I’ll need to start with disclaimers, for some people in the women’s soccer community have sharp knives and blurred vision, and some people think saying, “Hey, that point you made won’t stand up in court” is the work of a misogynistic craptastic devil in a Belly T-shirt.
So let’s start:
DISCLAIMERS
1. The point of this piece is not to say the U.S. women’s national team shouldn’t be paid more, shouldn’t have fewer games on turf and so forth.
2. Covering women’s soccer is a good way to piss off your editors, and I did it anyway. I was once told to back off WoSo by an editor who was pretty much the opposite of The Patriarchy — she’s a lesbian woman of color. (And a terrific person. I just disagreed with her on this, and I was stubborn enough to shove more WoSo content onto our site anyway. She forgave me because I spent the other 40 hours a week doing what I was supposed to be doing.)
3. They might win. Or at least get a decent settlement. I can’t say definitively because I don’t have all the facts. And neither do you.
I firmly believe, as a journalist or lawyer should (small wonder a lot of journalists go into law), that asking tough questions is the only way to be fair. It stops weak arguments from proceeding. It sharpens strong arguments. So let’s start …
TOUGH QUESTIONS FOR U.S. SOCCER
1. Why haven’t you sorted things out when it comes to paying the women’s national team?
2. No, seriously, why haven’t you sorted this out?
3. Really, why haven’t you sorted this out?
4. Also, can they play a few games on grass?
5. I’ve been told in the past that the WNT gets fewer charter flights because they don’t travel as far. For World Cup qualifying, that’s true. But Jeff Kassouf reported yesterday (tweet below) that the WNT had no charter flights in 2017. So how’d they get to Scandinavia?
6. (From a more arcane realm) Why did you force the girls’ Development Academy upon everyone instead of working with the already established (and popular) ECNL?
7. Does the new CBA include escalator clauses that ensure the WNT will get the same per diems and pay-per-ticket for home friendlies that the MNT gets? (We’re talking about a small amount of money here. You’d think USSF would ensure equality here just to avoid taking a PR hit. But the last CBA had a per-diem escalator that was somehow overlooked. So maybe the question should be: Are you actually going to enforce things this time?)
8. Again, why haven’t you sorted this out?
Some questions have already been asked, and we’ll have to see if USSF lives up to its answers. Exhibit A: The Aloha Stadium fiasco, which Sunil Gulati said wouldn’t happen again. The only way to truly answer that is to demonstrate that it doesn’t happen again.
I can also tell you the USSF answer to half of those questions before I even ask. I can hear the voice in my head: “We just signed a collective bargaining agreement!” But that might not be sufficient legally. I’d defer to lawyers on that one, and I doubt they’ll all agree.
Now …
QUESTIONS FOR BOTH SIDES
1. What’s in the new CBA? I guess we’ll find out sometime in the court filings if this drags on.
2. Why hasn’t anyone enforced the equal-pay clause that Julie Foudy dug out of the 2005 CBA and continued onto subsequent deals? Is that in the new CBA?
To wit:
If in any calendar year, the ratio of aggregate compensation of women’s national team players to the aggregate revenue from all women’s national team games (including all games in U.S. Soccer promoted women’s tournaments) is less than the ratio of the aggregate compensation of the men’s national team players compensation to the aggregate revenue from all men’s national team games (including all games in U.S. Soccer promoted men’s tournaments), then U.S. Soccer will make a lump sum payment to the women’s national team player pool to make the ratios equal. VIX. Additional Payment if Compensation Ratios Change
And Foudy found for something else of interest: “Kessler and Megan Rapinoe did not know the clause existed when I asked them about it.”
(We’ll get to Kessler.) First …
QUESTIONS FOR DRIVE-BY MEDIA PUNDITS
These are directed mostly, but not entirely, at people who don’t regularly cover soccer …
1. When will you get it through your head that this is more complicated than you think? The rest of these questions are related to that …
2. (A complication on “equal pay”) — When will you realize there’s no such thing as “salary” for the men’s national team?
An anointed pool of women’s players gets a base salary plus a salary to play in the NWSL. The men either get called in or not. If not, they’re not paid.
The women have negotiated for that salary many times over the years for one simple reason — stability. The NWSL can’t pay a lot. (Today, you could argue that they could all go to the handful of European teams that pay well, but Lyon can only employ so many people. Still, with England among a number of countries making strides, that might be a more viable option.)
