for professional soccer in the United States, and to reject the successful framework established by USSF decades ago.”

DEFENDING THE PLS

USSF argues that the standards are “pro-competitive” because they make sure leagues are credible.

Is it too easy to take a shot at the NASL griping that other major soccer leagues don’t have time-zone requirements, when it’s quite obvious that the countries in question have only one time zone? No, it’s not. USSF does just that. The time-zone standard is certainly ripe for debate — I see no reason for a second-division league to be national — but the NASL tossed the USSF lawyers a slow-pitch softball here.

Then comes an interesting argument: According to precedent (at least, USSF’s interpretation of that precedent), the plaintiff has the burden of proving that the PLS have an adverse effect on competition and that the same pro-competitive effect can be attained some other way.

(To which the counterargument would be “pro/rel,” and the counter-counterargument would be “you really think this is about pro/rel now?” and “that doesn’t address the USSF’s right or responsibility to set standards that could easily render pro/rel moot.”)

Oh, and Japan and Spain have minimum stadium-size requirements, so the NASL can’t say the USSF is unique.

Then the argument turns to the “greater good” realm: “NASL screams about supposed harm to itself, but never explains how the PLS harm U.S. sports fans, who have enjoyed an unprecedented growth in the sport of soccer under USSF’s watchful eye.” Is that legally relevant?

BALANCE OF HARDSHIPS: This will hurt me more than it’ll hurt you

In short: “NASL seeks an order that would eviscerate USSF’s standing as the governing body for soccer and seriously harm its relationship with FIFA.”

And that’s the main document. Tune in tomorrow when I make it through the rest of the … whoa … let’s make it next month …