Option years are confusing and may not be legal, so MLS should find out

In the not so distant past, MLS and Liga MX had a simple relationship: players got paid much better in Liga MX and would go there if they could. The prime example was U.S. star Herculez Gomez, who left behind the cold and barren winters of Kansas City for the arid valley of Puebla, Mexico. Herc led Liga MX in goals, sealed a place on the U.S. roster for South Africa 2010, and, in his own words to Don Garber, started to make “DP money.” After the 2010 World Cup, Jonathan Bornstein capitalized on his decent tournament and headed south to Tigres, while DaMarcus Beasley left Europe for Puebla himself in 2011.

Two recent situations, however, show a slight change in the trend. MLS now seems willing to fight for players.

Last offseason, the Vancouver Whitecaps were optimistic. The team had finished above .500 and missed a playoff spot by a meager three points. Star Brazilian striker Camilo Sanvezzo had made the All-Star team while winning the league’s Golden Boot with 22 goals.

Interest from Europe and abroad rose, but Vancouver relaxed: They had an option year in his contract. They fully expected him to arrive in January for preseason, but then came the problem: He never showed up. Instead, he went to Querétaro, Mexico.Queretaro v America - Apertura Liga MX

Photo by Leopoldo Smith/LatinContent/Getty Images

I’ve written before about Querétaro’s sketchy (former) ownership. In January, the soccer transfer rumors cycle went on overdrive. Querétaro announced they had signed Sanvezzo on their official website; shocked, the Whitecaps denied any transfer had occurred. However, there was a problem with Vancouver’s contract with Sanvezzo: According to FIFA (FIFPro to be precise), the option year was illegal. To use legalese, it was a “unilateral option;” e.g., only one of the two parties had the right to decide. Rather than face a legal battle via FIFA, MLS intervened and shook out a transfer fee.

But the underlying question remained unanswered. Are FIFA and FIFPro right? Are (unilateral) option years invalid? Based on some rulings by the Court of Arbitration in Sport (CAS), they don’t appear so, with the rationale being relatively straightforward: post-Bosman, the freedom of movement of players and clear ending of a contract are very important principles. Allowing clubs to have unilateral options could create situations like before the Bosman ruling, where clubs de facto own a player’s rights for several years by sticking those option years.

Also part of the ruling’s rationale: the owners, aka employers, have the upper hand in negotiations. Players’ ability to freely sell their labor is their best way to counter that leverage; to negotiate a good wage.

At this stage, most American sports fans might say “WTF?” In every North American sports league, players and owners draft contracts with unilateral options. Stars like LeBron James have player option years, and a franchise’s hopes and dreams will rest on their whims in June. At the other end of the spectrum, under-performing veterans hold their breaths hoping their teams will extend their deals for one more seasons.

The rationale in North America is to allow unilateral options because, while they may hurt lesser-known players, they can work in favor of stars and above average players. Also, North American courts have looked at the existence of players’ unions and collective bargaining agreements as signs of more equal bargaining power between players and management. Ergo, things like, say, a single-entity monopoly, unilateral options, and salary caps have been deemed okay.

It all leaves unilateral options on uncertain ground. The FIFPro explanation is ambiguous, as are FIFA’s regulations, while CAS has actually ruled in favor of unilateral options in at least one case involving Panathinaikos in 2006. CAS noted that FIFA disapproves of unilateral options, but one must look at the domestic law of the club’s country. Also, FIFA is not 100 percent, never, ever, no way against unilateral options. In the Panathinaikos case, CAS found that even with its option years, the five-year contract in question was legal under Greek law; also, the player was getting paid significant wages. Arguably, MLS could have raised a stink and made comparable arguments.Philadelphia Union v Chivas USA

Photo by Joe Scarnici/Getty Images

Of course, Sanvezzo has come and gone. More pressing is the evolving situation with former Chivas USA star Erick “Cubo” Torres (above). He signed loan deals with MLS for both 2013 and 2014, and (according to SI) his current contract has an option for MLS to buy him for $7.5 million. Once again, though, MLS and Liga MX differ. Chivas owner Jorge Vergara has basically said Cubo is coming back to Guadalajara. Meanwhile, Don Garber has said the league is in talks with Cubo about a long-term contract. Unlike an option year in a contract, an option to sign after a loan still requires MLS to reach an agreement with Cubo on his salary. However, will MLS stand up to Liga MX? Will they hold their ground and try to enforce the contract’s terms? Probably not.

At some pont, MLS should raise a stink and see where the cards lie. As the only U.S. sports league that has to regularly deal with international transfers, it needs clarification, so players can’t go Sanvezzo (aka, AWOL) in the future. If unilateral options are invalid, then clubs can draft deals for longer terms or even mutual options. If they are valid, then MLS can stand its ground when disgruntled players run south of the border in the preseason.

On a personal level, option years for employers make my stomach churn. As someone who wants to see MLS grow, though, the league needs to start addressing the talent-drain. Granted, there are lots of holes to plug, but you have to start somewhere. This may be one of MLS’s best options.