A key issue and sticking point in CBA talks between MLS and the MLSPA is the league’s reported insertion of a force majeure clause related to teams’ attendance, according to four sources familiar with negotiations. Late Sunday evening, ESPN reported on MLS’ proposal that included language that the league could invoke the force majeure clause if five teams sustained a drop in attendance by 25% or more from the prior season. THE DAILY first reported about force majeure becoming part of the ongoing CBA talks on May 22. MLS is reportedly revising its current proposal and giving the MLSPA until tomorrow at noon ET to accept, with a potential lockout on the horizon. “This is all part of the push and pull of labor-management relations going on here,” said Jon Israel, attorney and Chair of Foley & Lardner’s sports team. “The threat of a lockout may just move the players to say, ‘Hey, let’s get this deal done so we can play.’" SportsCorp President Marc Ganis said that a lockout would “stunt the league’s growth, although with one major caveat.” Ganis: “Everyone is looking at this year as a mulligan. The COVID-19 situation, the lockdown, has caused everyone to view this as an odd year. If there is a lockout this year, it won’t be as noticeable as if it was a normal year.”
FORCE MAJEURE: Former NFL legal counsel and Brooklyn Law School associate professor Jodi Balsam explained that a force majeure clause is not normally specifically triggered by a business element failing, like the reported drop in team attendance. Even so, she said that does not mean parties could not incorporate such a provision. “This is sort of a misnomer to call it a force majeure clause,” she said. “What it is communicating is that if the business of Major League Soccer does not perform to the expectations on which this collective bargaining agreement is premised, then the parties have an out.” Balsam said that it could be viewed more as a business frustration clause versus force majeure. She continued that if there is a future season without any government restrictions on mass gatherings but there is still no COVID-19 vaccine, for example, attendance could be impacted. It would be tough to argue that a new force majeure event had occurred unless there was specific language in the CBA citing fans’ reluctance to return to games regardless of whether or not a pandemic was peaking. Said Balsam: “(The owners) have to build it into the CBA, somehow that even if we’re not in the throes of a pandemic, if people are simply not willing to come to the stadium out of fear of crowded locations, we want some sort of financial backstop.” The COVID-19 pandemic and its subsequent ripple effects no longer qualify as a force majeure on its own, according to Balsam, but the league still has the ability to negotiate a contingency plan in the event of a second wave of the pandemic later in 2020 (Mark J. Burns, THE DAILY).
STICKING BEHIND: The AP's Anne Peterson reports MLS players from a number of teams including Atlanta United, Inter Miami CF, Whitecaps and Minnesota United "did not report to voluntary training" yesterday. Minnesota United MF and MLSPA Exec Board member Ethan Finlay on social media wrote, "Players made a CHOICE to focus their time and energy on an important decision which includes the threat of a lockout instead of volunteering to attend on-field training for a tournament we already agreed to attend" (AP, 6/2). THE ATHLETIC's Stejskal & Tenorio wrote the facts "paint a picture of a league that has consistently behaved adversarially towards a union that, perhaps to its own detriment, has been a willing negotiating partner." Sources expressed "frustration at the process as much as the actual negotiating points; that the league's lack of communication and hardline approach to negotiations with the players has been to the detriment of coming to an agreement." The league started negotiations by floating a 50% pay cut for players "at a time when league executives had taken a maximum cut" of 25%. MLS also "did not seek players' input to help design a return-to-play plan." Instead, the MLSPA "sometimes learned details of the Orlando plan through media reports." Stejskal & Tenorio wrote at every step, the league and its owners "have shown that they care most about the health and safety of their bank accounts" (THEATHLETIC.com, 6/1).
