CBA Negotiations

What happens if the players go on strike?

As I write this at 10:00 am on Wednesday morning, things look bleak for MLS fans.

Notwithstanding the arrival of the federal mediator, so far (if reports are to be believed) all MLS is willing to offer players on the all-important issue of free agency is a ridiculously constrained form of psuedo-freedom based upon extreme years of service, and with a cap on the amount of raise a player can receive.

Remember: in 2010, the owners offered a last minute face-saving counteroffer (the reentry draft) that allowed the players to settle the CBA and at least claim some kind of “win.”

As of now, no similar face-saving offer is on the table. If this posturing continues, a strike is virtually inevitable. The players will simply have no choice.

So what happens if there is a strike? Let’s find out.

Will negotiations continue during a strike?

Yes.

The MLSPU is the recognized collective bargaining agent for the players. As a result, MLS has a continuing obligation to bargain with the union, even though the players are out on strike.

Practically speaking, however, you will see a lot less urgency in the first days of a strike. Each side wants to let the other feel a little pain (for owners, bad publicity and lost games; for players, lost pay) in the hope that it will soften them up and make them a bit more reasonable.

What if the league refuses to bargain?

The National Labor Relations Board enforces federal labor law. If MLS refused to continue to bargain in good faith, or declared an impasse and unilaterally implemented the last, best and final offer on the table (which employers may do), the union could file unfair labor practice charges with the NLRB and hope for a remedy.

It should be noted that the NLRB’s issuance of a complaint and seeking an injunction against the owners during the baseball strike of 1994-95 was instrumental in forcing an ultimate resolve.

Will there be fact finding or a mandatory “cooling off” period?

Readers who recall the recent threatened SEPTA strike will remember that the President of the United States got involved and ordered a “cooling off” period, followed by a fact finding hearing before a neutral arbiter. Others may have experienced teachers’ strikes where the work stoppage has to end to allow enough time for a full school year, and the parties also engage in a fact-finding or non-binding arbitration hearing.

Well, none of that applies here. Transportation and teaching are considered “essential” professions, and special labor laws apply to them. Soccer players, in the eyes of the law, are no different than Wal-Mart employees. They do the best they can at the negotiating table.

While nothing stops MLS and the MLSPU from voluntarily engaging in a find finding hearing, it rarely happens.

Fact finding, by the way, is essentially a non-binding arbitration hearing. The fact finder hears the facts, and then issues recommended rulings on contract terms. But the parties are free to ignore them.

What about binding interest arbitration, then?

No.

Interest arbitration is where the parties hand the writing of their contract over to a neutral. In Pennsylvania, police officers and fire fighters (and a small handful of other essential classes, like corrections officers) get this right — but only because they are not permitted to strike as a matter of law.

Private sector employees (like soccer players) don’t get this right.

Again, MLS could voluntarily agree to binding interest arbitration — but, then, Cristiano Ronaldo could sign with the Philadelphia Union.

Can MLS continue playing with replacement players?

Yes.

Workers can strike, and employers are allowed to hire replacements to keep the business going. Frankly, back when being a “scab” was really looked down upon, employers rarely exercised this option. However, ever since Ronald Reagan busted the air traffic controllers union in the early 1980s, this has become a much more acceptable option for both employers and the public.

The NFL used replacement players during the 1987 strike, with sometimes comical results. More recently, replacement referees made a laughing stock of NFL games during an officials’ strike. A replacement-laden MLS will be unwatchable.

However, in 1987 NFL fans kept coming to games. MLS may roll the dice to see where fans’ sympathies lie, though this is unlikely. On Feb. 19, the New York Daily News reported that, according to MLS deputy commissioner Mark Abbott, “in case of a strike, the league will not hire replacement players, which would likely be a suicide mission for the still-nascent league.”

Can striking players go play in the NASL or USL?

This is a tricky one.

Typically, a striking employee is free to go work for someone else while on strike.

In sports, we saw hockey players go play in Europe during the NHL lockouts of 2005 and 2013, and even saw some players with 2-way contracts assigned to play in the AHL. However, those were situations where the employer basically called a strike (i.e., locked out employees).

One would think that a striking MLS player could go play elsewhere — NASL, USL, or even go back to their country of origin and play. However, this is where FIFA comes in. The worldwide soccer governing body would likely intervene and prohibit what it perceived to be “contract jumping.”

This, in turn, would raise some interesting issues under American anti-trust law. But we’ll save that for another day.

Can players decide to go play, even if the MLSPU is on strike?

Yes.

While a union can call for a strike, the decision of whether or not to actually strike belongs to the individual. While it is not the type of thing that will make one popular in a locker room (or any workplace), workers can go to work while their colleagues walk a picket line.

In 1987, many NFL players — including stars like Joe Montana — breezed right through picket lines to go play. In fact, only two NFL teams had 100 percent of their players go on strike in 1987: Washington and your Philadelphia Eagles.

