steve w. berman (pro hac vice craig r. spiegel (sbn ......date: may 6, 2015 time: 9:00 a.m. judge:...

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Steve W. Berman (Pro Hac Vice) Craig R. Spiegel (SBN 122000) HAGENS BERMAN SOBOL SHAPIRO LLP 1918 Eighth Avenue, Suite 3300 Seattle, WA 98101 Telephone: (206) 623-7292 Facsimile: (206) 623-0594 [email protected] [email protected] Jon T. King (205073) HAGENS BERMAN SOBOL SHAPIRO LLP 715 Hearst Avenue, Suite 202 Berkeley, CA 94710 Telephone: (510) 725-3000 Facsimile: (510) 725-3001 [email protected] Counsel for Plaintiffs [Additional Counsel Listed on Sig. Page]

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

OAKLAND DIVISION

RACHEL MEHR, et al., Plaintiffs, v. FÉDÉRATION INTERNATIONALE DE FOOTBALL ASSOCIATION, et al., Defendants.

No. 4:14-cv-03879-PJH PLAINTIFFS’ OPPOSITION TO DEFENDANT FÉDÉRATION INTERNATIONALE DE FOOTBALL ASSOCIATION’S MOTION TO COMPEL ARBITRATION DATE: May 6, 2015 TIME: 9:00 a.m. JUDGE: Phyllis J. Hamilton CRTM: 3 - 3rd Floor Action Filed: August 27, 2014

Case4:14-cv-03879-PJH Document64 Filed03/20/15 Page1 of 32

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28 PLS.’ OPP’N TO FIFA’S MOT. TO COMPEL ARBITRATION Case No. 14-cv-03879-PJH

TABLE OF CONTENTS

Page

I. STATEMENT OF ISSUE TO BE DECIDED ........................................................................ 1

II. INTRODUCTION ................................................................................................................... 1

III. STATEMENT OF FACTS ...................................................................................................... 3

IV. ARGUMENT .......................................................................................................................... 4

A. FIFA fails to demonstrate that Plaintiffs must arbitrate their claims against FIFA. ............................................................................................................... 4

1. FIFA does not identify a single agreement to arbitrate any claims against FIFA or any other Defendant. .................................................. 4

2. The arbitration provisions in Defendants’ bylaws and statutes do not require arbitration. .............................................................................. 10

3. FIFA’s Proffered “Agreements” to Arbitrate are Unconscionable. .............. 13

B. FIFA has not moved for dismissal or a stay for Plaintiffs’ alleged failure |to exhaust remedies, let alone met its burden to demonstrate that |dismissal or a stay is appropriate. ............................................................................. 13

1. The exhaustion-of-remedies doctrine does not apply, because Plaintiffs seek broad-based injunctive relief for which Defendants do not provide any adequate remedy. ............................................................ 14

2. Exhaustion of remedies is not required where, as here, the relevant documents are ambiguous at best. ................................................... 19

V. CONCLUSION ..................................................................................................................... 25


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TABLE OF AUTHORITIES

Page(s)

CASES

Am. Express Co. v. Italian Colors Rest., 133 S. Ct. 2304 (2013) ................................................................................................................. 5

Am. Indian Model Sch. v. Oakland Unified Sch. Dist., 227 Cal. App. 4th 258 (2014) ..................................................................................................... 18

BG Group PLC v. Republic of Argentina, 134 S. Ct. 1198 (2014) ............................................................................................................. 2, 5

Bollengier v. Doctors Med. Ctr., 222 Cal. App. 3d 1115 (1990) .................................................................................................... 15

Briggs v. Sullivan, 886 F.2d 1132 (9th Cir. 1989) .................................................................................................... 17

Bruni v. Didion, 160 Cal. App. 4th 1272 (2008) ................................................................................................... 13

Cantlay & Tanzola, Inc. v. United States, 115 F. Supp. 72 (S.D. Cal. 1953) ............................................................................................... 18

Catholic Soc. Servs., Inc. v. INS, 182 F.3d 1053 (9th Cir. 1999) .................................................................................................... 18

Chiron Corp. v. Ortho Diagnostic Sys., Inc., 207 F.3d 1126 (9th Cir. 2000) ...................................................................................................... 6

Comer v. Micor, Inc., 436 F.3d 1098 (9th Cir. 2006) ................................................................................................ 9, 10

Formostar, LLC v. Florentius, No. 2:11-cv-01166, 2012 WL 2885119 (D. Nev. Mar. 5, 2012) .................................................. 9

Gateway Coal Co. v. United Mine Workers of Am., 414 U.S. 368 (1974) ..................................................................................................................... 5

Gear v. Webster, 258 Cal. App. 2d 57 (1968) .......................................................................................................... 8

Gonzalez v. Compass Vision, Inc., No. 07CV1951, 2010 WL 3783164 (S.D. Cal. Sept. 27, 2010) ................................................. 24

Gupta v. Stanford Univ., 124 Cal. App. 4th 407 (2004) ............................................................................................... 15, 16


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Gutkin v. Univ. of S. Cal., 101 Cal. App. 4th 967 (2002) ..................................................................................................... 16

Holderby v. Int’l Union of Operating Eng’rs, 45 Cal. 2d 843 (1955) ................................................................................................................. 15

King v. Larsen Realty, Inc., 121 Cal. App. 3d 349 (1981) ........................................................................................................ 8

Kirleis v. Dickie, McCamey & Chilcote, P.C., 560 F.3d 156 (3d Cir. 2009) ............................................................................................... 6, 7, 10

Knutson v. Sirius XM Radio, Inc., 771 F.3d 559 (9th Cir. 2014) ........................................................................................................ 7

Lau v. Mercedes-Benz USA, LLC, No. CV 11-1940 MEJ, 2012 WL 370557 (N.D. Cal. Jan. 31, 2012) ......................................... 13

Montoya v. Reliance Standard Life Ins. Co., No. 14-CV-02740-WHO, 2015 WL 884643 (N.D. Cal. Mar. 2, 2015) ..................................... 19

Morgado v. Regents of Univ. of Cal., No. C-13-1318 MEJ, 2013 WL 2252115 (N.D. Cal. May 22, 2013) ......................................... 19

Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1 (1983) ......................................................................................................................... 6

Palmer v. Regents of the Univ. of Cal., 107 Cal. App. 4th 899 (2003) ............................................................................................... 14, 15

Sanford v. MemberWorks, Inc., 483 F.3d 956 (9th Cir. 2007) ........................................................................................................ 5

Sarei v. Rio Tinto, PLC, 550 F.3d 822 (9th Cir. 2008) ...................................................................................................... 18

Schimsky v. United States Office of Pers. Mgmt., 403 Fed. Appx. 150 (9th Cir. 2010) ........................................................................................... 18

Three Valleys Mun. Water Dist. v. E.F. Hutton & Co., 925 F.2d 1136 (9th Cir. 1991) ...................................................................................................... 5

Varadarajan v. U.S. Cricket Ass’n, Inc., No. 12-CV-01306-LHK, 2012 WL 1252783 (N.D. Cal Apr. 13, 2012) .................................... 15

Westlake Comty. Hosp. v. Superior Court, 17 Cal 3d. 465 (1976) ................................................................................................................. 14

White v. State of Cal., 195 Cal. App. 3d 452 (1987) ...................................................................................................... 17


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STATUTES

9 U.S.C. § 2 ........................................................................................................................................ 5

9 U.S.C. § 3 ........................................................................................................................................ 5

9 U.S.C. § 4 ........................................................................................................................................ 5


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I. STATEMENT OF ISSUE TO BE DECIDED

Has defendant Fédération Internationale de Football Association (“FIFA”) met its burden to

demonstrate that the Court must compel Plaintiffs to individually arbitrate their claims against FIFA

in Switzerland?

