Update on USSF Lawsuit versus U.S. Women’s National Soccer Team Players’ Association
The United States Soccer Federation (“USSF”) and the United States Women’s National Soccer Team Players’ Association (“Union”) have decided to play nice with each other and have agreed to short schedule to conduct discovery and ask a federal court to decide whether the parties have agreed to abide by a “no strike” provision. A court hearing on the issue will be held on May 25, 2016. You can find my earlier stories on this ligation at: Legal Analysis regarding US Soccer vs. US Women’s National Soccer Team Players Association and The US Women’s National Soccer Team Strikes Back
To recap, Section 6.1(a) of Collective Bargain Agreement (“CBA”) executed in 2005 provided:
Neither the Players Association nor any player shall authorize, encourage, or engage in any strike, work stoppage, slowdown or other concerted interference with the activities of the Federation during the term of this Agreement . . . .
After the 2005 CBA expired, USSF and the Union negotiated Memorandum of Understanding in March of 2013 and an email from the then Union lawyer on March 19, 2013, said that following:
USSF’s position is that the no-strike clause was included in the March 2013 Memorandum of Understanding by virtue of the above statement and understanding of the parties.
2014 testimony from the former Union lawyer in an unrelated arbitration proceeding seems to confirm the USSF’s position when he responded “yes” to the following question: “other than matters specifically identified in the memorandum of understanding, the terms of the expired CBA the parties have agreed will continue to control?
Of course, the parties have differing views of validity of the no-strike clause. According to a February 24, 2016, jointly filed court document, the USSF’s position is as follows:
US Soccer seeks a determination that the parties reached a binding collective bargaining agreement in March 2013 covering the period from January 1, 2013 through December 31, 2016, which US Soccer alleges consists of the terms contained in the 2005-2012 collective bargaining agreement (including its “no strike/no lockout” clause) as amended, modified and/or supplemented by the March 19, 2013 Memorandum of Understanding (“MOU”).
The Union’s position is as follows:
The Players Association, on the other hand, seeks a determination that the 2005-2012 collective bargaining agreement by its express terms expired on December 31, 2012, and, as a result, there is no current valid collective bargaining agreement in place. The Players Association further alleges that the MOU that the parties negotiated is terminable at will, did not incorporate by reference the expired 2005-2012 collective bargaining agreement, and does not address the “no strike/no lockout” clause.
Despite these different views, the parties have taken similar approaches to resolving the impasse, with slight variations on how they view the issue:
US Soccer believes that the primary legal and factual issues center on the interpretation of the MOU and the intent of the parties at the time the MOU was executed in March 2013. The Players Association believes that the primary legal and factual issues center on the plain language of the MOU and the 2005-2012 collective bargaining agreement, and the limited scope of the MOU.
When the parties were last in court on February 9, 2016, United States District Court Judge Sharon Coleman instructed the parties to work on presenting an agreed schedule to help her determine the above issue. Stepping back from the strong language used in prior court filings, the parties and the court have agreed to complete discovery by March 31, 2016, file motions summary judgment by April 12, and have oral arguments on the motions before the court on May 25.
One month to complete discovery and approximate a month file and respond to written legal arguments is a rather short time-frame, but here, the parties appear to agree that the universe of documents and persons who will be deposed is rather small. For example:
US Soccer has identified its representatives who it states were principally involved in the 2012-2013 negotiations and post-MOU communications, and the Players Association intends to take the depositions of these representatives. US Soccer intends to take the deposition of the Players Association’s former Acting Executive Director and General Counsel, John Langel of Ballard Spahr LLP.
No Settlement is in Sight.
Unfortunately, the parties have informed the court that they do not believe that they can settle:
Although the parties have engaged in settlement discussions, given the differences between the parties’ respective positions, neither US Soccer nor the Players Association believes this case is likely to settle.
USSF Clarifies That is is Not Seeking Damages Against the Players.
On the positive side, certain concerned fans can take a deep breath and relax because USSF has noted that it is not seeking damages against the Union at this time:
US Soccer’s Complaint alleges two claims for relief, for anticipatory breach of contract and for declaratory relief. Since neither the Players Association nor its members have engaged in a strike or other form of job action as of the date of this report, US Soccer has not suffered any cognizable damages. US Soccer’s position is that at this time, therefore, it Soccer is only seeking a declaration that a collective bargaining agreement exists between the parties consisting of the terms contained in 2005-2012 collective bargaining agreement (including the “no strike/no lockout” clause) as amended, modified and/or supplemented by the MOU, with an expiration date of December 31, 2016. Accordingly, US Soccer is not currently requesting a jury trial. US Soccer reserves the right to seek damages should the Players Association and its members engage in a strike or other form of job action and to demand a jury trial in such circumstances.
The Union’s Answer to the Complaint.
On March 1, 2016, the Union filed its answer to the USSF’s “Complaint for Anticipatory Breach of Contract and For Declaration Relief” (“Complaint”). As expected, the Union denied a majority of the allegations. The Union also peppered its answer with somewhat legal jargon such as “the terms of which speak for themselves” when the Union was asked to answer whether certain communications or words were exchanged between the parties. When I raised that objection once as a young attorney (many years ago), a wise judge (who is still presiding today) held the document in question close to his ear and with a glint in his eye he said “in all my years I’ve never heard a document speak.”
The Union’s answer refuses to give certain credit to USSF. According to paragraph 8 Complaint:
US Soccer’s mission is to make soccer a preeminent sport in the United States, and to grow and develop the sport at all recreational and competitive levels. To that end, US Soccer oversees the sport as it is played by each of its constituent organizations and fields numerous national teams, including the Women’s National Team.
