Posted by: stan chelney | February 26, 2010

Not Striking Was The Right Move For The Union, For Now At Least

The deadline to extend the MLS collective bargaining agreement (CBA) came and went on Thursday with no deal struck by the two sides.  The union declared that the old CBA is expired but indicated that it would continue negotiating with MLS.  The union also stated that players would continue working “for the time being” but would do so without a CBA and that “all options are being considered.”  The league answered in its own statement that it is prepared to start the season under the current CBA and pledged not to lock out the players.

Not striking was the right move for the players, at least in the short run, for a number of reasons. Even though it declared the CBA to be “expired,” the union was careful to indicate that negotiations will continue.  This was a shrewd move because it allows the union to maintain that the parties have not yet reached an “impasse” for labor law purposes.  Under the National Labor Relations Act and Supreme Court precedent, MLS is still required to honor the majority of the terms of the expired CBA while negotiations continue, creating a de facto day-to-day extension of the CBA.  (The exception is that the no-strike (Section 6.1) and no-lockout (Section 6.3) provisions of the CBA fall away.)

In other words, the players have it both ways — they are no longer prohibited from striking but they continue to enjoy many of the protections in the old CBA.

Unlike during a strike, the players will continue receiving their paychecks, will still be covered by the league’s medical and dental insurance, and will remain eligible for the various other perks contemplated under the old CBA.  Players will be able to stay current on rent payments, buy groceries, and, in short, live their lives while negotiations continue.  If they had gone on strike, on the other hand, many of the players would feel immediate financial pressure.

While not striking relieves the strain on the players, it only ratchets up the pressure on the league.  No longer bound Section 6.1 of CBA, the players can now strike on very short notice.  A strike on February 25 would have had little actual effect on MLS since no regular season games are scheduled for several weeks.  The threat of a strike on the eve of the season’s start (or perhaps just before the all-star game or as the playoffs are about to begin), by contrast, carries considerably more weight.

Moreover, if the players had gone on strike yesterday, the league would have time to take action before the start of the season.  For example, MLS could have used the next several weeks to fill out the teams’ rosters with replacement players so that the season could start uninterrupted.  It might also be able to mount a legal challenge to the strike, arguing for example, that there was no bona fide impasse or that the strike was over a non-mandatory subject of bargaining.   The league could seek an emergency injunction in court requiring the players to return before opening day.

Consider also that while players would be free to pursue employment elsewhere during the strike, they would be required under Section 18.5 of the CBA to return to MLS after the conclusion of the work stoppage.  This section states that during a strike, “a Player may obtain employment as a professional soccer player outside MLS, but any contract with such other club employing the Player during an MLS work stoppage must provide that the Player shall return to MLS after the conclusion of the work stoppage if his [MLS contract’s] term has not expired.”

A short-term, or even open-ended strike thus makes little sense for MLS players.  It would be difficult to find work in another league given the condition that the player must return to his MLS club as soon as the strike ends.  Players would be forced to wait out the strike with no pay, and, as the strike lingered, they would feel financial strain and grow impatient.  Even if they are unified today, it is likely that the players’ unity would fracture over the course of a lingering strike.

The problem for the union, of course, is that it is no closer to a deal on February 26 than it was before the CBA deadline expired.  Nor was the league’s response to the union’s announcement all that comforting.  MLS has indicated that it is in no particular rush to get a deal done and that it is prepared to go forward honoring the terms of the old CBA.  Moreover, by announcing that it has no plans for a lockout, MLS is signaling that it does not believe the players have the capacity or inclination to strike.  An employer often imposes a lockout to prevent the union from striking at an inopportune time (such as on the eve of the season or post-season).  If MLS truly feared a strike, it would be eager to press the issue today rather than leaving the timing in the hands of the union.

There is little question that not striking on February 25 made sense for the union. How long that conclusion will hold true remains to be seen.


  1. Wow that was odd. I just wrote an really
    long comment but after I clicked submit my comment didn’t show up. Grrrr… well I’m not writing
    all that over again. Anyhow, just wanted to say wonderful blog!

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