On Sunday night, Major League Soccer gave the MLS Players Association (MLSPA) a Tuesday deadline to agree to its terms on an amended collective bargaining agreement and return to play plan. Otherwise, the league told players, it would lock the players out.
The threat comes after the MLSPA agreed, at the league’s insistence, to insert a force majeure clause into the sides’ collective bargaining agreement. Force majeure clauses are provisions that allow one or both parties to back out of agreed terms if circumstances arise that are beyond the parties’ control.
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The clause the MLSPA agreed to was modeled on the NBA’s agreement with its players, and, according to a source, was in line with what the league recommended to the union. After the MLSPA agreed to the NBA-style approach, the league came back to the union with a unique addition: a clause that triggers force majeure if five MLS teams in a single season experience a 25 percent drop in attendance from the previous season. This level of specificity expands the definition of force majeure in what one source called an “unprecedented” fashion beyond anything used in other professional leagues.
Under the best of circumstances, the threat of a lockout, which was first reported by ESPN, would be a drastic step. Under the current circumstances, in which the MLSPA has repeatedly agreed to MLS recommendations amid a global pandemic, the tactic must only be viewed as wildly cynical.
The facts paint a picture of a league that has consistently behaved adversarially towards a union that, perhaps to its own detriment, has been a willing negotiating partner. Multiple sources expressed frustration at the process as much as the actual negotiating points; that the league’s lack of communication and hardline approach to negotiations with the players has been to the detriment of coming to an agreement.
The league started negotiations by floating a 50 percent pay cut for players at a time when league executives had taken a maximum cut of 25 percent.
MLS also did not seek players’ input to help design a return-to-play plan. Instead, the MLSPA sometimes learned details of the Orlando plan through media reports, prompting the league to issue a memo threatening employees with punishment for leaks in part because they were “impacting our negotiations with our players.” Despite players voicing concerns about leaving family for an extended period during the pandemic — and with games in home markets becoming a viable, government-approved alternative — the league remained focused on playing in Orlando in part to improve their standing with partners Disney and ESPN ahead of the expiration of the current TV deal after the 2022 season.
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Then, as players continued to concede points to the league in negotiations to return to play, MLS pushed for significant alterations to the already-negotiated CBA. That included adding a force majeure clause. The three-pronged approach used by the NBA and proposed by the MLSPA would allow for MLS to terminate the CBA with 30-day notice if an event or condition, makes it impossible for the (league) to perform its obligations under the CBA, frustrates the underlying purpose of the CBA, makes the CBA economically impracticable.
That wasn’t enough to satisfy league owners, who took this global pandemic as an opportunity to renegotiate the terms of a CBA that was agreed to in February. That the agreement wasn’t ratified by the time the sports world shut down in March — it usually takes a few months after initial agreement to do so — was seen as a chance for the league to claw back some of the players’ gains and to reinsert new language beneficial to owners.
At every step, the league and its owners have shown that they care most about the health and safety of their bank accounts. Ultimately, on Tuesday, league owners wielded the most powerful tool at their disposal: threat of a lockout.
From a cold, dollars and cents standpoint, this is “good” negotiating by MLS. The power dynamic between the league and its players is one-sided, perhaps more one-sided than any other major men’s professional sports league in North America. MLS players can be as educated and committed as they want, but unlike their counterparts in MLB, the NBA, the NFL or the NHL, most don’t have huge sums in the bank to fall back on in the event of a work stoppage. Salaries have gone up in recent years, but the MLS player pool is still made up of a lot of regular guys, financially speaking. They simply can’t afford to miss too many checks. MLS knows that this isn’t billionaires vs. millionaires, but billionaires vs. normal people. It has acted accordingly. As one source said that the players are, as of publication, relatively dug in. They might call the league on their threat. But there’s a real chance that this final step — this threat of a lockout — will get the players to accede to the league’s demands.
This tactic might be effective, but it’s not the right thing to do. Threatening to lock players out and take away their pay and health benefits in the middle of a pandemic is incredibly tone deaf, perhaps even cruel.
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The league has apparently made the calculation that the potential rewards of this strategy outweigh the risks. MLS clearly isn’t worried about a lockout driving away a significant number of fans, a high proportion of whom are die-hards. The league is betting that those avid supporters won’t walk away from their teams over this, and that casual fans won’t even notice. They’re probably right.
That’s partly because MLS and its owners don’t face the heavy media scrutiny that other leagues deal with more regularly. Compare that with MLB negotiations, which have opened both players and owners to widespread criticism. Such intense coverage of MLS is especially unlikely given the current state of the country, but it would likely be the case even if the U.S. wasn’t embroiled in so much righteous pain.
It will take an extraordinary amount of courage for the players to stand fast. Some would be putting themselves in dire financial situations, with potentially drastic impacts on their health care, at a time when there are few alternatives. International players, for example, cannot fly home during this pandemic. And as long as players remain in the U.S., health insurance is as important as ever.
The force majeure disagreement is a major sticking point. The league and the players aren’t as far apart on a potential pay cut — according to ESPN, the league is looking for players to take an 8.75 percent cut; the MLSPA is at 7.5 percent. Nor, according to a source, are they far off on agreeing on health and safety protocols for the proposed Orlando tournament.
But this fight is somewhat unique in that it seems the devil is no longer in the details. The players are most upset at the way the league has handled negotiations. They think that they have acted in good faith, as real partners. They’ve been met with cold, heartless negotiating tactics from the league. In one sense, that’s the nature of business, and it might even be good for MLS owners in the short term. In the long run, though, it feels like a line has been crossed. The players are waking up. This league isn’t about them, and it isn’t about soccer. It’s about the bottom-lines of the billionaires who own the teams. This pandemic isn’t changing that, it’s only exposing it further.
(Photo: Andy Mead / ISI Photos / Getty Images)
