U.S. women's soccer players union fires back at Federation

Update: The original version of this post implied that the USSF's changes to division standards had been enacted. They were not; they remain only a proposal. Apologies.

The U.S. women's national team's players union has launched a broadside of its own after the United States Soccer Federation threatened legal action to block the team from striking.

In a response to the Federation's initial filing, attorney Jeffrey Kessler states the players' case as to why they are not currently bound by any labor agreement that would prevent a work stoppage. He does so with some scorching rhetoric, not only by legal standards but by general public standards as well.

You have likely heard Kessler's name before, as he's one of the most famous sports lawyers in the country these days. The Winston & Strawn attorney's highest-profile case is a fight to upend the NCAA's "amateur" student-athlete rules.

He's no stranger to professional soccer either: last summer, he helped the second-division North American Soccer League threaten legal action against U.S. Soccer on the grounds that the governing body's proposed standards for sanctioning league tiers violate anti-trust laws.

(Specifically, that U.S. Soccer changed the rules on the NASL in order to make it harder for the league to attain the first division status that it and longtime financial backer Traffic Sports have often been rumored to covet.)

Anyway, back to the players' filing. You can read the whole thing here, including exhibits of evidence. The key excerpts are below. You're warned that a few bits of Latin legalese are included.

I. INTRODUCTION

Defendant United States Women's National Soccer Team Players Association (the "WNTPA" or "Players Association") respectfully requests that this Court deny in its entirety Plaintiff United States Soccer Federation, Inc.'s ("USSF") Motion for Initial Status Conference, which seeks an expedited schedule for a summary judgment motion by USSF to be filed and heard within just a few weeks after the filing of the Complaint, which was only served late Friday afternoon.¹

1 -  USSF has advised the WNTPA that it wants a summary judgment decision in no more than eight weeks, and its motion refers to events for which it seeks relief occurring as early as March 3, which is less than four weeks away.

USSF filed this motion notwithstanding the fact that this Court has already set an initial status conference for April 4, 2016, after the Complaint in this action was filed setting out all of the same alleged facts on which USSF's motion is based. See Dkt. #11 ("Status hearing set for 4/4/2016 at 09:00 AM.").

Moreover, well before filing the instant motion, USSF knew the dispute at issue here but sat on its rights for months and did nothing. And, the facts asserted in the motion are nowhere near accurate and are hotly disputed. Indeed, USSF filed this motion under false pretenses in an effort to get before the Court while circumventing the Court's standing order on "emergency motions."

The Court should deny this motion as moot and reject it out of hand. At bottom, USSF's motion is really an emergency motion for an expedited briefing schedule. However, no emergency exists, no motion has been filed, and no basis exists for expediting the briefing schedule of some yet-to-be-determined motion.

USSF has known since at least July 2015 that the WNTPA's position is that no collective bargaining agreement ("CBA") with USSF is in place. Yet, USSF sat on its hands for over seven months and now rushes to the courthouse claiming an emergency exists. This Court should not countenance such disingenuous behavior.

Perhaps most disturbing, in an effort to support its request for an expedited motion schedule, USSF's motion is filled with blatant inaccuracies, misrepresentations, and misleadingly incomplete quotations from the relevant record.

Most obviously, USSF claims there is no question that a CBA is in place, but its own 2015 financial statements state the exact opposite: "The Women's National Team CBA expired on December 31, 2012. There is currently a signed Memo of Understanding in place while the full details of the new Women's National Team CBA are being negotiated." Ex. A at 22 [Kessler's emphasis]. This by itself eviscerates USSF's demand for an expedited summary judgment schedule, since it is clear that its claims of clarity are pure fiction.

USSF also claims that the Memorandum of Understanding ("MOU") in place expressly incorporates the CBA, when in fact, even a cursory reading of the MOU shows that it makes absolutely no reference to incorporating the CBA. See Ex. B.

And, USSF has misstated or omitted statements by the WNTPA's then-Executive Director, John Langel, and his colleague Ruth Uselton, regarding whether all provisions of the prior CBA were agreed to be incorporated into the MOU, or instead were still in the process of negotiation. USSF cannot avail itself of the Court's protections while simultaneously engaging in procedural gamesmanship and using such tactics.

The original status conference date set by this Court should stay in place so that the parties can meet and confer and attempt to reach agreement on an orderly schedule for determining the complex issues in this dispute.

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.

II. FACTS

For the past three years, USSF and the WNTPA have not been party to a CBA.² Rather, since that time, the only agreement in place has been an MOU signed and dated March 19, 2013. The MOU, which was negotiated in haste to deal with the formation of the National Women's Soccer League ("NWSL"), does not contain any indicia to support USSF's position that a valid CBA exists, much less a CBA containing a no-strike clause, which USSF falsely claims is beyond doubt.

2 - See Ex. C, Art. II ("This Agreement is retroactive to and shall be effective from January 1, 2005 and shall remain in full force and effect through December 31, 2012.").

To begin with, the MOU does not contain any [Kessler's emphasis] provision stating a term for the MOU itself, even though such a provision would have been easy to include. See Ex. B. The only reference to any "term" in the MOU is: "Term of WNT Contract" - 4 years." Id.

