MLS to ATX #14: The #SaveTheCrew Lawsuit Will Rumble On, But It Wont Impact Austin’s MLS Future.

By | 2018-09-11T15:50:27+00:00 September 11th, 2018|Austin Sports Law Blog|1 Comment

Last week, Judge Jeffrey M. Brown heard oral arguments from both sides on the Ohio lawsuit that is trying to save the Columbus Crew. The attorneys for Major League Soccer (MLS) and Precourt Sports Ventures (PSV) had filed a motion to dismiss the case, predominantly on constitutional grounds, and I was able to watch a live stream of the hearing from the Franklin County Courthouse.

I expect Judge Brown to issue a decision shortly, and based on his comments and the questions he posed to each of the attorneys, I expect that he will deny the motion to dismiss.

What has become apparent though in recent weeks, is that this lawsuit will not have a bearing on whether or not Austin will have a Major League Soccer team. That is a done deal.

From a legal standpoint, these types of motions to dismiss at this stage of a lawsuit are very rarely granted. By its nature, it is not a determination of any facts. The judge must accept that all of the facts alleged by the Ohio AG are true. So if they say that PSV received subsidies from the City then the Judge must accept that as true. The case will only then be dismissed if it appears “beyond doubt” that there are no possible set of facts that will allow Ohio to win.

That is an extremely high burden for MLS/PSV to overcome. I’ve already written about how O.R.C. 9.67 is a poorly-drafted statute, but is it beyond doubt that it is unenforceable? I don’t think so.

If the motion to dismiss is completely denied, the case will just continue. Even if the motion is partially successful, the case will continue. And even if it was completely successful, and the case was dismissed, Ohio would appeal.

So if you are in favor of #MLS2ATX, then don’t worry when the decision comes out. Nothing of significance will have been decided.

Likewise, if you are trying to #SaveTheCrew, don’t waste your time gloating or celebrating. Nothing of significance will have been decided.

What may be of interest is if Judge Brown speaks to the notice period clock which is due to be unpaused (is that a word?) later this week.

But from a practical point of view, the question of whether Austin will have an MLS team has already been determined. The only question that remains, is whether Columbus will have one too.

There are 2 possible outcomes to this dispute as far as I can tell. Well, technically there are 3, but the first one is barely worth mentioning.

  1. Someone offers Anthony Precourt enough money that he decides to sell his rights to the team and the Crew stay in Columbus. The chances of this happening are 0%;
  2. The lawsuit drags on, with the Crew’s fate uncertain, and MLS decides to put a new team in Austin, operated by a PSV controlled entity; or
  3. A settlement is reached, with the Crew franchise moving to Austin, and something new, or the possibility of something new in Columbus.

Outcome #3 has been my predicted conclusion since the beginning and I still think it is the most likely.

I’ve also said that, whatever happens, this Ohio lawsuit won’t be able to stop the Crew moving to Austin. Let me restate that based on what we now know:

The Ohio lawsuit cannot stop Major League Soccer from putting a team in Austin.

I don’t think anyone could disagree with that statement. The Ohio lawyers said as much in the hearing. Equally, the Ohio lawsuit couldn’t stop Major League Soccer from putting a team in Miami.

And that’s why Outcome #2 becomes more of a possibility the longer the lawsuit drags on.

The clue is there on page 1 of the term sheet agreed between the City of Austin and MLS/PSV. The new Austin “Club” is defined as a “MLS franchise managed and operated by PSV (or other PSV-controlled entity)”.

“A PSV-controlled entity” leaves the door open for a brand-new MLS team in Austin. Essentially an expansion team operated by an entity affiliated with PSV.

The Crew will then either be saved, or it wont be. But here is the point: the fate of the Crew is no longer linked to Austin.

In truth, the Ohio lawsuit exists only to provide some leverage for Columbus and Ohio to try and get something out of Major League Soccer. For that reason, the lawsuit will be a factor in determining whether or not Columbus will have a MLS team. Or rather, on whether or not the Crew will be saved.

But the lawsuit will not be a factor in determining whether or not Austin will have a MLS team. That determination has been made. It has been determined by the City of Austin and by MLS that there will be a team in Austin as early as next year.

The fans of Columbus are right to be paying close attention to the lawsuit, and despite all the personal abuse I’ve received from a small minority of their fans, I still hope that Columbus will have a team in MLS in the future.

But for fans of MLS in Austin, you don’t need to worry about the Ohio lawsuit any more. The City of Austin were not worried about it when they agreed a deal, and PSV are clearly not worried about it as they move forward with the brand of Austin FC.

Austin will be a Major League Soccer city whatever happens.

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  1. […] Monday of this week, Judge Jeffrey Brown issued a 55-page Order (the “Order”) on the Motion to Dismiss filed by MLS and […]

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