And women’s soccer leagues and clubs have not been models of stability over the years. A steady paycheck from the Federation ensures that women can keep playing the game. In men’s soccer, the clubs ensure that. It’s a rare player who’s established on the men’s national team who doesn’t make decent money playing professionally. Any player who isn’t will get paid when his club contract is re-negotiated.
Men get called in … or not. Women get severance pay. Even Hope Solo.
More trivially, women ask for things men don’t, like maternity leave and child care. (Maybe the men should ask for such things.)
None of this means the women don’t deserve better pay. It means you, fancy-pants drive-by pundit, should do your damn research. Maybe try to compile revenue and pay over a 10-year period. I’ve tried, but it’s difficult to tease such details out of the Fed’s statements. They could always count the Copa Centenario windfall, which accounts for a hefty chunk of the USSF surplus, as “men’s national team.” I hope not, but that’s an extreme example how complicated this is.
A typical excerpt: “Their pay should be the same, without a suit. Period.”
The women have not asked for the same contract as the men. They don’t want it.
You cannot just parachute into this discussion, cite a bunch of stuff about role models and Title IX, and make a coherent argument. Get off your asses, like Andrew Das and Jonathan Tannenwald, and look at the numbers. I doubt it will undermine your underlying argument. It will more likely strengthen it.
3. When will you realize “equal play” is also complicated?
Women’s soccer is not the same as men’s soccer. Not better, not worse. Different.
In women’s soccer, the USA was there from the beginning. In men’s soccer, the USA was there in 1930, then jumped into the abyss for 60 years or so, one glorious day in Belo Horizonte notwithstanding. (See a book scheduled for publication in November. It is mostly about men’s soccer, and it’s a little irreverent. Bwah ha ha ha. Caitlin Murray has women’s history covered.)
The rest of the world is catching up to the USA and Germany in women’s soccer. But Brazil, Japan and the Scandinavian countries, though, may have taken a few steps backwards. We have more teams capable of winning a world title, and that’s why everyone’s looking forward to this summer, but that’s a recent development.
In women’s soccer, few teams in the Western Hemisphere can challenge the USA. Only Canada and Brazil have done so consistently. Mexico forced the USA to scramble to qualify for the 2011 World Cup, but that’s an aberration.
There’s no equivalent of the MNT going to Central America for World Cup qualifiers and dodging batteries and urine. The WNT goes on feel-good tours at home. It’s not the same game.
NONE OF THIS MEANS THE WOMEN DON’T DESERVE BETTER. The next thing that should change is FIFA’s bonus money is different, and that needs to change, and maybe U.S. Soccer can and should take a leadership role in changing it. (If not for altruism, then maybe because it will make paying the WNT bonuses a little easier.) The Women’s World Cup prize pool is up to $30 million. For men, it’s $400 million.
Feel free to write about that. The research is easier.
QUESTIONS FOR … SOMEONE?
1. Huh?
From Michael McCann at the browser-crashing SI site.:
For instance, the complaint charges that “if each team played 20 friendlies in a year and each team won all 20 friendlies, female WNT players would earn a maximum of $99,000 or $4,950 per game, while similarly situated male MNT players would earn an average of $263,320 or $13,166 per game against the various levels of competition they would face.”
How often do teams play 20 friendlies?
Beyond that, I have a few questions …
2. Did the USWNTPA statement strike anyone else as tepid?
They didn’t say they supported the suit. They said they supported the goal. If they support the suit itself, they might want to issue a clarification. As it stands, it reads to me like they’d rather be negotiating that suing, though a lawsuit may be what it takes to re-open negotiation after the players just recently agreed to a new deal.
3. Is tying compensation to revenue a good idea?
At first glance, I thought the idea of the MNT players and WNT players both agreeing to do so was intriguing. But I got this response.
This is way out of my area of expertise. I’d be interested to hear other takes.
4. Why did they hire Jeffrey Kessler?
I don’t mean to keep harping on this. In most realms, he’s terrific, and he consistently fights for athletes’ rights. He’s not just Tom Brady’s lawyer. He’s Caster Semenya’s, and he’s not getting rich off that.
But he struggles in soccer. He was partially involved in the U.S. women’s legal standoff of 2016, which has to be viewed in hindsight as a loss. He’s also involved in the NASL’s lawsuit against U.S. Soccer et al, which I’d doubt will succeed unless the prolonged discovery period turns up a concerted effort to sabotage the league out of spite rather than simply failing to give it a second, third, fourth or fifth chance to gets it house in order.
And he represented MLS players against MLS, which didn’t go so well.
