Women's Professional Soccer has stepped up its effort to get out of the Florida court system, where it says magicJack owner Dan Borislow is trying to prolong the league's stay in legal limbo.
The league argues that its Jan. 18 agreement with Borislow to play an exhibition schedule against his team was dependent on U.S. Soccer Federation approval that was never obtained. Therefore, the league says in its documents in advance of a status conference Wednesday, the deal cannot be enforced.
And WPS says that because it has agreed to the full course of negotiation, mediation and possible arbitration that Borislow demanded, there is nothing left to be settled in Florida court. On Friday, the league filed a motion for summary judgment and a motion responding to Borislow's effort to enforce a settlement WPS says was never finished.
"The League's suspension of the 2012 season will also permit the parties to complete the Dispute Resolution Procedures and fully determine the propriety of the League's termination of Plaintiffs' franchise before League play resumes in the 2013 season," WPS argues in its motion.
Borislow disagrees, saying the Jan. 18 deal is a valid resolution of the case.
"This dispute was settled and not governed by arbitration, but by this Florida court," Borislow said by email. "I don't know who they are arbitrating with."
The proposed deal included exhibition games between a Borislow team and WPS teams in 2012 and 2013, along with resolutions of other issues between the parties. The league's decision to suspend play in 2012 has not diminished Borislow's enthusiasm for enforcing the deal for 2013.
"This whole thing is over and they can stop spending any money or resources simply by following out on the agreed-upon terms of the deal read into the record," Borislow said by email. "For the most part, all they have to do now, only if they have teams next year in the WPS, is to play us a few exhibition games and stop disparaging me. This appears to me an opportunity to make money. Why wouldn't they follow through on such a good deal for them?"
WPS's legal team takes great pains to establish that the deal was contingent on U.S. Soccer approval to allow U.S. national team players to participate on a proposed Borislow exhibition team. The documents use several statements from Borislow's lawyers in an effort to show they were fully aware of the contingency, with one Borislow lawyer telling the court Jan. 26 that "as a result of this point not receiving the sanction or approval of the US Pro Soccer League, we can not report to the court that we've achieved a settlement."
Missing is any written record from U.S. Soccer Federation officials explaining what they would or would not allow. Instead, the league relies on an affidavit from WPS CEO Jennifer O'Sullivan to describe phone conversations with USSF CEO/secretary general Dan Flynn and USSF general counsel Lisa Levine. On Jan. 19, according to O'Sullivan's affidavit, Flynn and Levine mentioned obstacles to the proposed deal. On Jan. 24, the affidavit says, Flynn and Levine said "the plan was not workable."
WPS also seeks to refute any notion that the plan could've worked with a limited number of U.S. national team players on Borislow's team. They claim the deal was intended to include U.S. players on the exhibition team, and they say USSF expressed issues with even one such player participating.
The federation did not respond Monday to a request for comment confirming or denying O'Sullivan's account.
Even if the proposed deal were enforceable, the league says, disagreements about that deal are supposed to be arbitrated in New York. An exhibit spelling out terms of the deal is referenced in the legal documents but not included in what is available to the public at the moment.
For the most part, the league's motions are directed specifically at the current status of the case, with little mention of the year of disputes between Borislow and WPS officials. Yet the league reiterates that it has not yet presented its side of those disputes.
The filing also enters into evidence the blog post by former magicJack player Ella Masar accusing Borislow of mistreatment. In a footnote, the league says that if Borislow insists on continuing with the motion for an injunction, "the League will seek to present this and similar evidence as to why the balancing of the equities should favor the League and preclude the Court from reinstating Mr. Borislow as a team owner."
Finally, each of the league's motions also say Borislow is trying to punish the league in Florida courts rather than resolving the issues.
From the opposition on the settlement agreement: "Plaintiffs' contradictory statements and actions reveal their true intentions in bringing this Motion -- to prolong this litigation and drive up the League's legal fees and costs, all the while keeping the cloud of an uncertain future hanging over the League."
From the motion for summary judgment: "Plaintiffs' true motive has never been to submit this dispute to arbitration, but rather, a bad faith attempt to force the League to engage in protracted and unnecessary litigation, alienate League sponsors, business partners and expansion candidates, and exhaust the League's limited funds and resources defending this lawsuit."