The first time lawyer Jeffrey Kessler tangled with Major League Soccer in court, it didn’t go so well.
From my book, Long-Range Goals: The Success Story of Major League Soccer, and the account of the players’ antitrust lawsuit against the league:
The players left themselves open for withering cross-examination when making another point about Europe. Dodd was the first of several to claim that England’s Premier League and First Division were both Division I leagues. Anyone who follows soccer, much less a U.S. Soccer or MLS lawyer, can easily refute that argument by pointing out that teams are relegated from the Premier League to the lower division. … In cross-examination, Kessler grilled Gulati on England’s leagues to such an extent that MLS lawyers cried foul. “They questioned me very aggressively on what, as it turned out, was completely misinformation and ended up, in front of the jury, having to apologize to me for having no basis for what he was saying,” Gulati says. “That was pretty important.”
Don’t want to take my word for it? Read Paul Gardner’s withering take on the lawsuit and the absurdities its legal team tried to put forth. Check the transcripts to see the contortions goalkeeper Mark Dodd went through to avoid saying England only had had one Division I league. Then see what happened when Kessler had Sunil Gulati (there in his capacity as a former MLS executive) on the stand:
MR. KESSLER: Okay. 3 Q Mr. Gulati, you don't recall now -- because we're going 4 to get it up because we have it on Livenote, fortunately -- 5 you don't recall testifying with Mr. Cardozo that you 6 testified that the First Division changed its name to the 7 Premier League and that the Second Division changed its name 8 to Division I? 9 You don't recall that testimony maybe 25, 30 10 minutes ago? 11 A No. It's now different than what you just said 30 12 seconds ago. What I said was the First Division became the 13 Premier League, that most of those teams became part of the 14 Premier League. 15 Q Listen to my question, please, Mr. Gulati. 16 Do you recall testifying maybe 25 or 30 minutes 17 ago -- I think the jury recalls -- that the First Division 18 changed its name to the Premier League and the Second 19 Division changed its name to the First Division? 20 Do you recall saying that with Mr. Cardozo? 21 A I don't know if those are the exact words, but something 22 like that, yes. 23 Q Okay. 24 And now tell the jury, is it a lie or is it true 25 that they changed their names? 2198 - GULATI - 1 A They became -- they became -- they changed their name, 2 but they became the First Division. Most of the teams, as I 3 also said 25 minutes ago, became part of the First Division. 4 Q Okay. 5 Did they change their names? Just focus on that. 6 A I believe the answer is yes. 7 Q Okay. You think that's yes. Let's focus on what 8 happened. 9 Before there was a Premier League, there was 10 something called the First Division, right? 11 A That's correct. 12 Q Okay. 13 And then there were about 32 teams in the First 14 Division, right? 15 A I don't know the number that were there, but there 16 was -- there was a number of teams in the Premier League. 17 Q And at that moment, all of those teams you would 18 call First Division? 19 There was no Premier League, right? That was the 20 highest division? 21 A All of the teams that were in that division were part of 22 the First Division, yes. 23 Q And those teams were some of the best teams in the world 24 at that time, right, before the Premier League? 25 A Some of them, yes. 2199 - GULATI - 1 Q Okay. 2 And then what happened is some of those teams left 3 the First Division and formed a whole new organization 4 called the Premier League; isn't that correct? 5 A Some of those teams became part of the Premier League, 6 that's right. 7 Q And there was no changing of names. 8 Some of the teams left the First Division, and they 9 became a different league, about 16 of the 32, right? 10 A I don't remember if it was 16, but, yes. 11 Q Okay. 12 And the 16 teams who a moment before the Premier 13 League were First Division, they didn't change their name? 14 They stayed the First Division, right? 15 A They -- the bigger and better teams, in most cases, 16 became the Premier team. 17 Q Okay. 18 A Not a -- 19 Q You have to -- 20 MR. CARDOZO: Wait a minute. 21 MR. KESSLER: Objection. It's not responsive 22 your Honor. 23 THE COURT: Go ahead. 24 A Became the Premier Division. The other teams became 25 what continued or changed their name or however you want to 2200 - GULATI - 1 characterize it, part of First Division in this reformatted 2 league. 3 Q Okay. I'll try to ask the question very slowly. 4 The teams who stayed in the First Division, about 5 half that league, that league didn't change its name. 6 It stayed the First Division, right? 7 A I don't know if it was -- I mean, some of these teams 8 became part of the Premier League. Some of them were part 9 of the First Division. 10 Q The league never changed its name. No league ever 11 changed its name in England, right? 12 A We had a league that started that became the Premier 13 League. 14 Q Mr. Gulati, you believe that the First Division League 15 changed its name to the Premier League? 16 That's what you believe? 17 A No, that a lot of the teams, as I said earlier, became 18 part of the Premier League. 19 Q Okay. 20 And no league ever changed its name, correct? 21 A No, that's -- we've had a number of leagues in the 22 English league that have changed their league name by having 23 a sponsor affiliated with it and so on. 24 And this -- let me finish. 25 In this characterization, I'm not sure if they 2201 - GULATI - 1 changed when those 12 or 14 or 16 teams were left or not, in 2 that framework that you've just outlined the question. 3 Q Right. 4 And, in fact, the Second Division in England never 5 changed its name to the First Division, right? 6 The league? 7 A You characterize it that way, that's correct. 8 Q Thank you. 9 What happened was there was a First Division League 10 of 32 teams. Sixteen of them became a new league called the 11 Premier League, and the other 16 teams, which were 12 still first division, called themselves still the First 13 Division, right? 14 There's nothing complicated about that?
