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MLS, players are no closer to settlement; trial set for September 18.

By Robert Wagman
SoccerTimes

WASHINGTON, D.C. (Thursday, February 24, 2000) -- A trial date of September 18 has been set for the Major League Soccer players' antitrust lawsuit against the league

For the first time in more than a year the two sides met today in United States District Judge James O'Toole's Boston courtroom for a "status" hearing. The judge asked the two sides if a settlement was in the offing. When the answer from both sides was in the negative, he set the trial date.

Neither side is willing to settle because both sides see life-and-death issues involved. The league maintains it simply can't exist unless it can control costs through its single-entity structure. The players maintain the only reason the single-entity structure exists is to control player movement and to artificially depress salary levels, thus it is anti-competitive and in violation of U.S. antitrust law.

The suit is being closely watched by the sports world. A number of sports leagues have emulated the single-ownership structure including the proposed new women's soccer league.

The MLS players are being helped financially to press their suit by the National Football League Players Association, which is the home of the MLS Player's Association. There is great fear by players and their unions in a number of other sports leagues that if the courts do not strike down the single-entity structure, the NFL could be next closely followed by the other major leagues.

Already most of the revenue in pro football is split evenly among clubs and NFL Europe is a single-entity league.

The players' suit was filed in 1997. For various labor law reasons the suit was not filed by the MLSPA, but rather by a group of players as individual plaintiffs, and as a "class" representing all current and future players in the league. The MLSPA, it is spelled out, "is a non-union association whose bylaws expressly forbid it to engaging in collective bargaining."

MLS has always insisted the Players Association ought to be classified as a union and enter into a collective bargaining agreement. The players see that as a disadvantage especially in bringing and winning this suit.

The suit, although it has any number of counts, basically alleges several central things. It claims that although MLS calls itself a single-entity, its "members" are actually separate and diverse economic entities with disparate economic interests. This is shown, the players' suit contends, by the fact that each owner-operator hires his own general manager, front office staff, coaches, etc., and who do not share certain locally generated revenues.

The players contend that "this purported 'single entity' structure is merely a pretext to allow MLS owners to eliminate competition in the market for player services." They call the refusal of individual teams to negotiate salaries with players "a total group boycott."

Secondly, the players contend that the league's hard salary cap is also anti-competitive and in violation of federal anti-trust laws. The salary cap, it is argued, prevents players from earning their fair market value.

Thirdly, the suit contends that under federal antitrust law, MLS, the United States Soccer Federation (which is also a named defendant) and world governing body FIFA are in collusion to further an illegal anti-competitive scheme through the transfer-fee setup whereby, if a player attempts to move between a team in MLS to another team in some other country, a fee has to be paid to MLS.

MLS answers that its structure is vital for survival and is not anti-competitive. It argues that if the league does not survive there will be no jobs for soccer players at the highest level in this country and therefore if the players prevail the result will be joblessness for most.

Kevin Payne, general manager of D.C. United has said on many occasions: "If it was not for this lawsuit and the $2 million we are spending annually defending it, we could have put that $2 million into players salaries and raising the salary cap."

There is an interesting side issue that has paralleled this lawsuit. It was alleged in the original suit that as proof of their anti-competitive collusion, FIFA, the USSF and MLS would require a transfer fee to be paid even after a player's MLS contract had expired. MLS categorically denied such was the case and strongly vowed never to pay or to collect a transfer fee for an out-of-contract player.

So far MLS has not. Which brings us to the Brian McBride situation. McBride left Saint Louis University after his junior year to sign an development contract with VfL Wolfsburg, then in the German Bundesliga second division. After a year playing with the Wolfsburg reserves, he got homesick and asked that he be let out of his contract so he could return to Saint Louis U. Wolfsburg agreed.

Then after graduating he signed with MLS. Wait a minute, said Wolfsburg. We agreed he could go back to college, not sign an American professional contract. We are owed a transfer fee.

MLS said no. Wolfsburg took the issue to FIFA who said a transfer fee is owed. FIFA sent a payment demand to MLS through the USSF. MLS's response has been "sue us in U.S. federal court if you want to collect."

It appears there is a lot of winking going on here. Wolfsburg has not sued, FIFA and the USSF are not pressing.

Everyone seems to understand and agree that if MLS paid, it could come back to haunt it in court.

For their part, many players believe that on both sides there is ample room for negotiation and the two sides should be able to reach some kind of settlement.

In the national team's camp in Florida, D.C. defender Jeff Agoos said "the players only want the freedom players in other leagues have to bargain for their services in something of an open market. The league is financially protected by the salary cap. An entire team's payroll can't exceed a specified amount, so the league knows what it's salary amount is every year. The owners, on the other hand, clearly want more say in how their teams are operated and who plays for them. There is room here for a settlement."

Don't bet that the two sides will find a middle ground before September 18. MLS chief operating officer Mark Abbott said, "MLS looks forward to presenting its case at trial and remains confident that it will prevail."

No one is willing to bet that the trial will actually start in September. This will likely drag on for some time to come.

Senior correspondent Robert Wagman's "It Seems To Me . . . " appears regularly on SoccerTimes. He can be e-mailed at SoccerWag1@aol.com.

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