CBA Thread IV: I Must Break You

Discussion in 'MLS: News & Analysis' started by triplet1, Feb 22, 2010.

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  1. AndyMead

    AndyMead Homo Sapien

    Nov 2, 1999
    Seat 12A
    Club:
    Sporting Kansas City
    Or at least get the basic, verifiable facts about those points correct.
     
  2. jefbal99

    jefbal99 New Member

    Mar 9, 2006
    Lansing, MI
    Club:
    Liverpool FC
    Country:
    United States
    I liked it as a SW fan and geek, but gotta go funky and obscure :)

    I think we could present him with notarized copies of the contracts and information and he'd still argue his insanities
     
  3. Pack87Man

    Pack87Man BigSoccer Supporter

    Sep 1, 2001
    Quad Cities
    Club:
    Chicago Fire
    Country:
    United States
    Maybe the fact that a player got a raise directly linked to 1) his leverage due to his worth to the team and league, and 2) due to his leverage with regard to interest abroad somehow does not compute with his otherwise perfect logic.
     
  4. FlashMan

    FlashMan Member

    Jan 6, 2000
    'diego
    Club:
    --other--
    Country:
    United States
    And also not emotional. :)
     
  5. WoodDraw

    WoodDraw Member+

    May 29, 2007
    Club:
    Arsenal FC
    Country:
    United States
    Well since we've finally agreed that David Beckham makes $250 million and Don Garber deserves none of his raise, let's move on to more productive matters:

    What's everyone's prediction for tomorrow?

    I predict a players strike, quickly ended before the start of the season without much of what the players are holding out for.
     
  6. Pack87Man

    Pack87Man BigSoccer Supporter

    Sep 1, 2001
    Quad Cities
    Club:
    Chicago Fire
    Country:
    United States
    Something along those lines. I expect that MLS throws another $100k per team into the pot and says "These are our terms, take it or leave it," then watches as the Players Union crumbles in the face of potentially missing paychecks.
     
  7. PhillyMLS

    PhillyMLS Member+

    Oct 24, 2000
    SE PA
    And I predict that I will make them wish they were playing an away qualifier in Costa Rica. I'll drink plenty of water between now and then......:p

    I really don't know what to make of it. I just can't figure out where the players are coming from right now. I thought I did before but they have done some strange things in the past week. I'm waiting for them to have Blatter tell us that this is modern day slavery.
     
  8. AndyMead

    AndyMead Homo Sapien

    Nov 2, 1999
    Seat 12A
    Club:
    Sporting Kansas City
    Makes me miss the old days when the trolls were more interactive, and kept you on your toes. Now Tom and Oliver were great.

    Oh sure, they ignored 99% of your post and replied to one little small statement, turning into another long misdirection to throw off their points of weakness.

    They were engaging and frustrating. Annoying, but creative.

    This new breed of trolls is just inane. Jess and Ted "s@cc#rr@f@rm" W. just repeat the same lies and distortions over and over without any pretense that they're actually debating or discussing.

    Heck, I even miss Futsal Fred. Now, that was a world class troll. And Mike Segroves and MikeLastort2? Those guys could put up a fight. Sigh.

    Who says we don't have any traditions. :D
     
  9. Coyote-Trickster

    Feb 10, 2000
    The American Steppe
    Club:
    Chicago Fire
    Country:
    United States
    You know, I hate to say this, but I miss your overbearing paranoia driven Napoleonic moderating style.

    This passive aggressive shit we get from appoo and the like just doesn't cut it.
     
  10. SideshowBob

    SideshowBob Member

    Jan 12, 2007
    Northern VA
    Club:
    Philadelphia Union
    Country:
    United States
    I think they'll throw an extra bone to the players, probably something that directly helps the rank and file players -- increase the minimum salary, some sort of profit sharing for the players, increased retirement money, increased bonuses for wins or championships, stuff like that which would be big for the guys making $60,000 or less.

    But I don't think the players union will agree tomorrow. This will drag on for at least another week or two or perhaps into the start of the season. The sides don't have to agree on an extension to continue to negotiate -- without extending the deadline, the players union would be free to strike at any time and might want to have that option in their pocket for negotiation position. That said, I don't think the players will strike; too many players have too much to lose, especially if the owners have already offered a bunch of concessions to issues the players want (which reportedly they had addressed many of the issues the players were focused on).
     
  11. triplet1

    triplet1 BigSoccer Supporter

    Jul 25, 2006
    I think people need to look at the appellate court decision in Fraser again, because the idea that MLS is a single entity isn't nearly as bullet proof as you and others are suggesting.

    Fair warning now, this is a long reply, but IMO the Court of Appeals decision sheds light on why MLS is nervous about some concessions weakening the defense even further.

    First, some background. We've had this discussion before, but the term "single entity" is an affirmative defense to a Section 1 violation under the Sherman Act, because a single entity can't "conspire" with itself. It's a safe harbor. A get out of jail free card.

    And it isn't clear it works, even for MLS.

    It did at the district court level in Fraser, but the Federal Court of Appeals was another matter.

