Enjoyed speaking with @davisjsn on the #United States of Soccer Show today @SiriusXMFC about the news that MLS plans to invoke the force majeure clause in the CBA it negotiated with the MLSPA in June. If you missed it, here's a thread w/ some thoughts about this issue https://twitter.com/JeffreyCarlisle/status/1344011239425359872

This case is unique. Most force majeure clauses are meant to cover what the parties don't know or anticipate. They are affirmative defenses to a lawsuit for a party's failure to fulfill its obligations under the contract.

In MLS' case, the force majeure clause was added to a CBA agreed to in June, during the pandemic. The risks were well-known and they had a chance to agree to the triggers, the notice procedure, and the consequences.

MLS may be invoking what was labeled a force majeure clause, but it's probably more of a contractual economic impracticability clause. The CBA language isn't public, but it seems like the parties agreed to a temporary CBA with a mutual option to revisit its terms after the season

There were reports in June that the MLSPA resisted a trigger of a 25% reduction in seat capacity. If that meant they left the trigger vague, then the parties effectively decided to forego hard negotiations in the hopes that they would be unnecessary by December

If that is the case, MLS' action really shouldn't have been surprising to the MLSPA. The 30 day period for good faith negotiations apparently stipulated under the CBA was what they bargained for instead of holding out in June for a specific trigger they each could live with.

What will MLS do during these 30 days? They need to show they are bargaining in good faith. Otherwise, MLSPA could argue that invoking force majeure was a pretext for terminating the CBA so they could lock the players out in violation of the CBA.

MLS, however, could propose something like a 2 month delay of the season (until at least ~50% seating capacity is permitted) and a reduction in salaries reflecting that delay. Players could reject that, but a lockout would effectively be the same result in terms of lost pay.

That doesn't mean the players have no recourse. Besides contesting the legality of the decision to invoke force majeure, they could decertify the union, which would remove federal antitrust immunity. That would put to the test the viability of MLS' single-entity antitrust defense

Antitrust lawsuits are expensive and lengthy (the NASL case will very likely hit year 4 in 2021), but a labor stoppage and the threat of a lawsuit could disrupt MLS' plans to negotiate a new media deal when the current one expires in 2022.

Is there a middle ground? The parties could agree to extend the period for negotiation. There are still two+ months until the start of the regular season and time would give the parties more information about vaccines/stadium restrictions that might make it easier to reach a deal