Injunction Motion NASL

Case 1:17-cv-05495-MKB-ST Document 3-1 Filed 09/20/17 Page 1 of 30 PageID #: 80
UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK
NORTH AMERICAN SOCCER LEAGUE, LLC,
Plaintiff,
Civil Action No. 1:17-cv-05495
v.
UNITED STATES SOCCER FEDERATION, INC.
Defendant.
MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS

MOTION FOR A PRELIMINARY INJUNCTION
WINSTON & STRAWN LLP

200 Park Avenue
New York, New York 10166
Tel: (212) 294-6700
TABLE OF CONTENTS
Page
PRELIMINARY STATEMENT .................................................................................................... 1

STATEMENT OF FACTS ............................................................................................................. 6
A. Relevant Markets and Market Power ...................................................................... 6
B. The USSFs Closed Divisional Structure & Anticompetitive Professional
League Standards .................................................................................................... 7
C. The Intertwined History and Financial Ties of MLS and the USSF...................... 8
D. The History of the USSFs Anticompetitive Application of its Professional
League Standards and Divisional Structure to the NASL .................................... 11
E. The Irreparable Injuries the NASL will Suffer Absent Injunctive Relief to
Maintain the Status Quo........................................................................................ 15
ARGUMENT ................................................................................................................................ 16
I. The NASL will Suffer Irreparable Harm .......................................................................... 16
II. The NASL has Demonstrated a Likelihood of Success on the Merits or,
Alternatively, Serious Questions on the Merits Plus a Balance of Hardships
Tipping in Its Favor .......................................................................................................... 18
A. Sherman Act 1.................................................................................................... 18
1. Concerted Action by Separate Economic Actors...................................... 18
2. Unreasonable Restraint of Trade .............................................................. 19
B. The Balance of Hardships Weighs in Favor of an Injunction ............................... 25
III. The Public Interest ............................................................................................................ 25
CONCLUSION ............................................................................................................................. 25
i
TABLE OF AUTHORITIES
Page(s)
Cases
Abdul Wali v. Coughlin,

754 F.2d 1015 (2d Cir. 1985)...................................................................................................16
Allied Tube & Conduit Corp. v. Indian Head, Inc.,

486 U.S. 492 (1988) ...........................................................................................................19, 21
Am. Needle, Inc. v. NFL,

560 U.S. 183 (2010) ...........................................................................................................18, 19
Am. Soc. of Mech. Engrs, Inc. v. Hydrolevel Corp.,

456 U.S. 556 (1982) .......................................................................................................5, 21, 22
Cal. Dental Assn v. FTC,

526 U.S. 756 (1999) .................................................................................................................19
ChampionsWorld, LLC v. USSF,

890 F. Supp. 2d 912 (N.D. Ill. 2012) .........................................................................................7
Citigroup Glob. Mkts, Inc. v. VCG Special Opportunities Master Fund Ltd.,
598 F.3d 30 (2d Cir. 2010)...................................................................................................4, 18
Clarett v. NFL,
306 F. Supp. 2d 379 (S.D.N.Y.), revd on other grounds, 369 F.3d 124 (2d
Cir. 2004) ...........................................................................................................................20, 21
Ericmany Ltd. v. Agu,

16-cv-2777, 2016 WL 8711361 (E.D.NY. June 3, 2016) ........................................................17
Fraser v. Major League Soccer, L.L.C.,

284 F.3d 47 (1st Cir. 2002) ....................................................................................................8, 9
L.A. Meml Coliseum Commn v. NFL,

726 F.2d 1381 (9th Cir. 1984) .................................................................................................23
Law v. NCAA,
902 F. Supp. 1394 (D. Kan. 1995) ...............................................................................19, 21, 22
Live Nation Motor Sports, Inc. v. Davis,

No. 3:06-cv-276-L, 2006 WL 3616983 (N.D. Tex. Dec. 12, 2006) ........................................17
N.C. State Bd. of Dental Examrs v. F.T.C.,

717 F.3d 359 (4th Cir. 2013), affd, 135 S. Ct. 1101 (2015) ...................................................21
ii
NASL v. NFL I,
465 F. Supp. 665 (S.D.N.Y. 1979).......................................................................................5, 17
NASL v. NFL II,

670 F.2d at 1261(2d Cir. 1982)................................................................................................23
NCAA v. Bd. of Regents of Univ. of Okla.,

468 U.S. 85 (1984) ............................................................................................................ 19, 21
Phila. World Hockey Club, Inc. v. Phila. Hockey Club, Inc.,

351 F. Supp. 462 (E.D. Pa. 1972) ............................................................................................17
Reuters Ltd. v. United Press Intl, Inc.,

903 F.2d 904 (2d Cir. 1990).....................................................................................................25
RosoLino Beverage Distribs. v. CocaCola Bottling Co.,

749 F.2d 124 (2d Cir. 1984)...............................................................................................16, 25
Tom Doherty Assocs. v. Saban Entmt, Inc.,

60 F.3d 27 (2d Cir. 1995) ........................................................................................................16
trueEX, LLC v. MarkitSERV Ltd.,

No. 17-cv-3400, 2017 WL 3084422 (S.D.N.Y. July 18, 2017) ...............................................25
U.S. v. Columbia Pictures Inds.,

507 F. Supp. 412 (S.D.N.Y. 1980)...........................................................................................25
U.S. v. Visa U.S.A.,

344 F.3d 229 (2d Cir. 2003)...............................................................................................20, 22
U.S. Airways v. Sabre Holdings Corp.,

No. 11-2725, 2017 WL 1064709 (S.D.N.Y. Mar. 21, 2017) ...................................................20
Volvo N. Am. Corp. v. Mens Intl Profl Tennis Council,

857 F.2d 55 (2d Cir. 1988).......................................................................................................19
W. State Univ. v. ABA,

