You didn’t forget there were other lawsuits in U.S. Soccer besides SaveTheCrew, did you? With the motion to dismiss the Modell lawsuit set for next month, and the MLS2ATX proposal resolved (for now), I’m afforded an opportunity to check in with the NASL v. USSF/MLS anti-trust lawsuit. When last we left off, NASL was attempting to secure an expedited trial date, to potentially save the 2019 season. That request was not granted, but that merely kept the case on the existing trial track. There is a deadline of April 30 to complete all discovery and other substantive motions, at which point the Court will determine if the case is ready to move to trial.
Well, that assumes that discovery is completed of course. The USSF and MLS (USSF in particular) are doing all they can to limit the scope of discovery, and the NASL isn’t happy about it. Tuesday, they filed a motion to compel discovery, and the Court set a hearing for August 29 to hear argument on the issue (h/t Professor Bank).
As a quick reminder, discovery is a fact-finding exercise, designed to obtain evidence for use at trial (or settlement negotiations). There are limits to discovery of course (attorney-client privilege, documents that aren’t relevant or have no probative value) and parties will generally seek to limit what they have to disclose. Of course, just because you don’t want to disclose certain items, doesn’t mean the Court won’t require you to. And so it is here, with the NASL’s request to have to Court force USSF/MLS to turn over certain documents. I’ve gotten a copy of their motion, as well as what they are requesting USSF/MLS turn over, so let’s take a look.
The motion to compel generally outlines why the NASL wants the specific documents, as well as what efforts they’ve taken to obtain them through agreement. The broader the request, the less likely the Court will grant it (requesting every email between USSF/MLS since 1996 is likely to be determined to be overly burdensome). If the request is narrowly tailored and relevant (and not otherwise privileged), the Court will be more likely to grant it. So, what was NASL asking for specifically that the defendant(s) rejected?
Remember what I said about overly burdensome requests. Requesting voluminous documents back 25 years fits the bill. Wisely, NASL appears to have cut down that request substantially. In fact it looks like they essentially reached an agreement with MLS. However, for some reason the USSF has refused to comply, based on the end of this portion of the letter. The nature of the requests are not surprising here; Soccer United Marketing documents are the holy grail it seems in U.S. Soccer. In any case, it’s extremely interesting that (if you take the NASL’s position as accurate), USSF is the intransigent party here.
Beyond that, NASL focuses on the role of Sunil Gulati, and appears to tailor their request to investigate his role in this affair. You may recall that Gulati filed a lengthy declaration in response to the original lawsuit (I encourage you to read it). It would seem to make sense that NASL has the chance to further investigate his claims, as they point out.
Setting aside the conclusory nature of the NASL’s commentary (no conspiracy has been proven, as of yet) I’ll be interested to see USSF’s reasoning for refusing to apparently turn over *any* documents. My guess is they’ll call it a “fishing expedition,” but they opened the door by filing Galati’s…expansive declaration in defense of the lawsuit. What I don’t know is what, if anything, USSF offered to provide. Actually we have some idea (sort of), based on this next section from the NASL motion.
Notice how the NASL once again notes that MLS is being cooperative with the discovery requests, which is a nice way to argue that USSF is being unreasonable. As to Gulati specifically, I’m not sure in what context he is providing his Columbia emails, but at a minimum, it makes a privilege claim more difficult (if one even exists). We’ll have to see what the USSF has to say about it. Probably smart for USSF folks to have USSF-dedicated email addresses, and not co-mingle accounts.
Lastly (for this section), NASL has demanded the release of text messages. From what I can tell, once again NASL seems to contrast the responsiveness of MLS to USSF.
I’m not 100% clear based on the letter that it is only USSF that is refusing to comply, but based on the last couple of sentences, MLS at least seems to be open to a procedure by which this discovery is effected. We’ll again have to see in their responses whether USSF is open to any process to exchange this information. At a minimum, USSF will have to explain why MLS is able to comply, but they are not. And I can’t imagine that USSF would (successfully) argue that text messages aren’t communications, and therefore not subject to discovery.
What is the NASL requesting specifically:
Lots of stuff, and this is only the beginning. I’ll highlight and briefly review the interesting ones (there are 42 (!) requests for production).
