well turn to north american soccer league versus united soccer federation morning good morning you're on is jeffrey kessler on behalf of the appellant the north american soccer league your honour's my client the north american soccer league as that this record found below  has its very existence threatened at the moment so the issue on this appeal involves the most extreme form of irreparable harm that could be imagined for a corporate entity that's very existence whether it will continue we submit that if the court takes the uncontested on challenge findings of fact below and applies them to the correct antitrust standards that we have satisfied any pulmonary injunction standard whether it is the heightened stand or it's the flexible sliding scale standard although we do believe the sliding scale standard should apply there were three at least fundamental legal errors that the court may below any a tie truss the first one was concerted action and concerted action requirement simply requires two separate economic entities answering into an agreement it's a contract combination of conspiracy the court below conflated the concerted action requirement with the unreasonable strain of trade requirements so i don't believe that there's any way here what we have below what are the separate economic and yes the separate economic at the major league soccer the united's soccer league the north american soccer league all of not the argument it we that's part of the argument you're on to so like in the associated press case in the supreme court what you have is everyone has to agree to be banned by the standards so like lloyd has to agree instead it says you must have a minimum number of genes you must play in certain time zone to have other requirements but the question of agreement that there is multiple entities agreeing i think is end of monopoly power in a relevant market of soccer leagues only in which the court found an anti competitive effect based on the barriers to entry it created for competition that's not my argument you're on are the host of the findings of the court below we were felt to have made a clear showing on the anti competitive facts in the monopoly power which really makes this different from all the trait this standard set in cases cited boy the us s f we are already past the anti competitive effect hurdle so what then must they do they must then show pro competitive justifications of the rule of reason that's they have burden because it shifts once we for once the court found as it did that we demonstrated to see anti competitive effect and change the requirements of the league grows and becomes more successful soccer's been doing better and couple of years you're on what is not reasonable to do is to set requirements in order to as  not an impartial process because the hort found below not my argument that there was a herd fucked up interest created in favor of major league soccer to protect  because as major league soccer's commissioner recently said hundreds of millions of dollars have flowed from major league soccer through this sought soccer united on it it was rejected if you look at it because they did not have more than eight they have in court said well this is suspicious as to whether or not the eighteen would have been there but that was really years trying to give it a chance and it was not succeeding the other team it got up to over thirty teams i guess the u s got up to over thirty teams and they were added in division three just a couple years ago actually  honor they've given far more waivers to record shows to both major league soccer and the u s l than they've ever given to the n a s l so for example we're used to competition here granting these waivers left and right the monopoly of m l s that's what it says in the very beginning and that the conflict of interest because of the hundreds of millions of dollars it's not an impartial process and this is very important or honor the relevant m here is limited to professional soccer leagues the court rejected a broader market it would involve in football and basketball that's very significant because the pro competitive purpose can be to shield the m l s with a monopoly within this limited relevant market and create a barrier to entry they can't say this is necessary to help soccer to compete against football the court rejected that market and they don't challenge that here and finally on the less restrictive alternative sporting says we know prior to two thousand and eight eight teams  zones were enough last year they let us play that way all we're asking year on are is again we believe that should be on the lesser standard because of the extreme home even if it's a mandatory injunction asking us to rewrite i'm not your honor i'm asking simply to do the following maintain what they did last year if they did the same waivers last year as they did this year under the the with the least eight teams and two time zones not three time zones we continue we get to survive to test these claims in the full antitrust trial otherwise via driven out of in fact it's based on a conflict of interest which the court found may compel them to do this in the court even said we may ultimately when but the recently didn't get the injunction is because of the heightened standard that was applauded which even if it was a mandatory injunction your honor we believe we qualify if the extreme home exception to mandatory injunction means anything it has to be when by this court sawing whether or not to maintain the sliding scale when the court went through and decided that that announced based on the dowry case announce that you either can satisfy it by a clear showing or extreme hall on every case since then in the second circuit is applied that standard and thank you so much practical matter it makes no sense your theory is that u s soccer is seeking to drive an e s l out of business but the fact is is the record shows that us soccer has gone out of its way over the years to help an l take root and rosalee granting it waivers and seven out of the last eight seasons and therefore it makes no sense to say that us that u s soccer is trying to drive an e s l out of business the second problem with their theory is that the theory  as they're written to an a s l for its two thousand and one thousand application in that decision the member any members of the board of directors and have a relationship the professional soccer leagues abstained from the vote so instead that people who serve in essentially a pro bono capacity for u s soccer to help that entity achieve its mission of growing soccer there is nothing in the record assessed suggests that these individuals conspired with the purpose of driving an s l out of business the third fatal problem with their theory is it lacks the central prerequisite the central factual prerequisite of any of a theory of concerted action in the context of a standard setting organization this can it is made clear for example in the eighty s eighty case the just having a trade association or standard setting organization itself isn't enough to establish concerted action instead with the cases it looked at him required the plaintiffs to show it i mean isn't that one in the complaint to horizontal competitors to one focusing on u s soccer itself the problem with the horizontal competitor theory is there's absolutely no evidence that these entities came together with a conscious agreement to drive n a this may be the sum of their claim at this point they've made the really sort of outlandish assertion in their briefs that this agreement amounts to a bribe so let me talk about the agreement this is an agreement arm's length agreement by which u s soccer  contracted with some soccer united marketing so that some could market us soccer's rights now there are several things to