The US Women’s National Soccer Team Strikes Back
This is Part II of my original analysis of the lawsuit between United States Soccer Federations’s (“US Soccer”) and the United States Women’s National Soccer Team Players’ Association (“Union”). As you may have heard, the Unions has “fired back” at last week’s lawsuit filed by the US Soccer against the Union.
While some pundits and fanboys/fangirls on Twitter have accused US Soccer of waging a war of discrimination against the Union and the players, the Union’s response is more about “lawyers doing what lawyers do.” That means that the Union’s legal team has responding with the typical lawyer armory of posturing, finger pointing and taking strident tones. All of this is being done as part of a two pronged effort to (a) assert that the players are not going to be cowed into submission and (b) convince a federal court judge to take side with the Union without pointing to any real evidence to support the Union’s position. I intend to give you a summary of the arguments rather than simply cutting and pasting the entire thing as some have done. An update of this morning’s legal proceedings has been added to the end of this piece.
As a preliminary matter, I know the drill, as I’m part of this “noble profession” (please note my underlying sarcasm). Since I’ve been in the trenches before (but nowhere to the level of the resume of the Union’s lead counsel, I understand what going on, and more to my point, I can see through a smoke screen. I’ve tossed up a few smoke screens at times and sometimes I regret the words I’ve chosen in a brief. At times that’s a product of zealous advocacy, believing in your client and believing that your client has been wronged. Some times lawyers mistake passion and attacking the other side for “advocacy” and sometimes our “passion” gets the best of us. As a general matter, there is no “edit” function after a legal brief is filed. And sometimes we just stare at each other like this:
For example, rather than responding with a dispassionate and orderly argument that sticks to the law and the facts, lawyers often resort to posturing, finger pointing and soapbox “holier than thou” antics. Sometimes that works, but at the end of the day, with a good judge, no amount of finger pointing will help you win that argument. Rather, despite being grown adults and billing out at over $1,250 an hour, some lawyers sometimes sound like petulant teenagers. Judges, like parents, do not like to see lawyers resorting to theatrics from the onset. Moments after submitting a brief to a court, many a good lawyer has looked back and thought, “Oh I wish I hadn’t used THAT tone of voice in my brief.” I know, I’ve been there . . . maybe once or twice. At then end of the day, it is rare for a lawyer to wish that he or she wrote with more passion, more sarcasm or a sharper, more strident tone. Why is that? Because at the end of the day, any good judge, law clerk, juror and outside observer can see through words, tone and swagger. The facts are the facts, and the law is generally well established.
Here, the issue at hand is rather simple – at some point in time, the judge presiding over this case will determine whether the Memorandum of Understanding (“Memo”) between US Soccer and the Union implicitly carried over the expired Collective Bargaining Agreement’s (“CBA”) no-strike clause. The sticky part is how the facts will play out.
And here’s where my analysis starts. One one hand, US Soccer is asking the court to rule on the question of whether the Memo incorporates the CBA’s no-strike clause. US Soccer’s arguments are rather simple: (a) the Union’s lawyer issued a notice to strike letter on December 23, 2015; (b) US Soccer’s lawyer responded by stating that the Memo incorporated the CBA’s no-strike clause; (c) the Union’s lawyer refused to explain why he believed that the Union had the right to strike; (d) the Union’s lawyer refused to disclaim any intention to strike; (e) US Soccer will be harmed if the Union strikes because the 2016 Olympic qualifying rooster has been named and qualification matches start next week (games will be broadcast and streamed on NBC); and (f) league play for the National Women’s Soccer League (operated in part by USSF) is set to start this spring. In short, if the Union strikes, USSF can be left in a lurch. The players know this and they (through their counsel Steve Nichols), appear to be playing chicken with USSF on the eve of these critical events. The Union, through Nichols, appears to have forced USSF’s hand.
While we know a lot about Jeffrey Kessler, the Union’s powerhouse lawyer from firm of Winston & Strawn (his CV is impressive), we know little about attorney and Union’s Executive Director Rich Nichols. Mr. Kessler is big enough to help the NASL take on MLS and USSF. In fairness, USSF’s lead lawyer, Richard Sauer is also a well regarded lawyer who has worked with USSF for years.
Rich Nichols, however, is a relative unknown, and relies on a gmail address rather than a dedicated website (at least it’s not AOL). He claims he’s an strong advocate for his client, and that much is true as his advocacy led to the present lawsuit. Nichols appears to have back-tracked, at least according to Grant Wahl’s recent interview. In this interview, Nichols appears to indicated that the Unions has no intention of striking.
The Union’s bravado laden response (find it buried somewhere on Philly.com) can be summed up as follows: (a) US Soccer waited too long to sue; (b) the Union never threatened to strike; (c) there is no CBA contained within the Memo; (d) USSF played loose with the facts; and (e) there is no reason to speed up the normally glacial pace of federal litigation (that’s my polite paraphrase) because the Olympics won’t take place until later this summer. Simply stated, the Union wants to push back the submission of legal briefs until June.