301 F. Supp. 2d 1129 (C.D. Cal. 2004) ...................................................................................17
iii
Plaintiff North American Soccer League, LLC (NASL) respectfully submits this brief in
support of its Motion for a Preliminary Injunction to preserve the status quo as to the NASLs
status as a Division II mens professional soccer league sanctioned by Defendant United States
Soccer Federation, Inc. (USSF). The NASL respectfully requests a ruling on this motion as soon
as possible, but no more than one month from the date of this filing, to prevent massive irreparable
harm to the NASL. Absent such relief, the NASL likely will cease to exist, and the USSFs scheme
to eliminate competition from the NASL against its favored leagues will come to fruition.
PRELIMINARY STATEMENT
The USSF is a private membership association, consisting of various separate entities, that
asserts the authority to regulate professional soccer in the U.S. on behalf of the Fdration
Internationale de Football Association (FIFA), another private association that claims to
regulate professional soccer (i.e., football) on a global basis through associated federations
around the world. Because of FIFAs perceived status among soccer fans as the self-appointed
global authority, no professional soccer league in the U.S. can earn credibility with fans, sponsors,
investors, players or broadcasters without a USSF sanction. However, neither the USSF nor FIFA
has any legal authority to exercise any regulatory powers over professional soccer in the U.S. And,
while it claims non-profit status, the USSF has used its position as the private regulator of soccer
to engage in commercial activities worth many hundreds of millions of dollars fully subjecting it
to U.S. antitrust laws.
The USSF is financially joined at the hip with Major League Soccer (MLS), one of the
professional soccer leagues that it claims the authority to regulate. It has shielded MLS from
competition from other professional soccer leagues in this country by sanctioning it as the sole
Division I mens professional soccer league in the U.S. and Canada. The USSF has created
1
three Division classificationsand Division I is the highest level, thus crowning MLS as the
sole major professional league. The only other mens professional soccer league that has tried
to grow to be able to compete against MLS at the major-league level is Plaintiff NASL, and it is
because of that NASL objective to provide a competitive alternative to MLS that the USSF has
now taken action to threaten the NASLs very existence.
The NASL began to operate as a standalone professional soccer league in the U.S. in 2011
when it received USSF Division II sanctioning. From the beginning of its existence, however, the
NASLs business plan has been to grow into a top-tier mens professional soccer league competing
directly against MLS. The NASL grew stronger as a Division II league each year so that by 2015 it
was ready to obtain, and applied for, Division I sanctioning from the USSF. Such sanctioning was
essential in the eyes of soccer fans, players, sponsors, investors and broadcasters to be viewed as
major league competition to MLS. The USSF, however, acting in concert with and at the behest
of MLS, first stalled and eventually denied the NASL Division I sanctioning, stating that the NASL
did not comply with all of the USSFs Professional League Standards.
The USSFs so-called Professional League Standards are a set of ever-changing and
discriminatorily applied criteria that serve no legitimate procompetitive purpose and instead are
designed and applied for the principal purpose of protecting the monopoly position of MLS.
Different standards are employed for Divisions I, II and III, and they are used by the USSF to
restrict competition and limit output of mens professional soccer in the U.S. and Canada. For
example, one of the standards employed by the USSF to deny the NASL Division I status in
2016 was that the NASLs U.S. teams did not cover three different time zonesa criterion that
served no purpose other than to shield MLS from competition, particularly since the NASL had a
Canadian team in a third time zone. Other USSF Professional League Standards are similarly
2
anticompetitive and have not been employed by other FIFA-sanctioned federations around the world.
While the denial of Division I sanctioning to the NASL was a serious blow that severely
damaged its growth and competitive position in the U.S. and Canada, the NASL was undaunted
and continued to play during the 2016 and 2017 seasons as a Division II league, still determined
to eventually become a strong competitor to MLS. However, in 2017, there was a new
development when the United Soccer League (USL)a lower-level Division III-sanctioned
league that has a developmental relationship with MLS and made clear that it has no plan to ever
compete with MLS at the top tierwas granted sanctioning as a second Division II league. It has
now become apparent that this change in the competitive status of USL was part of a plan that the
USSF and MLS had formulated to replace the NASL with USL in Division II, and once and for
all end the NASLs efforts to ever become a top-tier competitor to the MLS monopoly.
On September 3, 2017, the anticompetitive plan was carried out. The USSF informed the
NASL that it was being denied Division II status for the 2018 season, and that if it wanted to
continue to play as a USSF-sanctioned league, it would have to apply for status as a Division III
league. In contrast, the USSF has given USL a month to provide additional assurances to the USSF
so it can obtain provisional sanctioning as the sole Division II league in 2018. While USL would
have to receive a number of waivers from the Division II Professional League Standards to receive
a Division II sanctionpossibly as many as twentythe NASL was denied the mere two waivers
that it requested. There was thus no doubt that the transparent motive for the USSFs actions was
to eliminate the NASL as a viable competitor.
Without its Division II sanction, the NASL will likely cease to exist. Its clubs owners,
including those from up to six new clubs that would like to join the NASL in 2018, have no interest
in operating the NASL as a Division III leaguethe lowest, developmental level of professional
3
soccerand the NASL would not retain many of its current fans, sponsors, players or broadcasters,
if the status quo is shattered and the NASL is stripped of its Division II designation.
The NASL has filed this action to strike down the USSFs anticompetitive Professional
League Standards and enjoin the USSF from continuing to employ such Standards and divisional
criteria to unreasonably restrict competition in the relevant markets for mens professional soccer
leagues in the U.S. and Canada. These contracts, combinations and conspiracies by the USSF and
its independent members, including MLS and USL, are continuing violations of Sections 1 and 2
of the Sherman Act. This preliminary injunction motion, however, only seeks to preserve the
status quothe NASLs Division II designationfor the duration of this litigation, so that the
NASL is not driven out of business by the anticompetitive application of the Professional League
Standards while it seeks to vindicate its antitrust rights.1
In this Circuit, a party seeking preliminary injunctive relief must show: (a) irreparable
harm and (b) either (1) likelihood of success on the merits or (2) sufficiently serious questions
going to the merits to make them a fair ground for litigation and a balance of hardships tipping
decidedly toward the [movant]. Citigroup Glob. Markets, Inc. v. VCG Special Opportunities
Master Fund Ltd., 598 F.3d 30, 35 (2d Cir. 2010) (citations omitted). These requirements are
clearly met here.
First, there can be no doubt that the NASL faces severe irreparable injury in the absence of
immediate injunctive relief. If the NASL loses its Division II status for the 2018 season, it likely
would not be able to survive. The reason is that it cannot maintain its current players, stadiums,
sponsors, broadcasters and fans without at least a Division II designation, and both its existing teams
and potential new teams for the 2018 season are only committed to playing in the NASL if it has at
1
The NASL seeks a preliminary injunction based only on its claim under Section 1 of the Sherman Act, not Section 2.
4
least a Division II designation. Commisso Decl. 25-31. This is thus the quintessential example
of a situation where preserving the status quo is necessary to prevent the most severe form of
irreparable harmthe complete loss of a competitive enterprise, its goodwill, and reputation.
Second, the NASL is likely to succeed on the merits or, alternatively, has more than
established serious questions going to the merits. The antitrust case law is clear that when a
private group engages in standard-setting whose effect is either to restrict output or to favor a
particular competitor at the expense of its rivals, without any procompetitive justification, such
conduct is an unreasonable restraint of trade in violation of the Sherman Act. See, e.g., Am. Soc.
of Mech. Engrs, Inc. v. Hydrolevel Corp., 456 U.S. 556, 571 (1982) (Section 1 violation where
association officials harm[ed] their employers competitors through manipulation of
[associations] codes). This is particularly true where, as here, the Standards are being
manipulated to entrench a monopoly position. It thus cannot be credibly disputed that the NASL
has at least raised serious questions that it will succeed on its antitrust claim, so that the
maintenance of the status quo to prevent severe and irreparable harm to the NASL is warranted.
NASL v. NFL (NASL v. NFL I), 465 F. Supp. 665, 667, 677 (S.D.N.Y. 1979) (granting
preliminary injunction based on serious questions).
Third, the balance of hardships tips decidedly in favor of the NASL. The NASLs existence
will be in jeopardy without a preliminary injunction maintaining the status quo, whereas the USSF
will suffer no harm by the NASL retaining its Division II status, as it has for the past seven years.
Indeed, while the USSF claims to have rejected the NASL as a Division II league because it did not
have an acceptable plan for growing from 8 to 12 teamsthe anticompetitive Division II number of
teams requirementthe NASL now has letters of intent from six new teams for the 2018 season.
Even if the NASL were to lose one of its clubs, this would bring its total teams to 13.
5
Finally, the public interest favors preliminary injunctive relief. The elimination of the NASL
from the market would harm soccer fans as well as scores of people who will lose their jobs or who
do business with the NASL and its members, including the Cosmos, which plays its home games in
Coney Island in this District. And, the destruction of the only league that seeks to challenge the
MLS monopoly position would further perpetuate and entrench the adverse anticompetitive effects
of the USSFs unlawful conspiracy on consumers, sponsors and broadcasters.
Given that time is of the essence because the NASL and its clubs must make the necessary
business plans, sponsorship, stadium, and player renewals for the 2018 season, it respectfully
requests that the Court decide this request for a preliminary injunction no later than mid-October;
thirty days from the date of this filing.
STATEMENT OF FACTS
A. Relevant Markets and Market Power
The relevant markets are (i) mens top-tier professional soccer leagues located in the U.S.
and Canada; and (ii) mens second-tier professional soccer leagues located in the U.S. and Canada.
The USSF is able to control entry and exercise market power in these relevant markets through its
Professional League Standards, and acts in combination with MLS to bestow upon it monopoly
power in the mens top-tier market, and is now seeking to bestow a similar monopoly upon USL
in the second-tier market.
Submitted herewith is an expert declaration of University of Michigan economics professor
Stefan Szymanski, setting forth his economics analysis and expert opinions of why these relevant
markets are distinct from other markets and one another, and how the USSF and its co-conspirators
exercise market power to unreasonably restrict competition and confer monopoly power upon
MLS. Szymanski Decl. 22-54.
6
B. The USSFs Closed Divisional Structure & Anticompetitive