In 1979, the original North American Soccer League endured a strike. Again, many players crossed the line and went to work.

Can the players continue to work without a new CBA?

Absolutely.

The terms of the old contract remain in full force and effect until replaced by a new one…with one significant exception: the no-strike/no-lockout clause does not survive expiration.

Still, the players could continue to play under the old agreement. This has happened in the past in baseball and hockey.

The danger, however, is that the players can also walk out mid-season, or just before the playoffs. Not surprisingly, this also happened in MLB and the NHL.

Because of this, owners tend to lock players out when a CBA expires so as to avoid the disruption and bad publicity.

So far, MLS has seemed willing to let the players work without a CBA. But that could change.

Does that mean a lockout is possible?

It is an option the league has. But, frankly, it doesn’t seem likely. MLS may figure that it has a better chance of winning the battle for the fans’ hearts and minds if it is willing to play, but the players are not.

For more on some of the issues involved with the CBA negotiations, see Steve’s primers on labor law and terminology and lockouts in pro sports, as well as his look at federal mediation. You may also want to listen to Steve’s recent appearances on the KYW Philly Soccer Show podcast here and here.

24 Comments

  1. A+ You answered all of my quesitons – I’m good for the day!

    • Steve Holroyd says:

      Let the record reflect that msklem24 specifically asked for this article. If you liked it, feel free to thank her!

  2. EPL, La Liga, Bundesliga, Liga MX, Serie A, or League 1………we’ll survive!

  3. Andy Muenz says:

    “In 1987, many NFL players — including stars like Joe Montana — breezed right through picket lines to go play. In fact, only two NFL teams had 100 percent of their players go on strike in 1987: Washington and your Philadelphia Eagles.”
    .
    Don’t forget which team went 3-0 in lockout games and won the Super Bowl that season. It was Washington. Maybe we could see every team but the Union have players cross the picket line and then watch the Union win MLS Cup!

  4. The Chopper says:

    I can”t see any strike lasting too long and the owners know this. This is not like other American sports where the players are all making significant salaries and theoretically have money put aside to live on. Also, the NFL, MLB and even NHL unions have significant war chests accumulated to provide some funds to players during stoppages.

    The majority of MLS rosters are filled by paycheck to paycheck guys. They are leasing apartments where the landlord wants that check on the first of the month and could care less that your union is being strong armed by the owners. There is no real player’s association war chest. The owners know this and expect the players to cave quickly.

    These guys simply can not afford a long strike. They’ve got bills and families to support.

  5. The Black Hand says:

    I read that the clubs are still going to travel (as of 8:00 this morning) and that talks are in overdrive. Still a chance of kicking off this weekend…albeit a very slim chance.

  6. Old Soccer Coach says:

    What, if anything, is the significance of the clamp down on players speaking to reporters? I know the RSL owner got fined 60% of the maximum. Is it SOP at this stage? Or does it mean something? The ownership 2nd offer might be the opening gambit, with a fall back yet to come, he said hoping desperately.

  7. What happens to season ticket holders? Are we owed anything by MLS/Union if they do not provide us a product similar to what we expected when we paid for our tickets?

    • Technically, they owe us nothing. But PR needs will obligate them to make some kind of deal.

    • soccerdad says:

      Yes — i like this question. Anyone? Steve?

      • Steve Holroyd says:

        Tsk. You guys…only thinking of yourselves… 😉

        A strike is not the league’s fault, technically speaking (the complete unreasonableness of their offers notwithstanding). There is no clear obligation to refund money. During the NHL lockout(s), moneys were applied to the next year’s season ticket costs, or were refunded the next year if the individual cancelled his season tickets. So, in short–you’ll get money back, but only if you cancel tickets NEXT year.

      • Andy Muenz says:

        I would think that if the games were cancelled, the teams would be obligated to either refund the money or apply it to a future ticket. The ticket is basically a contract for them to provide an event. Now if they bring in replacement players, it becomes a whole different story, since they are providing something, even if it’s not what we expected (although I think it is likely that they would do something anyway…otherwise they’d risk losing fans long term).

  8. OneManWolfpack says:

    SEE YOU ON SATURDAY!!! WE HAVE AN AGREEMENT!!!

  9. John Osborn says:

    Ugh, why did I have to pick this year to vacation in LA and buy a decent seat in the front row at the LA Galaxy opener.

  10.  Un videojuego que engancha empezando desde eel primerisimo punto aun asi que nos deja con ansias de bastante mas

    Revisa y ademas visita mi website- Warhammer: End Times – Vermintide trucos y ayudas

  11.  Me flipa relativamente este juego, sii bien es cierto que de hecho no
    constituye tanto como esperaba

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  12. I read that the clubs are still going to travel (as of 8:00 this morning) and that talks are in overdrive. Still a chance of kicking off this weekend…albeit a very slim chance.

    Reply

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