I’ve made reference to some of the transcripts before. He keeps coming up, though, so I’m simply going to paste them here. This is all Kessler interrogating Sunil Gulati. Maybe Gulati could be interrogated on many things, but you wouldn’t think the fact that the Premier League is a level above what was then called the First Division (now the Championship) would be one of them. The transcript was once housed in multiple places but now, to my knowledge, is only available at kenn.com. (I obtained some other transcripts from the case, but they’re less interesting.)
Here we go …
17 Q And you testified in this case when I questioned you to
18 identify players who went to Division I leagues, you
19 identified both the English Premier League and the first
20 division of England, correct?
21 A I don't have the testimony in front of me, but ...
22 Q Okay. Let's look at it.
23 MR. KESSLER: Let's look at Page 1652 of the
24 transcript, if we could put it on.
25 Q And if you could take a look, it says:
2191
- GULATI -
1
2 "If you could take a look, Mr. Gulati, at Page 274?
3 "Mr. Kessler: If we could display that, please.
4 "And the question on Line 14 was: 'As a general
5 proposition, are there many Americans in any of the
6 Division I foreign leagues?'
7 "Do you see that, sir, that question?
8 "Yes.
9 "And then it says.
10 "ANSWER: There are a number.
11 "I have think you meant to say in Division I
12 foreign leagues. There are currently two in Holland that I
13 know of. One in the English Premier League, and one in
14 the First Division. At least two in Germany, maybe as many
15 as four."
16 And then I said:
17 "So you were identifying here in response to the
18 question about Americans in any of the Division I foreign
19 leagues both the English Premier Division League and
20 the First Division, correct?"
21 You answered:
22 "That's correct."
23 MR. ROBBINS: Excuse me, your Honor, I ask
24 that he continue on with the testimony for completeness, in
25 the interest of completeness and fairness.
2192
- GULATI -
1 THE COURT: All right.
2 MR. KESSLER: Okay.
3 Q "And does that refresh your recollection that you have
4 always considered these two leagues in England to be
5 Division I leagues?
6 "I don't refer to them that way. I see what I've
7 said there.
8 "What I'm talking about and when I talk about the
9 Premier League, I talk about the first division.
10 "QUESTION: Those two leagues compete with each
11 other for players in England, correct?
12 "Some cases, yes."
13 MR. KESSLER: Would you like me to read any
14 more?
15 MR. ROBBINS: I don't care if you read the
16 middle, but go down to the paragraph -- I'm sorry, Line 19.
17 MR. KESSLER: Your Honor, I mean, I think I've
18 read for completeness.
19 THE COURT: It's the same topic. Go ahead,
20 Line 19.
21 MR. KESSLER: Okay.
22 Q "In fact, there was some discussion about teams move up
23 and down from the Premier League to the First Division,
24 right?
25 "They never move up to the First Division from the
2193
- GULATI -
1 Premier, but they move from the First Division up to the
2 Premier League and down from the Premier League, yes.
3 "Okay. Okay.
4 "Now, so if a team is in the Premier League and is
5 signing players one year, and the next year they're in
6 the First Division, okay, they have the same players, right?
7 Their players didn't change, correct?
8 "A team goes from the Premier Division to the First
9 Division, is relegated, is the language we use.
10 "Right."
11 MR. KESSLER: Keep going?
12 MR. ROBBINS: That's okay.
13 MR. KESSLER: No, let's see what he said after
14 that. Keep going.
15 Q "And they all have the same players?
16 "Well, the same players who are still in the
17 contract. They don't change the players, right?"
18 Now, Mr. Gulati. Let's talk about that.
19 In fact, when you're not coached by your counsel --
20 MR. CARDOZO: Objection, your Honor.
21 Q -- you routinely --
22 THE COURT: Sustained.
23 Q Okay.
24 THE COURT: Mr. Kessler.
25 MR. KESSLER: Okay.
2194
- GULATI -
1 MR. CARDOZO: May we approach, your Honor?
2 THE COURT: No, we don't need comments like
3 that.
4 MR. KESSLER: Okay. Your Honor, I won't make
5 a characterization.
6 Q Before you came and made this change, did you discuss
7 that fact with your counsel at the break?
8 A Yes.
9 Q Okay.
10 So before that discussion, you identified them both
11 as being Division I leagues in Scotland and in South Africa,
12 correct?
13 A The equivalent of a typo, Mr. Kessler. I was going
14 through the list very quickly, and at the end of the list,
15 being concerned about time, I went through it very quickly,
16 just as I might on a given day if I had a hundred of them in
17 front of me say that eight times eight was not 64. I know
18 it's 64.
