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Monday MLS Breakdown: Rhetoric Ensures Truth Remains Pliable In CBA Negotiations

By Kyle McCarthy

The best part about the negotiation process is the habitual stretching of the truth on both sides.

Lying is usually too harsh of a term to apply to that particular form of linguistic dexterity. It's more like framing an argument to best benefit your cause. If that means shading the facts, dispersing a healthy dose of half-truths or engaging in self-aggrandizing rhetoric, then so be it. More often than not, those tactics are required to help hash out the best possible deal for one side or the other.

Such is the case with the increasingly public negotiations between MLS and its players union as the two sides try to hash out a new Collective Bargaining Agreement prior to the end of the old deal on Jan. 31, 2010. Between the utter nonsense spouted by Players Union executive director Bob Foose to recently about the lack of guaranteed contracts possibly hampering the World Cup bids in 2018 and 2022, the all-too-early suggestion of a work stoppage by a player or two and other similarly scurrilous statements on management's behalf, the dialogue has provided more than its fair share of entertainment so far.

In the growing list of blustery statements from both sides, one utterance stands out for its heavy gloss on the truth and its trite dismissal of a complicated issue.

“I will state emphatically that we are in fact operating in compliance with the FIFA regulations and the union is simply wrong on this point,” MLS commissioner Don Garber said during a teleconference with reporters last Monday (as transcribed by the Columbus Dispatch as part of its comprehensive and diligent work on the CBA negotiations).

No matter how emphatically Garber would like to claim compliance with the FIFA Regulations on the Status and Transfer of Players (a rebuttal MLS has used on several occasions in the face of criticism of its stance on player contracts) and denounce the union's stance as patently erroneous, the reality is far murkier and far less favorable to MLS than the decisive statement would suggest.

A survey of the regulations Garber cites – click here for a PDF version – shows that MLS probably violates, at the very least, the spirit of several of them due to its preference for semi-guaranteed contracts and its proclivity to end those deals prior to the guarantee date on July 1. Talk about a long, long way from “simply wrong.”

The two regulations often singled out by the union – Articles 13 and 16 – are both included among those ignored provisions. Article 13 outlines how clubs and players should respect a contractual agreement and boils the respect of contract doctrine down to a simple sentence: “[a] contract between a professional and a club may only be terminated upon expiry of the term of the contract or by mutual agreement.”

Ending a semi-guaranteed contract prior to the end of the campaign doesn't comply with that regulation. That practice also doesn't adhere to Article 16, which states that “a contract cannot be unilaterally terminated during the course of the season.” The standard contract – usually a one-year, semi-guaranteed deal as part of a series of league-held options, though some players possess contracts with full-year guarantees for one or more seasons – isn't written to conclude in the middle of the season because that would constitute a violation of Article 18.2 (which states that contracts must extend until the end of the season). Instead, the contract simply gives MLS the right to nullify the deal without compensation prior to July 1. The mutual agreement concept – one that would involve the consent of both parties and the payment of a sum from the club to the player – doesn't fit this particular set of facts.

With the clear language involved in both regulations, this should be done and dusted, right? Well, it's not quite as clear cut as the players might suggest because the regulations aren't iron-clad in their applicability.

Article 1.2 permits some wiggle room on the scope of the FIFA regulations by allowing national federations to include “appropriate means of maintaining contractual stability, paying due respect to mandatory national law and collective bargaining agreements” in their regulations and suggesting that the operative FIFA articles regarding contractual stability include “principles that must be considered.” Because those principles regarding guaranteed contracts aren't mandatory under Article 1.2, the CBA may “consider” them while opting for another course. Under section 18.7(i) of the CBA, MLS, in its “sole and absolute discretion,” has the ability to terminate any player if he fails to “exhibit sufficient skill or competitive ability to qualify for or continue as a member of the team's active roster” prior to the guarantee date. MLS may also consider a player's compensation relative to his peers and other budgetary concerns when reaching that decision, according to that provision.

(One more abstract approach: MLS could also argue that players aren't due any compensation under Article 17.1 because of the specific criteria listed, but that might not hold up under scrutiny considering the first sentence of that section reads as follows: “[i]n all cases, the party in breach shall pay compensation.” Tough to argue against breach when your side unilaterally ends a contract, isn't it?)

MLS' argument represents a fairly reasonable stance on paper that plays considerably worse in other contexts because it cuts directly against the intent of the FIFA regulations. The argument wouldn't curry much favor for its reliance on technical interpretation in lieu of overt compliance, but it wouldn't be tossed aside cursorily either. Then again, compliance doesn't seem to matter in this instance because FIFA isn't planning to call MLS on any potential violation as it prefers to steer well wide of this particular imbroglio, according to and other news outlets. FIFA's reticence in the matter and the impeding irrelevance of interpreting the previous CBA doesn't change the fact that Garber's statement twists the argument, obscures the complexity involved and casts blame on the other side improperly.

The point of this whole exercise isn't to dredge up every possible legal argument and sort through the technicalities. There are plenty of highly-skilled and highly-paid lawyers on both sides who will do that from now until the end of January. Those arguments, as you can tell from the previous few paragraphs, aren't really all that interesting or accessible to most observers, but they are necessary to provide some context.

Rhetorical approaches, on the other hand, are considerably more intriguing and more digestible. As these negotiations continue to unfold, the rhetoric will increase and intensify as both sides try to sway the purportedly neutral public to its cause. Garber's statement – and Foose's ridiculous contention about the World Cup chances, for that matter – merely represents the first in a series of arguments that will push that barrier to the limit. The key to weeding through the morass in search of firm ground ultimately rests in the ability to discern when the habitual stretching of the truth goes too far.

Kyle McCarthy writes the Monday MLS Breakdown and frequently writes opinion pieces during the week for He also covers the New England Revolution for the Boston Herald and Contact him with your questions or comments at and follow him on Twitter by clicking here.

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