Olivia Moultrie v. Nat’l Women’s Soccer League

After the offseason between 2023 and 2024, Angel City signed three players, Casey Phair, Gisele Thompson, and Kennedy Fuller under the NWSL’s new U18 mechanism. At the time, I was aware that this came about when Olivia Moultrie sued the NWSL, but I didn’t really understand how that had worked. Most European leagues didn’t have age limits, so it made sense to me. At the same time, most North American sports leagues do have age limits, so how did Moultrie win, when it’s clearly legally okay for the NBA and NFL? This is a different type of article than I usually write, it’s more of an historical and legal analysis, rather than statistical analysis, but I really found this fascinating. It’s important, I think, to understand how laws work, now more than ever.

We may not remember it now, but Olivia Moultrie was a soccer prodigy by any metric. At the age of 11 she signed a letter of intent with the University of North Carolina, a powerhouse in NCAA women's soccer and the youngest commitment UNC ever had. At 13, she decided to renounce her amateur status, and signed an NIL deal with Nike while this was still impermissible with the NCAA. The only reason that Alyssa and Gisele Thompson were the first high schoolers to sign an NIL deal is because Moultrie signed hers before high school. Finally, at 15, after having been training extensively with the Portland Thorns, she challenged the National Women’s Soccer League Age Rule that prevented any player under the age of 18 from signing a professional contract by filing an official complaint in court.

The basis of Moultrie’s complaint is that the NWSL’s age limit is a violation of §1 of the Sherman Anti-Trust Act, 15 U.S.C. § 1, which states that “[e]very contract, combination . . . or conspiracy, in the restraint of trade or commerce . . . is declared to be illegal.” Moultrie argues that "[t]he ten teams that make up 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 talents or ability to compete in the League,” (O.M. vs. NWSL). FIFA, the governing body of international soccer, prevents minors from joining a club in another country, plainly stating, “International transfers of players are only permitted if the player is over the age of 18,” (Article 19, FIFA Regulations on the Status and Transfer of Players). Therefore, the NWSL was Moultrie’s only option to play in a professional environment, and the age limit removed that market from her entirely.

It is an interesting footnote, however, that the USL Super League was founded in September 2021, only four months after Moultrie’s case, and began play in the fall of 2024. Initially this was envisioned as a Division Two league, but eventually asked for, and received Division One status from US Soccer, equal to the NWSL, although without the same level of financial backing. It was unknown at the time the time that Moultrie brought her complaint against the NWSL, but only three-and-a-half years later, there would be a competitive league in operation that would have completely nullified any anti-trust accusations.

The harm that Moultrie alleges is that not being able to play in a professional environment “will continually slow her development, delay her improvement, and generally impede her career as a soccer player,” (O.M. vs NWSL). Becky Sauerbrunn, a player on the Portland Thorns, and a longtime USWNT captain said, “keeping [Plaintiff] out of League play can slow her development, delay her improvement, and more generally impede her career. Playing against top professional competition, when the opponents play their hardest and when your failures have consequences, is how you learn to be at your best. Practice and scrimmages are very helpful, but nothing is a full substitute for real competition. A soccer player's career is finite. If [Plaintiff] spends two-and-a-half years (or some lesser period) barred from the League, there is no way to recover that lost time and the valuable experience she could be gaining by competing against the best week-in and week-out.“ (O.M. vs. NWSL).

This argument already has precedent in Denver Rockets v. All-Pro Management. In this case, 19 year old Spencer Haywood challenged the NBA rule that no player could join the league until four years after they had graduated high school, or the date that they would have graduated high school. Haywood was actually looking for an exemption to this rule, rather than overturning it, on the basis of hardship, as he had to support his family and playing basketball provided him the best means of doing so.

There is significant overlap with Moultrie’s case, with the court’s opinion in Denver Rockets stating, “The harm resulting from a “primary” boycott such as this is threefold. First, the victim of the boycott is injured by being excluded from the market he seeks to enter. Second, competition in the market in which the victim attempts to sell his services is injured. Third, by pooling their economic power, the individual members of the NBA have, in effect, established their own private government,” (Denver Rockets v All-Pro Management). Furthermore, the court ruled that not allowing Haywood to play professionally until after college would cause "irreparable injury in that a substantial part of his playing career will have been dissipated, his physical condition, skills and coordination will deteriorate from lack of high level [sic] competition, his public acceptance as a super star will diminish to the detriment of his career, his self-esteem and his pride will have been injured and a great injustice will be perpetrated on him,” (Denver Rockets v All-Pro Management).

