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Tuesday, January 28, 2020

U.S. Soccer Federation sues players association over arbitration award requiring advanced approval of promotional ads

By Kenneth Lowe | Dec 17, 2014


The United States’ national soccer organization has entered a legal shootout with its players' association over when it has the right to use images and likenesses of players.

U.S. Soccer Federation Inc. filed suit Dec. 10 against the U.S. National Soccer Team Players Association in Chicago’s federal court, seeking to vacate terms of the collective bargaining arbitration that lead to the 2013 agreement at the heart of the dispute.

By the terms of the 2013 labor agreement, which covers the period from Jan. 1, 2011 through December 2018, separate procedures exist for when U.S. Soccer can use the likenesses of association members -- those who have been or may be selected to play for the U.S. Men's Team -- in promotional video and non-video promotional materials.

"Likeness” is defined in the suit as “the image, photographs, pictures, ... likeness, name, nickname, signature, facsimile signature, caricature, biographical information and/or voice in any format whether now known or hereafter developed, whether used individually or in combination.”

In all non-video ads, U.S. Soccer has the rights to use association members’ likenesses as long as it does not imply player endorsement of products, but for video ads, it must submit videos to the association for approval, according to the suit.

Despite the lack of a requirement to submit non-video ads, the federation says it submitted those ad spots as well, intending to shield itself from any possible future liability.

“[U.S. Soccer] did so out of concern that the Players Association would object to a sponsor’s use of player likenesses after-the-fact and seek to enjoin the use through the grievance and arbitration process,” the suit states. “Rather than face these 'back-end' risks, U.S. Soccer chose to work cooperatively with the Players Association…”

That arrangement worked when soccer was not as popular a sport as it is now, but U.S. Soccer says that is no longer the case and accuses the Players Association of dragging out the process.

“As the popularity of the sport increased, the number of U.S. Soccer sponsors grew, and so, too, did the number of Non-Video [ads] submitted for Players Association consideration,” the suit asserts. “In the face of this heightened demand, the Players Association became increasingly obstructionist and erratic in its review."

The plaintiff federation adds, "Ultimately, the back-end risks no longer outweighed the costs associated with seeking advance approval from the Players Association.”

When U.S. Soccer stopped submitting the non-video ads in 2014, the Players Association demanded further arbitration.

During that process, which played out in April, U.S. Soccer testified it had never made any verbal or oral agreement to submit non-video ads. Nonetheless, the arbitrator found the lack of an agreement amounted to not contesting the issue.

“The Arbitrator exceeded his authority because his Award fails to draw its essence from the [collective bargaining agreement],” the federation claims in its suit. “Rather than interpret the text of the agreement, the Arbitrator looked to the extra-contractual conduct of the parties to impose a restriction on U.S. Soccer that is unsupported by and inconsistent with the plain and carefully negotiated language of the [agreement]. Indeed, the Arbitrator derived the Award solely from a past practice.”

The U.S. Soccer Federation is asking Chicago's federal court to vacate the arbitration award and issue a declaration that it does not have any responsibility to submit non-video ads to the Players Association prior to publication.

The federation is represented by Chicago attorney Robin M. Hulshizer and Los Angeles attorneys Casandra L. Thomson, Noah Louis Fischer and Russell F. Sauer Jr., all of Latham & Watkins LLP.

The players association is represented by David Paul Baltmanis and George Freeman Galland Jr. of Miner, Barnhill & Galland P.C. in Chicago.

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