Why the Borislow-WPS case won’t die

Yes, I know. Only masochists and bored legal scholars are still reading legal documents in this case at this point.

But since the court held an inconclusive status conference this week (I’ve heard “trial in April,” “the judge still hasn’t ruled on the motions” and “cannot comment at this time”), I’ll give an inconclusive status update.

The latest filing from Dan Borislow’s legal team shows how far apart the sides are at this point. It’s a position statement offered before the status conference. Enjoy.

What we have now are a couple of different possibilities for what has happened, depending on whom you believe:

Version A: We made a deal, but the U.S. Soccer Federation said they didn’t think it would work. We went ahead and asked again to see if we could work it out, and they said no. So there’s no deal. Independent of that, our chances of playing in 2012 went from slim to none soon after we agreed to the deal. There’s no point in issuing a temporary injunction for a league that isn’t playing in 2012, and we’ve started the arbitration/mediation process, so shouldn’t we be out of this court right now?

Version B: Seems awfully convenient that USSF told you the deal wouldn’t work. You never had any intention of settling, did you? We’re going to pursue discovery of you and maybe the USSF to find out. (Note: Not exaggerating here — see page 2 of the document above.) This was just a little delaying tactic you made because you knew you were going to lose. (Again, see the document.) We still have a deal, and we’re going to pursue it in case you’re able to get things in gear for 2013.

So that leaves the following questions:

1. What has the USSF allowed or not allowed?

No idea, and they’re not saying. There’s a bit of confusion over whether Borislow would be allowed to sign five national team players, four, one or none, and frankly, I’m not sure it’s worth getting into what each side is saying. The voice that matters is USSF. Which is silent.

2. Would any league take magicJack?

WPSL, likely not, from all that’s been reported. W-League? Haven’t asked. This is relevant for this reason: If magicJack is a member of a league and wants to play some exhibitions, what limitations could USSF place then?

3. What kind of damage could discovery do to WPS?

Maybe someone can tell us what sort of trouble WPS would be in if – and we can’t stress the word if enough — the discovery process finds some sign of bad faith in negotiating the deal, either by having advance knowledge that USSF would say no or that they were already about to pull the plug on the 2012 season.

Conspiracy theories aside, few businesses like to have all their dealings made public. WPS has been keeping things guarded for months — they haven’t gone public with expansion candidates, among other things.

4. Can WPS get a fair hearing in Florida?

I’ll rephrase my own question: Did WPS negotiate the deal with Borislow because they had simply lost confidence in their chances to win in this court? Even though the Jan. 18 hearing that was averted would’ve been WPS’s first real opportunity to present witnesses and make its case against Borislow? All they had done before then was defended (unsuccessfully) its termination procedure.

5. What can WPS do to get out of court?

Agree to play exhibition games against Borislow in 2013? That, along with a couple of smaller issues that don’t seem to be controversial, would satisfy the deal. Then there’s no need for a motion to enforce a settlement or anything else. (Unless some other issue arises.)

6. Why don’t they?

No idea. Maybe a couple of owners balked? Maybe USSF won’t let them?

7. So that leads us back to Question 1?

Yep.

I’m always happy to crowdsource these legal documents. Comments welcome.

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18 Responses to Why the Borislow-WPS case won’t die

  1. Mickey says:

    I can’t stop renaming this article in my head:

    “Why Borislow- won’t die”

  2. Diane says:

    I’ll preface by saying I want a WPS to exist with all my little soccer-loving heart.

    Now on to this mess they’re in. As each day goes by, and days turn into months, I’m seriously questioning the legal counsel WPS is getting and what influence the Board of Governors has on their ability to pursue this case. It seems a little odd to me that the Chair of the BoG is so publicly quiet about everything. I wonder what his position is on the “we won’t play with Borislow” issue?

    As I have commented many times before, the league brought this whole mess on themselves and have had many opportunities to end it. They could end it now if they would accept the “exhibition” team, re-instate magicJack and start ADR immediately.

