The arguments – and stakes – in the players’ case.
More than a month into the players’ lawsuit against MLS, the league has yet to begin presenting its side of the case. The end of the trial is about a month away.
From court transcripts and interviews, here are some of the major points of the case:
WHAT IT’S ABOUT. The lawsuit contends U.S. Soccer and MLS created a monopoly when the federation sanctioned MLS as the sole Division I league and thus ruined the chances of other leagues, such as the American Professional Soccer League and Jim Paglia’s proposed League One America, to attain Division I status.
Paglia’s colorful dream of skintight uniforms and multi-hued fields never materialized. Players’ attorney Jeffrey Kessler has argued the APSL was shackled unfairly – and the players’ power to bargain was hindered – by the sanctioning of MLS by U.S. Soccer.
“We contend that it is an unlawful monopoly which stifles competition,” said Kessler in his opening statement. “And we’re going to show through evidence that you will see that that monopoly was not achieved legitimately; it wasn’t achieved by having the best product or something else that might be a legitimate way to get a monopoly.
“It was achieved through conspiracy; it was achieved through what we call ‘exclusionary conduct,’ the driving out of business of another rival – actually, two other rivals – who wanted to compete in this same market, and that that is exactly what, when you hear the law from the judge, you will find is what’s illegal about this.”
The league is contending this sanction by U.S. Soccer granted MLS exclusive Division I status for only two years and since that period is long past, the point is moot. The players’ argument is their bargaining power suffered nonetheless and the affect of the alleged monopoly persists.
That the APSL, which consisted of seven teams at the time, could have some day attained the status of a full-fledged professional league if not for the U.S. Soccer decree is far-fetched, if not ludicrous.
According to an APSL business plan presented by the players’ attorneys, the highest-paid APSL player earned $125,000, the lowest-paid players received $3,000, and the league intended to spend zero money on transfers.
“What Mr. Kessler didn’t tell you is that the APSL plan was, frankly, a joke,” said MLS attorney Michael Cardozo in his opening statement. “It was based on nothing more than unsubstantiated hope by a league that in the last three years [1990 to 1993] had seen 15 of its 22 franchises fold, go out of business.”
In playing to the emotions of the jury, Kessler portrayed Alan Rothenberg as an all-powerful demigod who crushed the APSL and indirectly suppressed player salaries through his multitudinous roles as chairman of the 1994 World Cup Organizing Committee, U.S. Soccer president and founder of MLS.
In his questioning of Rothenberg, Kessler repeatedly juxtaposed the MLS minimum salary of $24,000 with the $7 million “bonus” awarded to Rothenberg by the World Cup 1994 Organizing Committee.
WHO HAS TESTIFIED? Eight players whose names are on the original lawsuit – Iain Fraser, Mark Dodd, Mark Dougherty, Rhett Harty, Steve Trittschuh, Sean Bowers, Mark Semioli and David Vaudreuil – testified. The players lawyers also called Sunil Gulati, Hank Steinbrecher and Rothenberg to the stand, as well as two economics experts.
Through player testimony, Kessler postulated the players would have been better off had two leagues – presumably APSL and MLS – bid for their services.
The only testimony from an APSL owner was a videotaped deposition by former Los Angeles Salsa president William De La Pena, who was a strong proponent of Division I status and once tried to get his team into the Mexican Second Division.
Former NASL player John Kerr heads the MLS Players Association.
He said in an interview with Soccer America: “The American Football League, the World Hockey League, the USFL, all of these other leagues came into business but they didn’t have to ask the USSF for Division I status.
“They put money together and decided to go into competition. Then the consumers decided if they’ll support one league or the other.
“There’s no governing body from anywhere that can decide if another professional football league can exist, or another baseball league or basketball league.”
Through questioning of Gulati, Cardozo solicited evidence of players’ salaries increasing – in some cases dramatically – when they moved from the APSL to MLS. Gulati also explained the structure of international soccer – and the role U.S. Soccer plays in dealing with FIFA.
On cross-examination, Gulati testified about the hundreds of MLS players, both American and foreign, who had played in overseas leagues. The players’ lawyers are contending player movement is restricted by the U.S. Soccer-MLS monopoly.
Gulati seemed nervous and rattled during his first two days (of six) on the stand. By the third day he’d stabilized.
While reciting the list of international players, he quipped, “Ruben Dario Hernandez [ex-MetroStar] plays in Colombia and not very well in MLS.”
MLS executive vice president Ivan Gazidis is expected to be the first defense witness when MLS begins presenting its evidence.
THE EFFECT SO FAR. This is the time of year when teams and the league decide which players they will retain and which will be dropped.
Although Gazidis, who is in charge of player personnel matters, is spending most of his time in court, his department is discussing player situations with agents, coaches and general managers.
MLS officials have admitted its legal bills run into the millions of dollars. One source said trial expenses could be running as high as $50,000 per day.
The backlash of this financial drain may be felt by the players.
Player agent Richard Motzkin, a former legal counsel for U.S. Soccer who represents more than two dozen MLS players, said in an interview: “The lawsuit is part of the reason the league is looking very seriously at expenses across the board. This year, in particular, players are going to feel the brunt of it because there’s a sufficient degree of frustration by the owners with the players for pursuing a lawsuit they don’t believe makes a lot of sense.”
The players are reportedly asking for $25 million in damages. One investor said, “If they’re awarded that much, that’s it. The league will shut down.”
MLS would likely appeal if it lost the case. There is real concern of what can happen with jurors who know little about American soccer.
HOW MUCH LONGER? If the league’s lawyers believe their opponents have swayed the jury, they will probably take several weeks to present their side of the case.
Since the trial began Sept. 18, the players’ lawyers have been presenting evidence. They are expected to finish in mid-November, whereupon the defense will take the initiative.
Closing arguments will follow the defense’s presentations. The trial should conclude in early December unless jury deliberations drag on.
by Soccer America senior editor Ridge Mahoney.