WPS Legal Updates

Discussion in 'NWSL' started by CCSoccerFan, Feb 21, 2012.

  1. Morris20

    Morris20 Member

    Jul 4, 2000
    Upper 90 of nowhere
    Club:
    Washington Freedom
    I understand why Dan's still fighting . . . the court's position of not telling him to take his SLAPP lawsuit and stick it where the sun don't shine is what baffles me.
     
  2. UNC4EVER

    UNC4EVER Member

    Sep 27, 2007
    I don't doubt that Dan will continue to fight as long as he can keep Magicjack associated with some high-profile players in the run up to the Olys.

    Product placement has been his thing all along. After the Olys. he will go away. As near as I can tell, he has never really cared that much about the game.
     
  3. kolabear

    kolabear Member+

    Nov 10, 2006
    los angeles
    Nat'l Team:
    United States
  4. Lloyd Heilbrunn

    Lloyd Heilbrunn Member+

    Feb 11, 2002
    Jupiter, Fl.
    Nat'l Team:
    United States
    Not confused, pretty simple.

    The Court disagreed with WPS that discovery was not needed but will allow limited discovery, and will review and rule upon the requested discovery which the parties must submit in advance.

    Following the Motion to Enforce, if the Court denies that motion, then the Court will hear the M. for S/J.
     
  5. Morris20

    Morris20 Member

    Jul 4, 2000
    Upper 90 of nowhere
    Club:
    Washington Freedom
    DB has certainly found a sympathetic judge with a history of friendly rulings toward corporate entities (like Bank of America), and a LOT of connections to wealthy Palm Beach folks (she's on the left here with her high profile divorce attorney husband).

    [​IMG]

    WPS is "on the road" in this venue - no wonder they just want to get back in front of a judge in New York (or at least someone who's not potentially socializing with Borislow and/or looking to him for campaign cash).
     
  6. kolabear

    kolabear Member+

    Nov 10, 2006
    los angeles
    Nat'l Team:
    United States
  7. newsouth

    newsouth Member

    Nov 20, 2010
    Club:
    Santos FC
    Nat'l Team:
    Brazil
    I wouldn't be surprise if he was one of Dan's boys Masser was talking about when she ran with them for two days after breaking her nose. Boy, we went over this months ago. No way in hell the WPS will win a case in the South in Dan's backyard. It's no different than dealing with the corrupt political families in Louisiana. Good luck, WPS, because you're going to need it. LOL.
     
  8. wallacegrommit

    Sep 19, 2005
    Without knowing what documents WPS has, you can't definitively say whether the ruling is good or bad (other than obviously WPS didn't get the home run they wanted, which would be to quash all the discovery completely), but the requests WPS did succeed on were all of the financial related questions, so those questions maybe were more sensitive in nature from a league perspective.
    The criticism of the judge doesn't seem fair to me. Judge's are and should be known and active in the community. Guess what, there are a bunch of rich people in Palm Beach. A judge in Palm Beach has connections to rich people? Shocking! WPS has lawyers, they can bring a motion to disqualify if they want.

    Sure, parties typically don't want to be the visiting team in court, but that doesn't mean the judge is corrupt or dirty. Seems to me that the problem in this case isn't that they are in a mickey mouse court, it is that the case has become a soap opera between mickey mouse litigants.
     
  9. Morris20

    Morris20 Member

    Jul 4, 2000
    Upper 90 of nowhere
    Club:
    Washington Freedom
    I think you're half right here. And I think newsouth goes WAY to far talking about corruption or the judge being dirty. BUT, I think you have to agree that WPS is stuck in an unfriendly (from their standpoint) jurisdiction and in front of a judge who has every incentive to help DB at their expense (and has, really, at every turn).

    If I'm WPS, my only question is how do we get disentangled here and get Dan up to New York for the butt-whipping that is eventually going to happen.
     
  10. cpthomas

    cpthomas BigSoccer Supporter

    Portland Thorns
    United States
    Jan 10, 2008
    Portland, Oregon
    Nat'l Team:
    United States
    Unless someone knows something specific about this judge, I'd say all the criticism is both unfair and inappropriate. Judges have nothing to gain favoring particular litigants, whether local or otherwise, and a lot to lose. And, I have not seen anything in this case that suggests the judge has made incorrect or slanted rulings. I've looked at the relevant documents, and it seems to me everything that has happened so far in the case could and should have been anticipated in terms of the judge's rulings. The one thing you can say about almost all judges is that they do not like to be overturned on appeal. If you allow more issues to remain open for a longer period of time and are relatively permissive about discovery, you greatly diminish the likelihood of being overturned on appeal due to procedural errors. It is typical of judges to allow a process to run a long course, but that has nothing to do with judge's view about how the case will get resolved when it reaches its end point.