But that provision refers to the individual player contracts that were to be signed by the players, not to the MOU. That is clear from the first page of the MOU, which refers to the WNT contracts as the contracts to be signed by the players, not any CBA agreed to by the WNTPA. Id. at 1 ("There will be one contract for WNT players covering both the WNT and the NWSL so that WNT Players will not need to enter into a contract with the NWSL."); see also id. at 8 ("If a WNT Player is released from her WNT contract, she remains on her contract with the NWSL for the remainder of that year.").

A player contract is different than a CBA. When a CBA expires or is terminated, the individual player contracts are subject to that expiration even if they have a longer term, which is common in professional sports. USSF's repeated claims that the MOU contains a stated term is not correct, and gets no stronger no matter how many times it is repeated.

The MOU also does not contain a no-strike clause, even though it would have been easy to insert one. See Ex. B. Similarly, the MOU does not contain a provision incorporating the prior terms of the 2005-2012 CBA, except to the extent modified, although it would have been equally easy to add. Id.

Consistent with these facts, and the absence of any stated term in the MOU, it should come as no surprise that, when required to state the facts accurately as required by law, USSF admitted, as reflected in its own financial statements, dated September 24, 2015, that "[t]he Women's National Team CBA expired on December 31, 2012. There is currently a signed Memo of Understanding in place while the full details of the new Women's National Team CBA are being negotiated." Ex. A at 22 [Kessler's emphasis].

[Editor's note: Those financial statements are public documents. The 2015 version to which Kessler refers is available here. Statements dating back to 2006 are available here.]

USSF knows that its CBA with the WNTPA has expired and that the full terms of the CBA were still being negotiated and had not been finalized when Mr. Langel was succeeded by Mr. Nichols.

That is consistent with the prior statements of Mr. Langel and Ms. Uselton, which USSF quotes, but incompletely. This conduct is evident, to start, from the email sent by Ms. Uselton that is only partially quoted by USSF, with the controlling language omitted from USSF's Complaint. Specifically, USSF relies heavily on a statement by Ms. Uselton that "[a]s we previously agreed, the general principle we are working under is that the items we have not specifically covered in the Memorandum of Understanding would remain the same as under the prior CBA, but with appropriate increases/adjustments/changes." Compl. at 11 (quoting Ex. E).

This argument is critical since, as noted above, the MOU does not contain a no-strike/no-lockout provision; so, unless such a provision is somehow incorporated into the MOU (it is not), USSF would have no basis to challenge any work stoppage by the players even if the term of the MOU extended through December 31, 2016 (it does not, and the WNTPA has not threatened to, nor made any decision to impose a work stoppage). 

In addition to the fact that this quote's reference to "appropriate increases/adjustments/changes" itself may indicate that the prior no-strike/no-lockout provision would not necessarily continue, USSF's argument is further undermined by the next sentence of Ms. Uselton's email, which USSF omitted from its Complaint and did not disclose to the Court: "We will address the specifics when we get to drafting the new CBA." Id. [Kessler's emphasis]. This quote shows that the "new CBA" (i) did not exist yet, and (ii) was yet to be drafted, and importantly, that (iii) the parties had not yet negotiated the specifics of the new CBA's terms, a negotiation that in fact never happened.

[Editor's note" The phrase that Kessler claims U.S. Soccer "did not disclose to the court" was included within evidence filed by the Federation in its complaint.]

USSF engaged in the same type of selective quotation with the testimony of Mr. Langel. Again, USSF claims that Mr. Langel, on behalf of the WNTPA, agreed with USSF that the terms of the prior CBA (and thus any no-strike/no-lockout provision) continued in effect. So, USSF quotes Mr. Langel as testifying as follows in a deposition in a prior arbitration involving the men's national team and USSF:

Compl. at 14.

Incredibly, however, USSF ends the quotation there, and omits the next sentence of Mr. Langel's testimony:

Q. Okay.
A. But we've already agreed that the terms [of the prior CBA] don't control in certain circumstances. [Kessler's emphasis]

Ex. D, attached hereto. USSF did not attach as an exhibit the full testimony here, but cut off the testimony in mid-sentence, attaching as an exhibit the testimony but not the italicized language above, i.e., that the terms of the prior CBA were not all agreed to be carried forward in the MOU.³ There was no reason for USSF to omit that the terms to be carried forward were still being negotiated.⁴

3 - The same is true with USSF's claim that Mr. Langel "noted" in an email to USSF that the parties need to edit, where applicable, the CBA and Uniform Player Agreement consistent with the MOU "because the parties had not gotten around to combining the two documents comprising the 2013 CBA/UPA - the 2005 CBA/UPA and the MOU - into a single document." Compl. at 15. In fact, there is no such statement in Mr. Langel's email. Compl., Ex. H.