Professional League Standards
The USSF is the privately organized U.S. regional governing body for FIFA, the global
soccer federation. Szymanski Decl. 13, 64. The internal governance structure of the USSF
with respect to professional league regulation is dominated by MLS, which was founded by current
and former USSF officials, with a number of those same persons having jobs at both organizations
at different points in their careers. Id. 17-20.
As FIFAs designated federation for the U.S.,2 the USSF has asserted the sole authority to
determine which U.S.-based professional leagues, clubs and players will compete in FIFA-
affiliated competitions, such as matches against clubs in other sanctioned leagues. Commisso
Decl. 2. All top soccer leagues and clubs around the world are sanctioned by FIFA affiliates,
and any league operating in the U.S. without USSF/FIFA sanctioning would not be viewed by
fans, sponsors, players or broadcasters as a credible league. See id. 2, 8; Szymanski Decl. 8-
13, 74-75.
FIFA does not mandate that leagues be assigned to divisions. In contrast to the rest of
the world, the USSF requires professional leagues seeking FIFA sanctioning to first qualify for
and be assigned to separate, tiered divisionsspecifically, Division I, II or III, with leagues in
each Division in a closed system. Commisso Decl. 3-5; Szymanski Decl. 56, 61-63. The
USSF first adopted the divisional rules in 1995, when MLS was about to enter the market.
Szymanski Decl. 62. Moreover, the USSF, unlike the rest of the world, has no provision that
clubs are subject to potential promotion and relegation each season between Divisions. As a result,
2
The USSF does not have any immunity from federal antitrust claims relating to its self-appointed role of regulating
professional soccer. [T]he Ted Stevens [Olympic and Amateur Sports] Act gives USSF no more of an antitrust
exemption, or authority over professional soccer, than necessary for it to oversee Olympic and related events.
ChampionsWorld, LLC v. USSF, 890 F. Supp. 2d 912, 936 (N.D. Ill. 2012) (emphasis added).
7
leagues in the USSFs divisional structure are protected from competition from better-performing
clubs in lower-tier Divisions, entrenching the monopoly of MLS, for example, against anything
but competition from another league to compete at the top-tier level. Id. 61-80, 106-108.
Fans and sponsors attach great significance to the USSFs divisional classifications, with
Division I viewed as the top tier and Division II as the second tier of professional soccer in
the U.S. and Canada. Id.; Commisso Decl. 6-7, 25-27; Rizik Decl. 5-13, 48-49. The USSF
also grants considerable competitive advantages to leagues in Division I, including more rounds
of byes in the U.S. Open Cup (an important national club competition), more tournament
eligibility, and higher-quality referees. Szymanski Decl. 70-72; Rizik Decl. 22-23, 48.
Division III is the lowest status level. A league with this designation is generally viewed as a
developmental league, whose live exhibitions provide mainly casual entertainment for local
residents. Commisso Decl. 7-8, 25-31; see also Szymanski Decl. 73-80.
The USSF separates leagues into Divisions by applying a set of Professional League
Standardsa list of ever-changing requirements that the USSF decides whether to apply or waive
for a league seeking sanctioning by the USSF in one of its Divisions. As discussed below, these
Professional League Standards serve no procompetitive purpose and have instead been designed
and applied by the USSF to unreasonably restrict competition and maintain a monopoly position
for MLS. Szymanski Decl. 64-80, 108; Rizik Decl. 29-76.
C. The Intertwined History and Financial Ties of MLS and the USSF
MLS was created by current and former USSF officials, and has been the only USSF-
sanctioned Division I league since its formation over two decades ago. See Szymanski Decl.
62-63, 75, 94. As the First Circuit stated, the USSF decided as early as 1988 to sanction only one
Division I professional league. Fraser v. Major League Soccer, L.L.C., 284 F.3d 47, 53 (1st Cir.
2002). As former USSF President and MLS Chairman Alan Rothenberg testified, the plan of the
8
USSF all along was to only sanction one Division I league, and this plan didnt anticipate
thered be any other significant domestic league to compete for player services.3 Current USSF
President Sunil Gulati himself was one of the creators of MLS with the vision of only one Division
I league able to compete in the U.S. and Canada:
When Alan [Rothenberg] was elected [USSF president], we started