Both aspects here relate directly to Moultrie’s case. All three types of harm, the victim prevented from entering the marketplace, the harm to competition, and the pooling of economic power, are present. And as is the case of all athletes, they have finite careers, and the damage to Haywood losing three years of his career is similar to Moultrie losing three years of hers. Moultrie may actually have the stronger argument, as she is in contention for a spot on the national team, and the World Cup is only held every four years. A delay in her development could eliminate her from contention from an entire World Cup, while in Haywood’s time, NBA players could not participate in international events like the Olympics, and his decision to turn professional would eliminate those opportunities..

The first facet of the NWSL’s defense was that this was not a group boycott, but that the league created the Age Limit, and was acting as a single entity in doing so. The court did not accept this, as each team has separate owners, and they are required to sign Rules of Compliance Affidavits at the start of each season, which included the Age Limit. Because the teams are agreeing to the rule, and because they are the ones enforcing it, they constitute separate entities and it can be considered a group boycott.

The next part of the NWSL’s defense was that an Age Limit was clearly a procompetitve tactic, as "demonstrated by the fact that nearly every professional sports league in the U.S. chooses to require players to be at least the age of majority, if not older,” (O.M. v NWSL). The court did not accept this, however, as the NWSL did “not attempt to explain how its proffered benefits improve or broaden competitive choices in any way.” The court went on to note that “the list appears to be more directed at reducing Defendant's overhead costs than benefitting competition.”

The most important part of the NWSL defense, and the most common exemption used in cases involving professional sports, is the Non-Statutory Labor Exemption. This “shields from antitrust scrutiny any conduct that is reached through the collective bargaining process. As a matter of public policy, the non-statutory labor exemption reflects the view that employees are better off negotiating together rather than individually, and therefore labor law (rather than antitrust law) should apply to situations where collective bargaining occurs,” (Edelman & Harrison, 2008, p. 14). The difference in Moultrie’s case is that at the time of the trial, the NWSL and NWSLPA had never yet agreed upon a Collective Bargaining Agreement (CBA). What’s more, the NWSL had created the age limit from the outset of the league, and even before the creation of the NWSLPA, which was formed five years after the NWSL began operations. The first Collective Bargaining Agreement between the two organizations would not come until January 31, 2022, almost a year after Moultrie’s case. The NWSL’s argument was that they had recognized the NWSLPA as an exclusive bargaining agent and were beginning negotiations, but as they had come no agreement, the court did not accept this. The NWSL also tried to argue that if the court ruled in Moultrie’s favor, it would interfere with the NWSLPA’s ability to collectively bargain, but this argument was also not accepted, as the NWSL could not prove this, or provide any precedent. This is the reason, though, why it is legal for the NBA and NFL to have age limits. These limits were also bylaws that were included as terms of multiple CBAs before they were challenged, and there is longstanding precedent that labor law supersedes anti-trust law. If the NWSL had begun collectively bargaining from the start of the league, the age limit may have legally solidified. Instead, the court ultimately ruled in favor of Moultrie and issued her injunctive relief, clearing the way for her to play professionally.

It is important to acknowledge that the decision in O.M. v Nat’l Women’s Soccer League does not, by itself, actually change the NWSL’s rules. It was still possible, and acknowledged by both Moultrie and the court, that if the league could still sign a CBA with the player’s association that included an age limit, and that would be legal. Judge Immergut notes in her decision, “As Plaintiff acknowledges in her Complaint, an injunction prohibiting Defendant from enforcing its current Age Rule against Plaintiff in no way prevents the NWSL PA and Defendant from including a new age rule into a collective bargaining agreement, at which point it could be lawfully enforced against Plaintiff,” (O.M. v NWSL).

The NWSL chose not to pursue this action, however, and instead began creating a pathway for minors to join. Jaedyn Shaw was the next player to join the following year, which involved a formal request to the league when she was 17 and consequently she went through the league’s discovery process, as each minor was still being considered on a case by case basis. She signed with the San Diego Wave on July 18, 2022. On November 14, 2022, the league created the U18 mechanism, a formal process for teams to sign minors. This created rules that require any minor on the team to be living with a parent or guardian until they are 18, limiting teams to only four U18 players at a time, and providing regulations regarding expenses for housing and tuition, if necessary. There have now been 18 players signed to NWSL teams through this mechanism, in addition to Moultrie and Shaw. In the 2024 season, players who signed before they were 18 played in 165 games and had 6,941 minutes.