    If they are so confident that DB is the devil incarnate, let their own system sort him out and be done with it. If they were to accept the exhibition team and no league would accept them, that portion of the argument would be settled because USSF wouldn’t allow it (supposedly). If a league were to accept them, fine, play the exhibitions, take your money and be done with it.

    Either way this goes, I feel the blame for dragging it out is shifting evermore to the WPS side. As much as I HATE to say this, if WPS doesn’t settle this in the next few months, it doesn’t seem like they can pull off a WPS 2013 season.

    The biggest enemy of WPS and a 2013 season at this point is WPS.

  3. HWah says:

    I will preface this by saying I am a masochist.

    The maddening thing about this whole morass is that even once it is settled in this court, as far as I can tell, there will still have to be an arbitration hearing about the underlying substantive disputes. So why does everyone keep fighting at this procedural level?

    The best that I can come up with is that it makes a difference if Borislow is considered a “member” within the LLC and Operating agreements prior to the dispute resolution or whether he is considered terminated unless the resolution allows him back into the league. Perhaps that is why it was important for the league to make sure the right to suspend operations for 2012/2013 without dispute was in the settlement? If that was the issue, then I don’t understand why they didn’t sign the settlement agreement subject to USSF approval (as opposed to saying no USSF approval so no settlement) and are now fighting it.

    I confess to being a little bit lost here. I also second all of Beau’s questions.

    As for beyond the pure contractual issues with the league, it would be my most fervent hope that no woman would sign to play on Borislow’s team without making sure that medical and other player issues for every single player on the team would have an adequate vehicle for redress.

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  5. Diane says:

    @HWah – You raised some more good questions. My understanding of the court documents is that DB would have to be re-instated for the ADR to take place, so he would be a member of the LLC, which the league does NOT want. It was also stipulated, in the ‘deal’ read into the record that the league could suspend play for 2012 w/o affecting the other terms of the deal. Also, the ‘deal’ was never subject to USSF approval. The only thing they went to USSF for was to see if and how WNT players could participate.

    The questions it raises for me are :

    1) Why did the league agree to have the deal read into the record with no objections, then deny there was a deal and now want to proceed with the ‘non-existent’ deal?

    2) If arbitration should have taken place prior to termination of the franchise, it would make sense that DB would have to be re-instated. The owners would rather kill the league than have DB re-instated, so why are they now pushing for ADR?

    The quality of their legal team has been a concern of mine from the beginning. This is certainly not the first case of its kind and I’m sure the plaintiff has not prevailed in every case. Seems to me they lack ‘intestinal fortitude’ if you get my drift.

    If this case is going to get out of court it is entirely up to the league and the judge, but the league can make the judge’s decision immensely easier by agreeing to the deal, re-instating DB and agreeing to a set timetable for ADR. If they act now they could be free of this mess in 6 months. I’m really leaning towards that not happening, which is a damn shame.

  6. nickp91 says:

    Dan Borislow ramp up his case with facts and WPS has no answers . Brorislow facts are starting to ring true WPS now in trouble for good.

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  8. nobull0606 says:

    WPS or women’s pro soccer..I think its time to move on and take a look at what the market wants….Did you see the big crowds the US team played in front of this past week….

    Beau–The US should loss to Japan ?? On a header wow…Why does this current coach get a pass? National teams are for the current past players in the country..The National team is not a pay day for old second level players.

  9. Beau Dure says:

    You’re trying to draw a lesson for WPS from the Algarve Cup? That tournament always has great teams but never draws anyone. It’s basically put on by some kindly benefactors who want to give women’s national teams a nice tournament. (Also, just to be sure we’re clear — it’s in Portugal.)

    What do you mean by “current past players”?

  10. nobull0606 says:

    I understand the location but if sponsors and promoters saw the opportunity to make money it would be at a great location and fans would be in the seats. We need to ask the questions of why sponsors are not on board.
    I was meaning to write “the current best players” my error.