19 Q Well, it's interesting, Mr. Gulati, because the typo you
20 made -- did you make any other typos in this chart when you
21 were filling out the ones and the twos and the threes?
22 Were there any other typos?
23 A I have to look at it right now.
24 Q Are there any?
25 A I can't see it from here.
2195
- GULATI -
1 Q Well, see, all the others you just copied what was
2 written next to it; isn't that correct?
3 Like here it says Hungarian Division I, and you
4 wrote a one next to it. But on these, there was, like, no
5 guidance, so you wrote something else, right?
6 A That's not correct.
7 Q Okay.
8 When I questioned you at your deposition and I
9 questioned you in court where you identified the Premier
10 League as Division I, was that a typo?
11 A When I identified the Premier League as Division I, no.
12 Q No, when you identified the First Division as
13 Division I, was that a typo?
14 A And corrected it within 15 seconds thereafter.
15 Q Okay.
16 So that was a misspeaking? That's different from a
17 typo?
18 MR. CARDOZO: Objection, your Honor. I think
19 we're starting to argue.
20 THE COURT: Sustained. Sustained.
21 Q Okay.
22 Mr. Gulati, you helped Professor Klein put together
23 his charts, correct? We talked about that?
24 A Some of the time.
25 Q And, in fact, when Professor Klein first gave his charts
2196
- GULATI -
1 to us, it said, did you know this, that the First Division
2 was a Division I in England?
3 Was that a typo, too, that you did?
4 A I don't know what charts Mr. Klein gave you.
5 Q Okay. We'll go through that tomorrow.
6 Now, Mr. Gulati, in those foreign countries where
7 you have a Premier League and a first division -- let's go
8 through the history.
9 You testified with Mr. Cardozo that the First
10 Division changed its name to the Premier League and the
11 Second Division changed its name to the First Division.
12 That's not true, is it?
13 A That's not what I said.
14 Q Oh, it's not what you said?
15 A Most of the teams --
16 MR. CARDOZO: Objection, your Honor. I have a
17 sense here we're characterizing, we have facial expressions,
18 and the witness is being treated improperly.
19 I object.
20 MR. KESSLER: We'll go back -- okay. We've
21 got your testimony.
22 MR. CARDOZO: I'd like the judge to rule on my
23 objection.
24 THE COURT: Well, you don't need extraneous
25 comments. Let's just get to the questions, and it will be
2197
- GULATI -
1 more efficient.
2 MR. KESSLER: Okay.
3 Q Mr. Gulati, you don't recall now -- because we're going
4 to get it up because we have it on Livenote, fortunately --
5 you don't recall testifying with Mr. Cardozo that you
6 testified that the First Division changed its name to the
7 Premier League and that the Second Division changed its name
8 to Division I?
9 You don't recall that testimony maybe 25, 30
10 minutes ago?
11 A No. It's now different than what you just said 30
12 seconds ago. What I said was the First Division became the
13 Premier League, that most of those teams became part of the
14 Premier League.
15 Q Listen to my question, please, Mr. Gulati.
16 Do you recall testifying maybe 25 or 30 minutes
17 ago -- I think the jury recalls -- that the First Division
18 changed its name to the Premier League and the Second
19 Division changed its name to the First Division?
20 Do you recall saying that with Mr. Cardozo?
21 A I don't know if those are the exact words, but something
22 like that, yes.
23 Q Okay.
24 And now tell the jury, is it a lie or is it true
25 that they changed their names?
2198
- GULATI -
1 A They became -- they became -- they changed their name,
2 but they became the First Division. Most of the teams, as I
3 also said 25 minutes ago, became part of the First Division.
4 Q Okay.
5 Did they change their names? Just focus on that.
6 A I believe the answer is yes.
7 Q Okay. You think that's yes. Let's focus on what
8 happened.
9 Before there was a Premier League, there was
10 something called the First Division, right?
11 A That's correct.
12 Q Okay.
13 And then there were about 32 teams in the First
14 Division, right?
15 A I don't know the number that were there, but there
16 was -- there was a number of teams in the Premier League.
17 Q And at that moment, all of those teams you would
18 call First Division?
19 There was no Premier League, right? That was the
20 highest division?
21 A All of the teams that were in that division were part of
22 the First Division, yes.
23 Q And those teams were some of the best teams in the world
24 at that time, right, before the Premier League?
25 A Some of them, yes.
2199
- GULATI -
1 Q Okay.
2 And then what happened is some of those teams left
3 the First Division and formed a whole new organization
4 called the Premier League; isn't that correct?
