NASL v. USSF: The key arguments NASL makes in its appeal

• by Paul Kennedy  @pkedit, Nov 14, 2017

A day after its 2017 season ended, the NASL filed its 68-page appeal to the U.S. Court of Appeals for the Second Circuit of the decision by Judge Margo Brodie in U.S. District Court denying a preliminary injunction requiring U.S. Soccer to sanction it as a Division 2 league for 2018.

The NASL has argued that it won't attract the owners, sponsors and players needed to continue if it is not allowed to play as a Division 2 league while its case for the abolishment of divisional requirements is heard.

It grounds for appeal center on these arguments:

1. The NASL's request for a preliminary injunction should not have been subject to a heightened standard.

It argues the district court used the wrong legal test in assessing the "status quo," requiring the NASL to meet a heightened standard for its request for a mandatory injunction, i.e. situations where a party is seeking to "alter" rather than "maintain" the status quo.

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. the district court should have considered the NASL's status as a Division 2 league for 2017 and all years before that, not U.S. Soccer's decision on Sept. 1 to deny the NASL Division 2 sanctioning for 2018.

2. Even if the NASL was subject to a heightened standard, one of the two tests for meeting that standard was not considered.

A mandatory injunction can be granted “upon a clear showing that the moving party is entitled to the relief requested, or where extreme or very serious damage will result from a denial of preliminary relief.”

The NASL argues that the district court did not consider the second test -- "extreme or very serious damage" -- and if it did it would have ruled for the NASL because it found that the NASL was indeed in danger of going out of business if an injunction wasn't granted.

3. Even in the absence of a showing of extreme or very serious damage, the NASL had made a clear showing that it would win its case.

The NASL argues that various aspects of antitrust law were misapplied. Among them:

-- The district court erred in holding that to find a "concerted action" against the NASL in applying the Professional League Standards, U.S. board of directors had to make “an agreement to agree to vote a particular way," which was not proven.

-- The district court erred in justifying U.S. Soccer's anti-competitive restraints in its Professional League Standards in that they “provide stability” against the disruptive forces of competition.

-- The district court erred in being satisfied that U.S. Soccer met standards for the impartiality by private standard-setting organizations by following its own voting procedures regarding the recusal of interested board members -- in this case, board members who had tied to pro soccer leagues -- and the members had a fiduciary duty to their members under New York law, which governs U.S. Soccer. 

Response: U.S. Soccer's response is due next Tuesday.