4 - USSF, moreover, blatantly breached the terms of the confidentiality stipulation in the arbitration in which Mr. Langel testified, which required that his testimony be kept confidential "from the rest of the world" other than USSF, the men's national team, and the women's national team. See Ex. E. The Court thus will need to consider whether any of Mr. Langel's testimony should even be considered, since USSF has presented it contrary to a confidentiality obligation that USSF's same counsel in this proceeding expressly agreed to but has dishonored here.

[The arbitration in question was from a dispute between U.S. Soccer and the men's players' union over players' image and marketing rights. Here is the transcript of the discussion about confidentiality. Latham & Watkins attorney Russell F. Sauer speaks for U.S. Soccer; Williams & Connolly attorney Mark Levinstein speaks for the players' union.]

Sauer: Yes, your Honor. Let me try it this way. I would propose that the transcripts in this proceeding be deemed confidential as to the rest of the world other than the Men's National Team Players Association and its counsel, counsel for the Women's National Players Association, counsel for U.S. Soccer, and U.S. Soccer's officers and directors.
Levinstein: That's agreed.
Arbitrator: All right.

Given all of the above, it is not surprising that the WNTPA has repeatedly told USSF, for many months leading up to and including the current CBA negotiations, that no CBA is in place, the WNTPA has the right to terminate the MOU at will because it has no definite term,5 and that it reserves all of its labor law rights.

Indeed, the WNTPA told USSF in July 2015 that it did not believe a CBA was in place. The WNTPA reiterated that position repeatedly after that, including in the first bargaining session between the parties on November 30, 2015. And again, on December 23, 2015, the WNTPA wrote to USSF that there is no CBA governing the parties' relationship. See Ex. F.

But, during all this time, USSF did not take any legal action on this dispute. Instead, it sat on this dispute and allowed time to pass, until filing this action and seeking emergency relief from the Court on a claim that it requires special consideration from the Court.

It also is stunning that USSF is arguing that, on this record, there can be no genuine issue of material fact disputing its claim. The facts show the exact opposite of USSF's position, or at least that the facts are hotly contested.

III. ARGUMENT

[All emphasis below is added by Kessler]

As a starting point on the applicable law, USSF is not entitled to expedited proceedings pursuant to Rule 57. The plain language of Rule 57 indicates that a speedy hearing is merely discretionary. ("The court may order a speedy hearing of a declaratory-judgment action." (emphasis added) ). Thus, a party seeking expedited relief pursuant to Rule 57 must still make a showing that expedition is justified.

[...]

First, granting USSF's motion for expedited proceedings would be contrary to established principles of equity. The Seventh Circuit has long held that a party that unduly delays in asserting its rights is not entitled to equitable relief.

[...]

Here, it is clear that USSF has unduly delayed in filing this action and that this matter does not require expedited consideration. The WNTPA informed USSF in July 2015 that the Union did not believe a CBA was in place and has repeatedly reiterated this position throughout the parties' course of bargaining. Thus, seven months have passed since USSF first learned of this dispute and the filing of this action (tellingly, a fact USSF omitted from its motion). This is more than enough undue delay... It would defy equity to grant USSF expedited relief where it has failed to act expeditiously in asserting its rights.

[...]

Second, and despite USSF's alarmist claims to the contrary, expedited action is not necessary as the WNTPA has never stated any intention to engage in any job action, and instead has only said that it reserves all of its rights and sees no reason to give up any of those rights, whatever they may be, as USSF has demanded.

The asserted harms upon which this motion rests are entirely speculative. See Motion at 4 ("on the assumption" that the team will qualify for the Olympics); id. ("members of the Players Association could refuse to participate"); id. at 5 ("withdrawal could also lead to the imposition" of a fine). Further, even if the alleged harm was more than speculative, such harm is certainly not imminent, as the WNTPA and the members of the Women's National Team would not participate in the Olympic Games until August 2016.

Given that the grounds for USSF's motion are entirely remote and speculative, expedited consideration is not necessary.

[...]

Third, as reviewed above, the factual assertions on which USSF's request for expedition is based, when viewed in the light of day, are grounded in repeated misrepresentations and omissions. In these circumstances, USSF does not come close to deserving expedited consideration by this Court.

[...]

Finally, there is no reason to grant expedited consideration of USSF's motion for summary judgment, which cannot be granted unless there are no genuine issues of material fact, when it is already indisputable that USSF's own 2015 financial statements contradict its position here: "The Women's National Team CBA expired on December 31, 2012. There is currently a signed Memo of Understanding in place while the full details of the new Women's National Team CBA are being negotiated." Ex. A at 22 (emphasis added).

At a minimum, this by itself creates a genuine issue of material fact dooming USSF's motion. There is thus no reason to grant expedited consideration based on USSF's fiction that there is no way it can lose.

IV. CONCLUSION

This Court should maintain the original status conference date so that the parties can orderly and properly attempt to reach a resolution. The Court's original schedule permits a summary judgment hearing in early June, still months before the start of the Olympics, gives the parties a fair chance to develop the record, and provides the Court the proper time to consider and decide the issues - all well before any potential harm can occur... For the foregoing reasons, USSF is not entitled to expedited relief, and the WNTPA respectfully requests that the Court deny USSF's Motion for Initial Status Conference.