    I feel like she is being a buddy to these players and not a coach. She is worried about their careers and her only worry should be putting the best on the field! I still cannot believe we lost on a header. his would be like an NBA team losing on a tip in to a 5′ and under team.

  11. Joshua says:

    Algarve Cup and the Cyprus Cup both have this “spring training” look and feel. It’s for the teams, not the fans. Somebody has to be putting out the money put on these tournaments though.

    Face it about WPS. It’s dead and it isn’t coming back. I wouldn’t blame Borislow. Seems the league was on the verge of folding in 2010 when AEG pulled out after only one season. Time to move on. Looks like the players already have, To Europe and WPSL and the Seattle Sounders organization to name a few.

    One thing should be clear. The Japan WNT isn’t a “5′ and under team”. Right now they one of the top three teams in International women’s soccer with the USWNT and the German WNT. The days of USWNT domination of Women’s International Soccer is ending (although I think this has been said before in earlier years). The primary reason has to do with the lack of a domestic professional league. Not dissimilar to the situation with the United States in international indoor team volleyball, American “exceptionalism” notwithstanding.

    If American domination of an international sport is the only tolerable state of affairs for American sports fans, stick to basketball and swimming. Of course, Football is the National Sport in the USA, but nobody else plays it, so we are safe there.

    With regards to Pia, it looks like she decided to stick with the same team that went to the 2011 WWC at the Algarve Cup and got the same result again. Germany, on the other hand, made some changes and got a different result this time.

  12. Diane says:

    Someone help me, I can’t stay away from this.

    @nobull606 – I call BS. We are creating a market and the market is increasingly asking for more access to women’s games. The Algarve Cup is an invitation only tournament, held in a beautiful, but not tech ready set of venues. As awareness and interest grows that may change, but for now I think Joshua is right, it’s like spring training.

    As for Pia getting a pass and playing the WWC roster, I also call BS. Most players have remained the same, with some new blood getting a look, but formations and positions have certainly changed. We have reached a point where the top 5 can probably beat any other top 5 team on any given day. So saying a loss is the coaches fault in this case is truly BS. If you want to see competitive women’s soccer at a high level, stick around, the fun is only just beginning.

  13. Joshua says:

    Somebody wrote: “We have reached a point where the top 5 can probably beat any other top 5 team on any given day.”

    What happened to Sweden then? Two bad days in a row?

    Sweden will be going to the Olympics and the next FIFA #1 will not.

    Speculation has it that Pia is going back to Sweden after the Olympics. If that is the case, somebody else is going to be handed the responsibility of making all the tough decisions regarding the future of the USWNT.

  14. Diane says:

    @Joshua – So I understand you’re not a Pia fan, but yes, it’s possible for a team to have 2 bad games. And you can talk to UEFA about Germany sitting this one out. Pia’s contract is through the end of 2012, but yes, she may well go back to Sweden and I’m sure 50% of the fans will not like her replacement..so what’s your point?

  15. nobull0606 says:

    Diane just because you say things doesn’t make it true or that it is going to happen.
    The Facts: There is no market for Women’s pro soccer. Fact/Proven
    Other National Team coaches have been fired the loses and performance Pia has had. Fact/Proven
    Losing on a header in the box to a smaller less athletic team is the coaches fault. Fact/Proven

  16. Beau Dure says:

    Fact/Proven.

    You keep using those words. I do not think they mean what you think they mean.

  17. nobull0606 says:

    Why? Whats not a fact and what has not been proven?

  18. Diane says:

    @no – let’s have some links to back up all those proven facts.

    #1) No market, link?
    #2) NT coaches fired for Pia’s record, link?
    #3) Losing on a header to the WWC champions is the coach’s fault, was she on the field? Link?

    If you can’t back up what you say with “facts” then everything I say can be true, too. And all the things I said CAN happen..and they might with support from people unlike you.

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