a committee to look at the development of a professional league. . . .
What really started formally the process of MLS was two, three, four
of us who were [on the] World Cup [organizing committee] started
talking about putting a league together and what it would take to do
that.4
MLS, unlike other top-tier professional soccer leagues around the world, is restricted in its
quality by a single entity structure under which the league itself owns its clubs, which severely
restricts each clubs ability to acquire and pay for top-tier players.5 [B]etween its foundation in
1996 and 2006, MLS fluctuated between 10 and 12 teams, had limited live match broadcast
coverage, never surpassed the average attendance figures of the inaugural season, and struggled to
grow. Szymanski Decl. 63.
MLS has been able to maintain its top-tier status in the U.S. and Canada because the USSF
has imposed and continues to employ its anticompetitive Professional League Standards and
divisional system to maintain MLSs monopoly status as the sole Division I, top-tier mens
professional soccer league. Id. 61-80, 127-130. For example, shortly after MLS was formed,
the USSF adopted a requirement that all clubs in Division I leagues have stadiums with at least
15,000 seats.6 This was and still is a severe barrier to entry for other leagues seeking to compete
at the top tier of professional soccerparticularly because MLS has an incumbency advantage due
3
Rizik Decl. Ex. 25, Trial Tr. at 3652:10-19, Oct. 31, 2000, Fraser, No. 1:97-cv-10342 (D. Mass.) (emphasis added).
4
Id. Ex. 12, Excerpt from Beau Dure, Long Range Goals: The Success Story of Major League Soccer 3 (2010).
5
Szymanski Decl. 15, 109-113; Fraser, 284 F.3d at 53 (discussing MLSs asserted single-entity structure).
6
Rizik Decl. Ex. 26, Standards, adopted May 21, 1995 (1995 Standards), Div. I II(E).
9
to its status as the sole Division I league, and has already entered into exclusive arrangements with,
or obtained limited government funding for, prime stadiums for soccer with this seating capacity.
See id. 128; Commisso Decl. 9; Rizik Decl 9-12.
In 2013, USSF President Gulati acknowledged the continuing close ties between the USSF
and MLS:
The growth of the game goes hand in hand with what the league
[MLS] has done over the last 16 years, and the growth of so
much of whats going on in U.S. Soccer . . . The working
relationship between the two is extraordinary and my guess is there
arent many in the world that are like that.7
In 2014, MLS Commissioner and USSF Board member Don Garber touted the USSF and MLSs
shared vision that we have heard many times from the federation for MLSnot any other
leagueto be the key driver of professional soccer in the U.S. and Canada:
[W]e collectively need to ensure that everybody is aligned with

the mutual goal that we have of growing the game and the
leagues [MLSs] role in growing the game. In order to do that,
we cant try to denigrate or damage or disparage the very entity
that will be the key driver of the sport in this country.8
This shared vision and intertwining of interests has generated vast revenues for both
MLS and the USSF. To obtain its economic share, the USSF has entered into a series of joint
media rights agreements with MLS and its marketing arm, Soccer United Marketing (SUM).
For example, in 2014, MLS announced that it and the USSF had reached an eight-year,
$720 million broadcasting agreement with ESPN, Fox Sports, and Univision in exchange for the
networks combined right to telecast both MLS games and U.S. Mens National Team matches
through the end of 2022.9 Further, the USSF has pooled its marketing rights for the Mens and
7
Rizik Decl. 14 (emphasis added).
8
Id. 25 (emphases added).
9
Id. 19-21.
10
Womens National Teams in SUM together with MLS rights, so that they do not compete with
each other, and the USSF receives $15 million or more each year from this arrangement with the
MLS and SUM. Szymanski Decl. 16-17, 52; Rizik Decl. 16-18.
USL has latched onto this system by entering into player developmental agreements with
MLS and publicly declaring that it is content with its non-first-tier status, in support of MLS, and
has no intention to compete in the top tier against MLS:
Theres no aspect of our business plan that had us competing

with Major League Soccer or trying to become their rival, said
[USL President Tim] Holt, a statement that is quite different
than what his NASL counterpart has said. Theres one major
league of professional soccer in North American and its MLS.
Our goal hasnt changed. We wanted to be the strongest, best

operated league in support of Major League Soccer in the United
States. Thats what drives us.10
MLSs official website also notes the integration and close ties between MLS and USL:
MLS continues to enjoy deep ties with USL, with 10 MLS teams
set to operate their own USL club this year while 12 others
including 2018 expansion side LAFCwill have a USL
affiliate.11
D. The History of the USSFs Anticompetitive Application of its Professional League

Standards and Divisional Structure to the NASL
Unlike MLS, the NASL is structured as a club-centric league with separately owned teams,
with most commercial rights held at the club level, and with player acquisition and investment
decisions left to club owners.12 The NASL began play in 2010 and was sanctioned as a Division II
league from 2011 through the 2017 season. Rizik Decl. 3, 34; Commisso Decl. 12.
The NASLs strategy from the beginning has been to become a top-tier league that is
10
Rizik Decl. 73 (emphases added).
11
Id. 74 (emphasis added).
12
Commisso Decl. 11; Rizik Decl. 3-4.
11
competitive to MLS. The NASL grew rapidly and was on the verge of posing a competitive threat
to MLS by the 2015 season. As an investment advisory firm stated, [t]he NASL franchise
structure allows teams to acquire and develop on field talent in a manner that could very well lead
to the NASL surpassing the MLS as Americas top tier of soccer. Rizik Decl. 4, 46-48.
Because of the anticompetitive system imposed by the USSF, however, the NASL needed
Division I sanctioning to be accepted by fans, sponsors, broadcasters and players as a top-tier
professional league competing against MLS.13 As one commentator summarized:
Having refused to pursue an affiliation or feeder agreement with

