Three judges will hear oral arguments on Friday that could decide NASL's fate

The fate of the NASL could be decided on Friday.

Three judges in the U.S. Court of Appeals for the Second Circuit will hear oral arguments in the NASL's appeal of the decision by U.S. District Court judge Margo Brodie in NASL v. USSF denying the NASL's request for a preliminary injunction of U.S. Soccer's decision to deny the NASL Division 2 sanctioning for 2018.

When: Friday, 10 a.m. ET
Where: Thurgood Marshall U.S. Courthouse, 40 Centre Street, New York, N.Y.
Audio: No live audio, but recordings of oral arguments are typically posted the next business day.
Ruling: Likely before Christmas.
After that: An appeal -- long shot in 2nd Circuit -- could be made for en banc review.

Without Division 2 status, which the NASL has held on a provisional basis since its launch in 2011, the league says it can't go forward even while it continues its case in U.S. District Court for a permanent injunction -- to end all divisional standards.

Where  does the NASL stand? The NASL finished the 2017 season with eight teams -- four below U.S. Soccer's standards for a D2 league -- but has since had one team -- North Carolina FC -- move to the USL and two others -- the champion San Francisco Deltas and founding member FC Edmonton -- fold.

That leaves five teams in the NASL for now -- the New York Cosmos, Jacksonville Armada, Miami FC, Puerto Rico FC and Indy Eleven -- though they are very much in limbo. Only the Armada has a coach signed for the 2018 season following Giovani Savarese's departure from the Cosmos on Wednesday.

Two California teams -- San Diego-based 1904 FC and Cal United FC in Orange County -- were announced as NASL expansion teams, though both could seek to move to the USL if the NASL folds.

The NASL is believed to have as many as five NPSL teams committed to one degree or another to join the league if goes forward as a Division 2 league in 2018, perhaps waiting until after the 2018 World Cup to begin with its "fall season."

What are the NASL's chances on appeal? The decision in District Court was not unexpected, given Judge Brodie's ruling that the "status quo" in the case was that the NASL does not have Division 2 sanctioning for 2018, not that it has Division 2 sanctioning forever. That required the NASL to seek a mandatory injunction -- it needed U.S. Soccer to do something, i.e. overturn the decision of its board of directors to not grant 2018 sanctioning -- and set a higher bar.

The NASL's appeal consisted of 68 pages, the USSF's response was 67 pages, and the NASL's reply of the USSF's response was 38 pages, but the heart of the case appears to boil to what is the definition of "extreme or very serious damage."

Assuming the appellate judges agree with Judge Brodie on the issue of the "status quo," the NASL must get them to reserve Judge Brodie's decision on the two bites of the apple a plaintiff gets to support the issuance of a mandatory injunction:

-- A clear showing that the NASL would win its case, or
-- A showing that extreme or very serious damage would occur if the injunction wasn't granted (lowering the standard the NASL needs to show it will win its case).

Brodie determined the NASL has a "plausible case" but made no "clear showing" it could win. Getting the appellate judges to reverse that will be tough.

She also rejected the NASL's second prong in a footnote, saying there was no finding the NASL would suffer "extreme or very serious damage" if the mandatory injunction was not granted. Just what is the definition of "extreme or very serious damage" is something that the courts have not definitively ruled on in cases related to economic loss.

The NASL is banking on the appellate judges to determine that the damage it is just what it argues Brodie determined would happen if the injunction wasn't granted: “the likely total loss of its business."

The NASL argues that Brodie didn't even consider the second prong but if she had, it says "there can be no question that the 'extreme or very serious' harm test is satisfied as a matter of law."

The USSF's response is Brodie considered but rejected the NASL's request to consider the second prong. It argued in its response that NASL failed to even prove that it was likely to suffer irreparable injury -- the lower standard -- and even if it did, the “loss of a business” -- "however great it might be in dollars and cents," the USSF adds -- does not meet the test for “extreme or very serious damage."

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