CBA Negotiations

Mediation to the rescue? Not necessarily.

ESPN reported on Thursday that, “with negotiations over a new collective bargaining agreement seemingly at an impasse, MLS owners and the MLS Players Union have employed the Federal Mediation and Conciliation Service to help reach an agreement.”

Some may wonder what this step means, and whether it is a good sign towards avoiding a work stoppage. As you’ll see, it could be a sign that the parties are eager to work something out.

Or it could simply be the calm before the storm.

What is FMCS?

The Federal Mediation and Conciliation Service (“FMCS”) is a federal agency, created in 1947 as part of the Taft-Hartley amendments to the National Labor Relations Act. Its primary function is to help mediate labor disputes across the country. Stated another way, they are government provided “closers,” pushing the parties to agreement in lieu of a strike or lockout.

While some reports indicate that MLS and the MLSPU have “hired” a mediator, this is not actually the case. Rather, upon request, the government (through FMCS) provides the mediator. These mediators are government employees, earning a salary. Thus, they are not beholden to either side.

What kind of authority does the mediator have?

While the role of the mediator is to act as a “closer,” he or she has no authority to force the parties to agree to anything. In this connection, a mediator is much different from an arbitrator. An arbitrator is basically a judge-for-hire, paid for by the parties, who has the authority to make a final and binding decision on the issues presented to him.

Parties (and employers, in particular) rarely agree to arbitrating contract terms (“interest arbitration”). In fact, one of the most hotly debated aspects of the Employee Free Choice Act of a few years ago was its provision that initial collective bargaining agreements between the parties would be subject to interest arbitration. Typically, public safety employees (i.e., police and fire) are the only employees who get interest arbitration — and only because their services are too essential to society to permit them to strike.

mediator is essentially a good listener who takes what one side tells him and then relates it to the other in an attempt to achieve common ground. The good news for soccer fans is mediators tend to be very good at their jobs. However, as noted, they have no authority to order either side to do anything.

So the arrival of a mediator is a good thing, right?

Yes…and no.

If the parties are genuinely interested in an agreement, but just need help getting over some roadblocks, the fact that they recognize the need for a mediator can be seen as a good thing. Ideally, the mediator can communicate the strengths and weaknesses of each side’s bargaining position, and a consensus can be reached.

On the other hand, the arrival of the mediator might simply be nothing more than a necessary step before a work stoppage.

Section 8(d) of the National Labor Relations Act requires the parties to undertake certain acts before going on strike or calling for a lockout. For instance, one side must give notice to the other of an intent to modify an agreement at least sixty days prior to the expiration of that agreement. In addition, one of the parties must notify the FMCS “within 30 days after such notice of the existence of a dispute” before “resorting to strike or lockout.”

While it is common practice for a moving party to notify FMCS simultaneously with the notice to the other party of an intent to renegotiate a collective bargaining agreement, it is possible that the MLSPU only contacted FMCS 30 days prior to March 6 (i.e., the start of the season), which is why a mediator is getting involved now.

In other words, the arrival of the mediator may not be a sign that the parties are close to a new agreement but, rather, just storm clouds on the horizon before a work stoppage.

Should I tear up my opening day tickets then?

No, not just yet.

As noted, FMCS mediators are very good at their jobs. My personal experience with them has been largely positive. Indeed, in 2010 FMCS Mediator George Cohen was widely hailed as instrumental in getting MLS and the MLSPU to reach agreement. Even if the MLSPU has only summoned the mediator because it has to before striking, the fact remains that the mediator is present, and is going to do everything within his power to get an agreement. Hope springs eternal.

As noted earlier, unfortunately, that power does not include forcing the parties to do anything. If the players are insisting on free agency, and the owners are just as insistent that free agency is not on the table, there is not much a mediator can do.

For more on the CBA, see Steve’s primers on labor law and terminology and lockouts in pro sports. Additionally, Steve recently discussed the CBA on the KYW Philly Soccer Show podcast. You may also be interested in Eli Pearlman-Storch’s interview with the Philadelphia Union’s players union rep Danny Cruz, and our look at the NASL players strike of 1979.