II. INTRODUCTION

FIFA has not met its burden in moving to compel arbitration of any claim in the Complaint,

which alleges that FIFA presides over a public health epidemic affecting one of this country’s most

vulnerable populations, children. Plaintiffs allege that FIFA and the other defendants repeatedly

have failed to enact and enforce best practices for concussion management. In response, FIFA urges

this Court to require young girls and boys and their parents from the United States to travel to

Switzerland to arbitrate their individual claims.1 As if that is not daunting enough, FIFA seeks to

require those children and their parents to first individually proceed through a dense thicket of

inapplicable and ambiguous internal grievance procedures at the local, regional, state, and multiple

national levels, before then individually arbitrating in Switzerland.2 FIFA’s approach is telling. Its

suggested scattershot, piecemeal and ineffective approach to critical health and safety issues is exact-

ly what has led to Defendants’ woefully inadequate management of youth concussions.

The motion to compel arbitration fails for three independent reasons. First, FIFA does not

identify a single signed agreement by any plaintiff to arbitrate any claims against FIFA, any other

defendant, or anyone else. But the Federal Arbitration Act, under which FIFA seeks arbitration,

requires an agreement to arbitrate. As the Supreme Court has explained, “‘arbitration is a matter of

1 Two defendants definitely join in FIFA’s motion to compel arbitration (“FIFA Br.”). See ECF

Nos. 48 (Cal. Youth Soccer Assoc., Inc.) and 57 (US Youth Soccer Ass’n, Inc.). Defendant U.S. Soccer Federation states that it “hereby joins in each of the motions filed on January 30, 2015, by Defendants US Youth Soccer Association, Inc., American Youth Soccer Organization, National Association of Competitive Soccer Clubs, Inc., California Youth Soccer Association, and the Fédération Internationale de Football Association (‘FIFA’),” but the bottom of that document states “U.S. Soccer’s Joinder in Motions to Dismiss” as opposed to FIFA’s motion to compel arbitration. See ECF No. 52.

2 FIFA offers an example of “how this should work in practice”: “Plaintiff Akka-Seidel is for-bidden from invoking the aid of the courts without first exhausting all internal remedies within the Tiburon Peninsula Soccer Club, the California Youth Soccer Association, the U.S. Youth Soccer Association, and ultimately US Soccer,” all “before she could even attempt to bring her rules-based dispute against FIFA to arbitration” before a tribunal in Switzerland. FIFA Br. at 9.


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contract and a party cannot be required to submit to arbitration any dispute which he has not agreed

so to submit.’”3 FIFA erroneously argues that Plaintiffs can be compelled to arbitrate their claims

under Defendants’ bylaws and statutes, but those bylaws and statutes do not apply absent an

agreement by Plaintiffs to be bound by them.

Second, even assuming that Plaintiffs had contracted to be bound by Defendants’ bylaws and

statutes (which they did not), FIFA fails to identify any provision that requires arbitration of the

claims in this litigation. FIFA presents material from only two out of the six defendants that makes

any reference at all to arbitration, FIFA, and the United States Soccer Federation (“USSF”). But

those arbitration provisions are inapplicable on their faces. For example, as demonstrated below,

FIFA’s definition of a “Player” allegedly bound by FIFA’s arbitration provision excludes every

Plaintiff in this case. And neither FIFA nor USSF seeks to invoke USSF’s facially inapplicable

arbitration provision.4

Third, the arbitration provisions cited by FIFA are unconscionable. To get to the conclusion

that Plaintiffs must arbitrate their claims, FIFA chains together several hundred pages of documents

from numerous Defendants and non-parties. Courts have found far more clear-cut arbitration provi-

sions to be unconscionable.

FIFA’s “exhaustion of remedies” arguments similarly fail. First, FIFA only moves to compel

arbitration. It does not move for dismissal (or for a stay) on exhaustion-of-remedies grounds. As a

result, the exhaustion-of-remedies arguments are irrelevant. Second, as FIFA acknowledges in a

footnote, defendant American Youth Soccer Organization (“AYSO”) does not have an exhaustion of

remedies requirement.5 FIFA’s proffered materials from the other defendants are inapplicable or

ambiguous at best. Third, FIFA’s argument is undermined by numerous exceptions to that doctrine,

such as those pertaining to futility, irreparable harm and inadequacy of remedies.

In regards to futility, FIFA informs this Court in a footnote that Plaintiffs would not have any

remedy against FIFA, stating that “[u]nder Swiss law, Plaintiffs cannot assert claims against FIFA

3 BG Group PLC v. Republic of Argentina, 134 S. Ct. 1198, 1206 (2014) (citation omitted). 4 FIFA only cites to other provisions of USSF’s bylaws about exhaustion of remedies. 5 See FIFA Br. at 8, n.5.


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based upon the FIFA statutes because Plaintiffs are not members of FIFA, an association governed

by Swiss law, and because the FIFA statutes do not create any third-party rights or provide any other

legal basis for non-members to assert claims against FIFA.”6 This statement personifies the

“futility” exception to the exhaustion of remedies doctrine. And AYSO also presently has posted on

its website a detailed statement about this litigation, stating in part that “AYSO disputes the validity

of plaintiffs’ claims and denies their allegations as against AYSO. In fact, we are proud of the

leadership role we have played on concussion awareness, discussed in greater detail below.”7

Courts have consistently held that such statements are the paradigm for application of the futility

exception.

Plaintiffs respectfully request that the Court deny FIFA’s motion to compel arbitration.

III. STATEMENT OF FACTS

Plaintiffs allege that there is “an epidemic of concussion injuries in soccer at all levels around

the world, including in the United States, from youth to professionals, from elite players to children

playing for the first time, women and men, girls and boys.”8 Plaintiffs further allege that this case

“arises from the failure of soccer’s governing authorities to take steps to reduce injuries.”9 Specifi-

cally, “defendants have failed to protect soccer players by their failure to enact and enforce best

practices for concussion management.”10 The Complaint details that “[p]ersistent post-concussion

symptoms can be devastating,” and can “disrupt daily living and participation in school and activi-

ties,” cause children and adolescents to “[m]iss weeks or even months out of the school year,” cause

“attention and memory deficits,” cause children to become “clumsy and accident prone,” and cause

them to become “socially withdrawn to cope with headaches and mood changes.”11

6 FIFA Br. at 7 n.4. 7 See Declaration of Jon T. King in Support of Plaintiffs’ Opposition to FIFA’s Motion to

Compel Arbitration (“King Decl.”), at Ex. A (emphasis added). 8 Class Action Complaint, Aug. 27, 2014, ECF No. 1 (“Complaint”), ¶ 16. All citations to “¶”

are to the Complaint unless otherwise noted. 9 ¶ 2. 10 Id. 11 ¶ 6.


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Moreover, there is “substantial evidence that young people may be more susceptible to dam-

age resulting from repetitive concussive and sub-concussive brain trauma.”12 In addition, “[y]ounger

athletes typically have weaker necks, which could put an athlete at higher risk for concussion.”13

And “[y]ounger players are typically not provided professional medical supervision, either during

practices or at matches.”14

The Complaint defines a putative class of “[a]ll current or former soccer players who from

2002 to the present competed for a team governed by [Defendants].”15 Plaintiffs set forth claims for

negligence,16 breach of voluntary undertaking,17 and medical monitoring.18

IV. ARGUMENT

A. FIFA fails to demonstrate that Plaintiffs must arbitrate their claims against FIFA.

FIFA’s motion to compel arbitration fails for three independent reasons: (1) FIFA fails to

identify any agreement by any Plaintiff to arbitrate any claim; (2) the arbitration provisions cited by

FIFA from the bylaws and statutes of defendants do not provide for arbitration of Plaintiffs’ claims;

and (3) the arbitration provisions cited by FIFA are unconscionable. Plaintiffs address those three

reasons in the following subsections.

1. FIFA does not identify a single agreement to arbitrate any claims against FIFA or any other Defendant.

a. The Federal Arbitration Act requires an agreement to arbitrate.