    WPS' problem is that it has limited time to get the case resolved, and probably limited resources. That isn't the judge's fault, and the judge should not take that into account and make different rulings because of it than would be made otherwise. This may hurt professional women's soccer, but that isn't the judge's fault or problem.

    I think the problem is that DB appears to be crazy or vindictive or whatever, possibly enough to be willing to deliver a mortal blow to professional women's soccer if he can't have his way. When you get someone like that as an opposing litigant, with the $ to fund litigation, it makes it very difficult for the opposition. And, the American legal system is not well equipped to deal with it, because by nature it will tolerate a lot from a person in that position.
     
  11. Morris20

    Morris20 Member

    Jul 4, 2000
    Upper 90 of nowhere
    Club:
    Washington Freedom
    While I think arguing the judge is corrupt or whatever is too much, I also think that when you have a litigant with a history of SLAPP lawsuits you might expect a little more judicial effort at resolving a case that's clearly intended to bully the league rather than accomplish anything on the merits.

    This judge's rulings have enabled a serial bully to bully. Uncommon? No. But open to question by reasonable people - I hope so.
     
  12. cpthomas

    cpthomas BigSoccer Supporter

    Portland Thorns
    United States
    Jan 10, 2008
    Portland, Oregon
    Nat'l Team:
    United States
    The problem is that this doesn't fit the profile for a SLAPP lawsuit. WPS decided to give MJ the boot. MJ is legally entitled, no matter where the case is filed, to mount a defense. My point is that judges are extremely constrained, much more so than is generally understood. In terms of getting to a resolution, as lawsuits go, this one is moving along quite quickly, so it appears the judge is doing a good job of case management.

    If DB has a history of being a serial bully, then the problem in this particular case is with WPS getting into bed with a serial bully in the first place. I guess lots of us have commented on that already. But, now that they want to kick him out of the bed, the wheels of justice will roll, but slowly. It's frustrating for all of us, but again, I see no evidence that the problem is with the judge.

    To use an illustration, the parties have been arguing about discovery. I saw what DB was requesting in discovery and thought some seemed reasonable and certainly expectable and almost certain to be allowed and some seemed like overreaching -- which itself isn't that odd and is what a judge is supposed to resolve. Discovery is a standard part of the process, however, and a judge cannot legally say, "Oh, I know this guy is a jerk and has a bad litigation history so I'm not going to allow him any discovery." (I myself have no idea whether he has a bad litigation history and all the judge can consider is the evidence in that particular proceeding, so unless the WPS attorneys introduce evidence of a bad litigation history and the evidence is relevant to this particular case, the judge can't consider the question of a bad SLAPP history at all.)

    This all is stuff that good lawyers would have understood and anticipated and advised their client about at the beginning. And, WPS' attorneys very well may have done that. If they didn't, then they could be subject to some pretty severe criticism. If they did, then WPS may have miscalculated -- or let DB do what he may do best which is to infuriate others into doing something stupid -- or made a calculated decision to take their chances.

    So, my view is, it's not the judge. It's the situation and having let one of the major players into the situation in the first place. Of course, hindsight helps, so maybe the current situation wasn't reasonably foreseeable. But if DB has the history you're suggesting, then it might suggest poor judgment in the first place.

    Or, to put it all differently, I once was handling a case in front of a very good judge. The law was on my client's side. The opposing attorney's argument was that the result the law appeared to compel wasn't just. The judge's response was 100% correct: "You're arguing for justice. When you're in court, what you get is the law. If you want justice, go to the legislature and get them to change the law." That was pretty early in my legal career and I've always remembered it as a very good judge's recognition of the requirement of judicial restraint that judges operate under.

    End of sermon.
     
  13. necron99

    necron99 Member

    Oct 17, 2011
    Club:
    Washington Freedom

    Other lawyers who have posted on this case have disagreed on whether any of the rulings were incorrect. I would have to search back to find the specifics but it related both to ignoring the jurisdication clause in the contract, the very contract DB was suing to enforce, and reading a separate clause to apply to a different section of the contract.
     