understand about this agreement the first is it was entered into years before  existed so it's inconceivable that this agreement could have operated as a bribe to drive an s l out of business when an e s l didn't exist when the agreement was entered into the second thing to know about it is that it's absolutely clear and m professor peterson discusses this in his reply declaration in particular that no revenues from m l s flow to u s soccer under this agreement i would point you to page eighty nine zero two of the joint appendix as well as mr galardi discuss argued and you can see this at nine o eight nine o three of the appendix that what was happening under the supreme and is that money was being siphoned from some to m l s going exactly the opposite way so this agreement and no way establishes concerted action it no way supports the theory that u s soccer somehow conspired with anyone to drive an e s l out of business and yet that's all they're left with at this point of the case your honor the other thing i would say about this is there's absolutely no evidence that any of the individual directors at u s soccer who voted on the decision of whether to apply the standards for the two thousand and eighteen application had any interest or involvement with the som and that's why the district court found and this is page forty seven of her opinion that there was no no evidence that they had failed to show that there was any unique work stream pressure applied to the decision making process down and injunction gives them at least a fighting chance so a couple things on that first even if they could show irreparable harm they've got to show a likelihood of success or or a claim on the  court was very clear in the winner case and other cases like the moon have case that an injunction is a drastic and extreme remedy and as it wouldn't be enough just to show harm they've got to show a likelihood of success on the merits the second thing i would say is look at the irreparable harm determination now we think is a matter of law that district court actually apply the wrong standard she looked to whether there was a possibility that they could go out of business i mean if you look at her decision on pages eighteen one thousand and forty seven she talks  about the potential total loss of the business that's on page forty seven where she's summing up the harms that n a s l faces and a potential loss is not a likely loss and for that reason it can't satisfy the standard winter but then look at the evidence that they've come forward the only evidence in the record on irreparable harm is the evidence that we put in that shows that united states soccer league was was changed from a division two to division three just l now faces in two thousand and eleven and what happened to that league and not only survived it thrived that evidence is in the record i would also point your honour's to the evidence that we've put into the record showing that division three teams not only can meet but at times it's exceed the financial revenues and ticket ticket numbers of division two teams so actually if you look at the only evidence in the record irreparable harm it would show that the notion that any s l is going to go out of business if it is changed from a division two to division three is refuted by the evidence now what they have in response is a classic example of an attempt to show reparable harm through self inflicted harm and they have come forward with declarations that make vague assertions like well will be in jeopardy or we won't meet our goals that can establish ribble harm if it did then any lawyer could drum up rebel harm they've come up with these before did letters of commitments by owners of amateur teams saying well we would apply if there were division two team but again these these letters which are almost identically written and therefore most certainly were written with the benefit of counsel can't be enough to create or stablish the likelihood of her up to harm or any lawyer with assault could generate a finding of rebel harm so we don't think that the record supports it your honor the only evidence in the record is of an example like this is the u s l example where u s l was changed to division three and it survived and thrived now with respect to the pro competitive justifications you run at the district court found that there approaching pettitte justifications for these standards and really the court need no look for need no need look no further than the statement of venice and a s l's own c e o when he explained that the that the reason why we have these standards is that fans lose interest in a team who is in a league with rampant failures team failures and league failures and what what we have if you take a step back and look at the broad picture here you professional soccer in this country for decades and since then what we have it's as a district court recognized is an unprecedented growth and success of professional soccer in the united states underscoring the pro competitive purpose and a fact of these standards the only way to to rule for an e s l in this case would be to would be to engage in their radical re conception of the ana trust laws and it would effectively put the courts into the position of governing professional soccer in this case there's no reason for this court to go down this road the district court carefully consider their arguments it properly rejected them whether or not the directors with disinterested who voted is irrelevant because we've already been found to me wait the anti competitive effect hurdle the court said anti competitive fact entrenched a monopoly so we're up to the pro competitive justification it just doesn't matter on pro competitive justification the one just thought to kill aided by counsel that it will be unstable for teams to go in and leave fact to make soccer more popular against football that market was rejected and they don't challenge it so looking in this small pocket what the evidence shows and i heard counsel say there was no benefits the commissioner mr garber two days ago said hundreds of millions of dollars was given by sun and m l s to us as f that's a direct quote from him our expert explain it is not your own it is not your honor but to hear celts will say one thing in his client saying another thing publicly two days ago when our expert explained on the agreement how those hundreds of millions of dollars flow i think is misleading to the court finally your honor says alloy to adopt it in this court with favor in the job or in case it's mentioning it quoting it when you're dealing with the standard settings and the process is not impartial because of the district court's finding of this financial interest and conflict of interest because of that you have gotten past with the ant the absence of pro competitive justification which is the a burden and the clear back that there are less restrictive alternatives because just last year we played without this in soccer was doing well as your own has said even when they allowed us to play with eight teams and into time zones so it comes down to will this drive us out of business you're on our look at the record for all is if explained we will be driven and a business six others and who can't is different from a normal trade association that certifies a product here without this designation you just can't play and the record below shows the massive losses we've been incurring even on division two so your honor again the fate of our clients in your hands i hope you will consider this and also consider that given this on the second circuit precedent it should be the lesser standard if we judged on serious questions and on more than serious questions we should live to get another day in court thank you ron thank you for the extra time appreciate that thank you