The Federal Arbitration Act requires an agreement to arbitrate, but FIFA does not provide

evidence that any Plaintiff agreed to arbitrate any claims, let alone the claims alleged in the Com-

plaint. The Supreme Court has explained that “‘arbitration is a matter of contract and a party cannot

12 Id. 13 ¶ 9. 14 ¶ 10. 15 ¶ 415. 16 ¶¶ 423-433. 17 ¶¶ 434-444. 18 ¶¶ 445-451.


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be required to submit to arbitration any dispute which he has not agreed so to submit.’”19 Thus, the

Court has explained that section 2 of the FAA20 “reflects the overarching principle that arbitration is

a matter of contract.”21 Under § 3 of the FAA, a party may apply to a federal court for a stay of the

trial of an action “upon any issue referable to arbitration under an agreement in writing for such

arbitration.”22 And under § 4, a party “aggrieved” by the failure of another party “to arbitrate under a

written agreement for arbitration” may petition a federal court “for an order directing that such

arbitration proceed in the manner provided for in such agreement.”23

So the Ninth Circuit requires an agreement to arbitrate before arbitration can be compelled

under the FAA. In Three Valleys Mun. Water Dist. v. E.F. Hutton & Co., the Ninth Circuit held that

“‘[b]efore a party to a lawsuit can be ordered to arbitrate and thus be deprived of a day in court, there

should be an express, unequivocal agreement to that effect.”24 So it is “axiomatic that ‘[a]rbitration

is a matter of contract and a party cannot be required to submit any dispute which he has not agreed

so to submit.’”25 Here, FIFA does not identify any agreement signed by any Plaintiff, let alone an

“express, unequivocal agreement” to arbitrate

Even though it fails to identify a single contract or other agreement to arbitrate, FIFA

erroneously contends that it can force each Plaintiff into individual Swiss arbitrations against FIFA.

Even FIFA’s opening case quotation from the Ninth Circuit betrays its position. In Chiron Corp. v.

Ortho Diagnostic Sys., Inc., the Court stated that the FAA mandates “‘arbitration on issues as to

19 BG Group PLC, 134 S. Ct. at 1206 (quoting United Steelworkers of Am. v. Warrior & Gulf

Nav. Co., 363 U.S. 574, 582 (1960)) (emphasis added). 20 9 U.S.C. § 2. 21 Am. Express Co. v. Italian Colors Rest., 133 S. Ct. 2304, 2309 (2013) (emphasis added). See

also Gateway Coal Co. v. United Mine Workers of Am., 414 U.S. 368, 374 (1974) (“The law compels a party to submit his grievance to arbitration only if he has contracted to do so.”).

22 9 U.S.C. § 3 (emphasis added). 23 9 U.S.C. § 4 (emphasis added). 24 925 F.2d 1136, 1141 (9th Cir. 1991) (quoting Par-Knit Mills, Inc. v. Stockbridge Fabrics Co.,

636 F.2d 51, 54 (3d Cir. 1980)). 25 Sanford v. MemberWorks, Inc., 483 F.3d 956, 962 (9th Cir. 2007) (quoting AT&T Tech., Inc. v.

Commc’ns Workers of Am., 475 U.S. 643, 648 (1986)).


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which an arbitration agreement has been signed.’”26 The Court explained that “[w]e are not

presented with a disagreement over whether the parties agreed to arbitrate,”27 and that “[w]e begin

our analysis by recognizing that an agreement to arbitrate is a matter of contract: ‘it is a way to

resolve those disputes – but only those disputes – that the parties have agreed to submit to

arbitration.’”28 Here in contrast, Plaintiffs contend that the parties did not agree to arbitrate any of

the claims in this litigation.

FIFA also excises a portion of a quotation from a Supreme Court case, leaving out the

highlighted language: “The Arbitration Act establishes that, as a matter of federal law, any doubts

concerning the scope of arbitrable issues should be resolved in favor of arbitration, whether the

problem at hand is the construction of the contract language itself or an allegation of waiver, delay,

or a like defense to arbitrability.”29 Here, FIFA does not identify any contract to which any Plaintiff

is a party, so with no contract, there is no contract language to construe and no need to examine

defenses to the enforcement of contracts that do not exist.

b. The arbitration provisions in Defendants’ bylaws and statutes are insufficient to compel arbitration, because Plaintiffs did not agree to be bound by those provisions.

FIFA’s citation to arbitration provisions in Defendants’ bylaws and statutes is irrelevant,

because Plaintiffs did not agree to be bound by them. Courts consistently reject any argument that

arbitration provisions in bylaws or similar documents apply, absent proof that the plaintiff agreed to

be bound by those provisions. For example, in Kirleis v. Dickie, McCamey & Chilcote, P.C.,30 the

plaintiff attorney sued the firm for which she worked for sex discrimination, retaliation, and hostile

work environment. The firm filed a motion to arbitrate under the FAA, “citing a mandatory arbitra-

26 207 F.3d 1126, 1130 (9th Cir. 2000) (quoting Dean Witter Reynolds, Inc. v. Byrd, 470 U.S.

213, 218 (1985)) (emphasis added) (cited in FIFA Br. at 10). 27 Id. at 1128. 28 Id. at 1130 (quoting First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 943 (1985)). 29 Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24-25 (1983) (footnote

omitted) (cited in FIFA Br. at 10). 30 560 F.3d 156 (3d Cir. 2009).


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tion provision in its bylaws.”31 The Third Circuit affirmed the district court’s denial of the motion,

because the firm never gave the plaintiff a copy of the bylaws or informed her of the presence of an

arbitration provision in the bylaws. As the Third Circuit explained, “Kirleis submitted specific,

undisputed evidence that she never agreed to arbitrate her claims against the Firm. The District Court

did not err in finding that this evidence creates a genuine issue of material fact.”32 Similarly here,

there is no evidence of any kind that Plaintiffs agreed to any arbitration provision in Defendants’

bylaws and statutes.

Similarly, in Knutson v. Sirius XM Radio, Inc.,33 the Ninth Circuit held that an arbitration

provision in a customer agreement did not apply, because there was no evidence that the plaintiff

was aware of those provisions or agreed to be bound by them. The plaintiff purchased a vehicle

from Toyota that included a 90-day trial subscription to Sirius XM satellite radio. About a month

after his trial subscription was activated, he received a Customer Agreement from Sirius. After

receiving unauthorized phone calls from Sirius, he filed a class action. The district court ruled that

an arbitration provision in the Customer Agreement required arbitration of plaintiff’s claims.

The Ninth Circuit reversed. The Court explained that the “party seeking to compel arbitra-

tion has the burden of proving the existence of an agreement to arbitrate by a preponderance of the

evidence.”34 The Court then held that arbitration could not be compelled because a “reasonable per-

son in Knutson’s position could not be expected to understand that purchasing a vehicle from Toyota

would simultaneously bind him or her to any contract with Sirius XM, let alone one that contained an

arbitration provision without any notice of such terms.”35 Similarly here, a reasonable person in

Plaintiffs’ position could not be expected to understand that they would be bound by arbitration

provisions of which they were unaware, especially when FIFA has not offered any evidence the

31 Id. at 159. 32 Id. at 162. 33 771 F.3d 559 (9th Cir. 2014). 34 Id. at 565. 35 Id. at 566.


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Plaintiffs entered into any agreement with any Defendant, let alone an agreement that contained

arbitration provisions.

And the two cases cited by FIFA undermine its contention that “by virtue of their member-

ship in their local club, which rolls up to US Soccer, plaintiffs are bound by FIFA’s arbitration

requirement.”36 First, in Gear v. Webster, the court stated that “Appellant agreed to abide by the

‘Realtor’s Code of Ethics’ and the bylaws of the association, which at that time recommended that

controversies between members be submitted for arbitration” and subsequently was amended to

require arbitration.37 As the Court noted, “In accepting membership, appellant as well as the other

members signed the following declaration: ‘This is to advise that I have read the Realtors’ Code of

Ethics and the By-Laws of the above named Board and if elected to membership I agree to adhere

thereto.’”38 As the Court then explained, “Clearly, then, appellant entered into a contract when she

signed the bylaws….”39 Here in contrast, there is no evidence of any “signed declaration” or “signed

bylaws” from Plaintiffs stating that they agreed to abide by any of Defendants’ bylaws or statutes, let

alone to abide by any arbitration provisions in those documents.

