MLS and the MLS Players Union are now without a Collective Bargaining Agreement after the old CBA finally expired yesterday. Kyle McCarthy explains the impact of its demise in the Friday Five.By Kyle McCarthy
The wait for a new Collective Bargaining Agreement continues.
MLS and the MLS Players Union did not reach an accord on a new CBA before the end of the second extension to the now-expired CBA. The two sides met face-to-face on Monday in Washington, but did not hold further talks prior to the deadline and could not find enough common ground to strike a deal.
Both sides issued statements on Thursday and indicated that discussions would continue at a later date without an immediate work stoppage. The Union reserved its right to consider a strike at a later date, while MLS reiterated that it did not plan to lock out its players.
The Friday Five explains the practical impact of the CBA expiration and contemplates the direction of the talks in the current landscape:
1. What actually happened on Thursday? The previous two CBA extensions moved the expiration date of the previous CBA from Jan. 31 to Feb. 25. The Union declined to agree to a third extension and permitted the current CBA to expire at midnight.
2. Although the CBA has now expired, nearly all of its provisions remain in effect. Employers are required to collectively bargain in good faith under Section 8(a)(5) of the National Labor Relations Act (NLRA). Part of this duty includes maintaining the status quo established in the previous CBA as the two parties negotiate a new CBA. The status quo is protected as a matter of law, not under the contractual binds of the old CBA, and the employer may not alter its terms unilaterally, according to the U.S. Supreme Court’s decision in Litton Financial Printing Division v. NLRB. Basically, the NLRA ensures MLS will function as it did under the previous CBA with a couple of key restrictions stripped away to permit either side to wield power at the bargaining table.
3. When the CBA expired, a work stoppage turned into a viable option. The previous CBA barred the Union from striking (Section 6.1) and eliminated the possibility of a MLS-initiated lockout (Section 6.3). The NLRA does not bind the parties to those provisions as part of the status quo implemented after the expiration of the CBA. By allowing the CBA to expire, the Union obtained the option to issue a strike threat or initiate a walk out in an attempt to generate leverage in the negotiations.
4. Careful evaluation of the public comments throughout the week suggests the Union doesn’t possess the required widespread support for a strike. Although the Union now has the option to strike, it does not appear it has the mandate to act upon it. A strike looked somewhat likely by Tuesday night after The Washington Post reported “some teams have begun to vote whether to strike” and “players are largely unified in their battle with management.” The carefully controlled message to MLS – return to the bargaining table or face an imminent strike on Friday morning – didn’t stick for very long. “At the moment, we have no intention of going on strike,” Union executive board member and Kansas City Wizards defender Jimmy Conrad told the Kansas City Star in an article posted on Wednesday night. Similar comments from Houston’s Brian Ching (“Hopefully, it doesn't happen,” he told the Associated Press on Wednesday night) and Los Angeles’ Chris Klein (“There are no plans to strike at the moment,” he told Grant Wahl on Thursday afternoon) revealed that a strike wasn’t exactly at the top of every player’s to do list. In order to exert leverage at the bargaining table, the Union has to prove its players are collectively willing to strike for as long as required to secure the desired changes. Based on the current evidence and the Union’s decision to pass on the tactical imperative of striking immediately, the players have yet to show they can push aside their pressing and valid personal interests – cashing checks during training camp to pay the bills, chasing World Cup berths, etc. – to unify behind the common purpose.
(writer's note (Friday afternoon): It's worth mentioning that the comments by Ching, Conrad and Klein all came prior to Thursday's deadline and should be taken in that context. Those comments may not reflect the Union's approach and unity right now, but the players must find a way to convince the league and the public that they are serious about a potential strike in order to maintain the threat's usefulness as a bargaining tactic.)
5. MLS has little reason to offer any substantive concessions in the near future unless it wants to get a deal done quickly. The past week has only strengthened the league’s bargaining position because the current circumstances dictate the management-friendly status quo will continue until a new CBA is reached. The onus remains on the Union to take decisive action to alter the current dynamic and, as outlined in the previous note, there isn’t much reason for MLS to take any Union strike threat seriously at the moment. By reaffirming its commitment to refuse to lock out the players again on Thursday, MLS placed its cards on the table and dared the Union to walk. Until the Union can create a scenario – perhaps a viable opening-day walkout threat to embarrass the league, though even that ploy might not be enough – that forces MLS to believe the players will actually strike, the league can afford to maintain its rigid stance toward internal freedom of movement and other important Union issues without fear of painful repercussions.
Kyle McCarthy writes the Monday MLS Breakdown and frequently writes opinion pieces during the week for Goal.com. He also covers the New England Revolution for the Boston Herald and MLSnet.com. Contact him with your questions or comments at email@example.com and follow him on Twitter by clicking here.
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