I’ll start with the obvious. If it looks as if the Union threatened to strike, and the facts to date look that way, then a majority of the Union’s arguments (despite the vigor in which they are made), should not lead the judge to push back the submission of legal briefs until June – after Olympic qualifiers and the start of the new pro season. According to USSF’s reply brief (filed in response to the Union’s arguments), the timing argument is a non-starter:
“Third, in suggesting there is no harm in waiting because the Summer Olympics are still months away, the Players Association completely ignores the potentially significant and damaging impact a strike or other job action could have on the much more imminent “She Believes” tournament scheduled for early March involving matches between the US Women’s National Team and the women’s national teams of Germany, England and France, as well as training camps and other Olympic preparation matches with venues and opponents already confirmed for April, late May/early June, and July. The Players Association also ignores the potentially devastating impact a strike or other job action would have on the National Women’s Soccer League (the “NWSL”), whose pre-season starts in March, and the more than 100 female soccer players who are part of the NWSL and who are not members of the Players Association.”
While there is some surface appeal to the Union’s argument that the no-strike provision of the CBA was never part of the Memo, that argument is somewhat weakened by the fact that it does not appear that the Union actually threatened to strike until December 23, 2015. And despite some strong choice of words, there does not appear to be any “gotcha” or “Perry Mason” moments in terms of the competing evidence that USSF allegedly left out in its Complaint. While the Union makes much ado about USSF not including one line of testimony from the Union’s then lawyer, the line that’s left out hardly wins the case for the Union or demonstrates that the USSF was hiding the ball. Additionally, while the Union’s response argues that USSF failed to discuss certain emails exchanged between the parties, that’s not the case, the allegedly omitted emails are contained within the exhibits attached to the Complaint. Sigh….
The fact that US Soccer’s most recently available financial documents indicated that no formal CBA currently exists is not a concession that the Union is free to strike. As discussed in my first story, USSF believes that the Memo incorporated the no-strike provisions of the former CBA. Again, the Union appears to be spinning it’s case before all of the evidence has come out. But that’s what lawyers are paid to do, right? Finally, in the most egregious overstatement the Union claims, there is no support for the Union’s argument that “the WNTPA told USSF in July 2015 that it did not believe a CBA was in place.” This argument is repeated twice without any evidence to back it up. It seems a little odd for the Union to call out the USSF for overstating the evidence and when it appears to be doing the same. Hello, Pot meet Kettle?
Simply stated, this is a classic “we said, they said” dispute and no side has a slam dunk, although I suggested that USSF had the better argument in Part I of my analysis last week.
So at the end of the day, “what’s the beef between the parties?” It’s simple, USSF wants a prompt resolution of whether the no-strike clause was incorporated by the parties into the Memo, and the Union wants to drag this out. Put another way, what one side wants the other side does not want. What’s interesting is that in my experience, if USSF wanted to drag out a court ruling while maintaining the status quo, the Union would be up in arms about wanting a prompt resolution of this issue. Again, “what you want, we don’t want.”
Here’s where the court may decide this issue; by resorting to the Federal Rules of Civil Procedure. Rule 1 of the Federal Rules of Civil Procedure explains how lawsuits should be resolved (emphasis on should). According to the Rule:
“These rules govern the procedure in all civil actions and proceedings in the United States district courts, except as stated in Rule 81. They should be construed, administered, and employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding.”
What does this mean in plain English? “Judges shouldn’t let lawyers waste time.” Rule 57 of the Federal Rules of Civil Procedure explains how declaratory judgments (requests for a legal ruling on a particular issue – here the existence of a no strike clause) should be conducted. In relevant part, the rule reads as follows:
“These rules govern the procedure for obtaining a declaratory judgment . . . . The existence of another adequate remedy does not preclude a declaratory judgment that is otherwise appropriate. The court may order a speedy hearing of a declaratory-judgment action.”
Again, this rule is fairly simple: “when a court is ruling on a declaratory judgment it can do so in a ‘speedy’ manner.” In fact, when the Rule was enacted, the the Advisory Committee on Rule 57 explained the Rule in a common sense manner:
“A declaratory judgment is appropriate when it will “terminate the controversy” giving rise to the proceeding. Inasmuch as it often involves only an issue of law on undisputed or relatively undisputed facts, it operates frequently as a summary proceeding, justifying docketing the case for early hearing as on a motion . . . .”
Of course, there are hundreds of cases interpreting Rule 57. Now comes the hard part, using these rules to make a cogent argument, free of hyperbole and snark to convince the presiding judge why, in the case of USSF, that a rapid briefing scheduled should issue, and why, in the case of the Union, a briefing schedule shouldn’t take place until June. My take is that the judge will ask both sides how many witnesses are at issue (I’d be surprised if the sides agree on this issue). To USSF’s credit, its relatively calm and well-crafted reply brief (filed last night) points to only four witnesses and states that potential deposition dates have been offered:
“US Soccer already has voluntarily produced its negotiating file to the Players Association and there are only four witnesses whose views on the matter count: the US Soccer representatives who primarily negotiated the MOU, Sunil Gulati and Lisa Levine, and their counterparts representing the Players Association, John Langel and his colleague Ruth Uselton.”