The second case cited by FIFA, King v. Larsen Realty, Inc.,40 also undermines its argument.

In King, the court explained that “the application for membership in the Paso Robles Board of

Realtors which appellants signed provide that the member agrees to abide by the constitution,

bylaws, rules and regulations of the local board and the state association.”41 The Court further

explained that one of the appellants “read his application for membership prior to signing it and

enjoyed familiarity with the Arbitration Manual,”42 and that he “was familiar with the Manual,

having referred thereto on occasion.”43 And as the Court explained, “A secondary document

36 FIFA Br. at 13. 37 258 Cal. App. 2d 57, 59 (1968) (emphasis added) (cited in FIFA Br. at 13). 38 Id. at 60. 39 Id. 40 121 Cal. App. 3d 349, 354 (1981) (cited in FIFA Br. at 13). 41 Id. at 355. 42 Id. at 353. 43 Id. at 358.


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becomes part of a contract as though recited verbatim when it is incorporated into the contract by

reference provided that the terms of the incorporated document are readily available to the other

party.” Here, FIFA presented no document signed by any Plaintiff, no evidence that any Plaintiff

was provided any of Defendants’ bylaws or statutes, no evidence that Plaintiffs were even made

aware of those bylaws and statutes, and no evidence of any Plaintiff’s familiarity with any arbitration

provisions before they filed this action.

c. The doctrine of equitable estoppel does not apply.

FIFA erroneously contends that even absent any signed arbitration agreements, all Plaintiffs

are bound to arbitrate under the doctrine of equitable estoppel.44 FIFA cites one case for this flawed

proposition, an inapposite District of Nevada decision. In Formostar, LLC v. Florentius, the court

stated that “[i]n order to apply estoppel against the nonsignatories, there should be a showing that

[the nonsignatories] ‘obtained a ‘direct benefit’ from the underlying contract, that is, a benefit

‘flowing directly from the agreement.’’”45 The court found that the nonsignatories had received pre-

litigation benefits from the contract at issue specifically “to obtain products.”46 And the court found

that in litigation, the nonsignatories sought to take advantage of the contract at issue by arguing that

they “‘fully performed their obligations as required under the contract,’ but Defendants failed to do

so.”47 The nonsignatories thus effectively presented themselves to the court as virtual signatories.

Here, in contrast, FIFA does not and cannot argue that Plaintiffs sought any pre-litigation contractual

benefit under its statutes or any other Defendant’s bylaws.

FIFA notes that Formostar cites the Ninth Circuit’s decision in Comer v. Micor, Inc.,48 but

Comer further undercuts FIFA’s argument, holding that the nonsignatory was not bound by an arbi-

tration agreement, and stating that the nonsignatory did not seek to exploit the agreement containing

the arbitration clause by filing suit, “which he bases entirely on ERISA, and not on the investment

44 FIFA Br. at 14-15. 45 No. 2:11-cv-01166, 2012 WL 2885119, at *6 (D. Nev. Mar. 5, 2012). 46 Id. at *6. 47 Id. 48 436 F.3d 1098 (9th Cir. 2006) (cited in FIFA Br. at 15).


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management agreements.”49 The court concluded that the defendant’s “attempt to shoehorn [the

nonsignatory’s] status as a passive participant in the plans into his ‘knowing [ ] exploitation’ of the

investment management agreements fails.”50 Again, FIFA has not made any contention or showing

that any Plaintiff obtained any pre-litigation benefit from FIFA’s Statutes. And Plaintiffs do not

allege that FIFA breached any contractual agreement with any Plaintiff. Plaintiffs certainly are

“passive participants” in regards to FIFA’s activities, and their claims sound exclusively in tort.51

In any event, any citation by Plaintiffs to FIFA’s Statutes does not subject them to any arbi-

tration provision in those statutes. In Kirleis, the firm argued that the plaintiff’s “status as a share-

holder/director charged Kirleis with constructive knowledge of the terms of the bylaws and mani-

fested her acceptance of the arbitration provision.”52 As the Third Circuit explained, the law firm’s

argument paralleled FIFA’s argument: “In sum, the Firm argues, as it did before the District Court,

that Kirleis ‘cannot have it both ways’ by selectively accepting the benefits of the bylaws under

Sections 1, 2, 3, and 4 while refusing to be bound by the arbitration clause of Section 9.”53 But the

Third Circuit rejected that argument, because “Kirleis never signed an agreement that subjected her

to arbitration.”54 Similarly here, FIFA presents no evidence that Plaintiffs signed any agreement that

subjected them to arbitration.

2. The arbitration provisions in Defendants’ bylaws and statutes do not require arbitration.

Even if Plaintiffs had agreed to be bound by Defendants’ bylaws and statutes (which they did

not), the arbitration provisions cited by FIFA would not apply to Plaintiffs’ claims. FIFA’s Statutes

49 Id. at 1102. 50 Id. 51 FIFA points to a few limited references in the Complaint to FIFA’s Statutes. But FIFA does

not cite to the far more ample material regarding FIFA that is not from FIFA’s Statutes. ¶¶ 207-260. Most notably in that material are the very detailed factual allegations regarding FIFA voluntarily undertaking a duty regarding concussion management practices, widely publicizing its efforts, and repeatedly failing in its discharge of that duty. Id. That simply is not a matter of contract.

52 560 F.3d at 160. 53 Id. 54 Id. at 163.


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comprise an 84-page, single-spaced document.55 The arbitration-related provisions are found 50

pages into the document at Articles 66-68.56 The first provision demonstrates its inapplicability to

any of the Plaintiffs. Article 66(1) states that “FIFA recognizes the independent Court of Arbitration

for Sport (CAS) with headquarters in Lausanne (Switzerland) to resolve disputes between FIFA,

Members, Confederations, Leagues, Clubs, Players, Officials and licensed match agents and players’

agents.”57 FIFA in its Statutes defines “Player” as “any football player licensed by an Associa-

tion.”58 FIFA defines “Association” as “a football association recognised by FIFA. It is a member

of FIFA, unless a different meaning is evident from the context.”59 The only defendant in this case

that is a member of FIFA is USSF, as FIFA expressly agrees in its brief.60 FIFA does not contend

that any Plaintiff is “licensed” by USSF.

FIFA also relies on a series of other statutes that do not require arbitration in this case, even if

Plaintiffs had agreed to abide by them. FIFA Statutes Article 68(3) states that the “Associations

shall insert a clause in their statutes or regulations, stipulating that it is prohibited to take disputes in

the Association or disputes affecting Leagues, members of Leagues, Clubs, Players, Officials and

other Association Official to ordinary courts of law, unless the FIFA regulations or binding legal

provisions specifically provide for or stipulate recourse to ordinary courts of law.”61 FIFA’s Statutes

continue that “[i]nstead of recourse to ordinary courts of law, provision shall be made for arbitra-

tion.”62 The Statutes continue that “[t]he Associations shall also ensure that this stipulation is

implemented in the Association, if necessary by imposing a binding obligation on its members.”63

55 Declaration of Jérôme Valcke in Support of Fédération Internationale De Football

Association’s Motion to Dismiss the Complaint or, in the Alternative, Motion to Compel Arbitration (“Valcke Decl.”), Ex. A, ECF No. 46-1 (FIFA Statutes August 2014 edition).

56 Id. at 49-51. 57 Id. at 49. 58 Id. at 6-7. 59 Id. at 6. 60 See FIFA Br. at 10 (“The only U.S. person or entity that is a member of FIFA is US Soccer.”). 61 Valcke Decl., Ex. A at 51. 62 Id. 63 Id.


