In its appeal to the U.S. Court of Appeals for the Second Circuit, the NASL argues that "this is the quintessential example of a situation where an expedited appeal schedule is necessary to prevent appellant from suffering what the district court found would likely be a 'death blow to the NASL'" and the "clock is ticking right now."
The NASL, which plays its 2017 championship game on Sunday, says it has seven teams set to play in 2018 -- five of the eight teams that played in 2017, plus two new teams in California -- and six new teams from the NPSL that want to join in 2018, but their participation is contingent on playing as a Division 2 league.
The NASL's situation for 2017 was not resolved until the beginning of January when U.S. Soccer granted it provisional Division 2 status. By then, it had shed itself of five teams, leaving it with eight teams for 2018 -- seven returning for 2017 plus one new team -- if it could find an owner for the New York Cosmos. Rocco Commisso, who took over as the Cosmos owner and now serves as the chairman of the NASL's board of governors, driving the current suit.
The NASL and U.S. Soccer have proposed different timetables for an appeal:
NASL proposed schedule:
1. NASL opening brief due on Nov. 10 (Friday).
2. USSF response brief due on Nov. 17.
3. NASL reply brief due on Nov. 22.
4. Oral argument to take place as soon as practicable during the week of Nov. 27.
USSF proposed schedule:
1. NASL opening brief due on Nov. 13 (Monday).
2. USSF response brief due on Dec. 1.
3. NASL reply brief due on Dec. 7.
4. Oral argument to take place during the week of Dec. 14 or as soon as practicable.
The NASL's grounds for appeal will likely center on several arguments it raises in the motion:
1. Judge Margo Brodie used the wrong legal standard in assessing the "status quo," requiring the NASL to meet a far higher burden in assessing its likelihood of success on the merits -- one of the requirements for an injunction. The NASL argues the status quo to be preserved by a preliminary injunction was "the last actual, peaceable uncontested status which preceded the pending controversy," i.e. she should have considered the NASL's status as a Division 2 league for 2017, not U.S. Soccer's decision on Sept. 1 to deny the NASL Division 2 sanctioning for 2018.
2. Even if that higher standard for a mandatory injunction was in place, Judge Brodie should have granted the injunction because "extreme or very serious damage will result from a denial of preliminary relief." "It is hard to imagine any type of damage more 'extreme' than going out of existence," the NASL argued.
3. In the absence of a showing of extreme or very serious damage, Judge Brodie failed to correctly apply various aspects of antitrust law as it applied to the case and coming up with her determination there was no clear showing the NASL would win its underlying case. The NASL's basic argument: There was a concerted effort of U.S. Soccer's board of governors to adopt Professional League Standards -- the divisional sanctioning standards the league did not meet -- in order to shield MLS from competition.