By Charlie S. Shin, MS & Michael S. Carroll, PhD
On May 4, 2021, 15-year-old Olivia Moultrie filed a complaint and motion for a temporary restraining order (TRO) and preliminary injunction against the National Women’s Soccer League (NWSL) from enforcing its age rule to prevent her from signing a professional contract with a club in the league. At the time of the complaint, NWSL rules required an individual to be at least 17 years old in order to be eligible to join one of their teams. Moultrie was not seeking to require the NWSL or any of its member teams to hire her nor interfere with the collective bargaining agreement (CBA) between NWSL and the NWSL Players Association (NWSL PA). but instead wanted an opportunity to compete for a spot on a professional soccer team based on her merit, free from the Age Rule’s restrictions. The court granted the temporary restraining order on May 24, 2021 until a preliminary injunction hearing could be held.
Moultrie’s complaint challenges the NWSL’s Age Rule as a violation of the Sherman Anti-Trust Act, 15 U.S.C. § 1, alleging that it serves no legitimate business justification or procompetitive purpose, and instead impedes her career development as a soccer player and fails to serve any legitimate public interest.
Sherman Anti-Trust Act
Moultrie argues that the ten teams in the NWSL have agreed among themselves and with the League not to contract with soccer players under the age of 18, without regard to their talent or their ability to compete in the League. Additionally, additional evidence supports that the NWSL and its member teams are not a single entity under § 1 of the Sherman Act despite the League classification as an LLC.
Moultrie also argues that the NWSL is the only option for women to play professional soccer in the United States, and that the Age Rule serves no legitimate business justification or procompetitive purpose.
Career Development and Public Interest
Moultrie asserts that keeping her out of the NWSL will continually slow her development, delay her improvement, and more generally impede her career as a soccer player. Additionally, she points to the absence of any age restrictions for male soccer players to demonstrate the public interest in open competition and the equal treatment of men and women.
On June 7, 2021, the Court held a hearing on the preliminary injunction motion. Both parties presented additional evidence and arguments, but the Court again found that the NWSL had not presented any compelling procompetitive reasons to justify its anticompetitive policy, nor has it shown that eliminating the Age Rule would cause any concrete injury to the NWSL. As a result, the Court again found that the merits clearly favored Moultrie’s position, that she would be irreparably harmed if it did not grant the preliminary injunction, and that the balance of equities and the public interest strongly favor affording girls in the United States the same opportunities as boys. Finally, the Motion for Preliminary Injunction was granted. The Court again found that Moultrie had met her burden under either the mandatory or prohibitory injunction standard, and therefore assumes without deciding that Plaintiff requests a mandatory injunction. There were a number of factors that lead to Preliminary Injunction.
The Court analyzed the Age Rule under “rule of reason” analysis, which is the accepted standard for testing whether an alleged restraint on competition imposed by a sports league violates § 1 of the Sherman Act. Moultrie has established concerted action between the NWSL and its member teams to enforce the Age Rule, thus restricting the market for players in which the member teams compete. Thus, the Court found that Moultrie has satisfied the first step of her initial burden
by showing the existence of a contract, combination, or conspiracy among two or more separate
The Court also found that, as the only professional women’s soccer league in the United States, the NWSL clearly has market power in the labor market for women professional soccer player. The Court then found that the Age Rule unreasonably harmed competition in the same way the NBA’s “four years from high school” rule did in Denver Rockets v. All-Pro Mgmt., Inc., (1971) and Haywood v. Nat’l Basketball Ass’n, 1971).
Finally, the NWSL failed to show a procompetitive rationale for the Age Rule’s restraint on the market. The league offered justifications for the Age Rule which focused on cost reduction, without explaining how its proffered rationales improve or broaden competitive choices in any way. In addition, the NWSL claimed that the Age Rule is designed to create operation efficiencies, but failed to demonstrate how the rule increases efficiency. The Court concluded that the NWSL failed to meet its burden of demonstrating a procompetitive rational for the Age Rule and that Moultrie has shown that the law and facts clearly favor her position that it violates § 1 of the Sherman Act.
The Non-statutory Labor Exemption
The Court rejected the NWSL’s argument that the Age Rule became immunized from antitrust scrutiny once NWSL recognize the NWSL PA as an exclusive bargaining agent and began the collective bargaining process. The Court also found that the NWSL had not identified a single case where the non-statutory labor exemption applied to a regulation created before the recognition of a union, and which had not been subsequently included or implicitly incorporated into a collective bargaining agreement. The Court again found that the non-statutory labor exemption did not apply to this case.
The Court found that Moultrie had shown that she has the requisite skills and is ready to
play professional soccer, that the Age Rule is impeding her development as a soccer player in an
irreversible manner, that the career of a professional soccer player is short, and that there are no
substitutes to actual professional competition to help her realize her full potential. Additionally, she does not contend that playing in the NWSL as a minor is necessary to achieve her goal of playing on the National Team. Rather, she asserts that the Age Rule interferes with that goal by requiring her to wait several years before she can play professional soccer. Thus, the Court again found that Moultrie has shown that she would suffer irreparable injury in the absence of an injunction.
Balance of the Equities and the Public Interest
The Court found that the threat of irreparable injury to Plaintiff was not counterbalanced by any cognizable harm to Defendant from a temporary injunction and that the public interest weighed in favor of granting the requested injunction. Specifically, the Court found that the Defendant provided insufficient evidence of the hardships it would allegedly suffer in the face of an injunction, and that enjoining the Age Rule serves the public interest because it both preserves free and open competition and promotes gender equity. The Court noted that the NWSL’s comparable men’s league in the United States, MLS, has no age limit and employs players under the age of 18.
By satisfying all four of the elements outlined above, Moultrie’s motion for Preliminary Injunction was granted, stating that that NWSL and its members, officers, agents, servants, employees, attorneys, teams, and all persons in active concert or participation with them are enjoined from enforcing the Age Rule against Plaintiff, unless and until such Age Rule is contained in a fully effective collective bargaining agreement that would apply to her, as permitted by law.
Charlie S. Shin is a first-year doctoral student in Sport Management at Troy University. He is currently a Vice President of Data Strategy & Analytics at the Indianapolis Colts. He also serves as an adjunct faculty for Sports Management at Columbia University.
Michael S. Carroll is a Full Professor of Sport Management at Troy University specializing in research related to sport law and risk management in sport and recreation. He also serves as Online Program Coordinator for the University. He lives in Orlando, FL.