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IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT, IN AND FOR PALM BEACH COUNTY, FLORIDA CASE NO.

FREEDOM SOCCER, LLC and MAGICT ALK SOCCER CLUB, LLC, Plaintiffs, v. WOMEN'S SOCCER, LLC, Defendant. ______________________________ 1 502011 CA 018214 AI

PLAINTIFFS' MOTION TO ENFORCE SETTLEMENT AGREEMENT AND FOR OTHER RELIEF AND MEMORANDUM OF LAW IN SUPPORT Plaintiffs, FREEDOM SOCCER, LLC and MAGICTALK SOCCER CLUB, LLC, by and through their undersigned counsel, respectfully request that this Court enforce the settlement agreement between the parties to this action and as grounds therefore state as follows: PRELIMINARY STATEMENT Plaintiffs Freedom Soccer, LLC and magic Talk Soccer Club, LLC, respectfully submit this Memorandum of Law in Support of their Motion (i) to enforce the parties' settlement agreement, made final on January 18,2012, (ii) for relief with respect to Defendant's breach of that settlement agreement, and in particular, Defendant's public disparagement of Plaintiffs and their principal, Dan Borislow, on January 30, 2012, when Defendant announced its decision to suspend its operations for the 2012 women's professional soccer season, publicly blaming Mr. Borislow, his alleged misconduct, and this lawsuit for its decision, and (iii) for limited discovery with respect to Defendant's breach of the parties' settlement agreement.

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This motion seeks enforcement of a final settlement agreement the parties agreed to just moments before Defendant was facing a final hearing on Plaintiffs' motion for injunctive relief reinstating Plaintiffs' team as a member of Defendant's professional women's soccer league (the "League"). Given the Court's prior rulings in this matter, clearly Defendant was looking for a

way to avoid the distinct possibility Plaintiffs would be reinstated. Having apparently determined that the League's economic prospects for the 2012 season were not good, Defendant decided to use this lawsuit and its dispute with Plaintiffs not only as an excuse to get out of the parties' settlement agreement, but to breach that agreement by disparaging Mr. Borislow and publicly blaming him for the League's economic woes. The irony in Defendant's unilateral action is that at the time the parties' settlement was entered into, Defendant made several attempts to incorporate contingencies into the settlement terms in order to create ways for Defendant to evade the agreement. Plaintiffs rejected each and everyone of these contingencies, making clear to Defendant that the agreement would be considered final as of January 18, to the point of insisting that the non-confidential portions of the parties' agreement be placed on the Court record that day. As for Defendant's concern that it should not be held to the business terms of the parties' settlement if Defendant were in poor financial condition or otherwise unable to maintain its operations, Plaintiffs agreed, as part of the final settlement, that Defendant would not be held to those business terms, which involved the staging of various exhibition soccer matches in the 2012 and 2013 seasons, if Defendant suspended operations during either of those seasons. Now that Defendant has done just that for the 2012 season which, according to the parties' agreement, relieves Defendant of its rather than abiding

obligation to participate soccer matches against Plaintiffs' team this year -

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by the other terms of settlement, including a key provision it insisted on, i. e., non-disparagement, Defendant has gone out and unilaterally breached that term, to the point where dozens of media articles appearing in major media outlets such as the Wall Street Journal, the New York Times, and the Associated Press, have parroted Defendant's fingering of Mr. Borislow as the reason for Defendant's decision to suspend operations for the 2012 season. As an excuse for its unilateral conduct, Defendant will argue that the parties' settlement was contingent on the U.S. Soccer Federation (the "Federation")'s approval of the parties'

agreement to stage exhibition soccer matches, and that this approval was not forthcoming. The facts, however, reveal that this was not the case. First, the settlement was not contingent on Federation approval of the parties' agreement indeed, at the time the parties entered into the

settlement, neither side even knew if such approval was needed. Second, the Federation subsequently made clear to the parties that its approval was not needed in order for the parties to stage their exhibition matches rather, approval was needed for the participation of U.S.

