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MLS, players union remain at odds over CBA discussions after league invoked unforeseeable circumstances clause

Commissioner Don Garber and MLSPA executive director Bob Foose are embroiled in a public spat over CBA negotiations.

FILE - In this April 18, 2019 file photo Major League Soccer Commissioner Don Garber speaks at a news conference in Los Angeles. Garber and MLSPA executive director Bob Foose are embroiled in a public spat over amending the current collective bargaining agreement after the league invoked the force majeure clause.

The start of the 2021 Major League Soccer season is tentatively slated for mid-March, with preseason supposedly starting sometime later this month. The still-raging coronavirus pandemic is much to blame for the uncertainty.

But there are other forces putting the start to the season in jeopardy.

MLS Commissioner Don Garber and MLS Players Association Executive Director Bob Foose are in the middle of a public disagreement over changing the current collective bargaining agreement. They held news conferences on Tuesday and Wednesday, respectively, during which they contradicted each other, expressed frustration over the process, and put pressure on the other.

The league late last month invoked the “force majeure” clause of the CBA that was ratified in June. The clause — new to MLS but common in other sports leagues — allows either party to back out of the CBA if uncontrollable circumstances make the agreement untenable.

Part of the disconnect between the two parties is a 30-day timeline after the clause is invoked. Garber said Tuesday that the timeline is a “hard deadline” to negotiate new terms. Foose balked at that notion and said the deadline was “news” to the union and “contradicted what we’ve heard from the league in our calls.”

“The force majeure clause doesn’t do anything to establish a deadline,” Foose said. “What it does establish is a limit on how quickly the league is allowed to take action — so they can’t act for 30 days. But they’re not required to act within 30 days. That’s just not part of it.”

Mark Abbott, the league’s deputy commissioner, disputed Foose’s claim in a statement provided to ESPN and The Athletic.

“Based on their statements today, we’re concerned that the MLSPA doesn’t have the urgency to meet and finalize an agreement within the 30-day good faith negotiation period provided for in our CBA agreement,” Abbott said. “The timing of the negotiating period was specifically agreed to between the league and players in June, and we have made a good faith, thoughtful and simple proposal to facilitate reaching an agreement promptly and before the end of this 30-day period.”

MLS on Jan. 4 sent a CBA proposal to the players union, but the union has yet to respond to it. The proposal calls for a freeze in salary budget increases between 2021 and 2022, with the resumption of “normal growth rates in 2023 and beyond,” MLS general counsel Anastasia Danias said. The life of the CBA would also extend through 2027.

In exchange, players would receive 100% of their 2021 salaries, Danias said.

Foose suggested that the league’s promise to ensure 2021 salaries will stay intact is misleading because players in June already agreed to reduced salaries and bonuses for that year, in addition to a reduction in the minimum salary and lower allocation money for teams. Extending the CBA an extra two years would tack on added losses, Foose said.

“There’s plenty of financial impact to players both currently and each year moving forward,” Foose said. “And what they’ve proposed now would exacerbate that.”

Foose also said that for 2027, the league proposed “a 5% increase in dollar amounts across the board,” but that figure is “substantially less” than what typically happens in the first year of a new agreement.

Garber said that as of Tuesday, the two sides have just 20 days to reach an agreement and called for “a sense of urgency” on all sides.

Foose said Wednesday that he’s been discussing the league’s proposal with the bargaining committee all week, and they’ll submit a counteroffer once all the discussions at the player level conclude. But Foose said the union isn’t rushing “just because somehow suddenly the league has decided that there’s this magical deadline that no one’s ever mentioned before.”

The current CBA negotiations are the third within the last 12 months. The league and players union tentatively agreed to a new deal last February that would have meant increases in player compensation, earlier free agency, more charter travel and other provisions the MLSPA feels are important to the continued growth of the league.

But a few weeks later, the pandemic hit the U.S. and Canada, making it impossible for the CBA to be ratified by both sides. So a new deal was struck and ratified in June. But that one was in response to the pandemic and called for salary reductions, introduced a force majeure clause and approved plans for the MLS Is Back Tournament in Orlando. The life of the CBA was also extended an additional year compared to the one from February.

With MLS incurring losses it says neared $1 billion in the 2020 season due to the pandemic, the league invoked the force majeure clause. Abbott said at the time that the pandemic continuing into 2021 was a factor in MLS making that decision.

“Unfortunately, based on the assessment of public health officials, it is clear that the impact of COVID-19 and the restrictions on attendance at sporting events will continue into the 2021 MLS season,” Abbott said in a statement released to several media outlets. “We recognize the impact that the pandemic has had on our players and appreciate their efforts to restart and complete the 2020 season. But, like the other leagues in the United States and Canada, MLS needs to address the ongoing challenges caused by the pandemic and will engage in good faith discussions with our players about ways to manage the significant economic issues we are facing.”

Both sides do agree on one thing: No one is planning for a work stoppage. Garber said there have been no discussions of locking out the players, and Foose said there is “no intention of refusing to abide by the terms of the agreement that we made.”

But Foose added that it appears MLS locking out the players is a real possibility, especially after Garber’s comments Tuesday and the fact that the league threatened a lockout during negotiations last summer. He said a work stoppage would be a “catastrophic mistake” on the part of the league and owners and “incredibly damaging” to the league and its future.

“I certainly hope that it doesn’t come to that,” Foose said. “It shouldn’t come to that with all that we went through collectively last year and with how bright the future can be once we get past this. It’s critically important that we have a very positive bounce-back year.”

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