MLS labor talks: Agreeing on shared vision of 2021 and shared sense of urgency is hard when trust is broken

The COVID-19 pandemic has impacted many facets of life far greater than the little world of MLS player relations, but the damage has been considerable and goes to the heart of the problems the league and players face in negotiating yet another revision to their collective bargaining agreement.

Relations were at an all-time high a year ago when MLS and the MLSPA reached a tentative agreement on a new five-year agreement that Bob Foose, the MLSPA executive director, said "will substantially change what it means to be an MLS player."

Fast forward to today. MLS and MLSPA are in the middle of a 30-day negotiating window triggered by the league's invocation of a force majeure clause inserted into a revised agreement reached in June 2020 to move ahead with the 2020 MLS season. Foose says, “I think it would be impossible to overstate the damage to the relationship that the league did with the way they conducted things last summer. It was substantial and will be very long lasting."

That is a reality that the league will struggle with as it attempts to come to terms with its players on a modification of the June 2020 agreement. Foose described the players as "very frustrated, they’re certainly angry” that they are being asked to go back at the bargaining table.

Players shouldn't be surprised, though, that the force majeure clause would be invoked. It goes to just how serious the situation was in 2020 that the MLS owners extracted concessions in compensation of roughly $150 million and secured the protection of a force majeure clause, absent from previous agreements, for future years.

If there's one thing we should have learned from the pandemic, it's not to be surprised. The pandemic is raging at record levels of cases and deaths most could not have imagined in late spring of 2020 when the negotiations on the revised agreement were taking place. 

Foose says the view of his players is that the new league proposal -- freezing again compensation in 2022 and extending the length of the agreement by two years through the 2027 season -- is "another attempt to renege and renegotiate from the league" though that's exactly what the purpose of the force majeure clause is.

"Is this about financial necessity? Or financial opportunism?" he asked.

Foose wouldn't answer whether the MLSPA will challenge the league's right to invoke the force majeure clause, but absent such a challenge, whether the league's move is based on necessity or opportunism is irrelevant.

The parties must hammer out a new agreement.

The sooner the better, from the league's perspective, so plans for the 2021 season can move forward. The players, on the other hand, are in no rush to get back to training. "We are dealing with an unprecedented level of emotional and mental healing that needs to happen as well," Foose pointed out on the eve of MLS Cup 2020.

In terms of the give-and-take on a new CBA, the players would rather wait to get a clearer picture of the pandemic's impact on 2021.

“The fact is right now that neither we nor the league have any idea what impact that pandemic is going to have on finances in the 2021 season,” Foose said.

He is right -- though it is hard to imagine we will have a much clearer picture, say, a month from now.

MLS has proposed no further pay-cuts in 2021 because, it says, those same cuts in 2020 were what the players most objected to. Instead, it hopes to save in excess of $100 million in later years by freezing compensation in 2022. Foose's position is that there's no need for a new agreement. He argues the league has all the tools it needs to cut spending in 2021, the year at hand.

"Teams already have the ability to reduce player compensation by over 30 percent just by adjusting their discretionary spend," he said in December when it was obvious the force majeure clause would be invoked. "And that's without even touching their DP [Designated Player] spend, which can also be reduced in their discretion. And also without selling players, which they can do to, to shed salary and potentially generate cash for those teams that are in need." (On Wednesday, Foose put that control over discretionary spending at 40 percent.)

What is different about this negotiation from previous negotiations between MLS and the MLSPA is that both parties have quickly gone to the media to make their cases. 

The dispute over the last two days -- MLS Commissioner Don Garber held a media call on Tuesday, Foose followed 23 hours later -- centered around the urgency with which the parties view the need to reach a new agreement.

Garber described the 30-day window that opened on Dec. 29 as a "hard deadline," while Foose said that was news to him and his players. Garber did say the league wouldn't necessarily lock the players out after the 30 days. Indeed, the terms of the CBA will remain the same and in effect until a new agreement is reached, just like the terms of the pre-2020 CBA remained in effect while the parties worked on finalizing an agreement in early February 2020.

Ultimately, the league and players will need to agree on a shared vision of what 2021 looks like in terms of paying fans -- who drive MLS's most important revenue source -- being back in the stands.

"We're certainly not looking to continue these talks indefinitely," said Foose. "At the same point in time, it's critical that we have as much understanding as possible as to what 2021 is going to look like."

In normal times, that's possible. The league opened its books to show players what the future held pre-pandemic for its clubs, and they relatively quickly came to an agreement in February 2020. During a pandemic, it's another thing to know what's in store.

Ultimately, it will take a leap of faith on the part of the owners and players to envision what 2021 will look like.

But on top of everything else, they will then need to sit down and agree on concessions -- a process made that much harder because trust between the parties has been broken.

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