Women's National Team ("WNT") players in those matches only if five (5) or more WNT players intended to play on the team. Further, the settlement itself was not contingent on the participation of WNT players indeed, neither party guaranteed it would be able to sign WNT

players to play in these matches. Third, discussions with the Federation about the circumstances under which WNT players would be permitted to play were ongoing at the time Defendant made its announcement and disparaged Plaintiffs' principal. And fourth, as soon as Defendant announced it was suspending operations for the 2012 season, which it had the right to do under the terms of settlement, there was nothing left for the Federation to approve, since the exhibition soccer matches were not going to be played.

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As set out in detail in the accompanying Declaration of Louis S. Ederer ("Ederer Decl.), from start to finish, Defendant's legal strategy in this case has revolved around personal attacks on Mr. Borislow which evidence the Court ultimately ruled was irrelevant to the issues before

the Court, and was to be excluded. Then, after agreeing, in the parties' final settlement terms, not to disparage Mr. Borislow, just as Plaintiffs have agreed not to disparage Defendant, in a final ironic act Defendant chose not only to suspend operations, but to make Mr. Borislow the scapegoat for its decision, spawning widespread press coverage naming Mr. Borislow as professional soccer's public enemy number l. In reality, however, it appears from statements made by League officials in moments of candor that the real reason for Defendant's demise was its poor economic prospects for the 2012 season. Indeed, it is anticipated that the limited discovery Plaintiffs have requested on this motion will demonstrate just that. FACTS AND PRIOR PROCEEDINGS The facts and prior proceedings leading up to this motion are set out in the accompanying Ederer Decl., and are summarized here. On November 18, 2011, Plaintiffs commenced this action for specific performance and for declaratory judgment, following Defendant's unilateral October 25,2011 termination of Plaintiffs' membership interest in Defendant's League. (Ederer Decl. ,-r2). Plaintiffs simultaneously moved for a temporary injunction and to compel contractual dispute resolution procedures, seeking reinstatement into the League during the pendency of this action, so that it could play in the 2012 season. (Jd.). Defendant immediately moved to dismiss the Complaint for failure to state a claim and improper venue. (Id. at ,-r3). On November 30, 2011, the Court denied Defendant's motion and set the hearing on Plaintiffs' injunction motion for December 16,

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2011. (Id.). Thereafter, Defendant filed over a 100 pages of briefing and over 100 exhibits in opposition to Plaintiffs' motion. (Id. at ,-[,-[4-5).Defendant's opposition consisted of little more than a series of personal attacks on Mr. Borislow. (Id.). At the outset of the December 16, 2011 hearing, Plaintiffs moved in limine to preclude the introduction of any evidence going to the merits of the parties' underlying dispute, including evidence consisting of personal attacks on Mr. Borislow. (Id. at ,-[,-[6-7).Defendant opposed, arguing that evidence as to the merits of the parties' underlying dispute was relevant to the issue of unclean hands. (Id. at ,-[7). The Court reserved decision. (Id.). At the end of the day's hearing, the Court directed that the hearing would resume on January 5 and 6, 2012. (Id. at ,-[8). On January 4,2012, in a bizarre reversal of position, Defendant filed a brief in which it argued that the Court should not consider evidence going to the merits of the parties' underlying dispute. (Id. at ,-[9). Rather, Defendant asserted that the Court should focus solely on the legal issue raised by Plaintiffs, namely, whether Plaintiffs were contractually entitled to the parties' agreed-to dispute resolution procedures before being terminated. (Id.). In light of Defendant's

new position, at the outset of the January 5, 2012 hearing Plaintiffs renewed their motion in limine to preclude the introduction of evidence aimed at disparaging Mr. Borislow, and the Court granted the motion. (Id. at,-[10). The Court then heard legal argument on Plaintiffs' contract claims, and directed the parties to submit their proposed orders. (Id. at ,-[11). Thereafter, on January 9, 2012, the Court held a telephone conference with counsel and stated that it would be issuing an order that Plaintiffs were likely to succeed on the merits of their claim for specific performance of the parties' agreed dispute resolution procedures prior to termination. (Id. at ,-[12). However, the Court further stated that it would allow Defendant to