MLS, the NASL is now at a crossroadstied to a minor league
label it refuses to embrace yet is forced, for now, to accept. The
Cosmos may be a big club in certain ways. Yet according to the
U.S. Soccer Federation, New York and its NASL brethren are
stuck in the second tier. . . . MLS is considered Division I and the
NASL occupies Division II. Theres nothing in writing that
prevents the NASL from moving up to Division I should it meet
those standards, but the semantic weight of the minor league
label can make its product a tougher sell. That, in turn, makes
it difficult to build to a Division I standard.14
Accordingly, on May 31, 2015, the NASL applied for Division I status for the 2016 season,
hoping to finally take on MLS at the top tier of professional soccer.15 The USSF responded by
proposing to drastically escalate the Professional League Standards so that they would be
impossible for the NASL to meet, and then sat on the NASLs application with no action for over
nine months, ultimately denying it on March 10, 2016. Id. 49-59.
There was no explanation for the USSFs anticompetitive application of its Professional
League Standards other than its desire to protect its financial partner MLS from competition.
Indeed, MLS and the USSF had serious concern[s] that the N.A.S.L. . . . would import players
13
Szymanski Decl. 61-80, 106-108; Rizik Decl. 5-13, 48-49.
14
Rizik Decl. 48 (emphasis added).
15
Id. 49 & Ex. 1, NASL Application for Division I Status, May 31, 2015.
12
from South America and in essence become the anti-M.L.S. by allowing teams to sign players
without worrying about a salary cap or a single-entity setup,16 and thereby create a more attractive
product for fansendangering the lucrative Division I monopoly that USSF has created for MLS.
To that end, the USSF has selectively granted and denied waivers from the anticompetitive
and arbitrary Professional League Standards in order to maintain a stable divisional hierarchy,
to protect MLSs monopoly status in the top tier. For example, from the NASLs formation in
2009 until 2015, the USSF maintained MLSs Division I status even though MLS did not satisfy
the Division I requirement that each stadium have at least 15,000 seats. Id. 75. In 2013, MLS
also had to be granted a waiver for not complying with minimum field size requirements and
licensing requirements for head coaches. Id. 76.
By contrast, the USSF has applied its Professional League Standards to the NASL in a far
more restrictive way, designed to prevent the NASL from ever competing at the top-tier level
against MLS. For example, when the USSF denied the NASLs Division I application in 2016,
the USSF based that denial on two requirements of its Professional League Standardsthe
anticompetitive requirement that the NASL have U.S.-based teams in three different time zones
(it had a Canadian team in a third time zone) and the anticompetitive requirement that each of its
stadiums have a seating capacity of at least 15,000a standard that would disqualify some of the
most successful soccer leagues in the world, such as the English Premier League, from being
recognized as top-tier.17 The USSF refused to waive these two requirements and forced the NASL
to remain in Division II for the 2016 season. Id. 59. These rules, which prevented the NASL
16
Id. 33-34.
17
Id. 60 & Ex. 1, NASL Div. I App.; Szymanski Decl. 90.
13
from competing with MLS, served only to restrict competition and furthered no procompetitive
objective. Szymanski Decl. 88-93.
On or about January 6, 2017, the USSF again sanctioned the NASL as a Division II league,
this time for the 2017 season. Rizik Decl. 66. At the same time, however, a new development
took place. The USSF also sanctioned USL as a Division II league for 2017, elevating it from
Division III, even though USL had at least eight stadiums that did not meet the USSFs Division
II requirement of at least 5,000 seatsunlike the NASL, whose stadiums all satisfied this
requirement. Id. 67. USL was also given this sanction even though it was primarily structured
as a developmental league.
The motivation for this elevation of USL for the 2017 season was apparently to carry out
a plan by the USSF and MLS to eliminate the NASL even from Division II and make USL, which
was not a competitive threat to MLS, the sole Division II league. The USSFs plan with MLS to
eliminate the NASL as a potential competitor to MLS has culminated in the USSFs decision, on
September 3, 2017, flatly denying the NASLs application for Division II status for the upcoming
2018 season. Id. 68-71. In doing so, the USSF refused to grant either of the NASLs two
requested waivers, from requirements for a team in the Central Time Zone (the NASL had teams
in three other time zones), and a minimum of ten teams (the NASL then had eight teams willing
to commit for the 2018 season, but was in discussions with several more interested in joining). Id.
Prior to the NASLs formation in 2009, under the 2008 Standards, no requirement for Division II
leagues to have more than eight teams or for teams in the Central Time Zone existed. Id.
In contrast to its outright rejection of the NASL Division II application, with no avenue for
further consideration for 2018, the USSF has given USL a month to submit a plan for bringing
its teams into compliance with the USSFs Standards, so that in 2018 it can maintain sanctioning
14
as the sole Division II leaguedespite potentially needing as many as twenty waivers from the
Division II Professional League Standards. Id. 72; Commisso Decl. 22-23. This would leave
USLwith its close ties to MLS and a declared strategy of never competing in the top tieras
the sole second-tier league. Id. 73-74; Szymanski Decl. 76-79.
E. The Irreparable Injuries the NASL will Suffer Absent Injunctive Relief to Maintain
the Status Quo
The USSFs action to deprive the NASL of its Division II status for the 2018 season
threatens to destroy the NASL. Division III status is not viable for the NASL or its owners. The
revenue levels typically associated with Division III leagues are not enough to sustain the NASL
and its clubs in a manner consistent with its plans, and would not enable the NASL to retain many
of its fans, players, sponsors and broadcasters.18
The NASLs and its clubs business models are premised on the NASL beingat a
minimuma Division II league seeking to eventually compete at the top tier of professional
soccer. Each of the NASL clubs has invested millions of dollars developing an NASL club on the
premise that the NASL would at least retain its Division II status. If that status quo status is not
maintained, the NASL will not likely survive. Commisso Decl. 6-8, 25-31; see also Szymanski
Decl. 73-80.
Further, the NASL has letters of intent signed by six additional teams interested in joining
the NASL in 2018. Commisso Decl. 29. Even if the NASL were to lose one of its clubs, this
would bring the NASL 2018 club membership to at least 13, more than the 10-club requirement
the USSF is applying to deny the NASL Division II status for 2018. But those teams have
expressly conditioned their intent on joining the NASL on it maintaining at least a Division II
18
Commisso Decl. 6-8, 25-31; see also Szymanski Decl. 73-80.
15
certification. Unless this Court acts to preserve the status quo, it is very likely the NASL will cease
to exist and the MLS monopoly will be further entrenched.
ARGUMENT
[T]he purpose of a preliminary injunction is to maintain the status quo ante pending a full
hearing on the merits. Abdul Wali v. Coughlin, 754 F.2d 1015, 1025 (2d Cir. 1985), overruled on
other grounds, OLone v. Estate of Shabazz, 482 U.S. 342 (1987). That purpose would be fully
vindicated by this motion, which seeks only to prohibit the USSF from disrupting the seven-year
status quo of the NASL retaining its Division II status. Such relief will prevent the NASL from
being driven out of business, while it fully and fairly litigates its antitrust rights and seeks permanent
injunctive relief against the USSFs anticompetitive Professional League Standards.
I. The NASL will Suffer Irreparable Harm
Irreparable harm is an injury that is not remote or speculative but actual and imminent,
and for which a monetary award cannot be adequate compensation. Tom Doherty Assocs. v.
Saban Entmt, Inc., 60 F.3d 27, 37 (2d Cir. 1995). The Second Circuit has found irreparable harm
where a party is threatened with the loss of a business. Id. This is especially true where, as here,
the very viability of the plaintiffs business . . . ha[s] been threatened. Id. at 38.
The irreparable harm requirement is clearly satisfied here because, absent injunctive relief,
the NASL and its clubs have no economically viable path forward if the NASL loses its Division
II status, which would very likely result in the dissolution of the league and an end to its efforts to
develop into an effective competitor against the MLS monopoly. See supra at 15. This is
prototypical irreparable harm. See Tom Doherty, 60 F.3d at 37-38; RosoLino Beverage Distribs.
v. CocaCola Bottling Co., 749 F.2d 124, 125-26 (2d Cir. 1984) (loss of ongoing business
representing many years of effort is irreparable harm).
16
The NASLs inability to maintain high-quality player talent and other valuable employees,
without Division II sanctioning, is another well-recognized form of irreparable injury.19 See, e.g.,
Phila. World Hockey Club, Inc. v. Phila. Hockey Club, Inc., 351 F. Supp. 462, 515 (E.D. Pa. 1972)