5 A Some of those teams became part of the Premier League,
6 that's right.
7 Q And there was no changing of names.
8 Some of the teams left the First Division, and they
9 became a different league, about 16 of the 32, right?
10 A I don't remember if it was 16, but, yes.
11 Q Okay.
12 And the 16 teams who a moment before the Premier
13 League were First Division, they didn't change their name?
14 They stayed the First Division, right?
15 A They -- the bigger and better teams, in most cases,
16 became the Premier team.
17 Q Okay.
18 A Not a --
19 Q You have to --
20 MR. CARDOZO: Wait a minute.
21 MR. KESSLER: Objection. It's not responsive
22 your Honor.
23 THE COURT: Go ahead.
24 A Became the Premier Division. The other teams became
25 what continued or changed their name or however you want to
2200
- GULATI -
1 characterize it, part of First Division in this reformatted
2 league.
3 Q Okay. I'll try to ask the question very slowly.
4 The teams who stayed in the First Division, about
5 half that league, that league didn't change its name.
6 It stayed the First Division, right?
7 A I don't know if it was -- I mean, some of these teams
8 became part of the Premier League. Some of them were part
9 of the First Division.
10 Q The league never changed its name. No league ever
11 changed its name in England, right?
12 A We had a league that started that became the Premier
13 League.
14 Q Mr. Gulati, you believe that the First Division League
15 changed its name to the Premier League?
16 That's what you believe?
17 A No, that a lot of the teams, as I said earlier, became
18 part of the Premier League.
19 Q Okay.
20 And no league ever changed its name, correct?
21 A No, that's -- we've had a number of leagues in the
22 English league that have changed their league name by having
23 a sponsor affiliated with it and so on.
24 And this -- let me finish.
25 In this characterization, I'm not sure if they
2201
- GULATI -
1 changed when those 12 or 14 or 16 teams were left or not, in
2 that framework that you've just outlined the question.
3 Q Right.
4 And, in fact, the Second Division in England never
5 changed its name to the First Division, right?
6 The league?
7 A You characterize it that way, that's correct.
8 Q Thank you.
9 What happened was there was a First Division League
10 of 32 teams. Sixteen of them became a new league called the
11 Premier League, and the other 16 teams, which were
12 still first division, called themselves still the First
13 Division, right?
14 There's nothing complicated about that?
15 A Not all 16, but some of them, yes.
16 Q Okay.
17 And what happens between those two leagues is that
18 the teams move up to the Premier League sometimes and then
19 they move down to the First Division, right?
20 A There is relegation and promotion, yes.
21 Q Right.
22 And so all of these teams in the First Division in
23 the Premier League are, if we were going to look at it in a
24 broader sense, major league teams that move from one league
25 to the other, right?
2202
- GULATI -
1 A There are teams that move between the first and the
2 second and the second and the third as well.
3 Q Right.
4 Like normal minor leagues. Let's talk about
5 baseball. You know about baseball, minor leagues?
6 MR. CARDOZO: Objection, your Honor.
7 THE COURT: Sustained. And we're at
8 1 o'clock. I think we better break for the day.
9 MR. KESSLER: Okay, your Honor. That's fine.
10 THE COURT: Jurors, we have a slight schedule
11 change. We've going to start a little bit later tomorrow.
12 We'll start about 10 o'clock, okay?
So here’s what happened next …
page 2215
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10 MR. CARDOZO: Goer good morning, your Honor.
11 MR. KESSLER: Good morning, your Honor.
12 THE COURT: Good morning.
13 MR. CARDOZO: Your Honor, I hope you had a
14 chance to look at the letter I --
15 THE COURT: Barely. That's why I'm --
16 my first question is is this something that we have to do
17 before we resume with the jury?
18 MR. CARDOZO: Yes, your Honor.
19 , and I raise this point with great reluctance and
20 I have thought about it a lot before I did this. And I've
21 never done this before in my professional career.
22 I believe that Mr. Kessler must be this morning
23 before the jury publicly sanctioned because he committed
24 yesterday a blatant violation of what in Massachusetts is
25 Rule 3.4E of the Massachusetts rules of professional conduct
page 2216
1 with a parallel provision in New York.
2 Because that rule prohibits a lawyer from alluding
3 to any matter that will not be supported by admissible
4 evidence and from stating a personal opinion as to the
5 credibility of the witness.