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Again, Plaintiffs here are not the defined “Players.” Moreover, for reasons unknown to

Plaintiffs, USSF does not appear to have abided by FIFA’s broad dictates, as USSF’s arbitration

provision is very limited as discussed below. Therefore, those arbitration provisions provide no basis

for compelling arbitration in this matter.

USSF’s Bylaws, invoked here by FIFA, are a 41-page, single-spaced document.64 Bylaw 706

(“Arbitration”), 34 pages into the document, states that the “Federation shall submit the following to

binding arbitration conducted under the auspices of the American Arbitration Association in accord-

ance with its commercial rules in effect: (1) any controversy involving its recognition as a national

governing body for the sport of soccer, as provided in the Amateur Sports Act and the USOC Consti-

tution and Bylaws, and (2) any controversy involving the opportunity of any Athlete, coach, trainer,

manager, administrator, or official to participate in any amateur athletic competition or the Olympic

Games, Pan American Games, World Championship competitions, or any other ‘protected compe-

tition’ as defined under the Amateur Sports Act and the USOC Constitution and Bylaws.”65

Notably, USSF’s arbitration clause details what USSF must submit to arbitration, not any

national team player, let alone non-national team players, such as young children or their parents.66

Moreover, Plaintiffs do not challenge any of the arbitration provision’s very specific and limited

topics, involving a challenge to USSF’s status as a national governing body and player eligibility

issues, and FIFA does not contend otherwise. Moreover, one defendant’s joinder indicates that

USSF was considering filing a motion to compel arbitration.67 USSF apparently thought better of

filing such a motion based on its inapplicable arbitration provisions.

64 Declaration of H. Christopher Boehning in Support of Fédération Internationale De Football

Association’s Motion to Dismiss the Complaint or, in the Alternative, Motion to Compel Arbitration (“Boehning Decl.”), Ex. C, ECF No. 45-3 (Bylaws of the United States Soccer Federation, Inc., as revised and amended, effective September 1, 2014).

65 Boehning Decl., Ex. 45-3, at 34-35. 66 The Bylaws define “The Federation” as “the United States Soccer Federation, Inc.” Boehning

Decl., Ex. 45-3, at 3. 67 See ECF No. 57, US Youth Soccer’s “[Amended] Notice of Joinder to Defendants [FIFA] and

United States Soccer Federation, Inc.’s Motions to Compel Arbitration.”


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3. FIFA’s Proffered “Agreements” to Arbitrate are Unconscionable.

FIFA’s motion to compel arbitration fails for a third independent reason. The alleged

“agreement” to arbitrate that it references is contained deep into a document that is 81 pages of

single-spaced text. FIFA, in order to contend that any of the Plaintiffs in this case are bound by that

document’s arbitration provision, further contends that Plaintiffs must be bound by a chain of

documents from, e.g., USSF, USYSA, CYSA, CYSA “sanctioned programs,” and the “Tiburon

Peninsula Soccer Club.”68 These documents, in turn, are an aggregate of another 167 single-spaced

pages that, in addition to FIFA’s 81 pages, comprise a total of 248 pages. These “agreements” are

manifestly unconscionable in the way that FIFA seeks to use them to extinguish Plaintiffs’ legal

rights to access United States courts. See, e.g., Lau v. Mercedes-Benz USA, LLC (“The location of an

arbitration clause on the back of a dense pre-printed form where the purchaser is not required to sign

does relatively little to notify the consumer that such clause exists.”).69

B. FIFA has not moved for dismissal or a stay for Plaintiffs’ alleged failure to exhaust remedies, let alone met its burden to demonstrate that dismissal or a stay is appropriate.

There is no merit to FIFA’s argument that Plaintiffs must exhaust remedies under Defend-

ants’ statutes and bylaws. The primary flaw in FIFA’s argument is that it moved only to compel

arbitration, not for dismissal or a stay for failure to exhaust remedies. So there is no reason for this

Court to address the exhaustion-of-remedies argument.

But as a cautionary measure, Plaintiffs demonstrate below why FIFA’s argument lacks merit

in any event. The cases cited by FIFA apply the exhaustion-of-remedies doctrine only if: (1) the

claim is for individualized relief, rather than the type of broad-based injunctive relief that Plaintiffs

seek; and (2) the remedies provided by the defendant organization are tailored to address the

68 See FIFA Br. at 9 (“how this should work”). 69 No. CV 11-1940 MEJ, 2012 WL 370557, at *8 (N.D. Cal. Jan. 31, 2012). See also Bruni

v. Didion, 160 Cal. App. 4th 1272, 1288 (2008) (unconscionable analysis involves examining the extent to which “the supposedly agreed-upon terms of the bargain are hidden in a prolix printed form drafted by the party seeking to enforce the disputed terms”). FIFA’s proffered arbitration clauses meet any test of both procedural and substantive unconscionability. They are one-sided, “take it or leave it” documents, and purport to require Plaintiffs, including young children and their parents, to travel to Switzerland (after exhausting multiple procedures allegedly imposed by other Defendants) to individually arbitrate important public health and safety issues affecting young children in California as well as all other states.


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individualized claim brought by the plaintiff. As discussed below, neither prerequisite exists in this

case. First, FIFA’s arguments about how Plaintiffs should address their claims would likely lead to a

patchwork of inconsistent approaches at myriad local, regional, state and national levels. It also

likely would lead to scenarios where, for example, a team plays another team out of its league from a

neighboring town, with differing health and safety standards applying to each team. That is neither

efficient nor workable.

Second, the alleged remedies provided by Defendants do not allow for meaningful review of

Plaintiffs’ claims. To bolster its exhaustion of remedies contention, FIFA relies on a morass of dense

documents from numerous defendants and non-parties, totaling several hundred pages in the aggre-

gate. Buried in those pages are a scattering of limited provisions regarding exhaustion of remedies,

none of which provides an effective remedy for Plaintiffs’ claims, as shown below.

1. The exhaustion-of-remedies doctrine does not apply, because Plaintiffs seek broad-based injunctive relief for which Defendants do not provide any adequate remedy.

a. The cases cited by FIFA involved individual claims for relief that were plainly subject to an internal review process provided for such claims.

FIFA cites a number of inapplicable cases, often variants on simple employee termination

scenarios. Those cases involved employer remedies to which the parties clearly agreed before the

allegedly wrongful act occurred, and for which the defendant provided internal procedures already

set up to handle the dispute at issue. For example, in Westlake Comty. Hosp. v. Superior Court, the

court stated that prior decisions had already established that, before a hospital could deny a doctor

the right to practice there, “the hospital must provide a fair procedure which affords the doctor an

opportunity to ‘answer’ the charges upon which his exclusion rests.”70 Not surprisingly, the court

stated that a doctor must follow that procedure before filing suit.71 Similarly, in Palmer v. Regents of

the Univ. of Cal., a terminated U.C. employee sued for wrongful termination “without first pursuing

University of California grievance procedures expressly created to protect employees like [her] who

70 17 Cal 3d. 465, 468 (1976) (cited in FIFA Br. at 12). 71 Id.