(preclusion of top players will cause the [league] irreparable injury for yearsfor without them
the public will not generate substantial enthusiasm for the [league], which in turn causes lethargy
at the box office); Ericmany Ltd. v. Agu, 16-cv-2777, 2016 WL 8711361, at *3 (E.D.NY. June 3,
2016) (reputational loss making it more difficult for plaintiff to sign artists in the future constitutes
irreparable harm).
The NASL losing its Division II status would also harm its credibility, goodwill and
reputation with sponsors, broadcasters and fans,20 another well-recognized form of irreparable
injury. See Live Nation Motor Sports, Inc. v. Davis, No. 3:06-cv-276-L, 2006 WL 3616983, at *5
(N.D. Tex. Dec. 12, 2006) (finding irreparable harm when the new racing season begins because
plaintiff will lose its ability to sell sponsorships or advertisements). Reputational harm from
loss of an accreditation has specifically been recognized as the type of irreparable injury warranting
preliminary relief. W. State Univ. v. ABA, 301 F. Supp. 2d 1129, 1138 (C.D. Cal. 2004) (issuing
preliminary injunction barring ABA from withdrawing schools provisional accreditation).
Finally, the league would suffer irreparable harm by losing the interest of existing and
potential investors, who have premised their support for the NASL in 2018 on its maintaining at
least Division II certification. 21 NASL v. NFL I, 465 F. Supp. at 668-72 (finding irreparable harm
based on likelihood of reduced investments by club owners).
19
Commisso Decl. 7-8, 28 Szymanski Decl. 74-79, 129.
20
See supra note 19.
21
See supra note 19.
17
II. The NASL has Demonstrated a Likelihood of Success on the Merits or, Alternatively,
Serious Questions on the Merits Plus a Balance of Hardships Tipping in Its Favor
A plaintiff will be granted preliminary injunctive relief if, in addition to showing
irreparable harm, it can show either (i) a likelihood of success on the merits or (ii) sufficiently
serious questions going to the merits, plus a balance of hardships tipping in its favor. Citigroup,
598 F.3d at 35. The likelihood of success standard merely requires a showing that plaintiff is
more likely than not to succeed on the merits of its underlying claims. Id. at 34-35. In the
alternative, [t]he serious questions standard permits a district court to grant a preliminary
injunction in situations where it cannot determine with certainty that the moving party is more
likely than not to prevail on the merits of the underlying claims, but where the costs outweigh the
benefits of not granting the injunction. Id. at 35. Plaintiff submits that the serious questions
standard is applicable on this motion, as the balance of hardships clearly tips in its favor, but it
also has satisfied the likelihood of success test.
A. Sherman Act 1
A violation of Section 1 of the Sherman Act is established by showing (i) concerted
action (ii) by separate economic actors pursuing separate economic interests (iii) that
unreasonably restrains trade. Am. Needle, Inc. v. NFL, 560 U.S. 183, 186-87, 195 (2010). The
NASL has more than established a likelihood of success, or at least serious questions on the merits,
as to its Section I claim based on the agreement of the USSF, its members and MLS to impose the
USSFs closed divisional system and anticompetitive Professional League Standards, as well as
its conspiracy to protect the monopoly of MLS, and now bestow a monopoly on USL.
1. Concerted Action by Separate Economic Actors
It is beyond dispute that the USSF is a separate economic actor from MLS, and its
marketing arm SUM, and USL, and that they are separate business organizations pursuing their
18
own distinct interests. Am. Needle, 560 U.S. at 195-96.22 Moreover, the USSFs membership,
which includes MLS and USL, consists of many separate economic actors capable of concerted
conduct, including multiple professional soccer leagues and other soccer-related organizations
with separate economic interests.23 The agreements among these parties satisfy the concerted
action requirement. See NCAA v. Board of Regents, 468 U.S. 85, 99 (1984) (By participating in
an association which prevents member institutions from competing against each other . . . , the
NCAA member institutions have created a horizontal restraintan agreement among competitors
on the way in which they will compete with one another.); Allied Tube & Conduit Corp. v. Indian
Head, Inc., 486 U.S. 492, 506-07 (1988); Volvo N. Am. Corp. v. Mens Intl Profl Tennis Council,
857 F.2d 55, 71 (2d Cir. 1988).
2. Unreasonable Restraint of Trade
The abbreviated rule of reason or quick look analysis is used where an observer with a
rudimentary understanding of economics could conclude that the arrangement[] in question would
have an anticompetitive effect on the relevant markets. Cal. Dental Assn v. FTC, 526 U.S. 756,
770 (1999). In such circumstances, the plaintiff meets its initial burden of showing anticompetitive
effect without any demonstration of market power or actual adverse effects. See NCAA, 468 U.S.
at 109.24 The defendant then bears the heavy burden of establishing an affirmative defense which
competitively justifies the challenged restraint. Id. at 113. Where the defendants justifications
are invalid or fail to outweigh the anticompetitive effects, the restraint at issue is unlawful. See id.
22
Szymanski Decl. 9-15; Rizik Decl. 14-28.
23
See supra note 22; USSF Bylaws, May 1, 2017, at Bylaw 202, available at https://www.ussoccer.com/
about/governance/bylaws (USSF membership categories include Associate, Disabled Service Organization,
Indoor Professional League, National Affiliate, National Association, Other Affiliate Professional League,
and State Association.).
24
Accord Law v. NCAA, 902 F. Supp. 1394, 1405 (D. Kan. 1995) ([U]nder the quick look standard[,] because adverse
effects on competition are apparent, the court does not require proof of market power, and instead moves directly to
an analysis of the defendants proffered competitive justifications for the restraint.).
19
at 117-20; Clarett v. NFL, 306 F. Supp. 2d 379, 408 (S.D.N.Y.), revd on other grounds, 369 F.3d
124 (2d Cir. 2004) (applying quick-look analysis to strike down NFLs age-based eligibility
restrictions).
Under a full rule of reason analysis, a plaintiff meets a prima facie burden by demonstrating
either that the concerted conduct at issue had (i) an actual adverse effect on competition as a
whole in the relevant market; or (ii) that the defendant and its co-conspirators had sufficient
market power to cause an adverse effect on competition, plus some other ground for believing
that the challenged behavior could harm competition in the market. US Airways v. Sabre
Holdings Corp., No. 11-2725, 2017 WL 1064709, at *3-4 (S.D.N.Y. Mar. 21, 2017) (emphasis
added).25 Then, the burden shifts to the defendant to offer evidence of any procompetitive effects
of the restraint at issue. Id. Finally, the burden shifts back to the plaintiff[] to prove that any
legitimate competitive benefits offered by defendant[] could have been achieved through less
restrictive means. Id.
The agreement by the USSF and its membership, including MLS and USL, to apply its
anticompetitive Professional League Standards to limit competition, reduce output, and entrench
and protect the MLS monopoly clearly is an unreasonable restraint of trade under either the
abbreviated or full rule of reason test. As demonstrated in the Declaration of Professor Szymanski,
these Standards have had significant anticompetitive effects in the relevant markets for top-tier
and second-tier mens professional soccer leagues in the U.S. and Canada and do not serve any
offsetting procompetitive objective. Szymanski Decl. 55-133. Indeed, the Standards have
served to grant monopoly power to MLS in the top-tier market, and now threaten to do the same
25
See also U.S. v. Visa U.S.A., 344 F.3d 229, 239 (2d Cir. 2003) (Section 1 satisfied by showing that conspirators
have market power in a particular market for goods or services). Market power has been defined by the
Supreme Court to mean the power to control prices or exclude competition. Id. at 238.
20
for USL, in a manner that is so clearly anticompetitive that the quick look rule of reason should
apply. See NCAA, 468 U.S. at 109; Law, 902 F. Supp. at 1405.
[O]ne can scarcely think of a more blatantly anticompetitive policy than one that excludes
certain competitors from the market altogether. Clarett, 306 F. Supp. 2d at 408; accord N.C.
State Bd. of Dental Examiners v. F.T.C., 717 F.3d 359, 374-75 (4th Cir. 2013), affd, 135 S. Ct.
1101 (2015) (applying quick-look analysis to find Section 1 violation; conduct was inherently
suspect because [t]he challenged conduct is, at its core, concerted action excluding a lower-cost
and popular group of competitors). This is exactly the situation here, where the NASL has been
completely blocked from competing in the top-tier market and now is being threatened with
elimination from the second-tier market as well. Szymanski Decl. 37, 130.
While the USSF will undoubtedly try to argue that it is just engaged in procompetitive
industry standard-setting, nothing could be further from the truth. The USSFs Professional
League Standards serve no legitimate standard-setting objectivesuch as product safety or the
need for product interchangeabilityand instead have been designed and applied in an arbitrary