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present evidence going solely to the temporary relief Plaintiffs were seeking, i. e., reinstatement for the 2012 season, in a limited four hour hearing to be held on January 18,2012. that day, the Court issued the January 9,2012 Order. (Id). Following some failed preliminary settlement negotiations initiated by Defendant on January 16,2012, on the eve of the January 18 hearing, Defendant's representatives initiated further settlement discussions with Plaintiffs, and the parties worked into the night to negotiate material terms of settlement. (Id at ~~16-18). The next morning the parties met at the courthouse to finalize the agreed settlement terms in writing. Among other things, the final settlement terms provided for: 1. The playing of certain exhibition soccer matches between Plaintiffs' team and teams in Defendant's League in 2012 and 2013; 2. A "no disparagement" clause, included at Defendant's insistence; 3. The Defendant's right to cease operations in 2012 and/or 2013 without breaching the settlement agreement; and 4. Defendant's distribution of Plaintiffs' escrow monies. (Id at ~19). In addition, concerned that Defendant may later seek to evade the settlement agreement, Plaintiffs specifically informed Defendant that they were not prepared to report to the Court that the parties had reached a settlement unless there was, in fact, a final settlement. (Id at ~20). Defendant's counsel initially tried to build in certain contingencies to the parties' agreement, including the execution of a long form settlement agreement, but then abandoned that position. (Id at ~~20, 22, 23). Moreover, to ensure that the settlement would be considered final, Plaintiff (Id). Later

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insisted that the material terms be placed on the record. (Id. at ~21). Accordingly, the parties entered the January 18 conference with a clear understanding that a final settlement had been reached. Thereafter, all material, non-confidential terms of settlement were reported to the Court and read into the record on the morning of January 18,2012, and the Court was further advised that the parties had memorialized all other terms of settlement in a written term sheet that had been agreed upon by both parties. (Id. at ~~21, 23, 25). Further, while the Court was informed that the parties intended to submit their signed settlement agreement to the Federation for any approvals that might be necessary, there was no indication that the effectiveness of the settlement would be in any way contingent on such approval. (ld. at ~25).
1

Following the January 18 hearing, Plaintiffs repeatedly requested that Defendant's counsel provide a draft written settlement agreement, as Defendant's counsel had promised she would do. (Id. at ~26). As no such draft was forthcoming, on January 20,2012, Plaintiffs' counsel contacted the Federation and reported, in general terms, the parties' agreement, as part of their settlement, to play certain exhibition soccer matches, and inquired whether Federation approval would be necessary. (Id. at ~28). The Federation indicated that it did not need to approve the playing of these matches; rather, the Federation needed to approve the participation ofWNT members, with whom the Federation had a collective bargaining agreement, only if five (5) or more WNT players were on the team. (Id.).

1 As set forth above, Federation approval was only necessary if five (5) or more WNT players were going to participate on the team. However, lack of approval would not prohibit the matches from going forward and would not prevent the participation of any WNT players.

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Subsequently, the parties submitted ajoint letter to the Federation outlining the exhibition matches the parties had agreed to play, and indicating that, for purposes of playing these matches, Plaintiffs intended to affiliate with a local Florida state soccer association. (ld. at ~29). On January 25,2012, the Federation advised Plaintiffs' counsel that the Federation would not approve the participation of five (5) or more WNT players if Plaintiffs were to affiliate with a local Florida state soccer association, but further indicated that if Plaintiffs were to affiliate with a professional soccer league sanctioned by the Federation, such as Defendant, the Federation would likely approve such participation. (ld. at ~30). That same day Plaintiffs' counsel had a

discussion with Defendant's counsel about the possibility that Plaintiffs would "affiliate" with Defendant for the sole purpose of addressing the Federation's concern and Defendant's counsel indicated she would take up the matters with her client. (ld. at ~31). On January 26, 2012, at the time, Plaintiffs counsel had another communication with the Federation in which he inquired whether the Federation would allow WNT players to participate in the agreed exhibition matches if Plaintiffs were to affiliate with another Federation-sanctioned women's league. The Federation's counsel indicated that she would take this question up with Federation officials and get back to Plaintiffs. (Id. at ~32). Later that day, during a telephone status conference with the Court, Plaintiffs' counsel advised the Court that the parties' discussions with the Federation were ongoing. The Court indicated it understood, and offered to continue the February 1 hearing date to allow the parties to conclude their discussions with the Federation. (ld. at ~34). The next day, January 27, 2012, Plaintiffs' counsel had another conversation with the Federation's counsel and asked her to get back to Plaintiffs' counsel by January 30, 2012

