Tuesday March 3rd, 2015

On Monday, as representatives from MLS, the players union and the U.S. Federal Mediation and Conciliation Service were negotiating in Washington, D.C., Orlando City announced that its home opener was sold out.

That game, the Lions’ first since ascending from USL, is scheduled for Sunday against fellow expansion team New York City FC in front of some 60,000 fans at the Citrus Bowl. It’s supposed to be broadcast nationally on ESPN2. Kaká and David Villa are among the luminaries expected to appear.

It’s an event not to be missed. Yet on Tuesday afternoon, it hung in the balance. Without a new collective bargaining agreement (the previous one expired at the end of January), the MLS season almost surely won’t kick off on time. And without bilateral compromise, it doesn’t appear there’s going to be a CBA.

There’s been little indication over the past couple of weeks that the league and union have found common ground on the issue that’s likely to scuttle the start of the season–free agency. Sources with knowledge of the negotiations have been consistent in their assessment that the league, whose bargaining team is led by president and deputy commissioner Mark Abbott, has shown little interest in budging on the issue.

On Tuesday, the final day of scheduled negotiation in the nation’s capital, The Washington Post cited an unnamed source who claimed the league had offered free agency only to players aged 32 who’d been with the same club for 10 years. That would apply to zero players this season and perhaps only one–Houston Dynamo captain Brad Davis–in 2016. Later, ESPN reported that the league improved its offer to cover players 28 years or older with at least eight years of service, regardless of team.

The Post's source said that MLS officials and owners are “running [the] league into [a] ditch.”

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Robbie Keane voices support of MLS players strike in pursuit of free agency

What they’re doing, in fact, is calling the union’s bluff. Player after player has promised that free agency is worth striking over. Whether they can maintain their resolve during a potential work stoppage remains the question. Strikes are costly–especially so to a pool of players including so many earning under $100,000 annually. Some external financial support may be required if the union is to stick it out.

Publicly, the players are undeterred.

“Free agency has to be in this deal for the players to play on opening day. I think that’s the bottom line,” MLSPU executive board member Todd Dunivant told SI.com recently.

The MLS season is supposed to begin Friday, when the Chicago Fire visit the champion LA Galaxy. The Fire are scheduled to fly around lunchtime Wednesday. Absent a resolution Tuesday night, MLSPU membership likely will have to decide by mid-morning Wednesday whether to strike. Players from around the league have been gathering in D.C. this week in order to streamline the process.

The Montreal Impact (Tuesday) and D.C. United (Wednesday) are scheduled to host their respective decisive CONCACAF Champions League quarterfinal second legs this week. It's unclear whether D.C. players would show up at RFK Stadium if the union votes to strike.

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But a bit of hope remains. Reports that the league has offered limited free agency, even if it's only for Davis, are interesting because they represent a tiny bit of movement where there’d been none previously. Free agency has been a Pandora’s Box that MLS hadn't been interested in opening. Cost control was critical (the league still loses millions) and allowing owners to bid against each other for the same player, thereby boosting his salary, wasn’t something they were willing to consider.

“Because we function in an international market and the clubs that we are competing against for players are not subject to our salary budget, to have free agency within the league doesn’t provide us with the certainty that the union says it does,” Abbott told SI.com in December. “In another [North American] league, if you lose a player from Washington, they go to Boston. They don’t go to London. When the union says they can offer cost certainty under free agency, it’s not true because we have to compete against clubs all throughout the world.”

While the union has countered that cost certainty can be maintained under the league’s salary budget, those protests miss the point. Sources familiar with the league’s position contend that MLS sees every extra dollar spent on a player already in its employ as a dollar that can’t go elsewhere, whether its toward designated players or youth development.

If a six-year MLS veteran uses leverage gained through free agency to increase his salary by $30,000, say because a given club has a greater need for a player at his position, then that’s $30,000 that can’t be spent on a different player or on growing the league. And make no mistake–MLS doesn’t regard rank-and-file players as drivers of growth.

“We invest every year more than we did the year before and there’s no doubt we will be investing more. The discussion is how much more and in what ways,” Abbott said. “We’ve never said this is about reducing our investment or lowering our costs. It’s about what’s the prudent amount of investment to make … some of it doesn’t show up in salaries.”

The union, naturally, believes proven talent should be rewarded before funds are gambled on newcomers who haven’t demonstrated a commitment to, or comfort with, MLS. The MLSPU also argues that free agency is about something other than money, and that something isn’t an effort to destroy the league’s unique single-entity business structure.

“No part of what we’re proposing has to do with us dictating how they structure their business. It doesn’t need to change to get what we’re after … Free agency can work within the single entity, no question about it.” MLSPU executive director Bob Foose told SI.com. “It is a core principle of our union and every other soccer union in the world that players, and all workers for that matter, should have the right to choose where they live and work.”

To that end, the union has proposed free agency rules similar to the ones present in the other major North American sports, where age and years of service factor into a player’s qualification. Details of its proposals haven’t been made public. The union has argued that free agency hasn’t hurt the NBA, NFL, NHL and MLB or European soccer. In fact, it claims, those sports have grown since adopting it.

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In pursuit of free agency, players could challenge MLS as single entity

But it’s worth noting that no league, including those in Europe, yielded free agency at the bargaining table. Athletes opened the door through litigation.

MLS players lost the first time they went to court. The 2002 Fraser v. Major League Soccer decision by the First Circuit Court of Appeals left the league’s single-entity intact and didn’t leave a whole lot of room available for a second case.

Litigation would take time and money the players likely don’t have (the MLSPU had assets of $4.5 million at the end of 2013, according to federal filings), and MLS probably still could successfully argue that it lacks the power to restrict the relevant market, a prerequisite for antitrust liability. Soccer is a global game.

So, MLS doesn’t fear the courts. It fears rising costs, and feels the best way to keep them down is to maintain centralized control. A lack of free agency limits the chance an owner might go rogue and disrupt the league’s salary structure. Most owners, if not all, still believe MLS is as strong as its weakest link. It’s the system they bought into, and they have no incentive to change it. Free agency may enrich players, as one source put it, but it adds no value to the league as a whole. A lack of free agency gives the league more say in how its money is spent.

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What if players could acquire more freedom without costing more? If free agency really is as much a quality of life issue for the players as an economic one, and if the league is more concerned with controlling costs than with maintaining a single-entity façade, there are models and mechanisms in place that might suffice. It would require concession, creativity and compromise, but where the re-entry draft saved the day in 2010, a similar construct could work this time.

One such example is a Dutch auction, in which the price is lowered, rather than raised, until a bid is accepted. The ceiling on an out-of-contract player’s potential salary would be maintained, as it is in the re-entry draft. However, that player would have some influence over where he wound up through his ability to name the price at which he’d be willing to join different clubs. He might be willing to play for Sporting Kansas City for $180,000, but he’d be happy to go home to Houston and join the Dynamo for $160,000.

There’s no indication that such a mechanism has been proposed, but it is an example of the sort of temporary common ground that might be discovered if both sides are willing to look. If the Fire are going to board their flight on Wednesday, and if Orlando is to enjoy its big day, that ground will have to be found soon.

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