"The league shutting down MLS in February would do real damage to the development of the game in the United States and to our efforts to prepare for South Africa," US leading scorer Landon Donovan said. "It is difficult to understand why the owners would take this course, when all we are asking for are the same rights enjoyed by other players around the world, not just in the biggest leagues, but in leagues of all sizes."
The reasons that FIFPro says that MLS is violation of FIFIA's Regulations on the Status and Transfer of Players (also outlined in the original press release in November) are as follows:
1) There are players without guaranteed contracts
2) Contracts are routinely terminated by the league during their term
3) MLS acts as a cartel
4) There is no freedom of movement for any MLS player
5) Virtually any player can be transferred to another club in the league without his consent
The second press release also has something about multi-year options.
All right, here's the RSTP. Find where there's a restriction on any of these things.
I'll wait.
Nothing, in fact, prohibits MLS from terminating contracts according to their terms, issuing non-guaranteed contracts, acting like a cartel (whatever that means), issuing contracts up to five years, and the only thing in there about transfers relates to the mechanics of transferring a player to a team in another association.
Beyond just making stuff up, the best argument I can find for why the RSTP applies is this piece by Kyle McCarthy. And it's not all that persuasive:
Ending a semi-guaranteed contract prior to the end of the campaign doesn't comply with [Regulation 13].
Here's Article 13:
A contract between a professional and a club may only be terminated upon expiry of the term of the contract or by mutual agreement.
McCarthy:
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.
Article 16 is as follows:
A contract cannot be unilaterally terminated during the course of a season.
How does releasing a player under the terms of that contract improperly terminate it? And as McCarthy himself notes, Article 1.3.b of the RSTP requires leagues to respect the collective bargaining agreement. So, if the players negotiate a standard contract in the collective bargaining agreement that allows for a non guaranteed class of player, and MLS releases the player under the terms of that contract, then as far as I can tell MLS is respecting both the letter and spirit of the RSTP, as well as the contract itself.
I think the union is totally blowing smoke on the issue of FIFA Violations, and even McCarthy ends up concluding that MLS
Over at MLS talk there's the alternate theory that MLS acts as a third party who owns the players, which could be prohibited, but the first problem is that it's not the individual MLS teams signing the contracts.
And let's say just for argument's sake that MLS is in violation of the RSTP. So are a lot of players:
In all the instances cited above, the players are under contract. but that minor obstacle is easily renegotiated. However watertight the contract may appear, all the parties concerned know that it cannot be maintained if one of the signers becomes an unwilling partner.
I'm going to guess that the MLS Players Union and FIFPro have very little to say about players who demand a transfer and refuse to see out their contracts in violation of Articles 13 and 16 of the RSTP.
Fake Sigi out.
11 comments:
You left out the most damning part of the document which FIFPro and Bob Foose continue to ignore.
"Each association shall include in its regulations appropriate means
to protect contractual stability, paying due respect to mandatory
national law and collective bargaining agreements."
Articles 13 and 16 do not need to be adopted exactly as they are written because national laws and CBAs may override them. In this case, the MLSPU agreed to ignore the exact statutes they are now whining about.
Thanks for the comment. Obviously, I focused just on the language at hand, but you've got a good point that the analysis doesn't even need to get that far.
-FS
The problem, from a perception standpoint, is that Articles 13 and 16 are there at all. I agree, and even before the evidence was presented found it hard to believe MLS would be stupid enough to institute policies that contradicted FIFA law, that what the Union is suggested is without much merit.
What's most disturbing is that the players didn't need to go down this road; I think they're concerns are legitimate (if not necessarily addressable) without bringing up FIFA compliance issues and painting the League as some kind of evil cartel.
And yet many, many people are buying in, which I guess was the point.
There's too much gray area, unfortunately, and both sides are using that to their advantage. I'm beyond ever characterizing either side as "right" or "wrong".
I think it shows some desperation on the players' side. They're trying to get some leverage, any kind of leverage, from putting blame on the owners, because the reality is they have almost none. I can't say I blame them, but I'm not going to be amused if they continue this sort of game into February.
-FS
There seems to be a lot of smoke blowing right now on all sides. I've tried to resist commenting on the public arguments of both sides because it so frequently at this stage of negotiations bears little resemblance to (a) what is actually being negotiated and/or (b) what the final deal turns out to be.
Players should have free movement, but under MLS' structure, they have very little chance of achieving that. What they eventually do get in some way depends in large measure on the the two sides coming up with something that allows face to be saved, so both sides can claim some sort of win.
The only time to get REALLY worried, I think, is when the language gets inflammatory, with phrases such as "we're willing to push this all the way" or "there's no backing down" or the "we're prepared for..." or phrases to that effect. Once that happens, then I'll start getting very worried, instead of just moderately worried, which I am right now.
Shouldn't Fraser vs MLS be taken into consideration here?
http://openjurist.org/284/f3d/47
Regardless of FIFA Regs (which can be changed by Blatter as soon as the check clears) US courts have already ruled the league structure legal.
EricPZ's second comment deleted as a duplicate.
Martek, I'm not worried at the moment, and I think that if there is a work stoppage, it will be short. Neither side can really afford it to drag out.
I agree, and have said before that MLS needs to make some kind of concessions on the way players are treated. I believe they've moved on the per diem and salary cap, but not on guaranteeing all contracts and opening up free agency. Maybe there's yet a midpoint where everyone can agree. Or maybe the owners just don't give anymore.
Eric, as for Fraser vs. MLS, Bill Archer pointed out that the players are asking the league to change it's structure even though they failed to get the same result in court. You would be correct, I would think, that the owners would simply refuse to do such a thing. Maybe Bill will grace us with a nice rant on the issue in this thread.
Apparently the players think they can gain something by pushing the meme that MLS has an old, outmoded structure that keeps them as slaves. I think that they instead need to be pushing graphic horror stories of what life is like for players in the league. People might still laugh at that and call it out, but I think the strategy would bring them closer to resolving the real grievances at hand.
-FS
The cartel accusation is absolutely key, since it shows how little FIFPro understands the situation on the ground here.
Which is: not much.
A cartel is, essentially, a monopoly acting in restraint of trade.
Which might actually have some legs except that a Federal Court has ruled that MLS is NOT an illegal monopoly.
Say what you want about FIFA - and I've said plenty - but the last thing Blatter would ever try and do is try meddle with a US Court ruling. Simply not gonna happen.
Ditto US labor law. FIFA doesn't have enough lawyers, not by a damn sight.
Of course, since nobody takes FIFPro seriously anyway, it's hard to give a crap what they think.
As for Foose, he tossed any credibility he had right out the window a month ago when he announced that MLS refusing to restructure itself would put the US World Cup bid, and even the US World Cup entry in 2010, in jeopardy, which was utterly ludicrous.
He didn't think anyone would know that, a sure sign of clueless arrogance. And absolutely everybody called him on it. He was openly laughed at, even by very respectable mainstream writers.
And you'll notice he hasn't had boo to say since.
Bill Archer
Thanks for adding your take. I suppose we've all seen Mark Abbott's smackdown by now. I really don't think this ploy has helped the players in any way.
And boy are you right that Foose has dropped off the face of the earth. Not a peep.
-FS
This has been covered a bit already, but as an almost-lawyer I figure I should point this out. The crucial article is Article 1(3)(a), which states: "The following provisions are binding at national level and must be included without modification in the association’s regulations: articles 2-8, 10, 11, 18 and 18bis." Article 1(3)(b) then requires each national association to consider the other articles, including Articles 13 and 16. But consideration does not require adoption.
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