6 If you turn to Page 2 of my letter, your Honor, and
7 the indented paragraph, which I'm sure you recall the
8 substance of, Mr. Kessler said to Mr. Gulati: "is it a lie
9 or is it true that they changed their names," referring to
10 the first division, the Premier League issue.
11 And he also said, as referred to on the bottom of
12 the page. Of my letter, "there were about 32 teams in
13 the first division. There was no changing of names, and so
14 on.
15 And then he made a factual assertion in the form of
16 a question:
17 "what happened was there was a First Division
18 League of 32 teams, 16 of them became a new league called
19 the Premier League, and the other 16 teams, which were
20 still first division, call themselves still the first first
21 division."
22 Your Honor, Mr. Kessler had absolutely, absolutely
23 no factual bay sis for making that assertion. It was an
24
25 absolute violation of the Massachusetts rule prohibiting an
page 2217
1 allusion to any matter that will not be supported by
2 admissible evidence.
3 Now, I understand that obviously when it comes to
4 be our turn, three or four or five weeks from now, I can
5 call a witness to establish that. But the damage has
6 already been done to Mr. Gulati's credibility.
7 We stayed up all night and we received about four
8 or 5 o'clock this morning an affidavit from the head of the
9
10 English football association, which is attached as exhibit
11 C, which PHA*EUBGS which makes the point crystal clear, and I believe under
12 the circumstances, your Honor, where Mr. Kessler
13 deliberately sought to call the witness a liar, to make a
14 factual assertion which he knew to be blatantly false, that
15 we cannot be prejudiced by waiting six weeks in order to
16 correct that.
17 What has to be done, I respectfully submit, your
18 Honor, is that Mr. Kessler has to be publicly admonished
19 before the jury; the correct facts, which Mr. Gulati recited
20 in response to my questions before Mr. Kessler started bee
21 raiding him yesterday with false assertions, the correct
22 facts have to be told to the jury this morning before the
23 witness resumes the cross-examination; and Mr. Kessler
24 should be admonished not to do this in the future.
25 THE COURT: Mr. Kessler.
page 2218
1 MR. KESSLER: You know, your Honor, I've been
2 practicing over 20 years. I have never before been accused
3 of a violation of any cat any efforts in any state or
4 federal court.
5 I am astounded that Mr. Cardozo would make that
6 allegations. I've known him a long time. He didn't pick up
7 the phone last night or say anything to me. He didn't ask
8 me what was my basis for the questions or anything else.
9 Instead, I walk in this morning, I get served with
10 this paper as we're coming in, not even the night before.
11 I'm not even in a position your Honor this morning since I
12 don't have the person here, Mr. Young, who gathered the
13 information for me about the Premier League, upon which I
14 based my questions, which he did from looking at Internet
15 sites and other sources and made phone calls to people at
16 the Premier League asking questions, all of which
17 information he gave me to give me a basis for asking the
18 question, a reasonable basis.
19 Now, I'm presented, sight unseen, with an affidavit
20 from a witness who I don't know, who I can't
21 cross-examination. I'm being accused, like it's the star
22 chamber, you know, right now, your Honor should decide I
23 committed an unethical violation and tell the jury what I'm
24 not even in a position to present to you the basis of my
25 questions, I'm not in a position to cross-examination this
page 2219
1 witness (when) it's unbelievable.
2 Now, your Honor, that is trial. If I made a
3 misstatement, okay, and, your Honor, in 20 years, it won't
4 be the first fact that I was proven wrong or right about,
5 okay, and I'm not representing to your Honor at this
6 moment -- he's presented an affidavit. This is the first
7 time I've heard before that witness about this changing the
8 name.
9 If this testimony is truthful, then he -- the
10 affidavit he presented, then he may be right and I may be
11 wrong and I'll prove it to the jury, as there are about
12 thousands of subfacts in this case, many of whom I expect to
13 prove Mr. Cardozo has been completely wrong. I'm not
14 accusing him of unethical violations, despite the fact that
15 I think he's wrong about many, many things.
16 So, your Honor, I think the idea that you would
17 consider some type of ethical thing without my being able to
18 present the basis or cross-examination this witness or
19 anything else is just beyond the pale.
20 Having said that, your Honor, having said that,
21 your Honor, okay, you know, he's presented this affidavit,
22 you know, with respect to the changing of the name. He
23 says -- and, you know, I have no problem -- in fact, I had
24 already told my colleagues when doing this that I was going
25 to indicate to the witness during my examination that I had
page 2220
1 been presented with some evidence suggesting that maybe the
2 league of the names was chosen and that I wanted to less the
3 witness know that, is that correct, and tell him if that's
4 wrong, I apologize to him.