and anticompetitive fashion to protect the MLS monopoly. See id. 55-133; Rizik Decl. 29-
76. As the Supreme Court has noted, standard-setting is rife with opportunities for
anticompetitive activity. Am. Soc., 456 U.S. at 571. 26 And, private standard-setting by
associations comprising firms with horizontal and vertical business relations is permitted at all
under the antitrust laws only on the understanding that it will be conducted in a nonpartisan
manner offering procompetitive benefits. Allied Tube, 486 U.S. at 506-07 (emphasis added)
(upholding reinstatement of jury verdict of Section 1 liability). Where a standard-setting
organizations officials are associated with members of the industries regulated by [its] codes,
26
See also Szymanski Decl. 64 (efforts to favor some firms over others for reasons unrelated to those
procompetitive goals cross a line into anticompetitive territory).
21
and have used that standard-setting as an opportunity to benefit their employers, a violation of
Section 1 will be found. Am. Soc., 456 U.S. at 571. That is precisely the situation here, where
past and present MLS officials occupy top positions at the USSF and on its Board, the USSF shares
in MLSs profitability through joint contractual arrangements, and the Professional League
Standards have been repeatedly applied in a discriminatory and anticompetitive manner designed
to protect the MLS monopoly and now to bestow a monopoly to the MLS acolyte league, USL.
Szymanksi Decl. 17-20, 128-130; Rizik Decl. 29-76
As Professor Szymanski explains, the USSFs Professional League Standards serve no
procompetitive purpose since they mislead[] consumers into thinking that irrelevant differences are
important, and use arbitrary criteria to designate league quality, which is likely to reduce
outputand thus is anticompetitivebecause of the effect it will have on potential entrants to the
market. Szymanski Decl. 66-69. Indeed, the USSF has repeatedly crafted Professional League
Standards that have not been adopted by any other FIFA federation around the world and bear no
relationship to whether a league can compete effectively at the top tier or second tier of professional
soccer. Id. 21.
Nor can the USSF meet its heavy burden to rebut this showing of anticompetitive harms
by provid[ing] a procompetitive justification for the challenged restraint. Visa U.S.A., 344 F.3d
at 238. Where a sports governing body promulgates rules that stabilize and depress competition,
it bears a heavy burden in this case to establish that the restraint enhances competition or, in other
words, promotes a legitimate, procompetitive goal. Law, 902 F. Supp. at 1407, 1410.
Turning to the USSFs most recent denial of Division II status to the NASL for the
upcoming 2018 season, this destruction of the status quo was supposedly based on the NASLs
failure to satisfy just two of the Professional League Standards for Division II, neither of which
serves any procompetitive purpose. First, there is clearly no legitimate procompetitive purpose
for the requirement that a Division II league have teams in the Eastern, Central and Pacific Time
22
Zones in the continental U.S. (even if it also has teams in the Mountain or Atlantic Time Zones or
in Canada). Top-tier leagues around the world with clubs far better than those in MLSsuch as
the English Premier League, the Bundesliga in Germany, and Serie A in Italyall have clubs
occupying only one or two time zones. Szymanski Decl. 88-93; Rizik Decl. 68-71. The USSF
clearly cannot satisfy its heavy burden to show that this restriction is necessary to enhance
competition, where the top FIFA federations worldwide do not have any such requirement and
have more than thrived without it. See Los Angeles Meml Coliseum Commn v. Natl Football
League, 726 F.2d 1381, 1396 (9th Cir. 1984) (finding that NFLs territorial restrictions violated
Section 1 notwithstanding some valid procompetitive goals because [t]he same goals can be
achieved in a variety of ways which are less harmful to competition); N. Am. Soccer League v.
Natl Football League (NASL v. NFL II), 670 F.2d 1249, 1261 (2d Cir. 1982) (finding asserted
procompetitive benefits insufficient because the enormous financial success of the NFL league
despite long-existing cross-ownership by some members of NASL teams demonstrates that there
is no market necessity for cross-ownership ban).
Second, the USSF cannot meet its heavy burden to show that it is necessary to impose the
second criterion used to deny the NASL Division II statusthe Professional League Standards
requirement that Division II leagues have 10 clubs after their first two years of operation (and 12
clubs within six years). The NASL played last season with just 8 clubs in Division II and it had
no trouble competing at the Division II level. Further, from 1996 until the formation of the NASL,
the USSF required only 8 clubs for Division II status, and still permits a Division II league to have
8 clubs so long as it within the first two years of the leagues operation.27 Nothing has changed to
justify the USSF abandoning its previous standard of 8 clubs for Division II status in favor of an
27
Rizik Decl. Ex. 35, 2014 Standards IV.a.i; id. Ex. 27, 2008 Standards I.A.ii; id. Ex. 26, 1996 Div. II
Standards I.A.
23
increased standard being applied for the anticompetitive purpose of driving the NASL out of
business. Indeed, the USSF required only 8 clubs earlier in its history for the then-major league
first iteration of the NASL. Szymanski Decl. 61.28
Nor is there any legitimate argument that such ever-changing Professional League
Standards relating to time zones and the number of teams are necessary to promote league
stability. The top leagues worldwide are sufficiently stable to be much more competitive and
financially successful than MLS, even though they would not satisfy the USSFs Division II
Standards. And no such rules have been promulgated for any other professional team sports in the
United States or Canada, such as basketball, baseball, hockey or American football, all of which
have enjoyed great success and stability without such private intervention in the marketplace.
Szymanski Decl. 120-126. Rather than being necessary for league stability, the USSFs
Professional League Standards have generated instability for leagues other than MLS by forcing
them to expand rapidly to acquire and retain sanctioning. Id. 94-97.
Finally, while the USSF has given USL a month to provide a plan for eventually
complying with the Division II Standards so it can be sanctioned in Division II for 2018 (USL
might need as many as twenty waivers), no such grace period was accorded to the NASL, further
demonstrating the anticompetitive purpose and effect behind the Standards. Commisso Decl.
21-22; Rizik Decl. 72. Had the USSF granted this leeway to the NASL, it would have found that
six additional clubs have provided the NASL letters of intent to join the NASL in 2018, if it can
maintain Division II statusthus making it highly likely the NASL would be able to satisfy the
requirements for at least 10 clubs in 2018, and for teams in the Eastern, Central and Pacific Time
Zones. Commisso Decl. 29. But the USSF is not interested in such facts, since its Professional
28
The USSF gave the NASL a provisional waiver to play with eight teams last year, but arbitrarily and
anticompetitively refused to grant a waiver this year, as it seeks to replace the NASL with USL in Division II.
Commisso Decl. 15-23; Rizik Decl. 64-72.
24
League Standards have the purpose and effect of protecting the MLS monopoly and nothing more.
C. The Balance of Hardships Weighs in Favor of an Injunction
The balance of hardships tips decidedly in favor of the NASL because its very existence
will be in jeopardy without injunctive relief preserving the status quo, whereas the USSF will
suffer no harm by letting the NASL retain its Division II status as it has since 2011. See Roso-
Lino, 749 F.2d 124 (balance of hardships favors plaintiffs because defendant will not suffer
greatly if the eleven-year relationship is continued for a short while whereas plaintiffs stand to
lose their business forever). Continuing the status quo while this case is adjudicated will not
cause any harm to the USSF. See Reuters Ltd. v. United Press Intl, Inc., 903 F. 2d 904, 909 (2d
Cir. 1990) (balance of hardships tips in movants favor where movants irreparable harm is
weighed against respondents need only to continue its previous course of conduct).
III. The Public Interest
Finally, the public interest favors granting a preliminary injunction. E.g., trueEX, LLC v.
MarkitSERV Ltd., No. 17-cv-3400, 2017 WL 3084422, at *14 (S.D.N.Y. July 18, 2017). Far more
important than the interests of either the defendants or the existing industry [] is the publics interest
in enforcement of the antitrust laws and in the preservation of competition. . . . Any doubt concerning
the necessity of the safeguarding of the public interest should be resolved by the granting of a
preliminary injunction. U.S. v. Columbia Pictures Inds., 507 F. Supp. 412, 434 (S.D.N.Y. 1980).
CONCLUSION
For all the foregoing reasons, the NASL respectfully requests that the Court maintain the
status quo by issuing a preliminary injunction to maintain the NASLs Division II status until a
final determination on the merits is obtained.
25
Dated: September 20, 2017 By: s/Jeffrey L. Kessler