Got a headache yet? I’m not even sure what point Kessler is trying to make other than trying to play gotcha with Gulati over the existential question of whether the Premier League used to be the First Division and the First Division used to be the Second Division. Good thing this was done before we had the Premier League, the Championship and League One — which is the third division in England but the first division in France. I don’t know if Kessler was trying to baffle the jury into thinking England really had two equal “first divisions” or possibly laying the groundwork for the Chewbacca defense.
So the next morning, MLS’s legal team called Kessler to account for badgering Gulati over a point on which Gulati was clearly correct. That led to this amusing exchange.
16 Q Mr. Gulati, there was a point yesterday that we 17 discussed in your examination which I'd like to give you a 18 chance to clear up because I want to make sure that I didn't 19 say something that I misspoke about something, and that has 20 to do with the naming of the Premier League. 21 Is there something you learned about that that 22 you'd like to tell the jury or explain? 23 A I learned that what I had said to Mr. Cardozo yesterday 24 was correct, that virtually all of your comments about how 25 the Premier League was formed and the number of teams and page 2227 1 the renaming were all, in fact, absolutely incorrect. 2 Q Okay. 3 The Premier League did rechange its name? That's 4 what you learned? 5 A And that the first division had been previously the 6 second division and so on. 7 So everything I said to Mr. Cardozo was correct. 8 Q Okay? 9 A And all of the questions and issues that you raised at 10 the end of the day were, in fact, wrong. 11 Q Okay. Mr. Gulati if, that's true, I want to apologize 12 to you because we got a little sidetracked on the Premier 13 League and I want the jury to get every fact exactly 14 correct, okay?
So now Kessler is back, ready to argue the meaning of “first division” again, this time on behalf of the NASL, a league that has been making the argument that divisional status just doesn’t matter:
And he also sees space for multiple leagues: “I think there’s room for us to be successful and MLS to be successful and maybe others to be successful. Trying to copy from England or Europe is going to be a little short-sighted.”
Yet Peterson isn’t interested in hearing the MLS is “first division” and the NASL is “second division,” though that’s the official status U.S. Soccer has conferred upon them.
“There should be a system in this country where every community can put its team into the pyramid and one day be at the top of the pyramid,” Peterson said. “I’m not sure what divisional status means without promotion and relegation.”
I’m not either, and I’m not really sure why USSF is bothering to change the D1 criteria. Then again, I’ve never understood why the D2 criteria are so onerous, particularly in terms of having a single person with a whole lot of money running a club. I get that they’re trying to avoid having clubs go all Saint Louis Athletica on us. But beyond that, I’m not sure the rules have ever been explained. (Yes, I’m pursuing an explanation.)
I’m also not sure why the NASL is interested in fighting what’s sure to be a losing battle over an issue that they’ve already said isn’t important.
If the NASL puts forth a good product, that speaks for itself. And if they override their own current reluctance to set up a pro/rel pyramid with the NPSL, then maybe they can create an alternative that forces MLS to take notice.
Or we could just re-fight the Soccer Wars and let everything fall apart, right?
The NASL may have a legitimate grievance here and there. Perhaps the league does need more representation within USSF. But I don’t see why they’re dredging up the lawyer who tried and failed to muddy the waters on Division I in the past.
If you’re hoping to see the NASL rise up and succeed in a way that forces (or encourages) MLS to open up a bit more, you might be disappointed in this move. From here, it looks like a step backward, all the way to 2000, when the Rhinos just beat MLS on the field where it mattered.