The deadline for responding to the USSF’s filed motion to dismiss was October 23rd, and the NASL did not disappoint.

Records will be reviewed all through the week. First Team Podcast will share them as they are teased out, but some interesting details immediately emerge.

Rocco Commisso, the owner of the New York Cosmos, and the current chairman of the NASL Board of Governors, provided testimony that in the dark days immediately following the Cosmos’ 2016 Soccer Bowl Championship win, NYCFC President John Patricof, working with Soccer United Marketing (SUM), the marketing arm of Major League Soccer (MLS), sent a bid to the former Cosmos owners. MLS President and Deputy Commissioner Mark Abbott was cc’d on this email. They offered to purchase the remaining assets of the Cosmos for a sum of five million dollars. The offer came with certain details/conditions. Some of them include:

  • Surrendering all Cosmos brands, marks, logos, artwork, digital assets and physical trophies
  • Handing over all historical footage pertaining to, or involving the club, from 1970 through to current day
  • Giving up all rights to Pele likenesses as they relate to the NY Cosmos and merchandise
  • Swearing to silence any details of the negotiation or the terms of the sale
  • Demanding that the then-owners of the Cosmos and New York Cosmos LLC commit to refraining from owning or operating any sports team with any name in the New York metropolitan area for ten years

One can only imagine the possibilities. Rocco Commisso characterized the offer from an MLS related entity as “…bidding to acquire the Cosmos with the intent to terminate the franchise and eliminate the organization as a competitor.”

The involvement of NYCFC’s president is also an eye-opener. Were they putting the cement overshoes onto a potential competitor with something the newly-formed franchisee lacked – gravitas? Were the Cosmos intended to be gone forever, the Soccer Hall of Fame – like the ice cream name graveyard outside Vermont’s Ben and Jerry’s factory – could be tapped. The Soccer Hall of Fame is a cheery name for a vehicle with several purposes, but one is to act as a repository for brands and logos the MLS want suspended or buried. If they’re not using a monicker, all things being equal, it makes sense they prefer no one else avail themselves of pieces of American soccer history.

Or was the NYCFC president looking down the path at a possible re-brand of NYCFC to the Cosmos? I can remember a piece of marketing NYCFC put out earlier this year that tried very hard to pin themselves to the Cosmos history without coming out and explicitly saying so. Perhaps an ailing NJ Red Bulls franchisee, having already re-branded once, might have taken advantage to re-brand themselves again? Or maybe it was simply to claim ownership of a legacy of American soccer to which the MLS simply cannot lay claim. Who knows where that road would have taken us. Luckily for Cosmos Country, we did not have to find out.

Another piece of interesting news was from this transcript.  No solid prediction of the 10/31 hearing can be drawn from this exchange. Miki Turner points out on Twitter that it occurred before the motion to dismiss and the NASL response filings happened. Judge Brodie did raise however the question most pertinent to the preliminary injunction; that of harm. What harm does the USSF experience from the NASL being granted temporary relief while the trial is underway.? The USSF’s response, to my non-lawyer ears, essentially seemed to boil down to a) how the decision would rob the USSF of agency to set divisional standards, b) that it would reward NASL’s failure to meet Division II standards, and c) the NASL does not dispute it didn’t meet D2 requirements at the time of application.

Judge Brodie seemed skeptical that temporarily granting the D2 sanction materially harmed the USSF. The USSF’s argument does not seem to survive a test of universal application, as it seems to remove validity from any application of preliminary injunction relief in any situation. Since the wider trial represents the inquiry into the NASL’s claims that USSF decided these standards inappropriately, Judge Brodie essentially asks as to the harm of maintaining the status quo during that inquiry. This is an incomplete excerpt so perhaps the USSF answer gets better but as it stands it doesn’t sound very convincing.

As several people have pointed out, the main question the NASL may have to answer is why so many additional clubs (six) were in the pipeline for 2018 but were not disclosed to the USSF at the time of the application. I would expect to hear some combination of the following:

  • Proceeding out of an abundance of caution, to reflect NASL’s intent to be more thorough in vetting new team
  • Rocco signaled to USSF that it would take him time to participate in the rebuild of the league
  • History demonstrates the USSF waivers require only progress and a low bar for milestone successes

 

One thing the USSF and MLS have been at pains to tell people, it’s that the Cosmos brand means little and has less value. But it was worth at least five million when they were at their least functional. Conversely, it was worth the continued existence of the NASL. It was possibly worth the rumor that USL contracts include clauses that make it impractical/expensive for USL teams to return to the NASL or move to another league. Why would any such things be necessary? Before this lawsuit is over, even if the USSF in some meaningful way prevails against the antitrust violation accusation and retains their ability to manage divisional sanctions, they will have wished in retrospect their offer had been much higher.

 

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