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regarding Plaintiffs' counsel's January 26 inquiry. Counsel indicated she would do so. (Id. at ~35). Then, on Monday, January 30, 2012, without notice to Plaintiffs, Defendant announced its decision to suspend League operations for the 2012 season, publicly blaming Mr. Borislow and this lawsuit for that decision. (Jd. at ~36). Later that day, Defendant issued a press release to this same effect, and then conducted a live press conference in which its representatives, once again, blamed Mr. Borislow for Defendant's decision, and also repeatedly made a series of negative statements about Mr. Borislow, all in direct violation of the non-disparagement provision of the parties' settlement agreement. (Jd. at ~36, Exs. G-H). Not surprisingly, Defendant's public relations strategy led to dozens of articles published that day, January 30, 2012, and thereafter, in print publications and on the Internet, about Defendant's announcement.
(Id. at ~37, Ex. I). Nearly all of these articles noted that Defendant

had fingered Mr. Borislow, and the cost of this lawsuit, as the reasons why Defendant had suspended operations. (Jd.). Certain articles also contained quotes from team owners, publicly blaming Plaintiffs, Mr. Borislow and this lawsuit for Defendant's decision. (Jd. at ~38). In certain articles, however, League representatives were also quoted as conceding that Defendant's decision to suspend operations was based on the League's poor economic prospects for the 2012 season. (Id., Exs. J-L). ARGUMENT I. THE COURT SHOULD ISSUE AN ORDER ENFORCING THE PARTIES' SETTLEMENT AGREEMENT As discussed above and in the accompanying Ederer Decl., on January 18,2012, the parties entered into a final settlement agreement. On that day, all material terms of the parties'
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comprehensive agreement were memorialized in a term sheet, and there were no conditions to the immediate effectiveness of the agreement. (ld. at ~~19-25). Indeed, during the negotiation of the settlement, Defendant sought to introduce certain conditions to the effectiveness of the parties' agreement, including the execution of a final, written settlement agreement, and the approval of all Defendant's Board members, but Plaintiffs made clear that they would agree to no such conditions. Further, for the avoidance of any doubt, at Plaintiffs' insistence, the material terms of settlement were read into the record at the January 18, 2012 hearing. To compel enforcement of a settlement agreement under Florida law, its terms must be sufficiently specific and all essential elements must be mutually agreed upon. Don L. Tullis and Assoc., Inc. v. Benge, 473 So. 2d 1384 (Fla. 1st DCA 1985). Formal execution of the settlement agreement, however, is not a prerequisite to the existence of a valid settlement agreement. Boyko v. Ilardi, 613 So. 2d 103, 104 (Fla. 3d DCA 1996). Rather, the party seeking enforcement of the agreement must merely establish that "a meeting of the minds" has occurred with respect to the agreement. Long Term Mgmt., Inc. v. Univ. Nursing Cir., Inc., 704 So. 2d 669,673 (Fla. 1st DCA 1997). Here, the evidence clearly demonstrates that there was more than just a "meeting of the minds" on January 18,2012. (Ederer Decl. ~~19-25). Specifically, all essential terms of

settlement were set out in a detailed written term sheet prepared by the parties' counsel, and sent to Plaintiffs by Defendant's counsel moments before the January 18 hearing, following a night of negotiations initiated by Defendant. (ld. at ~19). These material terms were then read into the Court record, without objection from either side. (Id. at ~25). Indeed, when the Court stated, "I