Still wondering why USSF was objecting to these discovery requests as overly burdensome? Thing is, it’s hard to argue these requests aren’t relevant in the context of the NASL’s anti-trust suit. Especially the requests related to the implementation of standards. That said, requesting “all documents” related to such could be considered burdensome and expensive, especially given the timeframe we’re talking about here. And that’s even if the NASL has narrowed the request.
Also, note request #4, which has to do with the development/implementation of the Professional League Standards. The NASL threw a fit when the USSF tried to revise the PLS in 2015, a mere year after revising them in 2014. The judge in the motion for a preliminary injunction was suspicious of the USSF’s motives for doing so, and I’d be shocked if this request wasn’t granted.
Yeah, based on these requests, NASL may not get a trial until 2021, as it could take them that much time to go through all this. One of NASL’s complaints is that the alleged conspiracy essentially started back before MLS launched. Much of this appears to be designed to establish the fact that USSF from the beginning wanted MLS to be the “league of choice,” to borrow a phrase. Much of this is likely of probative value, but the extent its outweighed by the burden/expense is an issue the judge will have to decide.
A couple of these are pretty vague (#9 I’m looking at you), but I’m really looking at #10, which would be pretty juicy, if such documents exist. A discussion between USSF/MLS/USL regarding the sanction of *other* leagues would certainly raise some red flags (See again: Request #4).
Now we’re getting into some good stuff. Obviously, documents USSF/MLS/USL may have regarding discussions about NASL would potentially be not only salacious, but damaging to a defense that there was no conspiracy to put NASL out of business.
As to request #14, that seems clearly probative in the contexts of NASL’s argument about unfair/disparate treatment. It should be easily obtainable by USSF; they filed NASL’s previous sanctioning applications with the court, after all. I’ll also be interested to see if we get a peek at the applications from other leagues, since NASL’s were made public by the USSF. Fair is fair.
I’m highlighting #20, as that pretty clearly has to do with the offer by MLS/SUM to purchase the Cosmos in the fall of 2016, when they (and the NASL) were on the brink of destruction. The proposal would have caused the Cosmos to cease to exist, and the name prevented from being used in a sporting context going forward. Of course, the intellectual property would have been allowed to be used by SUM for marketing purposes.
At the time, Gulati was working to find a solution to NASL’s woes. And it must be said he did quite a bit to salvage the situation (and was praised for doing so by people associated with the NASL), so it doesn’t necessarily follow that his involvement in SUM attempting to purchase the Cosmos means he was actively trying to destroy the league. But, devils and details, and all that.
If I could turn a phrase/song: S.C.R.E.A.M (SumCashRulesEverythingAroundMe). How much of this will NASL get? I’m somewhat skeptical as to the how many of these documents that will make their way to the plaintiffs, although some SUM documents have already been filed with the court. But as far as I can tell, the documents on file with the court are the basic agreements between USSF and MLS, and don’t get into the weeds as to the finances.
Looking at #26 specifically, I’ve wondered what kind of income/bonuses that those associated with SUM may receive. I’ve taken a look at some tax records, and they are about as clear as mud as it relates to this issue. Some clarity would be nice, but I’m not sure I would count on NASL being able to get their hands on this information. The documents related to SUM’s role (and benefits received) in the 2016 Copa were never disclosed (stay tuned for more on that in another story).
I’ll be impressed if the NASL can get their hands on #35, given its confidential nature. As to #40, recall that there have been allegations made regarding derogatory statements that certain officers made about the prospects of NASL, and this seems designed to flesh that out.
That is essentially it for this set of requests for production. According to the NASL, the USSF has by and large refused to cooperate, while MLS seems to be working with some level of good faith. With a response due next week by USSF/MLS, we’ll see what reasoning there is (if any) for the refusal to hand over documents. Will we see a split between responses filed by the defendants; I could see MLS waiving off USSF here, as they don’t want to get admonished by the court. USSF has long been the more…difficult of the parties; their answers to the complaint contained some things I considered to be off the wall. If their response to this motion is anything like their response to the complaint, we could be in for more fireworks.