The Union answered as follows:
[The Union] lacks sufficient information to admit or deny the remaining allegations contained in Paragraph 8, and, therefore, demands strict proof thereof.
The Union also gave a similar answer to Paragraph 18 of the Complaint which alleged:
US Soccer focuses its planning efforts for the Women’s National Team by quadrennium – four (4) year periods – leading to the ultimate goals of qualifying for and winning both the FIFA Women’s World Cup and the Olympic Gold Medal. Each quadrennium consists generally of a two (2) year preparatory period, followed by the FIFA Women’s World Cup in year three and the Summer Olympic Games in year four.
The Union also denied the allegations contained in Paragraph 27 of the Complaint which outlines USSF’s position regarding the establishment of the National Women’s Soccer League.
Both the Players Association and US Soccer believed that the development of a sustainable women’s professional league would be beneficial for the development of girls’ and women’s soccer in the United States. In addition, the establishment of the NWSL would provide the Women’s National Team players with a competitive environment in which to play when not participating in national team activities and to earn compensation in addition to the earnings from participation on the Women’s National Team.
As to the issue of the validity of the 2005 CBA’s no-strike clause, the Union appears to be arguing that the individuals who negotiated the terms of the now disputed Memorandum of Understanding on behalf of the Union did not have the authority to do so. According to the Union’s answer to Paragraph 25 of the Complaint:
[The Union] denies that Mr. Langel or Ms. Uselton held any individual authority to bind WNTPA or its members in any negotiations regarding any collective bargaining agreement. I doubt the Union is going to get too far with that argument.
Notably, the Union won’t even agree that their former lawyer agreed to and signed the 2013 MOU as set forth in Paragraph 29 of the Complaint:
On March 19, 2013, US Soccer and the Players Association reached agreement on the key issues relating to US Soccer’s and the Women’s National Team players’ participation in the NWSL, as well as on an improved compensation and benefits package for the members of the Women’s National Team. The agreement was memorialized in a Memorandum of Understanding dated March 19, 2013 (the “MOU”), signed by Mr. Langel on behalf of the Players Association and attached as Exhibit D.
ANSWER: WNTPA admits that it agreed on specific issues as memorialized in the MOU signed by Mr. Langel, the terms of which speak for themselves. WNTPA denies any characterization of the MOU by USSF inconsistent therewith.
When the Union was asked to admit or deny that its former Association General Counsel and Acting Executive Director testified in 2014 regarding his interpretation of terms of the 2013 MOU, the Union threw waffled by answering in part, “WNTPA denies any interpretation attributable to Mr. Langel by USSF inconsistent with his entire testimony.”
The Union’s Affirmative Defenses.
The Union’s answer contains three “Affirmative Defenses” which in non-lawyer speaks means the Union is raising certain legal defenses which it believes will require the court to dismiss the USSF’s complaint. The first two are boilerplate. However, according to the Union’s third affirmative defense, USSF did not file a formal “grievance” within the time frame set forth by prior CBA once the Union asserted its belief that it could strike because the Memorandum of Understanding (“MOU”) did not contain a no-strike clause:
If this Court were to consider USSF’s claim that a no strike/no lockout provision is in place, any such claim would, in any event, be time barred. Specifically, if the terms of the prior collective bargaining agreement containing the no strike/no lockout provision were in effect to the extent not modified by the MOU, USSF’s claims would be barred under Article V (Grievance and Arbitration Procedure) of the agreement, which provides in relevant part: “a grievance must be initiated within sixty (60) days from the date of the occurrence or nonoccurrence of the event upon which the grievance is based, or within 30 days from the date on which the facts of the matter became known or reasonably should have been known to the party(ies) initiating the grievance, or within thirty (30) days from the date on which the parties(ies) initiating the grievance has standing to file such a grievance under this Agreement, whichever is later.” Art. V, Sect. 5.2 “Initiation.” Thus, under the collective bargaining agreement that USSF alleges has continued in effect, except to the extent modified by the MOU, USSF was required to file a grievance by February 22, 2016. USSF failed to do so.
Simply stated, it appears that the Union is presenting a “gotcha” argument to the extent it is arguing that (a) if a no-strike was included in the MOU, and (b) the Union ignored this provision by threatening to strike, (c) USSF failed to timely object to the Union’s position within 60 days of receiving the Union’s position (December 24, 2015) by filing a grievance. Section 5.3 of Article V of the 2005 CBA provides that a party “shall initiate a grievance by filing a written notice by certified mail or fax with the other party.” Sections 5.3 and 5.4 discuss how grievances are resolved and Section 5.5 provides that “any party, may, within (15) days elect to arbitrate the grievance . . . .” The terms of the CBA do not indicate that the failure to file a grievance constitutes a waiver of any future lawsuit or that a grievance must be filed as a mandatory step prior to filing a lawsuit.
This argument seems like a bit of a “hail Mary” for a few reasons. First, the Union did not move to dismiss the Complaint on this basis. Rather, this Affirmative Defense may get utilized as a defense when the parties brief the ultimate issue of this case – whether the Memorandum of Understanding included a non-strike clause. Second, this defense may come back to bite the Union because it could be argued that the Union should have filed a grievance before it attempted to invoke its right to strike on Christmas Eve. Additionally, the Union’s defense appears suspect to the extent the record suggests that USSF tried to go out of its way to resolve the existence of a no-strike clause when it corresponded with and then met with the Union lawyer.
Ultimately, this case is on a fairly fast track before the District Court Judge. The court could issue a ruling on May 25, but generally courts will issue rulings sometime after hearing oral arguments. Accordingly, early June is a reasonable target date for a ruling.