    I quote from the decision extensively below because the argument isn't easily distilled into a line or two. To make this flow better though, I've deleted some of the citations and all of the footnotes. All emphasis and bracketed text are mine.

    Okay, for the willing, let's wade through this. First, the Court sets up the issue:


    So far, so good. Keep in mind how all this started. The "single entity" defense was originally recognized and applied to a company, Copperweld, and it's wholly owned subsidiary. The question is whether a sports league is comparable to a company and its subsidiary. The NFL tried to extend the defense to its operations several times without success (with the American Needle case pending). MLS used those cases to devise its structure in the hope it would succeed where the NFL failed.

    The players tried to argue the entire structure was a sham and per se a violation of antitrust laws. That didn't wash. But MLS didn't get the endorsement it was seeking either:


    Full stop. After swatting away the player's contention, the Court of Appeals didn't agree with the District Court's decision to apply the single entity defense to MLS. You would never know that to read it in most media, but there it is: "the case for applying single entity status to MLS and its operator/investors has not been established."

    Fortunately for the league, not every anti-competitive act is a violation of the Sherman Act, the court usually balances the equities by applying the "rule of reason test", and given the testimony at trial, it concluded the league would prevail anyway. Essentially no harm, no foul.

    But the Court of Appeals didn't stop there. It went on to discuss whether MLS would indeed by considered a single entity.

    There are some favorable factors for MLS, which the Court noted detail:

    At this point, the league must have thought things were looking good. Ah, but keep reading.

    A long, thoughtful discussion, but the end result is pretty clear. They didn't buy that MLS was a "single entity", as the District Court did.

    Instead, the Court suggested MLS was something of a hybrid.

    The text I bolded is interesting. What the Court seems to suggest is that the best argument MLS makes for the limits it has placed on competition doesn't hing on the structure, but rather factors that balance the equities in its favor if the rule of reason were applied (that is, a new league in a sport where pro leagues have traditionally failed that is subject to international competition for players).

    In the end, the Court punts, with a final shot of skepticism:

    Whew.

    In the end, the players weren't going to win anyway, so the single entity defense didn't have to be decided. But the Court provided a very good road map on how to attack it. And the less the league acts like a single entity, the easier it will be to attack. (Does anyone think the Copperweld Corporation ever traded Jim in Accounting to it's subsidiary in exchange for Tim in Human Resources? Well, maybe if they got an allocation.)

    Now, there's an old adage that when the law's on your side, you argue the law, but when the facts are on your side, you argue the facts. To me, the Hartman case is a bad fact. A fact that, were this ever to get to get litigated, I wouldn't want a court to chew on as it applied some type of rule of reason test to see if the anti competitive restrictions of MLS were warranted. Which is why when Superdave suggested his plight was one of the better arguments for the players, I think he was absolutely right. Whatever else the result from all of this, MLS should fix the rules so there won't be more cases like Hartman's.

    But the bigger issue is that you can understand why MLS is nervous about the single entity argument. Indeed, since the 2002 restructuring, I think the case can be made that MLS looks even less like a single entity, not more. It's the reason I keep harping on the fact that since Seattle and TFC, the I/Os economic interests are becoming ever more diverse, which is the fissure that can split the defense wide open IMO.

    So, is MLS a single entity?

    Maybe.

    Or maybe not.

    I wouldn't presume too much.


    Link:

    http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=1st&navby=docket&no=011296
     
    4 people repped this.
  12. FlashMan

    FlashMan Member

    Jan 6, 2000
    'diego
    Club:
    --other--
    Country:
    United States
    What this thread needs (before it devolves completely) is a good ol' fashioned 11th hour face-saving settlement, complete with pictures of both sides raising hands in triumph, so we can then sink our teeth into it (the settlement) and rip it to shreds.
     
  13. PhillyMLS

    PhillyMLS Member+

    Oct 24, 2000
    SE PA
    This thread is for posting how much Beckham makes and complaining about Garber's raise. You are also free to compare yourself to some of the greatest people in history if you feel like it. However, please keep any semi-intelligent posts where they belong. Some other message board.
     
  14. deron

    deron New Member

    Jul 25, 2006
    Centennial, CO
    Club:
    Colorado Rapids
    Country:
    United States
    Lord triplet1! Did you re-write that or just copy and paste it from the last time you posted it?

    The relevance of that is that they could face a challenge and might lose. I doubt there are many here who are paying attention that don't think the piercing of the model is part of the reason their at loggerheads about these negotiations.
     
  15. ThreeApples

    ThreeApples Member+

    Jul 28, 1999
    Smurf Village
    Club:
    San Jose Earthquakes
    Country:
    United States
    CBA Episode V: I have a bad feeling about this
    CBA Episode V: Don't give in to hate
    CBA Episode V: There is a great disturbance in the Force
    CBA Episode V: I'd just as soon kiss a Wookiee
    CBA Episode V: Laugh it up, fuzzball
    CBA Episode V: Wars not make one great
    CBA Episode V: Only your hatred can destroy me
    CBA Episode V: I am altering the deal. Pray I don't alter it further.
    CBA Episode V: This deal is getting worse all the time
    CBA Episode V: He's no good to me dead
    CBA Episode V: Do, or do not
     
  16. JasonMa

    JasonMa Member+

    Mar 20, 2000
    Arvada, CO
    Club:
    Colorado Rapids
    Country:
    United States
    CBA V: Don Garber and the Order of the League?
     
