MLS invokes ‘Force Majure’ clause, putting start of 2021 season in jeopardy

It wouldn’t be 2020 without one last punch to the gut. Although for the MLS Players’ Association, it may feel like that blow landed about six inches lower.

With the end of 2020 finally — mercifully — here, Major League Soccer had one more gift for its players in the form of a notice that the league intends to invoke a Force Majure clause which would allow the owners to withdraw from the Collective Bargaining Agreement and attempt to negotiate a new one, again. The news was first reported by ESPN, and later confirmed by the MLSPA.

The clause allows the parties to seek modifications to the existing CBA, and requires the parties to negotiate in “good faith” for 30 days. If one of the parties is not satisfied with the negotiations at that point, they could then terminate the agreement and negotiate a new CBA. If the CBA is canceled, players could strike, owners could lock them out, they could continue to play under the old terms or any number of wild scenarios could play out. In short, it would bring a new level of disruption.

This will be the third time in a year the league and its players head to the bargaining table, having initially agreed to a five-year CBA at the end of January 2020, and renegotiated the deal last summer in the wake of the corona virus pandemic, which the league claims cost them about $1 billion in losses. The initial deal was never ratified, which allowed MLS to force revisions to the agreement.

The MLSPA put out a statement blasting the move, questioning the league’s decision to invoke the clause prior to negotiating with the union. “After a 2020 season of extreme sacrifice, immeasurable risk to personal health, and a remarkable league-wide effort to successfully return to play, this tone-deaf action by the league discredits the previous sacrifices made by players and the enormous challenges they overcame in 2020,” the MLSPA said in a release.

The force majure clause allows both the league and players to withdraw from the CBA in the event finances continue to be impacted by the worldwide pandemic. Though the exact language is unknown — the CBA, while typically made public, has not been made available yet — the parameters for invoking the clause likely revolve around fan attendance at games and certain revenue markers. It remains unlikely that fans will be allowed to attend games in significant numbers until the late summer at best, based on the latest guidance from state and federal officials.

“We’re gonna be vaccinating the highest-priority people [from] the end of December through January, February, March,” said National Institute of Allergy and Infectious Diseases director Dr. Anthony Fauci in an interview earlier this year. “By the time you get to the general public, the people who’ll be going to the basketball games, who don’t have any underlying conditions, that’s gonna be starting the end of April, May, June.”

The initial CBA agreement was hailed by all sides back in January, as there were improvements in player spending, charter flights and free agency. The league for its part was assured cost certainty and overall spending increases were relatively modest. Then the pandemic hit, and MLS, which relies heavily on fan attendance given their television revenue is a relative pittance compared to other leagues (the league receives about $60-70 million per year), saw massive losses. Commissioner Don Garber at the State of the League address claimed again that MLS saw revenue shortfalls of around $1 billion, as well as increased costs trying to complete the season.

MLS tried to mitigate some of those losses when they renegotiated the CBA this summer. The league secured several concessions from the players, including:

• 5% pay cut
• A cap on league-wide bonuses at $5 million for the 2020 season
• A delay in the implementation of annual spending increases by one season
• A one-year extension of the CBA
• A cut in the players’ share of the revenue-sharing deal on MLS’s new national broadcast agreement set to take effect in 2023

The league also insisted on adding the Force Majure clause. Garber hinted that the league would be exercising its option to withdraw from the CBA, given the prospect of starting the year without fans in the stands. “The timing for the invoking of the Force Majeure is going to be way earlier than an understanding of when fans are going to be allowed in stadiums,” Garber said at the time.

MLSPA Executive director Bob Foose warned that such a move would be a “mistake,” for the league. “What we can’t do, what we can’t allow, is for the pandemic to set us back any further than it already has,” Foose said. “And choosing to terminate the CBA a second time, and thrusting all of us back into a third major labor negotiation within a year, will do just that.”

MLS, apparently understanding that the playing field won’t have anyone in the stands watching for the foreseeable future, has now made its decision. “Unfortunately, based on the assessment of public health officials, it is clear that the impact of COVID-19 and the restrictions on attendance at sporting events will continue into the 2021 MLS season,” deputy commissioner Mark Abbott told ESPN.

For players and fans alike, there now comes a significant amount of uncertainty about when — and if — there will be a 2021 season. The renegotiated CBA caused a lot of hard feelings between the union and league this summer. Another protracted negotiation certainly won’t do much for the relationship between the parties. But for now, the waiting game begins, again.