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MLS invokes Force Majeure clause, putting the start of the 2021 season in jeopardy

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It’s about to get ugly—again.

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Atlanta United v Nashville SC
MLS Commissioner Don Garber
Photo by Brett Carlsen/Getty Images

TORONTO, Canada—Major League Soccer (MLS) is invoking a clause that could put the start of the 2021 MLS season in jeopardy.

With players expected to return to training camp on Jan. 21, MLS notified the MLS Players Association (MLSPA) on Tuesday that it will indeed be invoking the Force Majeure clause in their new Collective Bargaining Agreement (CBA), which essentially allows to league to opt out of the current CBA, forcing both sides to return to the negotiating table as a result of uncontrollable and extreme circumstance—including an infectious disease pandemic.

“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,” said MLS president and deputy commissioner Mark Abbott in a statement. “We recognize the impact that the pandemic has had on our players and appreciate their efforts to restart and complete the 2020 season. But, like the other leagues in the United States and Canada, MLS needs to address the ongoing challenges caused by the pandemic and will engage in good faith discussions with our players about ways to manage the significant economic issues we are facing.”

Abbott also added that “In 2020, MLS and its clubs lost nearly $1 billion and despite these losses continued to pay the MLS players 95 per cent of their salaries.”

The MLSPA responded on Tuesday with a statement, calling the league’s move “tone-deaf.”

“Today, less than one week after players completed the most challenging season in MLS history, the league notified the MLSPA that it intends to invoke the Force Majeure clause in the CBA,” the MLSPA released in a statement Tuesday afternoon. “... 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 the players and the enormous challenges they overcame in 2020.”

According to The Athletic, the move technically obligates both sides to discuss modifications to the existing pact in good faith for 30 days. However, if the parties do not reach an agreement by Jan. 28th, the CBA negotiated in June could be terminated—an act which runs serious risk of leading to a work stoppage.

And as the MLSPA statement alludes to, players aren’t happy about this, and nor should they be.

MLS and the MLSPA agreed on Feb. 6 to a five-year labour contract that would extend the CBA through 2025, but the deal had not been officially ratified when the season was stopped on Mar. 12 due to COVID-19. Since there was technically no deal in place, MLS were quick to threaten a lockout when they couldn’t immediately agree to enviable terms on a return-to-play plan in the summer.

But finally, on Jun. 3, after much back and forth, the league and its players managed to once again strike a deal, officially ratifying the CBA through 2025. Despite reaching an agreement, the heavy-handed tactics used by the league left a sour taste in the mouths of its players.

“It’s no secret that there were some real difficult moments along the way,” Toronto FC captain Michael Bradley told media on Jun. 4, a day after the union reached an agreement with the league to return to play. “From the beginning, there was an absence of dialogue. The league did little to engage us. It was frustrating.

“... There’s a need for perspective on both sides, and from our standpoint, we didn’t feel really good about that and how the league handled certain parts of the process.”

“Although I’m relieved and excited that a deal has finally been made to get us back to play, the tactics that were used by the league were very unfortunate and upsetting,” Whitecaps fullback Jake Nerwinski added. “I’m proud that even though at some points the players had their back against the wall, we never gave in. We stood in solidarity and remained a unified coalition to get a deal done.”

And now, less than 10 months since seemingly agreeing to a new CBA deal through 2025, the league and its players will head back to the negotiation table for the third time this calendar year.

If it’s any consolation, the league’s decision to invoke the force majeure clause wasn’t the biggest surprise after MLS Commissioner Don Garber hinted at the idea earlier this month.

Garber stated in his state of the league availability that they endured a “near $1 billion” loss figure as compared to 2019 season revenue totals and didn’t rule out the possibility of invoking the clause. Now with little-to-no fans expected to be back in stadiums in the near future, continuing to pay players 95 per cent of their salaries appeared to be too big a pill for the commissioner and the league to continue to swallow in what has traditionally been a gate-revenue driven league.

The MLSPA quickly responded by voicing their concern in a media call.

“If we have to go into another negotiation, you lose faith in the league,” LAFC midfielder and Canadian international Mark-Anthony Kaye said in that call. “We’re supposed to try to build this league to be a top-five league in the world, right? That’s the aspiration the league has been saying it wants for so long. But in order to do that, you have to bring the players along with you. And entering three negotiations in the span of a year or so, it sends the wrong message. It sends the message that there’s always going to be an excessive amount of control over players, and that’s going to limit the amount of growth that the league can really have. It’s going to show the world that they’re going to lose the opportunity to be a league of choice.”

It’s clearly a route that the players did not want to travel—again—but it appears they’ll have no choice. The league apparently could submit its first offer to its players as soon as today, according to The Atheltic, however, it likely won’t be the last.

Stay tuned. This one could get ugly—again.