  14. necron99

    necron99 Member

    Oct 17, 2011
    Club:
    Washington Freedom
    I think the point people are making is that this is a rabbit hole in a rabbit hole. The initial case was DB trying to get to arbitration that the league felt the contract did not require. The initial rulings pointed that the judge was siding with DB to require arbitration. Then a potential settlement appeared. That settlement was dropped, and WPS wants to go to arbitration. The very arbitration that DB was suing to get. Now DB doesn't want that arbitration, he is fighting to enforce the potential settlement, and we are doing discovery on that. That new secondary thrust is where it veered into potential SLAPP territory. The settlement fell through on not getting required approval from USSF. On the record it was specified that it required USSF approval. Now DB and his lawyers are saying that they never agreed to that, and that WPS negotiated in bad faith. If the judge looked at the record then she should put a stop to it, not allow more discovery. Obviously you are a lawyer and I am not, but every layman is going to call BS on this.
     
  15. Morris20

    Morris20 Member

    Jul 4, 2000
    Upper 90 of nowhere
    Club:
    Washington Freedom
    You're way ahead of me, the only formal law training I ever got was from a Georgetown (contract) law prof who nasally emphasized, "always get the fee first." I would only point out that judicial activism and restraint seem to be very much in the eye of the beholder at the moment.
     
  16. Beau Dure

    Beau Dure Member+

    May 31, 2000
    Vienna, VA
    Some questions for WPS:

    1. Why didn't you take your chances with the hearing on Jan. 18, which would've been THE FIRST TIME you had a chance to present evidence about how Borislow had behaved as a league member? (Some evidence is in the league's motions, but they haven't discussed that in court, and remember that the judge had ruled only on the termination procedure itself.)

    2. Why doesn't your most recent motion say something along the lines of, "Look, ask U.S. Soccer -- the deal wouldn't work"?

    Questions for the judge:

    1. Why does Florida have jurisdiction?

    2. Why did you not make more of an effort to sort through the league's evidence at the beginning of the case to determine whether the plaintiff had a likelihood of succeeding on his claims?

    3. The proposed settlement allows WPS to cancel the 2012 and 2013 seasons without penalty. So why are you allowing discovery on WPS's discussions on those seasons?

    4. Even IF (a VERY BIG IF) WPS negotiated the proposed settlement in bad faith, knowing that the 2012 season was likely to be a no-go and/or that USSF was going to say no, why does it matter? If there had been no negotiation, the Jan. 18 hearing would've gone ahead. And then Borislow might've won his temporary injunction. Then the league would surely cancel the 2012 season, anyway. So how has Borislow been wronged by the negotiation of a deal that hasn't come to fruition? (Perhaps he could seek attorneys' fees for the day or something like that, but that's comparatively minor. Having spoken with Borislow many times, I have never, ever gotten the impression that this is about money to him. He would've lost money on the proposed settlement -- putting together that exhibition team would've been costly.)

    The judge can't compel WPS to play a 2012 and 2013 season. A cynic would ask whether she's aware of that limitation on her powers.

    Again -- always glad to get a legal take on all of this.
     
  17. MRAD12

    MRAD12 Member+

    Jun 10, 2004
    Chicago
    Club:
    Chicago Fire
    I have a question for all of you who question the jurisdiction of Florida?

    Would the home state of one of the other owners sound more fair to you?

    These comments insinuating that somehow a south Florida Florida judge would be unfair or corrupt is stupidity. Would a New York judge be more fair, or an Atlanta judge, or a Bufallo, NY judge or a Philadelphia, PA judge?
    Give me a break folks.

    IMO, without knowing any law other then Chicago has the most ridiculous parking and camera laws in the world, Florida SHOULD have jurisdiction.

    It is a Florida team that got kicked out of WPS.

    Reading posts by folks since this whole mess started, it is always under the assumption that Dan Borislow is at fault for ALL of this.
    Whatever, DB's personal characteristics are, he is NOT at fault for ALL of this, IMO.
    Part of it, yes. But the other owners bare much responsibility.

    To me they were all like a bunch of spoiled school kids who say "if you don't play like I want you to play I'm taking my ball and going home, nyeah, nyeah".

    Back to the question:

    Why not Florida?
     
  18. necron99

    necron99 Member

    Oct 17, 2011
    Club:
    Washington Freedom

    Because the contract that Dan signed with the league specifies the venue for any legal proceedings. That is why not Florida. It is not random, or just us fans wanting some other state. It is because the contract that DB signed, the contract that he is suing to enforce, specifies where all legal proceedings must be filed. My annoyance with the judge isn't a complaint that all judges or even FL judges are corrupt. It is because the judge chose to ignore that part of the contract.

