The North American Soccer League (NASL) has filed its appeal of Judge Brodie’s decision, the United States Soccer Federation (USSF) has replied and the die is cast. We’ve inched along to this moment through a wake of false calm.
The NASL’s submitted argument is that Judge Brodie’s interpretation of what standard was appropriate for finding preliminary relief was in error, on a few points. What feels the most persuasive, and some interested friendly attorneys have suggested, is their argument pertaining to ‘extreme harm’. While a strong point can be made that an existential event can indeed be construed as ‘extreme or very serious’ harm, it is one made in a partial vacuum of precedent and thus unknown odds. I personally thought NASL counsel’s drawing of a distinction between serious and extreme harm to be fairly matter-of-factly and persuasive when made at the last hearing, but how things test against a sanity check seldom relate to how they play out in legal proceedings.
It’s beholden on us to help establish some expectations where possible. The baseline for our preferred outcome in Cosmos Country, I’m afraid to say, is not high. This being an appeal to a ruling on a mandatory injunction generally makes it slightly harder to obtain than the original hearing’s chances for meeting the standards for a ‘mandatory injunction’. The NASL, in arguing that the standard set was incorrect isn’t primarily re-arguing the merits of their arguments in the prior hearing tailored to that standard. They are going after the setting of the standard in the first place.
This is risky. It’s not predictable whether their position on why the standard is wrong (going out of business constitutes an extreme harm inflicted on them) will gain much traction even on its own. If the standard is lowered to an ask for a temporary reversion to the status quo of when the lawsuit was filed – a preliminary injunction – their standing arguments of harm suddenly have much more traction.
Judge Brodie already found that the balance of hardship is (slightly) in the NASL’s favor, and that the USSF has ‘market power’, which validates they are in a position to cause harm. Judge Brodie also found – a key detail that supports the granting of preliminary injunctions – that the NASL was experiencing ‘irreparable harm’ This is different from ‘extreme harm’, but past cases have not clearly defined it. To the extent it has come up, judges have seemed to paradoxically use them interchangeably even though the law – if I understand it correctly – frames them as discrete terms, and slightly in opposition.
It is through this grey area that the NASL hopes to pull off a Hail Mary. The best guess and consensus amongst engaged lawyers on the chances on a positive outcome for the NASL is in the 10-20% range. It’s not a comforting number. In the context of a league without powerful patient patrons, it would mean this is over. Each court, judge and appeal is another roll of the dice so it makes sense to try if there’s any case to be made at all and if you have the resources.
Negotiations at one point were ongoing, but there was also some rumors that this did not happen with the blessing or involvement of the USSF board. It sounds like it ended when there was a verbal agreement in principle but when the USSF president wrote up terms the NASL found them unacceptable. NASL wanted 3-years; USSF wanted to offer just one more, with tight milestones. Most importantly, the USSF would likely demand that the NASL sign a covenant never to sue again on this matter. There are rumors of MLS pressuring USSF to find a settlement, for fear of what discovery will leak. Many pro/rel supporters have joined Team Rocco since the lawsuit because there is real potential risk to the USSF and MLS day-to-day business.
Friday, December 15th 10am is the hearing date at the United States Appeals Court of the Second Circuit. Whereas the prior hearing went on for all morning and into the afternoon, this hearing is expected to be short. It may also not start at 10am as it shares the docket with other cases. An immediate ruling, while possible, is not expected to occur at the session, but likely to be released in a couple of business days following.[UPDATE] An audio recording of the hearing is available here.
Some things to look out for:
- The USL’s application for 2018 sanctioning has, COMPLETELY COINCIDENTALLY I’m sure, not been publicly answered. Keep an eye out for USSF to publish their acceptance soon after the appeal’s ruling is released. There is merit to the premise that it was to USSF’s advantage to withhold their ruling to avoid letting the NASL paint the USSF’s deliberations as selective.
- The USSF is meeting to vote on changes to the role of USSF president, and the creation of a new executive role that may or may not be limited to managing its interactions with the national teams. The timing of this change could not be more suspect, as they will vote to change the president’s role and responsibilities just as Sunil Gulati steps down, and the February election of his successor will be conducted. The changes might be harmless, but the lack of transparency and communication around this decision draws suspicion and intimations of bad faith.
- A USSF offer soon after the hearing, similar to the one recently rejected, where the terms included one more year of provisional D2 sanctioning in exchange for mandatory milestones and a signed covenant promising to permanently cease the lawsuit. It will be refused.
- An announcement on the status of Cosmos B and the development academy sometime before New Years
- A reaffirmation that the court case will continue.
- The USSF’s refiling of its petition to dismiss the lawsuit.
The main takeaway is that Cosmos fans should prepare yourself for the very real possibility of a 2018 spent on hiatus.
We’re so tired with the up and downs. It’s been especially frustrating to see a team start off problematically that was still able to reach the Finals; and to finally have a stable and resourceful patron like Rocco Commisso and his commonsense medium-term goals. Progress was made this year in fanbase-building. Cosmos had come to Brooklyn and have started the hard work of making it a home. You could see it happening, game by game; sometimes a step back but always followed by two steps forward. To see another year end in tumult is demoralizing; that it’s been precipitated by the USSF while the league is capable of organizing a match schedule is shameful.
Gio’s departure is part of the picture, but not exactly part of the setbacks. No one has done more for the club than Gio. Timbers have no sense of the quality of person they are getting. His departure is bittersweet, but no one’s deserved it more and at the end of the day is a glimpse of the growth and value that is the potential of American soccer and a more open pyramid.
Today is the day, as far as 2017 is concerned. We’ll see you on the other side.