Legal Anaylsis
Should MLS Players Skip The Strike And Sue Instead?
Work stoppages can lead to incremental changes, but if the MLS Players Union really wants to shake up the league, a legal gambit may make more sense. UCLA Law Professor Steven Bank explains.
WITH TIME RUNNING OUT before Major League Soccer is scheduled to begin its 2015 season, the situation looks bleak for a resolution to the negotiations over a new collective bargaining agreement. Jeff Carlisle of ESPN puts the odds of a strike at better than 50/50 because “the owners remain staunchly opposed to any form of internal free agency,” which is the issue that the players have staked in the ground as their top priority. The rhetoric on both sides is heating up. Real Salt Lake’s Dell Loy Hanson called free agency a “waste of time” or “go-nowhere” conversation, while former player-turned-commentator Taylor Twellman told the New York Post that “this is the Curt Flood moment for this league.”
If this is the “Curt Flood moment,” why aren’t the players pursuing Flood's legal strategy?
Flood didn’t go on strike. He filed a lawsuit against the commissioner of Major League Baseball to challenge the reserve clause that had effectively bound a player to his team for his career. Flood lost, but the case paved the way for the demise of the reserve clause. Professional athletes have resorted to similar strategies in other American sports. Oscar Robertson secured free agency in the National Basketball Association not by leading his players off the court in his role as the head of the player’s union, but rather by leading them into court as the named plaintiff in a lawsuit against the league that ultimately settled to the players’ satisfaction.
In the National Football League, a series of antitrust victories by players such as John Mackey, Freeman McNeil, and Reggie White helped usher in an era of free agency for the league.
In the National Hockey League, it was a suit by players including Bobby Hull and John McKenzie that blocked the league from enforcing its version of the reserve clause. By permitting the players' departure to the fledgling World Hockey Association, courts effectively gutted the reserve clause and facilitated a move to free agency.
In the soccer world, Belgian footballer Jean-Marc Bosman's lawsuit in the European Court of Justice led to the end of the reserve clause then in use in European leagues.
Why are lawsuits the more successful tactic for forcing a league to adopt free agency? In large part, it is because antitrust lawsuits present extremely high stakes and therefore can supply significant leverage. In the United States, not only could the league be forced to provide unrestricted free agency as a result of such a suit, but a successful claimant under the Sherman Antitrust Act can win treble damages, which forces the losing party to pay the players an amount that is three times the actual damages proven. Although such lawsuits are expensive, lengthy, and complicated, ultimate victory isn’t necessarily required to achieve limited gains on free agency. Prevailing on a preliminary motion may be enough to secure a favorable settlement.
By contrast, the leverage that players have in a strike is quite limited. Player representatives all claim that the players are unified and prepared for a strike, but most of us recognize that time could come quite quickly. This is especially true given reports that the MLS Players Union had a strike fund of somewhere between $4 and $5 million—an amount which isn’t likely to be enough to tide most players over for more than a few weeks.
Perhaps FIFPro, the international players union, has offered financial support to back up its public statements in support of the MLS players’ quest for free agency. If they have, however, and the amount of money is substantial, you would have expected them to publicly advertise that fact in advance of a strike to enhance the players’ leverage. Instead, they have merely offered platitudes.
A strike is a war of attrition and the deeper pockets can usually hold out longer. That immediately favors the owners even though they certainly don’t want to lose the revenues from canceling games.
Moreover, the usual mechanism that keeps union workers unified—the possibility that crossing the lines will cause trouble for them in the workplace after the strike ends and effectively end their careers—is less viable in a sport where there are dozens of other leagues, not just domestically, but around the world. For the more than 200 foreign players in MLS, they can probably just as easily go elsewhere and ply their trade if things don’t work out in this country. The owners may not be as unified as they were when three men basically owned the entire league, but they are typically easier to keep in line than the players.
It is possible that the players intend to strike and still file a lawsuit, but they aren’t acting like that is the strategy. Bob Foose, the MLS Players Union head, has gone out of his way to avoid brandishing the lawsuit threat. He told NBC Sports that the players have no intention of suing the league, conceding that “[t]here is no question that the league is a single-entity.”
That’s not exactly the statement you would make publicly if you intended to file a complaint in Federal Court stating exactly the opposite. Rather, it is the sort of statement designed to defuse tensions and facilitate negotiation.
One suspects that part of the reticence on the part of the players for pursuing a lawsuit is that they already lost in court once in Fraser v. MLS in 2002. That case, however, filed only a year after MLS began, was developed in the context of a league that looks very different than it does today. Also, the opinion wasn’t exactly a ringing endorsement of the league’s single-entity defense. Nevertheless, it may be emboldening the owners, and making the players gun-shy.