    As for the "if you don't play like I want you to play I'm taking my ball and going home, nyeah, nyeah" statement. That is part of having operating and franchise agreements. The franchise agreement protects the whole league from someone not playing the way that the league wants. If didn't want or plan to play the way the league wanted then he should not have become a franchisee.

    If you sign a franchise agreement with McDonalds tomorrow, you can't paint your whole store, floor, ceiling, walls, booths, etc black. And have the employees dress up as the devil instead of Ronald McDonald. They will take their ball and go home. As a franchisee you have to follow their rules.
     
  19. Beau Dure

    Beau Dure Member+

    May 31, 2000
    Vienna, VA
    Right. There may be some nuances I don't fully understand. But to the layman, it certainly seems that the judge read the termination procedures quite literally and did not read the venue clauses literally at all. Nor has the judge had the opportunity to weigh in (in any released documents, anyway) on whether Borislow was abiding by other parts of the agreements.
     
  20. necron99

    necron99 Member

    Oct 17, 2011
    Club:
    Washington Freedom
    With the second part, I can understand why the judge is not weighing if WPS has cause for termination. The case was brought by DB to force WPS to follow their rules, enforce the contract. That is all the judge is supposed to weigh. This was not a case brought by WPS to terminate DB. (Of course it is all brought on by the fact that WPS read the contract to state that they didn't need a lawsuit or arbitration to terminate DB). I can accept the judge being narrow on that part.
     
  21. MRAD12

    MRAD12 Member+

    Jun 10, 2004
    Chicago
    Club:
    Chicago Fire
    I don't care if the jurisdiction is on Mars, as long as a fair verdict is rendered.

    As for my statement about spoiled school children, well IMO personalities do matter, and I'm sure DB's personality wasn't the only one that mattered in the "not getting along" thing. How do we know what happens in close door meetings?

    He was good enough to keep the league from folding a couple of years ago but now we can't stand him.

    There's hypocrisy to go all around, and the sh_t pile just keeps getting higher and higher.
     
  22. Beau Dure

    Beau Dure Member+

    May 31, 2000
    Vienna, VA
    Perhaps. The league made a few arguments early on about whether Borislow had a likelihood of being successful in his claims. They also raised the objection that he had not followed the agreements but was now seeking relief under them, claiming that such a move defied precedent.

    Obviously, they won neither of those arguments.
     
  23. kolabear

    kolabear Member+

    Nov 10, 2006
    los angeles
    Nat'l Team:
    United States
    Norsk Troll's analysis in the "WPS Suspended" thread. Excerpts below (In case you didn't know, you can click on the little blue arrow thingies to take you to that post)

    Norsk Troll's analysis seems to me important enough to our understanding of the lawsuit that I should probably create a separate thread for it and later on I might do that. For easy reference if nothing else.

    * I think this was written after the agreement to play exhibition games but before that agreement came to nothing (except more litigation)

    I'm not a lawyer but I think Norsk Troll made excellent points and there have been no rebuttals of any note anywhere that I've seen.
     
  24. kolabear

    kolabear Member+

    Nov 10, 2006
    los angeles
    Nat'l Team:
    United States
    Begrudgingly, I think the Court has a fair point on this. What if the league, instead of simply asking for USSF approval, hinted ("wink wink") to the Federation that it would be lovely if the USSF did not grant approval? That would be negotiating in extremely bad faith.

    Still, Beau raises a good point - so what? What's the outcome? The agreement allowed WPS to cancel the 2012 and 2013 season without violating it. I guess you could say it's about 2013? That in some way, Borislow is trying to enforce an agreement that stipulates that if the league has a 2013 season, they must play the exhibition games with magicJack? -- "Either play my team in 2013 or shut down that season as well."

    From Borislow's standpoint (being the complete and utter villain that he is in all of this) that would be accomplishing something. I guess.
     
  25. necron99

    necron99 Member

    Oct 17, 2011
    Club:
    Washington Freedom
    I find it interesting that USSF hasn't been dragged into it. I guess that nobody is arguing that the USSF didn't say that they wouldn't approve it. DB seems to be arguing that USSF approval isn't necessary for the settlement, and even if it was necessary, then WPS was negotiating in bad faith (potentially they already knew that USSF would never approve).
     

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