Rocco Commisso’s historic $500 million offer to invest in independent soccer was refused this week by the United States Soccer Federation. In a letter received on May 30th, following a Sunday May 27th call with Mr. Commisso and NASL representatives, USSF shut down any likely rapprochement before NASL’s federal antitrust violation lawsuit completes its discovery phase. A statement released by Commisso today publicized USSF’s refusal to seek a solution that would work for all parties. USSF CEO Dan Flynn, via a letter, said “…the Board does not see a compelling reason to deviate from the annual sanctioning process”.

Commisso had extended an olive branch to the USSF last month, in the form of an offer of a five hundred million dollar investment package over ten years to drive the capitalization of new clubs and privately-owned soccer-specific infrastructure not contingent on public funding. In a vision of a revitalized, rebooted North American Soccer League, Commisso sought terms that included a ten-year grace period to allow for a new NASL to comply with professional league standards (PLS) set by the United States Soccer Federation. He also sought fairer representation within the USSF governing body for professional non-MLS organizations and players, and certain alterations to the existing PLS. Among others, these included a waiver to the rule against even temporary ownership of multiple teams by a single owner – despite this being a prominent element of MLS’ ownership structure for many of its early years.

USSF’s passive response to fairer representation was that any change to the means of representation would require the national council’s agreement to any change. The implication was that the BOG didn’t acknowledge its influence on such votes in the past, while signaling its unwillingness to do so.

Likewise, on the matter of temporary single-ownership of multiple teams, they instructed Commisso to include in an application for divisional sanctioning, “…a detailed description of the provisions the NASL is prepared to adopt and implement to protect the integrity of NASL competitions.” Fair enough on face value, but essentially meaningless if PSL compliance can only be executed on by applicants within 8-11 month windows.

Let’s be clear on what this means. USSF was unwilling to relinquish its ability to destroy on short notice anyone’s investment into the sport on terms it did not completely control. Without timeline concessions, what serious investor would be interested if compliance progress may only be measured eight months at a time. Past USSF behavior in issuing waivers no longer can be used to predict future outcomes. You have to take what they’re saying literally. And what they’re saying is sanctions will only be granted on an annual basis, and their renewal will solely be determined by completed actions during one season.  Supporters of the status quo may like to pretend this sounds fair but complex program portfolios, whether that of a club or corporation, don’t effectively operate within such narrow windows.

It’s a ludicrous position. It obviously bakes in an advantage for existing leagues, and creates a steep theoretical trajectory for newcomers. This was a warning shot not just to the NASL, but to any future organization with the ambition to want more than what they already have. It’s unclear if even ‘playing ball’ with existing constituents through opaque or corrupt agreements merits an attempt. Squaring this with the soccer federation’s mission statement of expanding the sport in the United States is impossible, because it just doesn’t jibe. No fear of instability justifies this behavior.

Citing a far more extensive grace period gifted to Major League Soccer at the beginning of their existence, as well as inconsistent leniency shown the United Soccer League (USL) in recent years, NASL has presented the impression of expecting greater willingness from USSF to negotiate over terms in pursuit of one of the largest single investment and development packages for the sport in America. In the absence of engagement, it’s difficult not to wonder whether this offer was part of a greater legal strategy. A qualified win, surely, had it led to a confirmed 2019 season. But was it still a smaller one eked out for the benefit of various courts – state, federal and that of public opinion?

Whatever the intent, the USSF was forced to either negotiate in good faith and cede some control, or demonstrate its inconsistency as a regulator. It chose the latter. But did it create real traction? And if it did, will the NASL and its lawyers be able to capitalize on it?

Both lawsuits – the NYS suit claiming breach of fiduciary duty from several USSF BOG members, and the federal antitrust violation lawsuit claiming a conspiracy between USSF, MLS, and Soccer United Marketing (SUM) to unlawfully restrain competition – remain in flight. Brooklyn Federal Court Judge Brodie’s ruling supported the view that there is likely a case to be made for some of NASL’s claims. We will see whether or not this is true, and whether USSF and MLS (later made a co-conspirator in the antitrust lawsuit) will be successfully compelled to produce evidence that ultimately supports the NASL’s claims that it was harmed by a conspiracy to unlawfully restrain its ability to compete in the domestic market of professional soccer.

“NASL will continue to pursue its breach of fiduciary duty claims against certain USSF board members, and it is about to begin the discovery phase in our antitrust litigation against USSF and MLS,” Rocco Commisso said. “Even though USSF and MLS are attempting to push off the trial date of the latter proceeding to October 2019 to keep NASL from playing earlier than the 2020 season even under a favorable court ruling to NASL, I will do everything in my power to seek a timely and positive ruling to help our clubs return to the field in 2019.”

Options to purse, outside the context of a beneficial lawsuit outcome, are for another article. This Cosmos supporter however wants to see our Boys in Green realize our greater ambitions and take the field in 2019 in a professional capacity.  I have great respect for what Coach Mendes and Captain Szetela has done so far in the NPSL regular season with Cosmos B. I’ve made it every match – home or away – so far this year, and the soul of our club is improbably thriving. Back-to-back-to-back-to-back victories show – whatever the level of play our club chases good results. The SC Top 10 agrees. We want to do more. Given the opportunity, we will do more.

 

Link: Rocco’s Open Letter to all US Soccer stakeholders

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