In the absence of litigation, however, it is hard to see how the end result of a strike is a substantial victory for the players. A face-saving nod to easier player movement, such as the re-entry draft adopted at the 11th hour in negotiations over a new collective bargaining agreement in 2010, may be the best the players can hope for if they strike. If that’s the best they can hope for, though, it kind of makes you wonder why they are contemplating a strike in the first place.
Steven Bank is Paul Hastings Professor of Business Law and Faculty Director, Lowell Milken Institute for Business Law and Policy, UCLA School of Law. He has taught courses in tax and business entity law, including a soccer law seminar entitled “Law, Lawyering, and the Beautiful Game.
Flood didn’t go on strike. He filed a lawsuit against the commissioner of Major League Baseball to challenge the reserve clause that had effectively bound a player to his team for his career. Flood lost, but the case paved the way for the demise of the reserve clause. Professional athletes have resorted to similar strategies in other American sports. Oscar Robertson secured free agency in the National Basketball Association not by leading his players off the court in his role as the head of the player’s union, but rather by leading them into court as the named plaintiff in a lawsuit against the league that ultimately settled to the players’ satisfaction.
In the National Football League, a series of antitrust victories by players such as John Mackey, Freeman McNeil, and Reggie White helped usher in an era of free agency for the league.
In the National Hockey League, it was a suit by players including Bobby Hull and John McKenzie that blocked the league from enforcing its version of the reserve clause. By permitting the players' departure to the fledgling World Hockey Association, courts effectively gutted the reserve clause and facilitated a move to free agency.
In the soccer world, Belgian footballer Jean-Marc Bosman's lawsuit in the European Court of Justice led to the end of the reserve clause then in use in European leagues.
Why are lawsuits the more successful tactic for forcing a league to adopt free agency? In large part, it is because antitrust lawsuits present extremely high stakes and therefore can supply significant leverage. In the United States, not only could the league be forced to provide unrestricted free agency as a result of such a suit, but a successful claimant under the Sherman Antitrust Act can win treble damages, which forces the losing party to pay the players an amount that is three times the actual damages proven. Although such lawsuits are expensive, lengthy, and complicated, ultimate victory isn’t necessarily required to achieve limited gains on free agency. Prevailing on a preliminary motion may be enough to secure a favorable settlement.
By contrast, the leverage that players have in a strike is quite limited. Player representatives all claim that the players are unified and prepared for a strike, but most of us recognize that time could come quite quickly. This is especially true given reports that the MLS Players Union had a strike fund of somewhere between $4 and $5 million—an amount which isn’t likely to be enough to tide most players over for more than a few weeks.
Perhaps FIFPro, the international players union, has offered financial support to back up its public statements in support of the MLS players’ quest for free agency. If they have, however, and the amount of money is substantial, you would have expected them to publicly advertise that fact in advance of a strike to enhance the players’ leverage. Instead, they have merely offered platitudes.
A strike is a war of attrition and the deeper pockets can usually hold out longer. That immediately favors the owners even though they certainly don’t want to lose the revenues from canceling games.
Moreover, the usual mechanism that keeps union workers unified—the possibility that crossing the lines will cause trouble for them in the workplace after the strike ends and effectively end their careers—is less viable in a sport where there are dozens of other leagues, not just domestically, but around the world. For the more than 200 foreign players in MLS, they can probably just as easily go elsewhere and ply their trade if things don’t work out in this country. The owners may not be as unified as they were when three men basically owned the entire league, but they are typically easier to keep in line than the players.
It is possible that the players intend to strike and still file a lawsuit, but they aren’t acting like that is the strategy. Bob Foose, the MLS Players Union head, has gone out of his way to avoid brandishing the lawsuit threat. He told NBC Sports that the players have no intention of suing the league, conceding that “[t]here is no question that the league is a single-entity.”
That’s not exactly the statement you would make publicly if you intended to file a complaint in Federal Court stating exactly the opposite. Rather, it is the sort of statement designed to defuse tensions and facilitate negotiation.
One suspects that part of the reticence on the part of the players for pursuing a lawsuit is that they already lost in court once in Fraser v. MLS in 2002. That case, however, filed only a year after MLS began, was developed in the context of a league that looks very different than it does today. Also, the opinion wasn’t exactly a ringing endorsement of the league’s single-entity defense. Nevertheless, it may be emboldening the owners, and making the players gun-shy.
In the absence of litigation, however, it is hard to see how the end result of a strike is a substantial victory for the players. A face-saving nod to easier player movement, such as the re-entry draft adopted at the 11th hour in negotiations over a new collective bargaining agreement in 2010, may be the best the players can hope for if they strike. If that’s the best they can hope for, though, it kind of makes you wonder why they are contemplating a strike in the first place.
Steven Bank is Paul Hastings Professor of Business Law and Faculty Director, Lowell Milken Institute for Business Law and Policy, UCLA School of Law. He has taught courses in tax and business entity law, including a soccer law seminar entitled “Law, Lawyering, and the Beautiful Game.