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claim to be victims of retaliation for reporting improper activities.”72 The court observed that the

plaintiff failed to avail herself of the “specific internal grievance process involving retaliation for

reporting improper activities, outlined in the document UCLA Procedures for Reporting Whistle

Blowing Complaints.”73 The court also noted that the plaintiff “did not contend the [Defendant’s]

internal grievance procedures are inadequate for adjudication of her claim of wrongful termina-

tion.”74 The court also explained that a California statute regarding protection of whistleblowers

further mandated the predicate step of exhaustion of internal grievance procedures.75 Here, in

contrast, Plaintiffs contend that FIFA’s proffered grievance procedures are inadequate, and there is

no custom-tailored internal grievance provision or statutory mandate as in Palmer.76

FIFA erroneously contends that the “fact Plaintiffs purport to bring their claims in tort does

not change the analysis, and courts have held that a failure to exhaust administrative remedies pre-

cludes the ability to bring tort claims.”77 FIFA cites two inapposite cases, which involved individual

claims that were plainly subject to the defendant’s internal review processes. In Gupta v. Stanford

Univ., a Stanford University tribunal found the plaintiff “to have violated the Honor Code at Stanford

[] by copying the work of two other students.”78 Plaintiff filed suit, but the court observed that

“[e]ach of these causes of action asserts violations of the established procedures for resolving disci-

72 107 Cal. App. 4th 899, 901 (2003) (cited in FIFA Br. at 12). 73 Id. at 903. 74 Id. 75 Id. at 908. 76 Several other cases cited by FIFA are similarly inapposite. See Varadarajan v. U.S. Cricket

Ass’n, Inc., No. 12-CV-01306-LHK, 2012 WL 1252783, at *11 (N.D. Cal Apr. 13, 2012) (cited in FIFA Br. at 12) (challenge to national election dismissed due to provision in the defendant’s consti-tution that provided for appointment of an auditor to “[h]ear and determine all challenges, and ques-tions arising in connection with the right to vote”); Bollengier v. Doctors Med. Ctr., 222 Cal. App. 3d 1115 (1990) (cited in FIFA Br. at 12) (exhaustion-of-remedies doctrine applied where medical center suspended doctor’s medical staff privileges, where the bylaws specifically provided a proce-dure for challenging such a suspension); Holderby v. Int’l Union of Operating Eng’rs, 45 Cal. 2d 843, 845 (1955) (cited in FIFA Br. at 12) (union member contended that he suffered “an exclusion from membership without compliance with procedures established in the union’s constitution”).

77 FIFA Br. at 12-13. 78 124 Cal. App. 4th 407, 409 (2004) (cited in FIFA Br. at 13).


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plinary claims at Stanford.”79 As the court explained, “Regardless of [plaintiff’s] characterization of

the causes of action in tort or contract, he cannot avoid the fact that the gravamen of his claims is

confined to the disciplinary process and the proceedings against him.”80 Here, Plaintiffs do not

challenge any Defendant’s failure to follow its own internal procedures, and unlike in Gupta,

Plaintiffs did not already voluntarily participate in an administrative proceeding.

In the other case, Gutkin v. Univ. of S. Cal., the plaintiff “brought a civil action for damages

to challenge the revocation of his tenure and termination of his employment as a tenured professor

[at USC].”81 The court explained that “despite the tort labels, the substance of these claims is strictly

confined to the employment relationship and the University’s dismissal proceedings: precisely the

type of claims that administrative mandamus is designed to address.”82 Again, Plaintiffs’ Complaint

does not allege that Defendants failed to follow any internal procedures.

b. The exhaustion-of-remedies doctrine does not apply, because Plaintiffs seek broad-based injunctive relief for a class of soccer players, for which Defendants do not provide any remotely adequate remedy, and because Plaintiffs and the putative class would be subject to irreparable harm caused by the delay in obtaining relief.

FIFA does highlight an important issue – Plaintiffs do indeed bring exclusively tort claims,

and seek injunctive relief and establishment of a medical monitoring fund. There is no indication

whatsoever that any Defendant is equipped to perform the quasi-judicial function necessary to evalu-

ate and adjudicate complex tort claims, or to preside over injunctive relief or administration of a

medical monitoring fund. Moreover, even if one internal tribunal granted the relief sought by Plain-

tiffs, there would be nothing to stop a future tribunal, or the governing body itself, from simply

choosing to disregard that relief. Defendants’ internal processes clearly would be ill-equipped to

handle the present dispute.

79 Id. at 412. 80 Id. 81 101 Cal. App. 4th 967, 970 (2002) (cited in FIFA Br. at 13). 82 Id. at 980.


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Thus, this case is very similar to Briggs v. Sullivan,83 in which the plaintiffs brought a class

action on behalf of a class of individuals who sought to receive disability payments from the federal

government. The Ninth Circuit rejected the defendant’s efforts to force the class action into an

individual, claimant-by-claimant administrative review procedure. The court observed that the

administrative procedure “has four distinct phases,” after which “the claimant will no doubt have

developed an abiding, personal understanding of the phrase ‘administrative exhaustion.’”84 The

court further explained that the administrative procedures offered “no method of representative liti-

gation comparable to the class action instituted in the district court,” thus “forcing each claimant to

proceed in an automation-like manner through several levels of the multi-tiered appeals process to

vindicate his right to payment.”85 The Ninth Circuit then explained the problems with such an

approach:

There are two obvious problems with requiring the members of the class to proceed through this scenario, problems which conclusively demonstrate the futility of pursuing administrative review in this case. First, under the system advanced to us by the Secretary, each member would have to go through the process individually. Each allegedly aggrieved claimant would need to seek redress for himself alone, and there would be no method of representative litigation comparable to the class action instituted in the district court. There would thus be no mechanism through which an individual could attempt to have the challenged POMS provisions invalidated on their face, to the benefit of others situated similarly.[86]

The Ninth Circuit’s concerns in Briggs are applicable here.87 FIFA offers an example of how

its suggested internal remedies “should work in practice”: “Plaintiff Akka-Seidel is forbidden from

invoking the aid of the courts without first exhausting all internal remedies within the Tiburon

Peninsula Soccer Club, the California Youth Soccer Association, the U.S. Youth Soccer Association,

83 Briggs v. Sullivan, 886 F.2d 1132 (9th Cir. 1989). 84 Id. at 1141. 85 Id. 86 Id. 87 And it is not at all clear that an internal body would have the ability, desire, or capability to

redress past harm. See, e.g., White v. State of Cal., 195 Cal. App. 3d 452, 466 (1987) (“exhaustion is not required because the section 3080 procedure provides no effective remedy for past wrongs done plaintiff and his class; the withholding of federal funds, for example, does not make plaintiff and his class whole”).


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and ultimately US Soccer,” all “before she could even attempt to bring her rules-based dispute

against FIFA to arbitration” before a tribunal in Switzerland.88 As in Briggs, Plaintiffs would no

doubt understand the phrase “administrative exhaustion” after that process. And as in Briggs, there

would be no method of representative litigation comparable to the class action instituted in the

district court.

In addition, the exhaustion-of-remedies doctrine should not be applied due to the likelihood

of irreparable harm. Courts have found the likelihood of irreparable harm to merit an exception to

the exhaustion requirement. For example, in Am. Indian Model Sch. v. Oakland Unified Sch. Dist.,

the trial court “stressed that [plaintiff school association] had demonstrated that it would lose its

faculty and student body if the injunction were not granted. Additionally, the students at the [ ]

schools would be ‘deprived of the opportunity to obtain an education at schools that have enabled

those students to obtain high API and SAT test scores.’ The record clearly supports the trial court’s

finding that the irreparable harm exception to the exhaustion doctrine applies.”89 Here, as described

in the factual section and in the Complaint, this case implicates extremely serious health and safety

issues affecting children. Forcing each Plaintiff into Defendants’ ad hoc internal proceedings, which

already have proven totally inadequate, will only allow Plaintiffs and the putative class members to

suffer more irreparable harm.90

88 FIFA Br. at 9. 89 227 Cal. App. 4th 258, 292 (2014); see also Cantlay & Tanzola, Inc. v. United States, 115 F.

Supp. 72, 76 (S.D. Cal. 1953) (“As to the ground first stated the danger of immediate and irreparable injury to plaintiffs, had they awaited action of the Commission on their petition for reconsideration, was sufficiently clear to warrant judicial intervention in advance of final administrative action, by way of exception to ‘the long-settled rule of judicial administration that no one is entitled to judicial relief for a … threatened injury until the prescribed administrative remedy has been exhausted.”) (citation omitted); Sarei v. Rio Tinto, PLC, 550 F.3d 822, 842 (9th Cir. 2008) (dissent, Rheinhardt, J.) (compiling numerous cases in which health and safety concerns excused exhaustion of local remedies requirement).