27 Comments

  1. HA HA shows you… I’m not getting my tickets until the last minute. I’m not gonna risk having to tear them up.

  2. Eli Pearlman-Storch says:

    Thank you for the education. While I’d prefer not to have to worry about this topic, your write ups have been concise and very clear.
    .
    And if you haven’t had a chance to listen to Steve’s appearance on the KYW Philly Soccer Show, it’s totally worth it. He dished out a ton of information and some very interesting points that I had never even considered.

    • Old Soccer Coach says:

      Eli is right on the money. And Steve does an excellent job differentiating his personal opinions about the situation from his teaching points about labor law and labor relations generally.

  3. The Black Hand says:

    Strike/Lockout will be bad…real bad.

  4. OneManWolfpack says:

    The article linked in the daily round up was a phenomenal hybrid type solution to having free agency in the MLS single entity system. This league better get their act together over the next 3 weeks.
    .
    If they think attracting the casual fan is hard now, just wait until after a lockout / strike. No one will bother to understand it… they will just not pay attention… and for a league trying to grow that is the absolute worst thing that could happen.

    • Steve Holroyd says:

      The hybrid solution, while interesting, still presents issues for the players.

      For those who haven’t read the linked article, here is a summary: a player can be a “free agent.” If another MLS team offers him a contract, it will be at x% above his last agreement (the example said professors got 8%, but allowed that MLS players might go higher), and his current team has the right to match it. However, if an “outside” team (EPL…or even NASL) offers a contract, it is “true” free agency and the player can do as well as he can.

      I don’t think either side will agree.

      to the players, this looks a lot like Restricted Free Agency in the NHL. In hockey it is an open secret that teams will not bid on another team’s RFA (unless you’re Ed Snider…and he is hated for it). Players who are RFAs usually sign as good a deal as they can with their current team and just wait for Unrestricted Free Agency status to get paid, because they know testing the market as an RFA is largley a waste of time. Similarly, in this situation the players will be exposed to MLS owners tacitly agreeing not to bid on another team’s players. In short, nothing will change.

      Moreover, I doubt the owners will accept a situation where a competitor–like the NASL–can drive up their costs by bidding on players. The NBA and NHL barely survived challenges by the ABA and WHA, respectively, on that score. I doubt MLS is going to sign up for that.

      In short, the California university model is probably not acceptable to either side.

      • Interesting counter point. And you’re right, the NHL restricted free agency system is a joke. And at least in that system, the bidding team has more leeway as to what they can offer, such as large signing bonuses the original team theoretically can’t afford. But I have two questions as a follow up.
        .
        “Moreover, I doubt the owners will accept a situation where a competitor–like the NASL–can drive up their costs by bidding on players.”
        .
        Doesn’t that exist right now, though? If a player is out-of-contact, what stops the Cosmos from offering that player a contract far about what another MLS team could offer? All the new system really does is add to the number of MLS teams that might be willing to match the value the Cosmos placed on the player.
        .
        “Similarly, in this situation the players will be exposed to MLS owners tacitly agreeing not to bid on another team’s players.”
        .
        Wouldn’t this be collusion? Or does that not apply because of the single entity system? Yeah, I know that the owners doing it and the players proving they did it are two different things. Just theoretically speaking – would MLS owners be exempt from claims of collusion, or would they have to do a better job than mid-80s MLB owners at hiding the fact?
        .
        Thanks for all the info you’ve tossed out about the situation. It’s helpful to understand some of the whacky nuances MLS presents in this sort of situation…

        • Steve Holroyd says:

          >>NASL issue

          It does, but currently the LEAGUE gets to say “no, we’re not going to get into this bidding war”–presumably, even if the *team* would prefer to keep the player. Under the California University model, it would be true free agency, and, say, San Jose can bid up to keep a player the Cosmos want. Currently, the league gets to say no (e.g., recall the league initially scotched the U’s deal with Edu last year as too expensive).

          >>Collusion

          MLS owners would be exempt from anti-trust collusion claims, because of single entity. However, collusion would still be a violation of the CBA (as it was in baseball)–assuming it can be proven. That would be tough, especially where I am sure some teams would be happy to let certain players go (like the U with MacMath), so you’d see movement. However, I am just as sure that word would get out about players that teams want to keep, and no offers would be made.

