Why is the NASL still suing US Soccer?

A cynic would say it’s because their chief legal representative in the case, Jeff Kessler, is still seeking his first win in court against the federation after a series of losses. (The fact that he and his legal team made several million from the settlement of the women’s team’s lawsuit shouldn’t erase the fact that, in the only legal decision in the case, he lost — which was not a surprise to lawyers who looked into it and spotted the problems that were obvious to a judge and would’ve been obvious to the appellate courts.)

https://www.theguardian.com/football/2022/dec/16/uswnt-equal-pay-settlement-case

Another cynic would say it’s because the people who ran the NASL, especially firebrand New York Cosmos owner Rocco Commisso (who, by way of disclaimer, is the man who answered one of my questions on a media conference call by asking if I was the idiot who said all those stupid things on Twitter — I think the best counter would be that I can’t possibly be the only idiot on Twitter), still want to extract a pound of flesh from the federation for failing to do their bidding and let them build a league that would directly compete against Major League Soccer, which had spent 20 years building a market for professional soccer that had collapsed when the NASL’s namesake quickly withered and died in the mid-80s after a spectacular but brief run.

A less cynical person would say … probably nothing. Because if you can’t say anything nice …

I say that with great care because I know a lot of good people worked in the NASL and with its teams, hoping to combine the glitz of the disco-era Cosmos with a traditional promotion/relegation league with clubs that aren’t as strictly limited as they are in MLS. Whether they were pursuing those specific goals are just trying to broaden the reach of professional soccer in this country, they were trying to accomplish something positive. Having a league system in this country outside MLS could be a lot of fun as long as it’s set up in a way that doesn’t make both leagues collapse, as happened in indoor soccer. And yes, maybe at some point, if we don’t have traditional promotion/relegation, we could have more competitions open to clubs outside MLS — or at the very least, the US Open Cup could get more interesting.

But the best gauges of the merits of the case are these:

1. In 2017, Judge Margo K. Brodie denied the NASL a preliminary injunction to maintain Division 2 status. If you followed the proceedings in court, that ruling was hardly a surprise. After that, the NASL appealed, as is customary for a Kessler client no matter what chances they actually have. They lost in 2018, and the league hasn’t played since.
2. This month, Judge Brian M. Cogan kicked the guts out of the lawsuit but allowed part of it to continue. I’ll need to let Steven Bank, the UCLA law professor who has long been the go-to expert for analyzing all the cases the federation has heard over the years, explain, even though it means I’ve had to go back on the platform formerly known as Twitter (Professor, please switch to Threads!):

https://x.com/ProfBank/status/1801296697018159575

Losing part of the case to summary judgment while keeping a weaker part intact will be familiar to those who remember when Kessler led MLS players in a lawsuit against the league in its embryonic stages in the late-90s. I spoke with many players from that time for (plug alert) Long-Range Goals, my league history that was published in 2010, and it’s safe to say there’s a bit of regret that they pursued legal action rather than collective bargaining. By the time Kessler got to court in 2000, three things had happened:

1. League attendance had plummeted after its initial boom, and its viability would remain a hot topic well into the 2000s, which effectively undercut the credibility of the sports economists who flocked to the case to argue that so-and-so would be making two or three times as much money if the league didn’t have such tight controls. The fact that the league struggled to attract investors to a structure that minimized risk didn’t speak well to the league’s prospects for attracting investors to one that maximized it.
2. US players were getting more opportunities overseas, undercutting the notion that MLS had any sort of monopoly power.
3. Judge George O’Toole granted summary judgment against the most substantive parts of the case, including an argument over the validity of the “single-entity” league structure as a defense against antitrust laws — a decision lawyers continue to debate even after the appellate court left it alone in 2002.

Here’s a cartoon explaining the latter:

If you’re a lawyer or law student with an interest in antitrust matters, you’ll seize upon this from the appellate decision for future briefs and law review articles:

In all events, we conclude that the single entity problem need not be answered definitively in this case.

But from a practical perspective on this case’s own merits, the sentences before that one show that the appellate judges understood full well why the plaintiffs were doomed from the start — essentially, that MLS did what it had to do to get professional soccer going in this country.

(T)he fact that MLS was structured with the aim of achieving results that might not otherwise be possible does not automatically condemn it. …

Indeed, the best arguments for upholding MLS’s restrictions-that it is a new and risky venture, constrained in some (perhaps great) measure by foreign and domestic competition for players, that unquestionably creates a new enterprise without combining existing competitors-have little to do with its structure.

So Kessler was arguing with one hand tied behind his back. That didn’t stop him from attempting the legal gymnastics of arguing that England had two “first divisions,” a claim that forced the players bringing the suit to take the witness stand and feign ignorance about the existence of promotion and relegation.