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understand things have been resolved" (1/18/12 Tr. at 4:9-10), neither party sought to correct or clarify the Court's clear understanding that a final settlement agreement had been agreed to. Florida law favors the enforcement of settlement agreements as a means to efficiently settle disputes and conserve judicial resources. Courts, therefore, will enforce settlement agreements whenever possible. Long Term Mgmt., Inc. v. Univ. Nursing Cir., Inc., 704 So. 2d 669 (Fla. 1st DCA 1997); see also Robbie v. City of Miami, 469 So. 2d 1384, 1385 (Fla. 1985) (enforcing disputed settlement agreement). Here, on the present record, given the comprehensive list of agreed settlement terms, there is no question that Defendant unequivocally assented to the material terms of settlement. Carroll v. Carroll, 532 So. 2d 1109 (Fla. 4th DCA 1988), rev. denied 542 So. 2d 1332 (Fla. 1989). Defendant will take the position that the parties' settlement agreement was not final, as Federation approval was a condition precedent. As explained above and set forth in the Ederer Decl., however, that is not the case. When the parties agreed to the material terms of settlement on January 18,2012, they conjectured, but were not sure, that there may be some aspect of the business terms of the parties' agreement, i. e., the staging of competitive soccer matches, that may require Federation approval. (Ederer Decl. ~~23-24). However, the parties were also clear that, whether or not Federation approval was needed, this in no way impacted the finality of their agreement. Indeed, it was for this reason that Plaintiffs insisted that there be a final, signed agreement before the parties approached the Federation, so there would be no doubt that the settlement was final. (Id. at 'J23). Defendant, however, ignored this part of the parties' agreement, never coming forward with the promised draft of a final, settlement agreement.

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Under Florida law, conditions precedent are disfavored by Courts because of their potentially harsh result. Covelli Family, L.P. v. ABG5, LLC, 977 So. 2d 749, 752 (Fla. 4th DCA 2008) (quoting In re Estate of Boyar, 592 So. 2d 341, 343 (Fla. 4th DCA 1992)). Courts are reluctant to construe contractual language as a condition precedent if a forfeiture will result, or if an unambiguous condition could have easily been provided for by express agreement. In re Estate of Boyar, 592 So. 2d 341, 344 (Fla. 4th DCA 1992). Thus, "provisions of a contract will only be considered conditions precedent ... where the express wording of the disputed provision conditions formation of a contract ... on the completion of the conditions." Gunderson v. School

District of Hillsborough County, 937 So. 2d 777, 779 (Fla. 1st DCA 2006) (citations omitted). The "express wording" required to employ an enforceable condition precedent has been held to include terms such as "if," "provided that," and "on condition that," none of which was present here. In re Estate of Boyar, 592 So. 2d 341, 343 (Fla. 4th DCA 1992). Indeed, in this instance, there is no "express wording" limiting the finality and enforceability of the parties' settlement agreement. Rather, the material written terms of settlement, which were read into or referred to in the Court record on January 18,2012, state that the agreement was final. (Ederer Decl. ~25). Nowhere does it state that the enforceability or effectiveness of the agreement itself is contingent on the parties' receipt of Federation approval, which, at the time, no party was even sure was needed. Accordingly, such approval was not a condition to the effectiveness of the parties' January 18,2012 settlement. Defendant will also take the position that the parties' settlement did not become effective because the Federation had not yet given its approval for the participation of five (5) or more WNT players in the parties' exhibition matches. This is also wrong, for a number of reasons.

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First, the Federation made clear from the outset that its approval was not required for the parties to play the exhibition matches set out in this agreement. The only issue that the Federation was concerned with was the involvement of WNT members, whose participation was, in any case, not guaranteed, and certainly not made a condition of settlement by either party. (Ederer Decl. ,-(28). Second, to the extent Federation approval was required for the participation of any WNT members, those discussions were ongoing, as Plaintiffs' counsel reported to the Court during the January 26, 2012 telephonic status conference. (Jd. at ,-[,-[28-35).In fact, Plaintiffs had previously proposed an approach to this issue with Defendant's counsel, and in addition, Plaintiffs' counsel was having ongoing discussions with the Federation about an alternative approach. Indeed, Plaintiffs' counsel was scheduled to hear back from the Federation the very day Defendant announced, without notice to Plaintiffs, the suspension of its 2012 season. (ld. at ,-(35). Third, the parties' settlement agreement specifically contemplated that Defendant would have the right to suspend the League's operations for the 2012 or 2013 seasons, in which case Defendant would not have an obligation to play exhibition matches against Plaintiffs' team. Therefore, when Defendant decided to suspend League operations for the 2012 season, all discussions with the Federation became moot. In this regard, even if Federation approval had been a condition precedent to settlement, which it was not, the moment Defendant announced the

