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Thread on the NASL v. USSF preliminary injunction hearing, based on the transcript (save your questions for the end!) 1/ 
The Judge starts by laying out her views, which are based on the filings, but could change based on the arguments of the attorneys 2/
First prong of preliminary injunction Judge analyzes is whether NASL would suffer irreparable injury and she thinks NASL has shown that 
For 2d and 3rd prongs, Judge agrees balance of hardships favors NASL and preliminary injunction is in public interest 
Judge is dubious, however, whether NASL has "clear[ly] show[ed]" it is likely to win on the merits of the antitrust case 4/
NASL must show "concerted action" to establish a Sherman Act Sec. 1 claim, where reasonable cooperation is OK, and Judge isn't convinced 6/ 
She does think NASL defines the correct market and that USSF has market power 7/ 
OTOH, Judge agrees w/ USSF that there are procompetitive reasons for the PLS, but leaves open whether they are narrowly tailored enough 8/ 
Judge, however, is unconvinced that NASL has proven an unlawful conspiracy under Antitrust rule of reason analysis (where some co-op OK) 9/ 
Judge basically appears to be persuaded by USSF and its corp gov expert that conflicts have been managed to avoid the conspiracy claim 10/ 
Key moment: Judge explains exactly what she needs NASL to show in the hearing - that conflicts weren't managed by corp gov processes 11/ 
Often, lawyers have their own agenda + ignore this kind of clear statement from the judge. They do so at their own peril. 12/
Kessler started with the mandatory injunction standard b/c of the judge's pre-Hrg order. He's arguing "clear showing" isn't required 13/ 
BTW, revealing slip of the tongue by Kessler. When he started this for NASL in '15, the lawsuit was supposed to be about D1 14/
Kessler iargues that a 2d Circuit case (appeals court over EDNY) req. "clear showing" unless there is "extreme or very serious damage" 15/ 
Kessler's hopeful he can use that to get out of the "clear showing" requirement that hurts NASL on conspiracy. 16/ 
Judge was dubious, and subsequently points out "irreparable harm" is not "extreme damage" and cases don't define latter. 17/
This is why Kessler claims NASL will fold. He's needs to establish "extreme damage" to escape the "clear showing" he may be losing 18/ 
Judge's Q about why NASL isn't reapplying for DII w/ the new teams gets at whether the damage is really "extreme" at this point 19/ 
More to come . . . 20/
Kessler was going to skip the parts of the PI standard Judge said favored NASL, but Judge advised not in case other side persuaded her 21/
So, Kessler covers balance of hardships and says they clearly favor NASL. Judge says only slightly. 22/ 
This is when Judge discusses whether USSF has the right to be the rulemaking body. It is not on Stevens Act, but on balance of hardships 23/ 
Judge agrees PLS must comply w/ antitrust law here, but casts doubt as to whether NASL has proven that 24/ 
This is effectively a seque into Kessler's antitrust case, which is where Judge seems less convinced from the face of the filings 25/
They disagree about the law. Kessler says you can have an innocent deal that restrains trade. Judge says deal must be be unlawful too 26/ 
This could be important as a basis of appeal, since 2d Cir. will review under abuse of discretion on factual findings, but law different 27/
Kessler cites more cases, but Judge wasn't backing down on nature of her disagreement 
Kessler's bottom line is he doesn't think you have to show anti-competitive intent in the agreement 29/ 
Kessler moves to counter USSF's procompetitive justifications, while the Judge tries to pin him down on his argument 30/ 
Basically, NASL is arguing the standards are just designed to drive NASL out, while Judge sees plenty of procompetitive benefits 31/
I assume this was a funny exchange, but it wasn't a good look for Kessler. He was being slippery and the Judge called him on it. 32/ 
This is where Kessler and the Judge start to address the conflicts issue that she identified as a key question 33/ 
Judge asks why fiduciary duty to act in the corp's best interest and recusal/indep directors isn't enough 34/ 
Kessler's response is that a director can abide by its fiduciary duty and still favor MLS b/c of the SUM deal 35/ 
Note that Kessler said "despite what their economist says." So, there is dispute about the SUM deal and how it works vis-a-vis MLS. 36/
Kessler might be overclaiming here. USSF could be dependent on SUM, but he's implying it is dependent on MLS, which is not as clear 37/ 
When it's USSF's turn, Sauer takes the "rebuttal" and throws in a jibe about Kessler's waffling on the standards noted by the Judge 38/ 
On irreparable harm, Judge seems inclined to accept the owners' affidavits that they'll leave if NASL is D3 39/ 
Judge is also fully on-board with NASL's argument that they are worse off in D3 than D2 (and treating Sauer like Kessler on this point) 40/ 
On the Stevens Act, Sauer's argument is NOT that USSF governs pro leagues under the Act; rather, it's that Act doesn't prohibit it 41/ 
W/ USSF's Yates taking over on conflicts issue, Judge frames NASL's response to the corp gov procedure argument as about "influence" 42/ 
The first part is the classic arg in the corp gov literature. Indep directors get co-opted by insiders and don't effectively monitor 43/
Judge completes Yates' sentence in response to the NASL conflicts point, which suggests she agrees with the response. 44/ 
On the antitrust legal debate Judge had with Kessler, Yates takes the Judge's side (not surprisingly) 45/ 
Yates argues USSF acted consistent with NY Nonprofit Corp law in board procedure on conflicts. This where NASL's expert lacked expertise 46/ 
USSF piggybacks on the Judge's opening. If NASL can't make clear showing of likely success on merits, it can't get prelim injunction 47/ 
Bad sign for Kessler in his reply when Judge continues to assert her disagreement on concerted action. 48/ 
RECAP: Judge initially says she's unsure whether NASL has shown "concerted action" necessary to win the case. 49/
Then Judge disagrees w/ NASL counsel about relevant legal standard for Antitrust violation and repeats disagreement in NASL's summation. 50/
Finally: If NASL can't convince Judge on fact+law on concerted action, not sure there is a way it can get preliminary injunction. 51/51