To bring it back to the NASL, one of the many layers of irony is that the league put itself forward as the banner-carrier of the promotion-relegation movement, though it never had a concrete plan for doing so and adopted the branding (both “NASL” and “Cosmos”) of a league and a marquee team that scoffed at tradition, breaking ties with 1-on-1 “shootouts” and passing on the US Open Cup and CONCACAF (North American) regional tournaments. The only aspect of the old NASL that the new NASL carried forward was a lack of central league control. The old league expanded and spent wildly, creating a boom that was more of a bubble. Its collapse was precisely what MLS (and US Soccer, which gave the league its blessing as the country’s only “Division 1” league) wanted to avoid from the outset, even if it meant people like Kessler would cry foul.

From what I’ve seen in the media, Kessler seems quite pleased that he’ll finally get his day in court. But that day in court didn’t go well for him 24 years ago, and there’s little reason to think it’ll go any better this time — in court or out of it — for a handful of reasons.

1. MLS and US Soccer have established quite well that through their cautious, controlled approach, they were able to do what no other entity has done — build a successful pro soccer league in the United States. Courts and juries have already found that MLS can’t be faulted for an approach that yielded full-scale professional soccer where there had been none.
2. MLS now pays pretty well and is able to sign a lot of the best young players in the Americas, along with global superstars like Beckham and Messi, even while US players finally get their due in Europe and have even more job opportunities — thereby once again undercutting the Kessler case of anticompetitive behavior.
3. A faceless, dormant soccer league is a less sympathetic plaintiff than MLS players, let alone the US women’s players who got a generous settlement due to the court of public opinion, not the court of law.
4. At the time the suit was filed, US Soccer was perceived as a bit arrogant under the leadership of longtime president Sunil Gulati and longtime CEO Dan Flynn. (It has to be said, though, that US Soccer grew from about $14m in assets to about $162m in less than 20 years with Gulati and Flynn playing prominent roles, which I believe outpaces inflation by quite some distance.) After some tumult, the federation has found its groove under Cindy Cone, a Hall of Fame player. The biggest complaint to be found against Cone is that she has favored the vastly overpaid (by comparison with their peers) US women’s and men’s teams while granting fewer resources and paying less attention to grassroots development, but it’s safe to say that beyond nerds like me, that complaint gains little traction in a media landscape that will favor players over “the establishment,” even if the establishment is a nonprofit organization responsible for all levels of soccer in this country rather than a billionaire team owner.

When I analyzed the case in September 2017, I argued that both sides bore a bit of the blame.

https://www.theguardian.com/football/2022/dec/16/uswnt-equal-pay-settlement-case

But US Soccer helped keep second-division soccer in this country alive, stepping in to administer a stopgap league when owners were breaking away from the long-standing USL. No good deed goes unpunished, apparently.

While the suit was fresh, I also wrote a timeline, constructed from court documents and a few outside reports.

https://www.theguardian.com/football/2022/dec/16/uswnt-equal-pay-settlement-case

Take note especially of Traffic Sports, which in 2012 owned a lot of teams in the league and was the subject of a lot of indictments in 2015. Kessler and the NASL argued to seal the league’s settlement with Traffic, but Judge Cogan disagreed.

And upon re-reading the timeline now, I’m remembering so many colorful scenes such as the time a team’s minority owner literally took half of the team’s field. (Updated link to The Oklahoman’s story.)

The healthiest NASL clubs — Indy Eleven, North Carolina FC and Miami FC — eventually moved to the rival USL. The Jacksonville Armada will relaunch next year in the new rival to the USL, MLS Next Pro. The San Francisco Deltas were already collapsing when the league lost its injunction battle, FC Edmonton played in the Canadian Premier League before going defunct, and Puerto Rico FC unfortunately followed every other effort to establish a professional presence on the island.

That leaves the Cosmos, whom Commisso bought from the scrap heap just in time for them to play in that final NASL season in 2017, eked out appearances in a short-lived NPSL pro division and in NISA before going dark again.

A victory on what’s left of this case probably isn’t going to bring the Cosmos back to life, though the brand has been written off and returned several times in the past. It’s even less likely to spin them a league in which they can fulfill their notions of reviving the glory days of the mid-2010s, let alone the late 1970s.

A victory won’t create a lot more professional opportunities for soccer players in the USA. These days, the bigger concern driving soccer investment is the NWSL, anyway, and women’s soccer is also — perhaps ironically, given all the wrangling over “Division 1” status in men’s soccer — getting a second Division 1 league in the USL Super League, which kicks off in August and will play primarily in the months the NWSL is idle.

But there’s a fundamental question at stake here:

Who stands to benefit from this case?

Let me know — because I’ve come up empty.

Kessler actually has a much better case against the federation in a different suit, representing a promoter called Relevent Sports, mostly because FIFA has decided there’s more money to be made in backing international club games in countries like the United States that fighting them. The case was dismissed in 2021 and revived last year. But with FIFA reaching an agreement with Relevent, it seems little will now stand in the way of Premier League and La Liga games being played in the United States — another slap in the face of the traditional league structures a lot of MLS critics and NASL backers claim to support but will forget about if they can bask in the glory of Barcelona and Manchester City for a couple of hours.

No one really wants those games to take place. But they’ll surely be such hot tickets that only the lawyers can afford tickets.