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suspension of its 2012 playing season, any need for Federation approval went out the window, and there was no longer any condition to settlement.' Accordingly, Plaintiffs request that the Court enter an order enforcing the parties' settlement agreement, as made final and placed on the record at the January 18, 2012 hearing. II. THIS COURT SHOULD GRANT INJUNCTIVE RELIEF AND DAMAGES WITH RESPECT TO DEFENDANT'S BREACH OF THE NON-DISPARAGEMENT PROVISION OF THE SETTLEMENT AGREEMENT A key provision of the parties' settlement agreement was a non-disparagement clause that was intended to provide that, once the agreement was final, the parties would not speak negatively about one another. This provision was requested by Defendant, who had complained, at various times in this litigation, about being disparaged by Plaintiffs' principal. (Ederer Decl. ~19). While Plaintiffs have adhered to this non-disparagement provision of the parties' agreement, Defendant, when announcing the suspension of the League's 2012 season, and thereafter, has violated it many times over. (Id. at ~~36-38, Exs. G-K). Thus, in Defendant's official press release announcing the suspension of the League's 2012 playing season and, thereafter, in its live press conference announcing the suspension, Defendant's representatives repeatedly spoke in negative, disparaging terms about Mr. Borislow, referring to his purported misconduct during the 2011 season, and the legal fees he had forced Defendants to expend. (Id. at ~36, Exs. G-H). Indeed, during a question and answer session with reporters on January 30, Defendant's CEO, Jennifer O'Sullivan, and Chairman of the

In this regard, it appears that Defendant may have been planning all along to use "Federation approval" as an excuse to get out of the settlement. Indeed, the day after the parties reported their settlement to the Court, one of Defendant's teams told a player Plaintiffs were hoping to sign for the 2012 season that the Federation will not approve Plaintiffs' team, and that the player should instead sign with them. (Ederer Decl. ~27, Ex. E).
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Board, Fitz Johnson, made pointed negative statements about Mr. Borislow, Ms. O'Sullivan stating that Mr. Borislow's actions "were detrimental to the league overall," that he "does not have regard for other owners," and that "it would have been unfair to put together a season with [the issues with magicJack] hanging over our heads," and Mr. Johnson asserting that Mr. Borislow "didn't want to promote the league in a positive way ... ", (Id. at ~~36, 38, Ex. H). Further, just as Defendant intended, by making Mr. Borislow the scapegoat for the Defendant's decision to suspend operations the press was induced to recite the many disparaging statements Defendant previously made about Mr. Borislow in this litigation. Indeed, dozens of press articles, appearing in such prominent publications as the Associated Press, the Wall Street Journal, and the New York Times, parroted the league's public statements, and recounted the litany of accusations Defendant has made against Mr. Borislow. (Id. at ~37, Ex. I). Plaintiffs wish to make clear that their claim is for breach of the non-disparagement clause of the parties' settlement agreement, not for the tort of disparagement, which under Florida law may require the additional element offalsity.' It is clear from the circumstances leading up to the parties' settlement, and from the parties' settlement terms, that the parties intended the term "disparage" to mean "speak negatively", whether such negative statements were true or not. See Eichelkraut v. Camp, 513 S.E.2d 267 (Ga. App. Ct. 1999) (citing the "cardinal rule of contract construction" as the intent of the parties must be honored, and therefore finding that the statutory definition of the tort of disparagement did not dictate the meaning of

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"Under Florida law, the term disparagement generally is used in connection with publication of false statements causing foreseeable damages to the value of real property." Backhus v. Tejo Ltd., 2010 U.S. Dist. LEXIS 74489, * II (S.D. Fla. 2010)(citing Salit v. Ruden McClosky, Smit, Schuster & Russel, P.A., 742 So. 2d 381, 385-86 (Fla. 4th DCA 1999».