5 But to come up and ask for an ethical violation
6 when he had bee sees and I believed it to be true in good
7 faith and Mr. Cardozo nose me better than that -- and I
8 don't know if it's true or not but I'm willing to give him
9 the benefit of the doubt and this afew yant that he wouldn't
10 give me with the basis that I had.
11 MR. CARDOZO: Your Honor to suggest that at
12 5 o'clock in the morning I should have called Mr. Kessler is
13 ridiculous.
14 THE COURT: Well, I --
15 THE COURT: It's a serious allegations or
16 charge or accusation, so I'm going to give him a chance to
17 respond to it. There are two issues. One is the ethical
18 issue. The other is it's simply an evidentiary issue and
19 putting aside the ethical question, there is still an
20 evidentiary problem when evidence is suggested that is --
21 for which there's no foundation, whether it's intentional al or or
22 accidental or good faith, whatever. There's still a problem
23 that the jury hears something for which there is no
24 admissible evidence sto support it.
25 MR. KESSLER: And, your Honor, I would propose
page 2221
1 to cure that in my questions.
2 MR. CARDOZO: Your Honor, I --
3 THE COURT: Well --
4 MR. CARDOZO: I believe -- I understand if you
5 want to reserve decision on --
6 THE COURT: Well, I think he's entitled to if,
7 as he says, he had a basis for believing that it was true,
8 then I think he ought to be entitled to say that and we'll
9 he evaluate that along with whatever you have here and that
10 goes to the more serious problem.
11 The evidentiary problem is one that perhaps, as
12 Mr.S can Kessler says, he has a way of curing. I don't
13 know.
14 But I don't think anything is going to happen irref
15 cabbly with the witness this morning that can't be added to,
16 supplemented, corrected, after an opportunity to hear
17 further from the witness.
18 (Counsel conferred.)
19 MR. CARDOZO: I respectfully suggest, your
20 Honor, the damage has already been done. I don't want to
21 wait until Mr. Kessler decides how he wants to elicit this
22 information.
23 I would respectfully suggest that the first order
24 of bus this morning (business this morning should be to
25 allow me to elicit from Mr. Gulati what he standards the
page 2222
1 facts to be because to let Mr. Kessler do this when he still
2 can't stand up and -- forget the ethical issue. He still
3 cannot represent to you he had any basis. I can't wait
4 three hours or four hours or '2 days.
5 THE COURT: I don't think the timing is that
6 critical. The jury is not -- the jury is hearing a lot of
7 stuff over weeks and weeks and weeks. An hour or two is not
8 going to make a difference.
9 MR. CARDOZO: Your Honor, I would respectfully
10 request that Mr. Gulati either be asked by you, if not not
11 me, what he understands the facts to be.
12 I think I am severely prejudiced if I simply have
13 to wait for Mr. Kessler --
14 THE COURT: Well, let me make -- no. I think
15 it may be appropriate for Mr. Kessler to do it, but maybe we
16
17 can suggest a Kessler that Mr. Kessler ought to ask, and
18 here is a suggestion, which would call for hearsay evidence
19 as to which Mr. Kessler might not press an objection.
20 That is, to ask the witness whether he has
21 information from the English leagues as to how it came
22 about. He could give that answer. I don't know. That's a
23 possibility. He could give the substance of --
24 MR. KESSLER: Your Honor, again, I don't know
25 whether it's even true or not but I'm willing to do that
page 2223
1 because I don't like being accused of these things, and I've
2 been presented with this for the first time this morning,
3
4 and I can tell your Honor I would never go into court and
5 ask any question that I didn't believe I had a basis for.
6 Sometimes I'm wrong. I assume Mr. Cardozo has
7 sometimes been wrong.
8 MR. ROBBINS: If I can just make a suggestion
9 your Honor. I think an appropriate way to do it in light of
10 yurch's indication is that the first question Mr. Kessler
11 asks of Mr. Gulati is at the close of the day we were
12 discussing the English Premier League, the change of names.
13 THE COURT: Right.
14 MR. ROBBINS: Is there something you'd like to
15 explain to the jury. I think that would be the fair way to
16 do it.
17 THE COURT: Right. Ask him whether he's made
18 inquiry about that overnight. That would technically be
19 hearsay but in the absence of an objection it could be
20 admitted.
21 MR. KESSLER: Your Honor, I don't have any
22 problem with doing that.
23 THE COURT: All right.
Kessler did follow through and allow Gulati to confirm that, yes, the Premier League is the top tier and the First Division is second.
