EDITORIAL – The MLS Players Association was informed by Major League Soccer that it plans to invoke the force majeure clause of the collective bargaining agreement, ESPN reports. This move to invoke the CBA’s force majeure clause forces the MLSPA and MLS back to the bargaining table to renegotiate the agreement reached in June, which was supposed to last until 2025.
MLSPA Forced To Renegotiate Due To CBA’s Force Majeure Clause Added In June
A force majeure clause is a clause included in a contract that releases both parties from liability if an act of god occurs that renders performance of that contract impossible. For example, a transport ship being unable to sail because it caught fire before its voyage, or in this case a global pandemic.
When the MLSPA and MLS agreed upon a framework for a new CBA in February of 2020, it did not include a force majeure clause.
However, due to COVID-19, that agreement was never ratified.
Unfortunately for the players, this meant that they were able to be forced back to the negotiating table. The negotiations did not go well for the players, who lost close to $150 million in wages and bonuses, including a 5% pay cut for all players for the 2020 season.
Worse, although no previous CBA in MLS history included one, the league insisted on adding a force majeure clause. And not just any generic force majeure clause, which usually accounts for “acts of god” such as famines and war.
What Does The CBA’s Force Majeure Clause Actually Say?
The CBA’s force majeure clause allows the MLS to terminate the agreement with 30 days 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 (or) makes the CBA economically impracticable.” The NBA has a similar clause.
Essentially if at any point it didn’t appear that the MLS would make enough money in 2021, they can tear up the CBA with 30 days notice.
ELI5: MLS invokes "in case of emergency, break glass" clause they added to the June CBA to renegotiate it or tear it up because the league doesn't think they'll make enough money in 2021, which they can legally do. #MLSPA #CBA
— The MLSquire (@kevinrjensen) December 30, 2020
Why would the MLSPA agree to add a force majeure clause with this language?
The players’ backs were against the wall.
In June of 2020 when the CBA was being renegotiated, team owners threatened the MLSPA with a lockout. A lockout would’ve left players’ and their families without any income or even health insurance – in the middle of a pandemic.
So the CBA’s force majeure clause was added and the lockout was avoided. At the time, the MLSPA hailed the agreement as “provid[ing] players with certainty for the months ahead.”
The #MLSPA and #MLS have officially agreed to the return-to-play plan for the 2020 #MLS season. In addition, the new CBA will run through 2025. pic.twitter.com/S7B4QXZ1J6
— Larry Henry Jr (@lhenry019) June 3, 2020
In retrospect, that move has only delayed the inevitable. Now the MLSPA will be forced back to the negotiation table or face the threat of another lockout if an agreement can’t be reached in 30 days.
MLSPA Releases Statement Condemning MLS Invoking CBA’s Force Majeure Clause
MLS commissioner Don Garber recently announced the MLS may lose almost $1 billion in revenue for the 2020 season. As such, the MLS is expected to try to squeeze more concessions out of the league’s players.
The MLSPA released a statement voicing its disapproval of the decision:
“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.”
Statement on Force Majeure Notice: https://t.co/b4tsOy7nSB pic.twitter.com/dLMMTrmfdd
— MLSPA (@MLSPA) December 29, 2020
Last Word:
The MLS and its teams’ owners are in the business of making money, and they’ve been cutthroat in their negotiations from the start. From reneging on the original agreement in February and refusing to ratify it, to threatening a lockout if the players didn’t agree to less money and adding an “economically impracticable” force majeure clause, we can expect these renewed negotiations to be just as sinister.
What may seem good business to pinch pennies and squeeze players in the short-term will have lasting effects on players’ goodwill toward the league and on players’ willingness to play in the MLS in the long-term.
It’s bad business.
As LAFC’s Marc Anthony expressed to the Athletic:
“We’re supposed to try to build this league to be a top-five league in the world, right? That’s the aspiration the league has been saying it wants for so long. But in order to do that, you have to bring the players along with you. And entering three negotiations in the span of a year or so, it sends the wrong message. It sends the message that there’s always going to be an excessive amount of control over players, and that’s going to limit the amount of growth that the league can really have. It’s going to show the world that they’re going to lose the opportunity to be a league of choice.”