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"disparagement" as used in the parties' agreement). Indeed, as recognized in Eichelkraut, the parties' non-disparagement clause would be superfluous if all it did was create a parallel contractual breach claim for a recognized tort. What is even more noteworthy is that, aside from the fact that Defendant has violated the non-disparagement clause, it appears that neither Mr. Borislow nor the expense of this litigation was the reason why Defendant decided to suspend operations for the 2012 playing season. Indeed, it is illogical for Defendant to blame ongoing litigation with Mr. Borislow as the reason for this decision, given that the parties' dispute was resolved on January 18,2012. Rather, from

an e-mail Mr. Borislow received from a team owner on January 10,2012, and from various public statements made by Defendant's representatives, it appears the real reason the league suspended operations was that its 2012 economic prospects were unfavorable. (Ederer Dec!.

~38, Exs. J-L). For example, David Halstead, owner of the Philadelphia Independence, has stated publicly that the League was facing serious "financial challenges," that it needed to "modify [its] business model," "realign franchise budgets," and "refine and bring clarity to our expansion strategy" and "grow and cultivate our working relationships with US Soccer Federation and the WPS Player Union so we all work as partners to expand a robust and proud female soccer community in this country". (Ederer Decl. ~38, Ex. K). Thus, even if Plaintiffs were required to prove all the elements of the tort of disparagement, including falsity, it appears that the statements Defendant made about Mr. Borislow on January 30 were not only "disparaging" as intended under the parties' settlement agreement, but also false. Accordingly, on this motion, Plaintiffs seek an order (i) declaring that Defendant is in breach of the parties' settlement agreement by virtue of its violation of the non-disparagement

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provision of the settlement agreement, (ii) directing that Defendant be enjoined from continuing to violate such provision, and (iii) setting a hearing to determine the damages that have been caused to Plaintiffs. Plaintiffs also request that Defendant be directed to immediately comply with all other settlement term, including the distribution of Plaintiffs' escrow monies. III. THE COURT SHOULD GRANT DISCOVERY ON THE ISSUES RAISED BY THIS MOTION With respect to the relief requested in Point II above, Plaintiffs request discovery. The discovery Plaintiffs seek (Ederer Dec!. ~39, Ex. M), is limited, consisting only of the production of documents and depositions concerning the claims Plaintiffs are making for breach of the parties' settlement agreement, and the enforcement of its terms. In particular, Plaintiffs seek discovery of the events leading up to the settlement agreement, and the reasons for Defendant's decision to suspend operations. Further, Plaintiffs seek discovery with respect to Defendant's continuing failure to distribute Plaintiffs' escrow money, including the present whereabouts of that escrow, and how it has been maintained. Under Florida law, a party is entitled to limited discovery in aid of a motion to enforce a settlement agreement, so long as that discovery is limited and directed to the issues raised on such motion. See Redlands Co, v, Atlantic Civil, Inc., 961 So. 2d 1004 (Fla. 3d DCA 2007). WHEREFORE, Plaintiffs respectfully request that this Court enter an Order enforcing the Settlement Agreement together with such other and further relief as is just and proper.

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CERTIFICA TE OF SERVICE I HEREBY CERTIFY that a true and~rrect U.S. Mail and electronic mail on this copy of the foregoing has been furnished by 2012, to: Jill Nexon Berman, Esq.,

137iaY of February,

Rennert Vogel Mandler & Rodriguez P.A., 2900 Miami Tower, 100 S.E. Second Street, Miami, FL 33131 Gnberman@rvmrlaw.com); Pamela Fulmer, Esq., SNR Denton US LLP, 525 Market and David I.

Street, 26th Floor, San Francisco, CA 94105-2708 (pam.fulmer@snrdenton.com);

Ackerman, Esq., SNR Denton US LLP, 1301 K Street NW, Suite 600 East, Washington, D.C. 20005 (david.ackerman@snrdenton.com). Louis S. Ederer, Esq. Arnold & Porter LLP 399 Park Avenue New York, NY 10022-4690 CARLTON FIELDS, P.A. 525 Okeechobee Boulevard Suite 1200 West Palm Beach, FL 33401 Telephone: (561) 659-7070 Facsimile: (561) 659-7368 E-mail: jianno@carltonfields.com E-mail: crosenberg@carltonfields.com

BY: HIANNO,JR. Florida Bar No: 655351 CHARLES M. ROSENBERG Florida Bar No: 279064 Counsel for Plaintiffs Freedom Soccer, LLC and magic'I'alk Soccer Club, LLC

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