Jeffrey L. Kessler
David G. Feher
Mark E. Rizik Jr.
Isabelle Mercier-Dalphond
WINSTON & STRAWN LLP
200 Park Avenue
New York, New York 10166
Tel: (212) 294-6700
Fax: (212) 294-4700
jkessler@winston.com
dfeher@winston.com
mrizik@winston.com
imercier@winston.com
Counsel for Plaintiff North American Soccer

League, LLC
26

Injunction Motion NASL

Hochgeladen von

Dokumentinformationen

Copyright

Verfügbare Formate

Dieses Dokument teilen

Dokument teilen oder einbetten

Freigabeoptionen

Stufen Sie dieses Dokument als nützlich ein?

Sind diese Inhalte unangemessen?

Copyright:

Verfügbare Formate

Injunction Motion NASL

Hochgeladen von

Copyright:

Verfügbare Formate

Case 1:17-cv-05495-MKB-ST Document 3-1 Filed 09/20/17 Page 1 of 30 PageID #: 80

UNITED STATES DISTRICT COURT

NORTH AMERICAN SOCCER LEAGUE, LLC,

UNITED STATES SOCCER FEDERATION, INC.

MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS

WINSTON & STRAWN LLP

PRELIMINARY STATEMENT .................................................................................................... 1

Abdul Wali v. Coughlin,

Allied Tube & Conduit Corp. v. Indian Head, Inc.,

Am. Needle, Inc. v. NFL,

Am. Soc. of Mech. Engrs, Inc. v. Hydrolevel Corp.,

Cal. Dental Assn v. FTC,

ChampionsWorld, LLC v. USSF,

Ericmany Ltd. v. Agu,

Fraser v. Major League Soccer, L.L.C.,

L.A. Meml Coliseum Commn v. NFL,

Live Nation Motor Sports, Inc. v. Davis,

N.C. State Bd. of Dental Examrs v. F.T.C.,

NASL v. NFL II,

NCAA v. Bd. of Regents of Univ. of Okla.,

Phila. World Hockey Club, Inc. v. Phila. Hockey Club, Inc.,

Reuters Ltd. v. United Press Intl, Inc.,

RosoLino Beverage Distribs. v. CocaCola Bottling Co.,

Tom Doherty Assocs. v. Saban Entmt, Inc.,

trueEX, LLC v. MarkitSERV Ltd.,

U.S. v. Columbia Pictures Inds.,

U.S. v. Visa U.S.A.,

U.S. Airways v. Sabre Holdings Corp.,

Volvo N. Am. Corp. v. Mens Intl Profl Tennis Council,

W. State Univ. v. ABA,

Internationale de Football Association (FIFA), another private association that claims to

to U.S. antitrust laws.

now taken action to threaten the NASLs very existence.

to eliminate the NASL as a viable competitor.

Standards while it seeks to vindicate its antitrust rights.1

clearly met here.

association officials harm[ed] their employers competitors through manipulation of

preliminary injunction based on serious questions).

of the USSFs unlawful conspiracy on consumers, sponsors and broadcasters.

thirty days from the date of this filing.

A. Relevant Markets and Market Power

in the second-tier market.

Submitted herewith is an expert declaration of University of Michigan economics professor

MLS. Szymanski Decl. 22-54.

B. The USSFs Closed Divisional Structure & Anticompetitive

at different points in their careers. Id. 17-20.

and be assigned to separate, tiered divisionsspecifically, Division I, II or III, with leagues in

for MLS. Szymanski Decl. 64-80, 108; Rizik Decl. 29-76.

I league able to compete in the U.S. and Canada:

When Alan [Rothenberg] was elected [USSF president], we started

grow. Szymanski Decl. 63.

See id. 128; Commisso Decl. 9; Rizik Decl 9-12.

[W]e collectively need to ensure that everybody is aligned with

has no intention to compete in the top tier against MLS:

Theres no aspect of our business plan that had us competing

Our goal hasnt changed. We wanted to be the strongest, best

D. The History of the USSFs Anticompetitive Application of its Professional League

Division I sanctioning to be accepted by fans, sponsors, broadcasters and players as a top-tier

professional league competing against MLS.13 As one commentator summarized:

Having refused to pursue an affiliation or feeder agreement with

nine months, ultimately denying it on March 10, 2016. Id. 49-59.

licensing requirements for head coaches. Id. 76.

objective. Szymanski Decl. 88-93.

the sole second-tier league. Id. 73-74; Szymanski Decl. 76-79.