7 REDIRECT EXAMINATION 8 9 BY MR. KESSLER 10 THE CLERK: I'd like to remine the witness 11 that he is still under oath. Please be seat the. 12 MR. KESSLER: May I proceed, your Honor? 13 THE COURT: Please. 14 Q Good morning, Mr. Gulati? 15 A Good morning. 16 Q Mr. Gulati, there was a point yesterday that we 17 discussed in your examination which I'd like to give you a 18 chance to clear up because I want to make sure that I didn't 19 say something that I misspoke about something, and that has 20 to do with the naming of the Premier League. 21 Is there something you learned about that that 22 you'd like to tell the jury or explain? 23 A I learned that what I had said to Mr. Cardozo yesterday 24 was correct, that virtually all of your comments about how 25 the Premier League was formed and the number of teams and page 2227 1 the renaming were all, in fact, absolutely incorrect. 2 Q Okay. 3 The Premier League did rechange its name? That's 4 what you learned? 5 A And that the first division had been previously the 6 second division and so on. 7 So everything I said to Mr. Cardozo was correct. 8 Q Okay? 9 A And all of the questions and issues that you raised at 10 the end of the day were, in fact, wrong. 11 Q Okay. Mr. Gulati if, that's true, I want to apologize 12 to you because we got a little sidetracked on the Premier 13 League and I want the jury to get every fact exactly 14 correct, okay? 15 Let's talk about the Premier League. 16 It is true that the Premier League and the first 17 division have teams that change each year. Some teams going 18 G. to the Premier League, some go to the first division, 19 correct? 20 A That's correct. 21 Q Okay. 22 And it is true that those two leagues, in effect, 23 as you've testified before, compete with each other for 24 players, correct? 25 A Some players, yes.
And then compared the Premier League and First Division to the NFL and AFL of the 1960s. Then apologized to Gulati.
9 Q Okay. 10 And the first division is comparable, we just said, 11 in quality, at least torques league to Major League Soccer, 12 right? 13 A That's correct. 14 Q So if we're defining some major league level, then both 15 Major League Soccer and the first division of England would 16 have to be in that major league level, right? 17 A If you're defining major league in that way, that would 18 be correct. 19 Q Right. 20 And the Premier League might be even a better 21 quality than that, right? 22 A The Premier League is the top division in England, yes. 23 Q So, for example, when the A*FL and NFL both existed if 24 football originally, the NFL might have been better than the 25 A*FL, but they were both competing major leagues, right? page 2230 1 MR. CARDOZO: Objection. 2 A I don't know that they were both -- 3 THE COURT: Wait a minute. Wait a minute. 4 MR. KESSLER: Sorry -- 5 THE COURT: 6 MR. KESSLER: I'm sorry, did you sustain the 7 objection? 8 THE COURT: I'm thinking about it. 9 MR. KESSLER: I'm sorry. 10 THE COURT: Go ahead, you may answer. 11 MR. KESSLER: Thank you, your Honor. 12 A I don't know at what time we're talking about. 13 Certainly from the little I know, when the A*FL started, 14 they weren't considered a major league in that sense of the 15 word, and I don't know that in football they use major 16 league like that. 17 Q Okay. 18 Q Now, let's turn to another subject., and, again, 19 Mr. Gulati, on the naming issue I want to apologize to you, 20 okay? 21 A I accept your apology. 22 Q Thank you.
I would just love for someone in soccer to explain to me why he keeps getting hired for soccer cases.
And again — the U.S. women probably have a better case than the MLS players did. MLS players endured some shoddy treatment in the early days, but that didn’t give them a good legal case, and they really should’ve settled once Judge George O’Toole kicked the guts out of it in April 2000. (Scroll to “On April 19, 2000” here.) The U.S. women might be able to win no matter who’s representing them. But it might help if they had someone sit down and explain the realities of soccer to Kessler so he doesn’t make any costly mistakes.
Repeating the disclaimers:
1. Jeff Kessler does a lot of good.
2. U.S. Soccer has done a lot of good (compared with, say, Brazil and, until a few years ago, England) but also some things that make us face-palm.
3. While we don’t know what’s in the new CBA, no rational person would object to the WNT getting a big bump in salaries AND bonuses given the USSF surplus. The fact that the world is catching up is actually a good reason to spend more, not less.
And finally: The lawsuit may be a good idea.
In the meantime, question everything and demand more. (Maybe except from those of us who are doing this for free.)
Ranting Soccer Dad 
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