Olivia Moultrie, the 15-year-old American soccer player who last month filed a federal antitrust lawsuit against the National Women’s Soccer League and its 18-year-old age eligibility requirement, was awarded a temporary restraining order on Monday. She is now free to sign with an NWSL team.
“The court finds,” federal judge Karin Immergut explained, “that the 10 teams that make up the NWSL have agreed to impose the NWSL’s age restriction which excludes female competitors from the only available professional soccer opportunity in the United States because they are under 18, regardless of talent, maturity, strength, and ability.” The judge added that NWSL failed to persuasively offer “legitimate procompetitive justification for treating young women who want an opportunity to play professional soccer differently than young men.”
Moultrie is already a pro. Nike signed her to nine-year endorsement deal in 2019, when she was 13, and she practices and scrimmages with NWSL’s Portland Thorns.
Judge Immergut bluntly rejected NWSL’s defenses. For starters, the league invoked the single entity defense. A single entity league is one where the league owns all of the teams and employs all of the personnel (such as the XFL or Major League Soccer before it adopted the designated player rule). Such leagues are exempt from Section I of the Sherman Antitrust Act, a federal law that governs how competing businesses, including independently owned sports franchises, collaborate to restrict competition. (For a more detailed explanation of single entities in sports, please read my article in The Yale Law Journal).
Judge Immergut concluded that NWSL is not a single entity. She noted that, per documents submitted by Moultrie’s attorneys, each NWSL team “has a separate owner who funds at least some aspects [of] the team’s operations.” In addition, NWSL teams hire, and pay for, their own staff and trainers and compete with one another through the sale of sponsorships and advertising. The league also features an “Allocation Money” mechanism that permits a team to exceed spending limits. These qualities, the judge explained, render NWSL to a status like traditional U.S. sports leagues.
Moultrie’s attorneys also persuaded the judge with respect to precedent. They cited favorable case law, including a case involving Spencer Haywood. In the early 1970s, Haywood obtained a preliminary injunction against the NBA over its rule that conditioned player eligibility on a player reaching the four-year anniversary of his high school class graduation. Another case cited was Ken Linseman v. World Hockey Association, where a 19-year-old player defeated a 20-year-old eligibility rule.
Judge Immergut further reasoned that Moultrie suffers injury as a result of her exclusion. There is no comparable U.S. league. To that end, the judge quoted from a sworn statement by Becky Sauerbrunn of the Portland Thorns (and one of the plaintiffs in the USWNT–U.S. Soccer litigation). Sauerbrunn warned that keeping Moultrie out of NWSL “can slow her development, delay her improvement, and more generally impede her career.” Sauerbrunn added that while Moultrie gains from practicing and scrimmaging with the Thorns, “nothing is a full substitute for real competition.”
Judge Immergut also draw attention to roster and playing time considerations. “The harm inflicted by the Age Rule,” she asserted, “is particularly acute given that the Olympic Games will be held this summer, which will open up roster spots in the NWSL, thereby increasing the likelihood that Plaintiff will receive even more meaningful playing time if the Age Rule is lifted promptly.”
Lastly, Judge Immergut underscored that NWSL’s age rule was not borne through collective bargaining with a players’ association. “There is no existing collective bargaining agreement between the NWSL and the NWSL PA,” the judge emphasized, “nor has there ever been.”
There are two important caveats.
First, the legal situation could change. NWSL can petition the U.S. Court of Appeals for the Ninth Circuit to review Judge Immergut’s ruling. Also, the order is set to expire after 14 days, though the judge’s opinion suggests Moultrie has a strong chance of landing a longer-lasting preliminary injunction.
Second, Moultrie’s win does not provide a playbook for young players to challenge MLB, NHL, NBA, WNBA, NFL age eligibility rules. The judge highlighted that what is known as the “non-statutory labor exemption” governs leagues that bargain rules impacting players’ wages, hours and other working conditions with a players’ association. Those rules are exempt from Section I of the Sherman Act. Whether an eligibility rule that denies entry to players who are not yet in a union (and who could take jobs away from current union members) should be governed by a union-league agreement is another topic for another day. Here, the key point is the NWSL’s age rule was not bargained.
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