90 Even if the exhaustion-of-remedies doctrine applied (which it does not), outright dismissal is not appropriate when, as here, there are statute of limitations concerns. See Schimsky v. United States Office of Pers. Mgmt., 403 Fed. Appx. 150, 152 (9th Cir. 2010) (“Yet if [plaintiff] waited for a denial of coverage, the statute of limitations would have run out for some of his claims. Under these circumstances, the district court erred by dismissing rather than staying the action pending exhaustion of administrative remedies.”) (citation omitted). Sending Plaintiffs’ claims into four, five, or even more predicate internal procedures, each lasting for a totally unknown length, almost definitely would impact Plaintiffs’ claims, as well as the putative class members’ statutes of limitations are currently tolled because of the pendency of this case. See Catholic Soc. Servs., Inc. v.


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2. Exhaustion of remedies is not required where, as here, the relevant documents are ambiguous at best.

Even if the exhaustion-of-remedies doctrine applied to Plaintiffs’ claims (which it does not),

the provisions in Defendants’ bylaws on which FIFA relies are so ambiguous that as to provide no

basis for applying that doctrine. Courts have found such ambiguities to prevent dismissal. For

example, a district court recently declined to apply the doctrine, stating that “[a]s the policy language

does not require exhaustion and in fact suggests that exhaustion is not required, plaintiff need not

have exhausted any administrative remedies.”91 The court also explained that the “language in the

denial letters is, at best, ambiguous as to exhaustion…. This permissive language does not inform an

ordinary plan participant that he must exhaust the available administrative remedies prior to filing

suit.”92 Similarly, in Morgado v. Regents of Univ. of Cal., this Court stated that “[i]n reviewing the

PPSM submitted by Defendants, it is not clear that she is required to exhaust any remedies under the

policy…. Plaintiff alleges that she worked as a General Manager, which would appear to exclude

her from the requirements of PPSM 70.”93 The Court concluded that “[t]his determination is more

properly made at the summary judgment or trial phase.”94

Similarly, the inapplicable and ambiguous materials that FIFA cites do not merit dismissal, as

shown in the following subsections.

a. USSF’s exhaustion provisions are ambiguous, undefined, and inapplicable.

USSF’s Bylaw 707, titled “Litigation” states the following: “No Organization Member,

official, league, club, team, player, coach, administrator or referee may invoke the aid of the courts in

the United States or of a State without first exhausting all available remedies within the appropriate

INS, 182 F.3d 1053, 1058 (9th Cir. 1999) (“In American Pipe and Construction Co. v. Utah, the Supreme Court established that ‘the commencement of a class action suspends the applicable statute of limitations as to all asserted members of the class who would have been parties had the suit been permitted to continue as a class action.’”).

91 Montoya v. Reliance Standard Life Ins. Co., No. 14-CV-02740-WHO, 2015 WL 884643, at *4 (N.D. Cal. Mar. 2, 2015).

92 Id. at *5 93 No. C-13-1318 MEJ, 2013 WL 2252115, at *11 (N.D. Cal. May 22, 2013). 94 Id.


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soccer organization, and as provided within the Federation.”95 This provision is ambiguous in a

number of ways, including the reference to “the appropriate soccer organization,” and the “available

remedies” from USSF or any other entity. Also, USSF’s Bylaws’ relevant references to players and

grievances, in close proximity to the exhaustion provision, appear to be only for national team mem-

bers and other elite-caliber players.96 This is supported by USSF’s statement in its motion to dismiss

that “US Soccer does have a direct relationship with a discrete group of elite players who comprise

its National, Olympic, and Development Academy Teams. Because none of the Plaintiffs are now or

ever have been members of those teams, those elite players cannot be the subject of Plaintiffs’

claims.”97 No remedies are specified; there is no indication that USSF has any specific procedures

for health and safety issues, nor are there any procedures for class or representative actions.

b. USYS’s exhaustion provisions are ambiguous, undefined, and inapplicable.

US Youth Soccer’s current Bylaws are 23 pages of dense, single-spaced text.98 The docu-

ment is devoid of any reference whatsoever to arbitration. The only brief reference to exhaustion of

remedies appears on page 19, and states that “[n]o member of USYSA, official, league, club, team,

player, coach, administrator or referee may invoke the aid of the courts of the United States or of a

state without first exhausting all available remedies within the appropriate soccer organizations, and

as provided within USYSA.”99 This provision suffers from the same ambiguities and inadequacies

as described above with respect to USSF. Moreover, the Bylaws provide that any grievance hearing

must be held “within 30 days,” further illustrating that the remedies provision was only envisioned to

95 Boehning Decl., Ex. 45-3, at 35. 96 See Boehning Decl., Ex. 45-3, at 30, Bylaw 703 (“Grievances Relating to Opportunities to

Participate”) (“In this bylaw: (1) “amateur athletic competition” means any Federation sponsored or organized competition in which amateur soccer players compete at a highly competitive level, such as National Team events, international competitions, and ODP programs; and (2) jurisdiction for any grievance related to a soccer competition sponsored by any other entity shall be with the sponsoring entity whose decision is final unless otherwise appealable to the Federation under these Bylaws.”).

97 ECF No. 53, “Defendant United States Soccer Federation, Inc.’s Notice of Motion and Motion to Dismiss Plaintiffs’ Complaint Pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6),” at 20, n. 19.

98 Boehning Decl., Ex. 45-4 (Bylaws of the United States Youth Soccer Association, Inc. as of September 1, 2014).

99 Boehning Decl., Ex. 45-4, at 19.


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handle basic matters such as player eligibility issues, not a complex class action such as the present

matter, that no doubt will require significant amounts of expert testimony and discovery.

c. US Club Soccer’s exhaustion provisions are ambiguous, undefined, and inapplicable.

The “US Club Soccer Policies” is a 37-page document containing dense, single-spaced

text.100 There is no reference to arbitration in the document. The only brief reference to exhaustion

of remedies appears on page 37 of the document, and states in regards to “Exhausting Remedies”

that “[n]o US Club Soccer-sanctioned league, Organization Member, coach, administrator, team,

referee, player, member or their representative may invoke the aid of the State or Federal courts

without first exhausting the Organization’s appeal rules, and any applicable U.S. Soccer Policies,

including grievance and appeal actions.”101 This provision suffers from several of the ambiguities

and inadequacies identified above, i.e., no remedies are specified, and there is no indication that

USSF has any specific procedures for health and safety issues, nor any procedures for class or

representative actions. And no “grievance” procedures are identified anywhere in the Bylaws, while

the “protest” and “appeal” rules in the Bylaws relate exclusively to protests regarding outcomes of

games and player eligibility issues.102

d. CYSA’s exhaustion provisions are inapplicable.

California Youth Soccer Association (aka “Cal North”)’s “Bylaws Rules and Regulations” is

a 31-page document of extremely dense, small, single-spaced text.103 The only reference to arbitra-

tion is this entirely inapplicable passage, in the middle of a paragraph, on page 30: “PIM 79-3 (Rev.

04/1996) DISTRICT ADMINISTRATION BOARD … Responsibility – … May act as an arbitrator

on matters involving two or more Leagues within the District.”104

100 Boehning Decl., Ex. 45-7 (US Club Soccer Policies, bearing date of Nov. 5, 2012). 101 Boehning Decl., Ex. 45-7, at 37. 102 Id. at Bylaw 8.05 (“Competition Protests and Appeals”); 9.08 (“Protest and Appeals” in

“Discipline” Section). 103 Boehning Decl., Ex. 45-8 (Cal North Bylaws Rules and Regulations). 104 Id. at 30 of 31.