          Also, let’s not forget the “not free to move” component. Let’s say I’m Jeff Larentowicz, and I have my heart set on coming home to play for Philly. Under this arrangement, his current team simply matches the offer, and he’s stuck–albeit with a decent raise.

          In baseball, we see players accepting lesser offers to play where they want to play all the time (e.g., Cliff Lee). In basketball, OTOH, they don’t care as long as they’re paid. I’m not sure where soccer players fall in this scale, but I guessing freedom of movement means a lot to them.

          • Steve Holroyd says:

            Why can’t I separate paragraphs? Grrr…

            • That’s why I put a line with just a dot between paragraphs. Drives me crazy, too.
              .
              Thanks for the answers. The collusion is what I expected – yeah, but prove it. (baseball’s owners were just *that* inept about it…) The NASL price driving issue is an interesting consideration I hadn’t taken into account. Still, I would hope that bright people on both sides of the discussion could take the Cal system as a starting point, maybe, and give the players some options to move that still satisfy the owners.

  5. Old Soccer Coach says:

    IF they have to engage the Federal mediator shirty days before going on strike, the countdown on the Union website says twenty two and a fraction until the opener. Will they play the opening week and then go out?

    • Old Soccer Coach says:

      Thirty, not shirty, sorry.

    • Steve Holroyd says:

      Not “engage”–“notify.” Although the first meeting with the mediator may be less than 30 days prior to the start of the season, I am pretty sure FMCS was *notified* well in advance of that date. So no–I don’t think they’ll play the first week and then walk out.

  6. Craig Strimel says:

    I support the the players’ right to engage in collective bargaining. Even in the NFL, where salaries are insane, the players have issues they have to fight for (and not all of them make a ton of money). The importance of our right to collective bargaining is much, much higher than whether or not I get to watch soccer games this spring. I believe that supporting this sport means supporting the players, yet all I have read on discussion boards is how a work stoppage will ruin the sport/league. Is this really concern for the sustainability of the league, or just typical anti-union rhetoric?

    • It may be that some fear that free agency will lead to an arms race that the Union ownership can’t compete with. While free agency is certainly good for the players, and potentially good for the NY, LA and Seattle’s of the world, it has the potential to significantly increase the gap between the have’s and the have-not’s.

    • Well, I can only speak for me. I can tell you unequivocally, that I am pro-union. I do think in some cases unions allow bad workers to keep their jobs; but overall, the good we receive from unions far outweighs that negative.
      .
      If the players decide going on strike is the only way they can get what they deem to be a fair collective bargaining agreement, that’s their right. I support that right. I think the league needs to pony up and pay the players – the minimum is too low, lack of being able to sign with another team (free agency) is ludicrous, travel accommodations is a valid concern, facilities (meals, etc) is a valid concern, and so on. I absolutely cannot imagine wanting to go to a different employer and my current company saying, “Nah, sorry. You have to work for us or go to a different country.” That’s crazy, and I don’t think anybody would accept it.
      .
      The owners, too, have legit concerns. Absolutely. Cost controls are still important, a semblance of competitive balance is still important, etc.
      .
      But.. I think it’s possible to support the player’s right to strike and still think it would be bad for the short term – and maybe long term – health of the league. Even removing my selfish reasons – I want to go to PPL on March 7th, damn it! – I’m hoping they get things resolved without a strike. A strike, in my opinion, would just further marginalize the sport in the US market. I also (for now) trust the union leadership to make the decision that’s best, taking all things into consideration.
      .
      So I can’t talk for anybody else. But I can tell you that coming from me it’s not anti-union rhetoric. It’s pro-soccer rhetoric.

  7. I think generally the support is for collective bargaining on this site. I think generally most posters recognize the league is skimping or needs to raise standards. I think most posters have concerns over free agency and the necessity at this point for it or how it can best be employed. I think most people have concerns over what a work stoppage could do to the league’s sustainability. I’ve read nearly every comment around the possibility of a work stoppage and they all tend to fall within the bell curve.
    .
    Ultimately, these are important things to figure out – one just wonders about the timing in such a nascent league when goodwill is yet fully garnered among its supporters.

  8. What will happen first – the Union sign a new forward or MLS and the players agree on a new CBA? I’m getting the feeling that both might not happen as soon as I would hope.

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