The judge may also ask the parties the location of witnesses because scheduling out of town depositions is time-consuming. The court may also ask how many documents are truly at issue – meaning – how many documents will each side utilize to make their case. At this stage of the proceeding, USSF’s complaint suggests a small amount of documents and while the Union may dispute that to drag out the briefing, it appears that the number of documents is rather small. Otherwise the Union would have shot back with a smoking gun, unless its approach is to hold back favorable evidence.
Update at 6:45 p.m. on 2/9/16: USSF’s lawyer revealed in court this morning that USSF had already provided the Union’s lawyer with it’s file of relevant documents.
The judge may also ask a rather important question to the Union’s lawyer: “does the Union have any intention of striking?” This question could be pivotal regardless of the answer. If the Union lawyer says “no” and the court truly gets him to concede that no strike is likely in the future, then the court will likely push back the briefing schedule. As I see things, there does not appear to be any “make or break” issue confronting the team such as a friendly on “turf.” And since there is no suggestion that USSF is refusing to honor the favorable financial terms that the Union obtained under the Memo, there does not appear to be a legitimate reason to strike. That seems important, because without something to fight over, then it would appear that a threat to strike is nothing more than a request for more pay, and if that takes place, the Union could look bad to fans. Then again, the same fans that are angry at USSF do not appear to have read the Memo’s pro-player, favorable terms. In the end, if the court pushes back the hearing because the Union has not intention to strike, that would be a win for the USSF because the threat of a strike would be dissipated.
If the Union’s lawyer takes lawyerly approach (cough, cough) by dodging the question by dancing in circles, the court might side with USSF and order an expedited briefing schedule. Alternatively, if the Union’s lawyer digs his heals in and states that the Union may strike or “reserves their right to do so,” the court will likely side with USSF and order an expedited briefing schedule.
Under these scenarios, there will be some immediate negotiations and hopefully cooler heads will prevail.
Of course, whether the court speeds up briefing or take’s the Union’s languid approach, that won’t resolve things. Rather, the court will have to decide which side is right. And if the Complaint and the Union’s response to the motion for an expedited briefing schedule are any indication, there will be no shortage of words between the parties. That being said, the judge will not be swayed by which side shouts the loudest (and to date that’s the Union). Rather, the judge will rule in a dispassionate manner, by focusing on how the undisputed facts and the disputed facts match up with the law regarding contract formation and CBAs specifically.
Look back here tomorrow morning (around 10:00 a.m.) for an update on Tuesday morning’s court proceeding which should focus on whether to issue an expedited (shortened) briefing schedule. Regardless of how the court rules, the parties will hopefully negotiate in good faith . . . “and in justice for all.” Right? My update on this morning’s hearing is below Mr. Pacino’s laughing scene from “And Justice All” a movie which may have left an impression on me as a child.
UPDATE 11:10 a.m.: Earlier this morning lawyers for both sides argues over whether the court should issue an expedited briefing schedule to decide whether the current Memorandum of Understanding contains a no-strike clause. US Soccer asked for the following relief:
” . . . that this Court set an Initial Status Conference on the earliest date the Court’s schedule will permit, at which time US Soccer will request an expedited schedule for discovery, briefing and hearing on its anticipated motion for summary judgment.”
The court, on its own, had set April 4, 2016 an an initial status date. As I note above, the Union opposed USSF’s request for an expedited briefing schedule, which I will quote in relevant part:
“With this proper schedule, a summary judgment hearing can take place in early June, still months before the start of the Olympics, and the parties will have a fair chance to develop the record and the Court will have the proper time to consider and decide the issues, well before any injury – which has not even been threatened – can occur. For these reasons, and the additional reasons stated below, the Court should deny USSF’s motion.”
After some mild posturing back and forth (counsel for the Union used the term “red herring”), and some minor scolding from the court (each side was called out), the court ordered the Union to answer the complaint by March 1, 2016 and set an initial status hearing for March 3, 2016. Although the court did not acknowledge the fact that matches are set to take place in the near future, she appeared to lean more towards accepting US Soccer’s request for shortened schedule by declining to adopt the Union’s proposed June filing date. As was expected, the court indicated that she expected the parties to discuss a motion practice schedule on March 3, 2016.
Notably, counsel for US Soccer indicated that there might not be a need for an expedited schedule if the Union simply stipulated on the record that the Union would not strike. The lawyer for the Union side-stepped the issue and declined to respond, and the court did not press him for an answer. Oh note, the court brought up the issue of whether the Olympics would go off as scheduled in light of concerns regarding the Zika virus.
OTF will keep you updated when any party files something in court. Stay tuned.