The reason the league may have made the choice to include minors may not have actually had anything to do with Moultrie’s legal arguments. While it is true that most North American sports leagues include an age rule, most of international soccer does not, and most most importantly, MLS, the American men’s league, does not. Judge Immergut mentions this in her opinion regarding the Balance of Equities and the Public Interest. writing that “enjoining the Age Rule serves the public interest because it both preserves free and open competition and promotes gender equity. Id, The Court noted that the NWSL’s comparable men’s league in the United States, MLS, has no age limit and employee players under 18. As of the date Plaintiff’s Complaint was filed, more than half of MLS teams allegedly had one or more players on their roster under the age of 18. In other words, the only thing currently standing between Plaintiff and her aspiration to be a professional soccer player in this country is her gender,” (O.M. v NWSL).

Creating a policy that was viewed as discriminatory and limited choices for women went against the league’s mission and would have been incredibly unpopular with stakeholders. As the expense of including minors was possibly the highest concern for the league, it may have simply been a calculation that enforcing a policy viewed as inequitable was simply more costly. No league officials have ever spoken publicly about why the league changed its course.

I would also argue that the elimination of the draft in the 2024 CBA was an unforeseen consequence of the introduction of the U18 mechanism. As an example, Gisele Thompson would likely have been a top 10 draft pick, given her status as a member of the U17 USYNT. But the U18 Mechanism allowed Angel City FC to sign her as a free agent just four days before her 18th birthday. With the ability to sign top talent before the draft, the draft capital loses much of its value. This was not the only factor in the decision to eliminate the draft, but I believe that it was an important contribution.

While the court ruled in Moultrie’s favor as the decision that best promotes competition, there are ethical concerns regarding minors competing with adults in professional sports. At the time when Moultrie began practicing with the Thorns, USWNT star Megan Rapinoe said, “I don’t think that we’re in a position in women’s soccer to have the systems and structures set up to facilitate the growth of such a young player in the professional environment.” This has not been an issue yet, but there is a concern that U18 players may be exploited by their parents in the same way as child actors. At a minimum, because of the regulation that a player signed through the U18 mechanism must live with a parent or guardian, this often means that at least one parent has to move to fulfill this role. This may mean that the parent has to give up their job, and that may put the child in the position of having to be the breadwinner for the whole family. As Sylvia Shenk, chair of the Working Group on Sport at Transparency International, says, “Wherever children are training and competing in high-level sport not for their own sake but for the sake of their parents, coaches, clubs, we see a ‘red flag’ signaling the risk of misuse of power. Children can be victims of exploitation in sport, often accepted or even supported by their own parents who want success, financial gain and/or publicity.”

A footnote in the NWSL’s defense states that there are “numerous benefits (to the age rule), including concerns for minor athletes' development, protecting a league from a minor's ability to avoid employment contracts, the myriad concerns for minor athletes embedded in the Safe Sport Act, and the League's costs to implement the same if it employs minors and allows them to travel throughout the United States for games,” (O.M. v NWSL). The focus here is on how these concerns affect the league, rather than the athlete, but they are a factor.

The Safe Sport Act stands out to me in that previous statement. The Protecting Young Victims from Sexual Abuse and Safe Sport Authorization Act of 2017, to use it’s full name, is an act of Congress passed in response to the abuse uncovered at USA Gymnastics and other youth sports organizations. I would argue that these measures are ones that should have been in place anyway. But in 2021, when Moultrie brought her complaint, the NWSL was dealing with it’s own series of abuse and misconduct. The Yates report, which is the comprehensive investigation of these incidents, would not be published until October 3, 2022, almost a year and a half later. However the league was aware of multiple complaints of abuse, including from the Portland Thorns, the team that Moultrie was looking to join. These centered around the previous manager in Portland, not the one that would be working with Moultrie, but I believe that the league may have had some concern around introducing minors into an environment in which they had already abjectly failed to protect adult women. This is not an argument that the league could make publicly or in court, but it has to have been on the minds of league officials.

Since Moultrie’s original complaint, she has made it to the senior US Women’s National Team, earning six caps. Still only 19, she is the second-longest tenured player on the Portland Thorns, and has created the most chances for them so far this season. The US Youth National Teams featured professionals for the first time in 2024 with eight players at the U20 Women’s World Cup, and four players at the U17 Women’s World Cup. Moultrie’s record as the youngest player in the league has been broken twice, and is now held by Mak Whitham. She signed with Gotham FC just before her 14th birthday, and played her first match the following season. The full extent of the inclusion of minors in the NWSL will probably not be felt for a generation. But we are already seeing the impact on NWSL rosters and on the National Team. When she filed her complaint, Moultrie’s motto in the media was, “If you’re good enough, you’re old enough.” She has proved that she is good enough, and that there are other players her age that are good enough too. I think that there are still concerns about minors playing and training with adults, and it’s imperative that all parties ensure that the system is working. But for the first time in history, we will get to see women footballers that play their entire careers in a professional environment, and I don’t think that ever would have happened in this country if it weren’t for Olivia Moultrie.