MLS prepares for landmark season under threat of strike

As MLS prepares to kick off its landmark 20th season, this should be a time of celebration about how far the league has come. The league’s website is running highlight reels and countdown graphics prior to the opening game between defending champions LA Galaxy and Chicago Fire on Friday night.

Yet while there’s qualified optimism about elements of the league’s growth, there is currently a very real question about whether the season will kick off at all.

The collective bargaining agreement (CBA) negotiated between MLS and the MLSPU, the players’ union, just before the start of the 2010 season, expired at the end of January. With no deal in place and both sides currently sequestered in Washington, D.C., arbitration talks, the players insist that every option, including a strike, is still on the table.

Perhaps uniquely in such labor disputes, the issue is not money — or at least not exclusively money. Certainly the players have watched the league’s celebration of its expansion progress with interest and feel entitled to ask for their share of the pie. While pay is still an outstanding issue and while MLS Commissioner Don Garber has made a number of pointed references to the league still operating at a loss, the off-the-record consensus from both sides is that some sort of deal will get done on that front.

That will likely mean raising minimum wages, adjusting the salary cap and operating budgets and generally thrashing out a financial package that neither side is truly happy with — though, as MLSPU executive director Bob Foose said of the last deal, “[There were] certainly things that we might have liked to come out a little differently. I suspect the league would probably say the same thing, which I suspect means it’s a decent deal.”

The real sticking point and the issue that has been described by such luminaries as U.S. national team star Michael Bradley as “absolutely” one worth striking over is the issue of free agency for players at the end of their contracts. 

There the issue becomes less about bottom lines and more about the fundamentally differing ideologies of the negotiating parties.

MLS has long been haunted by the failures of the free market NASL, whose 1970s boom and bust excesses, typified by the rise and fall of the New York Cosmos, led to a lost generation of players when the league collapsed before the 1985 season.

It’s no accident that the single-entity model that MLS adopted over a decade later is prudent almost to a fault, with the cautionary tale of the NASL as its foundational myth.

However, Foose and the union believe the shelf life of that cautionary tale has passed. He declined to speak with Al Jazeera because the current negotiations are at such a delicate stage. But he previously said that the league is “certainly past that point, if it ever existed,” where an economically and structurally conservative model is necessary to counteract “the big thing that everyone’s always been terrified of in MLS’s existence, which is a repeat of the mistakes in the NASL.”

He added, “The reality is that those things that brought down the NASL — those issues are more or less solved, and those aren’t things that we’re even discussing right now. It’s not a question of dollars. It’s a question of allocation of resources and risks, rewards within the league structure.”

And on the lack of free agency within the single-entity structure, Foose said, “We’re just about the only place there is where a player can play out a contract yet still have his rights held by the team that he’s no longer under contract with. That’s been changed everywhere across the board — or close to everywhere, anyway.”

But for the owners, the league structure and all the baroque mechanisms that protect its single-entity form are partly what attracted them to make the investment in the first place. And for them, free agency is not a concept that’s workable within that structure. The strict forced parity in the league extends to off-the-field issues, where Todd Durbin, the executive vice president of player relations and competition, who has been with the league since the start, is continually monitoring the ecosystem of single-entity practice to ensure that off the field the teams are never pitted in direct competition with one another in the open market, including bidding against one another for players.

Certainly for MLS, free agency, a central concept within football’s organized labor circles since the galvanizing Bosman ruling of 1995 (permitting out-of-contract EU players to move to another club without a transfer fee), is the thin end of the wedge, and as things stand, it are point blank refusing to entertain it.

One owner, Real Salt Lake’s Dell Roy Hansen, went so far as to use a local news affiliate appearance last week to describe the talks about free agency as a “go-nowhere conversation.”

It’s perhaps a marker of the sensitivities around the mediation process, which is ongoing at the Federal Mediation and Conciliation Service in Washington, that Hansen found himself fined a record amount (believed to be $150,000) by the league for his revelations about the talks. He actually may have gotten off lightly; in the same interview he claimed that Garber sent weekly emails to owners reminding them not to reveal details of the negotiations publicly and promising fines of up to $250,000 for violators.

