U.S. District Court was the site of Tuesday’s hearing. (FrontRowSoccer.com Photo)
By Michael Lewis
BROOKLYN, N.Y. — – No decision was rendered Tuesday on the North American Soccer League’s request for a preliminary injunction to continue as a Division 2 League or its anti-trust lawsuit against U.S. Soccer.
Judge Margo K. Brodie said that she will issue a written decision at the end of the week. It was not known which day the decision will be announced.
Afterwards, Rocco Commisso, the NASL chairman and Cosmos owner, said the league’s anti-trust lawsuit would go on, regardless how Judge Brodie rules.
In a hearing that lasted two hours and 45 minutes, attorneys for the NASL and U.S. Soccer stated argued the merits of their cases in U.S. District Court for the Eastern District of New York.
Judge Brodie peppered both plaintiff and defendant with pointed questions in her quest to get to the crux of the matter.
Both sides used facts, figures and various arguments that had been mentioned in legal briefs leading up to the hearing. Each side was given an opportunity state its case with plenty of queries from Judge Brodie. The plaintiffs, the NASL went first. U.S. Soccer followed before the NASL was allowed a rebuttal to close the proceedings at 1 p.m.
The NASL needs the preliminary injunction to make plans as a Division 2 league in 2018. Given the NASL attorney’s arguments in the motion and paperwork that has been filed with court, Judge Brodie gave plaintiffs some encouraging news.
“I believe the evidence shows that you can make the first prong,” Judge Brodie said of the injunction.
Jeffrey Kessler, co-executive chairman of Winston & Strawn LLP that is representing the NASL, claimed that playing at the Division 3 level would prove to be irreparable harm to the seven-year-old league.
“The extreme harm is the murder of an organization,” he said.
“This is simply to give an injunction, so we cannot [driven] out of business,” Kessler added in his closing statements. “There will not be a league left to continue the challenge.”
In the third hour of the proceedings, Yates and Russell Sauer, also of the Watkins firm, argued against an injunction.
“If granted, an injunction will harm U.S. Soccer,” Yates said.
Added Sauer: ” A ruling granting their preliminary injunction would delegitimize the body [in making rules]. … A preliminary injunction is telling U.S. Soccer that … we don’t like a decision, it will affect us really bad.”
The NASL, which has housed eight teams in 2017, has six letters of intent from perspective owners for the 2018 season, according to Kessler. “The league will fold if we cannot do this,” he said.
Sauer claimed otherwise, saying the league did not show it was irreparable harm.
“Simply saying we’re going out of business is not enough,” he said, adding, “Division 3 is not a death blow.”
Sauer later added: “Owners say they want to be a Division 2 league and if they’re not going to be a Division 2 league we’re going to take our toys and go home.”
The NASL discovered Sept. 1 that the U.S. Soccer board of directors rescinded its Division 2 status for 2018.
Judge Brodie asked Yates to reveal how the vote transpired. Yates said the vote was 9-1, with John Motta, president of the U.S. Adult Soccer Association, as the lone dissenting vote. Five people with affiliation to professional soccer recused themselves from the vote, former U.S. international defender Carlos Bocanegra, currently the technical director and vice president of Atlanta United, Major League Soccer commissioner Don Garber, attorney John Collins, United Soccer League counsel; Steve Malik, owner of North Carolina FC, and U.S. Soccer president Sunil Gulati, according to Yates.
Sauer also revealed that at the Sept. 1 meeting that Malik and North Carolina FC informed the federation that it was joining the USL. According to a source in the soccer community, the club told the NASL two weeks after that meeting.
Several times Kessler brought up how U.S. Soccer had revised the standards for Division 1 and 2 leagues.
“Every time we get close to something, the standards change,” he said. “It raises issues, no question. … It is designed to make it harder for people to compete.”
“There’s definitely some smoke there,” Judge Brodie said. “At the end of the day, I cannot draw the inference you want me to draw.”
Kessler claimed that no other soccer federation in the world set standards such as the federation, which includes the necessity of having teams in three specific time zones.
To which Judge Brodie replied, “What works in those countries might not work in the U.S.”
Later the judge stated: “You have to show concerted lawful action.”
Kessler claimed that the federation moved the finish line on standards a number of times.
“Every time we get close to something, the standards change,” he said. “it raises issues, no question. … It is designed to make it harder for people to compete.”
During her questioning with Sauer, Judge Brodie noted that some NASL teams can’t play in Division 3.
To which Sauer replied, “That’s self-inflicted harm.”
“The NASL has had seven years, seven years to meet the standards, and they haven’t.”
To which Judge Brodie replied: “You can say the same thing about MLS. … Clearly, there is a difference in treatment and raises issues in the courts’ mind.”
Re-iterating what was filed in the papers, Kessler claimed U.S. Soccer and Major League Soccer are economically tied together due to their close ties Soccer United Marketing.
“That alone makes the way they set the standard illegal,” he said.
Judge Brodie did not think it was that extreme. “I don’t know if it makes it illegal,” she said. “There are conflicts.”
Kessler said that MLS has to make money for the federation to make money.
“For them to get their 70-30 split … MLS has to be popular enough to bring in enough money,” he said.
Kessler said that MLS and U.S. Soccer were “linked at the hip. That’s what Sunil Gulati admits. They are totally dependent. This is their major source of income.”
Yates later disputed the number, saying it was 20 percent or less, not 30 percent.
Kessler implored Judge Brodie to issue the injunction and let the cards fall where they may in letting the market place determine the league’s fate.
“It’s what every other sport in this country does,” he said.
Judge Brodie admitted that she was on a severe learning curve about the sport.
“You understand soccer,” she told Sauer. “You know how it works. I know nothing.
“You know this area better than I do. I’m just learning it.”
The NASL and the Cosmos were represented by league and team officials.
Sitting the right front row of the court room, left to right, were Commisso; NASL interim commissioner Rishi Sehgal; Cosmos senior vice president Joe Barone; Joseph Commisso, Rocco Commisso’s son; Cosmos Chief Operating Officer Erik Stover; Victoria Anderson, the club’s in-house counsel, and NASL director of public relations Neal Malone.
Two players — forward Lucky Mkosana and defender David Ochieng — attended the proceedings, as did several fans and interested observers.
About two hours after the hearing, Sehgal released a statement:
“We are thankful to have our day in court to present our arguments before the Judge. We remain hopeful for a ruling in our favor, which of course we believe is supported by the law, the facts, and justice. We look forward to the court’s ruling in the coming days.”