Don’t trust anything you read about MLS’s CBA negotiations, unless an owner says free agency’s off the table

In theory, Major League Soccer is on the verge of a strike. As of this writing, at 11:58 p.m. GMT, the league’s Collective Bargaining Agreement (CBA) is still expired. It expired at midnight on Jan. 31, 2015.

If the league and its players can’t agree on a new CBA by Friday, one of three things will happen: 1) work stoppage, either by strike (player initiated) or player lockout (owner/league initiated); 2) the season will start without a CBA in place, in which case the terms of the old CBA would continue until a new deal is finalized; or 3) all of the players would be forced to play cricket. Obviously, none of these options are ideal, unless you like cricket.

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If you’ve been following coverage of the negotiations, you probably already know the catch phrases both sides have used throughout the winter. And if you haven’t been following, you may recognize these as the same thing you’d hear in any other collective bargaining negotiations. There’s “we’re making progress,” the classic “we’re hopeful of avoiding a work stoppage,” and the old standard “we want to play but we’re serious about striking.” And don’t forget “we’re still far apart,” “we just want to get back to playing,” and “we’re hopeful about finding a workable solution.” We could go on, but you get the point.

Reports on negotiations are full of quotes so vague they’re effectively meaningless. Take free agency. According to players, it’s something they’re willing to strike over. But even though you’ve heard both sides “speak” on multiple occasions, do you really know how serious they are about free agency? Are players so committed to free agency that they’ll all become teachers or start selling insurance or head over to Narnia to try to find a team? Or are they committed to free agency as a bargaining chip?

Expressing a need for free agency during a negotiation doesn’t necessarily mean it’s a requirement. What’s truly necessary often doesn’t reveal itself until the showdown happens, right before the season begins. Maybe there’s a formula that doesn’t include free agency that will suffice. Maybe not.

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But what about the league and owners? Can they really not afford free agency? Are they really unwilling to budge? It seems that way, and for the league, that makes sense. At least from a legal perspective.

Legally, any step toward free agency, even in a limited form, is a step toward more legal scrutiny. That’s because the league’s single entity structure is predicated on teams and the league acting with what’s called a “unity of interest.” In simple terms, MLS presents itself as a single corporation with the league office in control. That way, it can do things that would otherwise violate antitrust law, like fix prices, allocate players and assets, etc. Free agency, however, creates a disunity of interest, whereby teams start competing against each other for talent. That’d leave the league legally vulnerable.

If MLS pursued limited free agency, an immediate legal (antitrust) challenge wouldn’t necessarily follow. But most reasonable entities don’t take steps to add legal risk to their businesses, especially when they’ve sold their investors on the viability of the single entity model.

Because the league rarely talks about this legal side of the equation, many still believe that free agency is possible. And, who knows, maybe, somehow, in some capacity, eventually, it is. But the league and owners seem to be pushing the same rhetoric they always bring to public conversations about negotiations. Thus, it’s hard to say exactly where they stand, or at least verify anything from an official source.

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Still, every now and then you trip over someone who says something almost undeniably real. Last week, Real Salt Lake investor-owner Dell Loy Hansen (great name) gave us an example of that realness on ESPN 700 when discussing the CBA negotiations. He said:

I think there are some really fair offers that have come from the league. The perennial issue is that “we want free agency,” but that can’t exist where everyone’s employed by the same employer. How do you have free agency when you’re going to go talk to yourself at the next employer? That’s not going to change. That’s a “go-nowhere” conversation.

When you look at all the owners, they’ve all been in pro basketball, football, baseball and that was the one thing they all vowed they’d never do, go through that again.

They’ve tried it twice; it’s been defeated by the courts. It’s just a foolish place to waste time. So, if that’s still open, it’s just foolish.

Now, the rest, there’s some great agreement that everyone can reach, but every time I read, “We’re going to work on free agency,” well, you know, that’s kind of one of those real waste-of-time conversations.

This is one of those undeniable moments. And if that didn’t register from the words alone, it should have registered when Major League Soccer fined Hansen $150,000 – the largest fine in MLS history.

MLS Commissioner Don Garber said in a statement, “The comments made by Mr. Hansen are not permitted under the League’s Constitution.” He continued, “We are engaged in constructive negotiations with our players and such comments are not appropriate nor helpful to the negotiations.”

Of course, Garber didn’t comment on whether Hansen’s comments were correct, just that they weren’t constructive, appropriate, or helpful. But to whom? Maybe not the league, but those comments may have been helpful to those who rarely get to hear that side of the table speak candidly. It may have been the truth.

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Whether you want to believe that is up to you. But you may want to ask yourself what’s more likely: Hansen taking a stance that contradicts his fellow owners, or Hansen speaking the truth and being smacked over the head by the league with a $150,000 bill etched into a gold plate?