Garber, the owners and the players are in uncharted territory — even while parties speak of mutual respect and acknowledge that the years spent building the league in tandem have given both parties a degree of familiarity with each other. As Foose put it when anticipating these talks, “It’s difficult to collectively bargain when you don’t have a history of a relationship … I like where we’re starting from in terms of our history with each other and our relationship, more now than we did so five years ago.”

For one thing, expansion has transformed the ownership culture in the league from conservative sports industrialists incubating the game in the U.S. to a younger-skewing entrepreneurial breed who see ground-floor potential of investing in soccer in the U.S.

So while the owners counter the free market implications of free agency with a familiar refrain of cost certainty, their motives for using that argument have arguably shifted from fiscal prudence to a more self-interested protection of their investment. The players, meanwhile, are frustrated by the perceived intransigence of the owners over free agency and what Foose described, as far back as 2013, as disingenuous logic.

“It’s very easy in these sports labor negotiations for it to devolve into a conversation about ‘What these players want is going to bankrupt us all,’” he said. “That’s not what we’re suggesting. We are [making proposals] in a more or less fixed cost environment.”

Neither side is moving on the core principle of free agency, with limited time and positive options left to get a deal done before opening day. (For the players to agree to play without a working CBA in place this weekend would still require a degree of substantive agreement on principles.)

And it’s not just the ownership group that has changed and adapted since the last round of negotiations five years ago. New York Red Bulls player rep Luis Robles told Al Jazeera last week that the union wants to “find an agreement that suits both sides” but has been also preparing for a standoff since the moment the last CBA was signed.

“What they’ve been able to do that has been very impressive is that they’ve been able to stockpile this reserve, if you want to call it, so that as we go into this and if it ends up in the result of a strike, the players are prepared. And the players will have some sort of contingency financially, insurance-wise, that will not put us in a situation where we’re desperate,” he said.

How financially prepared the union can truly be for a strike is an interesting question, given the relative lack of resources on its side of the table, compared with an ownership group that has added the likes of billionaires Arthur Blank and Flavio Augusto da Silva, Manchester City and the New York Yankees since the last CBA negotiations.

But the union seem determined and, for what it’s worth, will not be short of advocates or examples. The MLSPU is an active union in the world players’ union, FIFPro, and hosted its annual congress in Washington in 2012, less than a mile from where the current negotiations are taking place. The congress included presentations from the heads of the major U.S. sporting unions, including one by NFL Players Association Executive Director DeMaurice Smith in which he outlined the union’s tactics in taking out anti-lockout insurance for its standoff with NFL owners in 2011. The European delegates present looked slightly stunned by the idea of a lockout as a routine part of the negotiating process rather than a dramatic last resort, but for those versed in American sports and labor laws, the NFLPA experience seemed to offer an illuminating tactic.

So the union may well be prepared to make a stand, for a short time, at least, and beyond what MLS owners are expecting.

It could make some concessions while saving face by conceding the principle of blanket free agency for a more limited version that allows it for senior players who have played for a number of years in the league. That may be the union’s good-faith tack this week, but it is up against owners who still have the financial leverage and who, beyond the cost certainty chimera, are legitimately worried that any development that allows for direct competition for resources within the single-entity structure is rife with antitrust implications.

It’s all oddly emblematic of where MLS finds itself at the start of its 20th season — a young league shaped in the spirit and structures of American sporting exceptionalism and trying to maintain those structures as it negotiates the unforgiving and often inflated free market environment of the global game.

But at the heart of these different models of the game is a common denominator: the players. Beyond the marquee signings of players like Kaka and David Villa, who are (and could no longer be) scheduled to make their MLS debuts against each other this weekend, there are numerous domestic professionals who have helped build the league so far. This week they’ll demand to be heard, before and if expansion can take its next step.