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CYSA’s Bylaws make this reference to exhaustion of remedies in a section titled “Protest and

Appeals Procedure”: “In the matter of protests and appeals, no person(s) associated with the

operations of this Association at any level (team, league, district, or state) may invoke the aid of the

courts of any state or of the United States without first exhausting all available remedies within

CYSA/USYS/USSF, including a final appeal to the USSF Council at the Annual General

Meeting.”105 And the “protests and appeals” clearly are related to player disciplinary issues:

“3:06:10 The Protest and Appeals Committee of this Association shall consider all

pertinent information arising out of an appeal of a league or district disciplinary

action;”106

“4:06:01 The Protest and Appeals Committee, or this Association, shall deal with all

protests or appeals arising out of any Olympic Development, and/or International

Youth game.”107

“4:06:03 The protest or appeal shall be in writing (typed or printed) and mailed to the

CYSA office (unless specified otherwise in competition directives) and shall be

accompanied with the fee of two hundred dollars ($200.00). Such protest and appeals

shall be postmarked within seventy-two (72) hours of competition being protested

(excluding Sundays and holidays).”108

“PIM 08-3 PROTESTS, APPEALS AND DISCIPLINE ASSOCIATION INITIATED

DISCIPLINE The Protest and Appeals Committee may initiate disciplinary

proceedings against any player, coach, manager, team assistant, league officer,

referee or spectator from any member team, league or organization.”109

105 Id. at 12 of 31. 106 Id. at 13 of 31. 107 Id. at 16 of 31. 108 Id. 109 Id. at 26 of 31.


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e. AYSO does not require exhaustion of remedies.

FIFA also invokes the AYSO National Policy Statements110 and AYSO Standard Regional

Guidelines.111 FIFA advises in a footnote that “[w]hile AYSO’s dispute resolution procedure is not

as explicit as those of other clubs subordinate to US Soccer, it nowhere states in its procedures that

use of ordinary courts is permitted.”112 This novel proposition cuts against a fundamental tenet of

the American judicial system – access is a right, not something subject to advance permission.

These documents combined are 56 pages of small, single-spaced text. There are no

references to arbitration in the documents. There are no references to exhaustion of remedies in the

documents. There is no reference to preventing access at any time to the public judicial system. One

document, the AYSO Standard Regional Guidelines, appears to be just a suggested template for what

yet other entities may choose to adopt. See, e.g., “the Region has the responsibility to operate in

accordance with these Standard Regional Guidelines unless the Region has adopted separate

Regional guidelines approved by the Region’s Area Director and Section Director.”113

The materials cited by FIFA indicate that AYSO does not have any dispute resolution

procedures. The cited pages only refer to what other entities should in turn do: “Each Region, Area

and Section shall adopt dispute resolution and discipline review procedures, consistent with those

recommended in Article 9 of the Standard Regional Guidelines, applicable to disputes that may arise

within the Region, Area or Section.”114

The AYSO suggested regional dispute resolution procedures cited by FIFA appear to relate to

far-afield items such as “the conduct of the parents,” “suspension or removal” of coaches or players,

and“disciplinary review proceedings” in which “[p]arties do not have the right to involve attorneys

or to cross-examine other parties or witnesses.” 115

110 FIFA Br. at 8 n.5. 111 Id. 112 Id. 113 Boehning Decl., Ex. 45-6 at 1. 114 Boehning Decl., Ex. 45-5 at 22. 115 Boehning Decl., Ex. 45-6 at 14-16.


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f. The Illinois Youth Soccer Association’s exhaustion provisions are ambiguous, undefined, and inapplicable.

FIFA also includes materials from non-defendants. That is procedurally improper. In

responding to a similar argument the court in Gonzalez v. Compass Vision, Inc., stated, “None of the

cases cited by [defendant] support an exhaustion requirement against an administrative body before

pursuing a negligence claim against a separate entity, not a party to the administrative proceeding.

Each of the cases cited by [defendant] requires exhaustion against an administrative entity before

pursuing litigation against that administrative entity if an administrative remedy is available.”116

And the non-defendant materials do not help FIFA in any event. FIFA first invokes the Illi-

nois Youth Soccer Association Policies and Procedures.117 That is a 15-page document of extremely

small, single-spaced text. The document does not reference arbitration in any way. In regards to

exhaustion of remedies, IYSA’s Bylaws state that “[n]o IYSA member including but not limited to

league officials, leagues, clubs, teams, players, coaches, parents of players, administrators or referees

may invoke the aid of the courts in the United States or of a State without first exhausting all avail-

able remedies including hearings and appeals within the appropriate member association, league, or

the IYSA as provided within the Federation.” The provision suffers from numerous of the defects

identified above, including the ambiguity of the “appropriate member association,” as well as lack of

any identified remedies or specific procedures for health and safety issues, nor any procedures for

class or representative actions. Moreover, the immediately next bylaws relate to game protests and

eligibility issues, and the internal administrative process for grievances on those issues.118

116 No. 07CV1951, 2010 WL 3783164, at *6 (S.D. Cal. Sept. 27, 2010). 117 Boehning Decl., Ex. 45-9 (Illinois Youth Soccer Association Policies and Procedures Revised

8/9/14)). 118 Id., at Rule 10 (“Applicable Bylaw Provision Regarding Hearing Procedures); Rule 11

(“Applicable Bylaw Provision Regarding Appeals”).


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g. The Tiburon Peninsula Soccer Club’s exhaustion provisions are ambiguous, undefined, and inapplicable.

As to the Tiburon Peninsula Soccer Club (“TPSC”), FIFA has submitted a document with

TPSC’s Constitution, Bylaws, and Rules and Regulations, totaling 16 single-spaced pages.119 There

is no reference whatsoever in the document to arbitration. With respect to exhaustion of remedies,

FIFA only cites the section that states “[i]n the matter of Protest and Appeals, no person associated

with the operation of this Club shall invoke the aid of the courts of any state or of the United States

without first exhausting all available remedies within the appropriate soccer organization, including

final appeal to the Annual General Meeting of the UYSA or USSF.”120 But FIFA fails to cite the text

just two inches above that, which states: “ARTICLE 7: PROTEST AND APPEALS 1. Only viola-

tions of the Constitution, Bylaws, specific Rules and Regulations of this Club and the misapplication

of the ‘Laws of the Game’ shall be proper subjects to be considered for action.”121 This provision is

inapplicable on its face.

V. CONCLUSION

For the reasons stated herein, Plaintiffs respectfully request that the Court deny FIFA’s

motion to compel arbitration and, if the Court is inclined to otherwise grant the motion, Plaintiffs

request that the case be stayed so as to ameliorate the statute of limitations concerns discussed

herein.

DATED: March 20, 2015 HAGENS BERMAN SOBOL SHAPIRO LLP By: /s/ Steve W. Berman

Steve W. Berman (Pro Hac Vice) Craig R. Spiegel (SBN 122000) HAGENS BERMAN SOBOL SHAPIRO LLP 1918 Eighth Avenue, Suite 3300 Seattle, WA 98101 Telephone: (206) 623-7292 Facsimile: (206) 623-0594 [email protected] [email protected]

119 Boehning Decl., Ex. 45-10 (Tiburon Peninsula Soccer Club Constitution, Tiburon Peninsula

Soccer Club Bylaws, Tiburon Peninsula Soccer Club Rules and Regulations Adopted April 10, 2000 and Amended January 2013).

120 Id. at 7-8. 121 Id. at 7.


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Jon T. King HAGENS BERMAN SOBOL SHAPIRO LLP 715 Hearst Avenue, Suite 202 Berkeley, CA 94710 Telephone: (510) 725-3000 Facsimile: (510) 725-3001 [email protected] Jack W. Lee, Cal. Bar No. 71626 Derek G. Howard, Cal. Bar No. 118082 Sean Tamura-Sato, Cal. Bar No. 254092 MINAMI TAMAKI, LLP 360 Post St., 8th Floor San Francisco, CA 94108 Telephone: (415) 788-9000 [email protected] [email protected] [email protected]

Attorneys for Plaintiffs


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CERTIFICATE OF SERVICE

I hereby certify that on March 20, 2015, I electronically filed the foregoing document using

the CM/ECF system which will send notification of such filing to the e-mail addresses registered in

the CM/ECF system, as denoted on the Electronic Mail Notice List.

/s/ Steve W. Berman STEVE W. BERMAN


steve w. berman (pro hac vice craig r. spiegel (sbn ......date: may 6, 2015 time: 9:00 a.m. judge:...

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