MLS and its players headed back to bargaining table -- again

For the third time in less than a year, MLS and its players are headed back to the bargaining table.

Thank you, COVID-19.

On Tuesday, MLS confirmed it is invoking the "force majeure" clause in the collective bargaining agreement the league and players reached in June.

MLS and the MLSPA had reached a tentative agreement on a new five-year CBA in February, but soon thereafter the pandemic hit, shutting down MLS and all other U.S. sports leagues and sending MLS and its players back to the bargaining table.

Much of the attention was on the $150 million in financial concessions the players made:

-- A 5 percent cut in salaries for the 2020 season;
-- A cap on league-wide bonuses at $5 million for the 2020 season;
-- A delay in the implementation of annual spending increases by one season, extending the length of the agreement by one year; and
-- A cut in the players' share of the revenue-sharing deal on MLS's new national broadcast agreement set to take effect in 2023.

But the CBA also included a "force majeure" clause not previously included in agreements between the players and the league. If the league and its clubs continued to be adversely impacted by an event like the pandemic in 2021, either party had the right to invoke the clause.

The new collective bargaining agreement remains in place, but the clause gives the league and players 30 days to come to terms on a revised agreement. It requires the parties to bargain in good faith, but if no agreement is reached, it sets up the possibility for what has never happened in MLS history: a labor stoppage.

While the exact parameters by which the league or players can invoke the force majeure clause are no known, they revolve around restrictions on the ability of fans to attend games.

In May and early June when the new CBA was negotiated, the pandemic was on a decline in many parts of the country. Few thought it would rage in parts of the country in the summer -- two MLS clubs were forced to withdraw from the MLS is Back Tournament in July -- or through the end of the year.

The 2020 MLS regular season was reduced from 34 to 23 games. Seven of 299 games ended up being cancelled due to COVID-19 issues. Only 11 of 26 MLS teams played any games with fans socially distanced in the stands in their home markets after they returned home following the MLS is Back Tournament in Florida. MLS Cup was played in Columbus before 1,500 fans.

MLS has not yet announced a start date for the 2021 season or the opening of preseason training, but the end of the pandemic is not yet in sight.

That MLS has invoked the "force majeure" clause is no surprise.

In November, MLS confirmed it sent a procedural notice to the MLSPA, required by the National Labor Relations Board, in order to preserve the league's right to invoke the "force majeure" clause.

In his annual State of the League address on the eve of MLS Cup 2020, MLS commissioner Don Garber said he was hopeful that 2021 will be a lot better "because I don't think any business could sustain the kind of impact that we sustained in 2020 for two years in a row." He said revenues for the league and its clubs were down almost $1 billion compared to 2019 and they incurred unanticipated expenses to charter teams during the pandemic to away games, conduct COVID-19 testing and operate the Orlando bubble.

Days later, Bob Foose, the MLSPA executive director, held a media call during which he said invoking the "force majeure" clause would be a mistake.

"I don't want to discount the unique nature of this year," he said, "and we all with some rest are hoping to recharge and get back to the task of growing MLS. Things are shaky and to impose another negotiation right now would be very, very risky."

Foose said there were reasons for optimism that 2021 will be better with "consistently promising news on the vaccine front."

Do circumstances exist for MLS to invoke the force majeure clause and force players back to the bargaining table?

As a practical effect, Foose said on Dec. 11, when "the league's ability to do its business is unreasonably impacted. Clearly, if there are games, but no one is allowed in the stadium all year, that certainly would be an unreasonable impact. If there are games all year and then the stadiums are allowed to be open, then that would not [be an unreasonable impact] regardless of the individual decisions that people might make. Where the line falls in between that isn't an exact line."

Dr. Anthony Fauci, the director of the National Institute of Allergy and Infectious Disease, told Yahoo Sports in early December that full-capacity crowds at arenas and stadiums one of "the last things that you're gonna see" in 2021.

"We're gonna be vaccinating the highest priority people [from] the end of December through January, February, March," said Fauci. "By the time you get to the general public, the people who'll be going to the basketball games, who don't have any underlying conditions, that's gonna be starting the end of April, May, June. So, it probably will be well into the end of the summer before you can really feel comfortable [with full sports stadiums] -- if a lot of people get vaccinated. I don't think we're going to be that normal in July. I think it probably would be by the end of the summer."

On Tuesday, MLS president Mark Abbott said in a statement to the media that "based on the assessment of public health officials, it is clear that the impact of COVID-19 and the restrictions on attendance at sporting events will continue into the 2021 MLS season. We recognize the impact that the pandemic has had on our players and appreciate their efforts to restart and complete the 2020 season, but, like the other leagues in the United States and Canada, MLS needs to address the ongoing challenges caused by the pandemic and will engage in good-faith discussions with our players about ways to manage the significant economic issues we are facing."

MLSPA's position? “After a 2020 season of extreme sacrifice, immeasurable risk to personal health, and a remarkable league-wide effort to successfully return to play, this tone-deaf action by the league discredits the previous sacrifices made by players and the enormous challenges they overcame in 2020,” it said Tuesday in a statement.
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