  17. JasonMa

    JasonMa Member+

    Mar 20, 2000
    Arvada, CO
    Club:
    Colorado Rapids
    Country:
    United States
    ftw!
     
    1 person likes this.
  18. AndyMead

    AndyMead Homo Sapien

    Nov 2, 1999
    Seat 12A
    Club:
    Sporting Kansas City
    Todd Durbin
     
  19. wizardswarrior

    wizardswarrior New Member

    May 1, 2009
    Club:
    Seattle Sounders
    Good heavens, you must be a lawyer! If only you were in contact with the two sides, you might be able to talk some sense into 'em! ;)
     
  20. triplet1

    triplet1 BigSoccer Supporter

    Jul 25, 2006
    Yep, but go further. The I/Os are already "part way along the path to ordinary sports team owners" because, in part "they do some independent hiring and make out-of-pocket investments in their own teams." And in the years that have passed, they are now doing more thanks to the DP rule.

    The players are reverse engineering the case and choosing their issues carefully. "Free agency" and "autonomy" are wedge issues designed to go after those already identified flaws in the structure by increasing those practices.
     
  21. OleGunnar20

    OleGunnar20 Member+

    Dec 7, 2009
    Club:
    Manchester United FC

    thank you. very helpful. it made logical sense that the MLS S-E was some sort of Frankenstein like construct that wasn't quite a single corporation and not quite a collaborative league but it is nice to see the clear legal analysis.

    which now makes me even more certain that even tho i wish the league would operate with a little less central control over the satellite clubs as i said in an earlier post (meaning the clubs have more freedom to chose what players to sign and what kind of contracts to sign them to without the MLS HQ trumping them and thus in the case of a Hartman or a cut player other clubs simply submit contract offers to the MLS HQ which passes them on to the player to chose) so that the increased freedom/competition of/between clubs would lead to a better overall product on the field it is clearly something that the league (MLS LLC) the non I/O investors and some of the more conservative A Unit I/O probably want to avoid at all costs because of this very less than emphatic court ruling.

    the question i have is do all of the A Unit I/O feel that keeping this tenuous "single entity" designation is important enough to allow themselves to have their "hands tied" as supposed independent team owners (in such things as player personnel decisions particularly) and also run the risk of alienating players and fans. and how do fans feel about the lack of independence and freedom that their "clubs" and their I/O have to make player decisions and thus create the best on field product. i think from the discussion on BS some are fine with it and others are a bit more skeptical.

    anyway thanks again for the post and analysis of the ruling.
     
  22. OleGunnar20

    OleGunnar20 Member+

    Dec 7, 2009
    Club:
    Manchester United FC
    it doesn't help that now the league has nearly a 1 to 1 ratio of I/O to teams. i am sure this S-E argument was easier to make and held more water when each I/O "operated" 2 or 3 or more teams each.
     
  23. Bootsy Collins

    Bootsy Collins Player of the Year

    Oct 18, 2004
    Capitol Hill
    Club:
    DC United
    Country:
    United States
    No. Just that he couldn't hit a curve ball.

    EDIT: dangit, PhillyMLS got there first.
     
  24. triplet1

    triplet1 BigSoccer Supporter

    Jul 25, 2006
    The takeaway isn't to have your eyes glaze over from the legal jargon, but to understand that the single entity structure is a firewall, and the U.S. Court of Appeals has provided both sides with a pretty good analysis of its strengths and weaknesses.

    Now, if the players can get the owners to agree to what they want, so much the better from their point of view. But if they can't win all they seek at the negotiating table and they ever do want to return to court and press their case to get these restrictions lifted, they need a way to get around this firewall. Just because this court of appeals was squeamish about applying the single entity defense doesn't mean the player's won't have to deal with the argument again. And the best way to do it is to start chipping away now by making MLS further resemble something that isn't consistent with a single entity structure as the court has described it.

    Again, its more than most will want to read, but I'd bet money it's a dogeared page for every lawyer on either side of this issue. These are lawyers, after all, and that part of the Fraser opinion can help decode why they are twisting over some of this so much, IMO.
     
  25. Coyote-Trickster

    Feb 10, 2000
    The American Steppe
    Club:
    Chicago Fire
    Country:
    United States
    You know, attempting to compound all of these issues together in an attempt to "prove" collusion w/o evidence is very clever, but ultimately a losing option since MLS isn't fixing games and your so called business units are already competing against each other as much as any other sports league in the world.

    There is simply no evidence that allowing out of contract players to negotiate with other clubs in MLS or guaranteeing contracts for any or all players is going to deliver a competitive sporting/spectator/viewing product that is better than it is now, or rivals any of the "lesser" leagues that are supposedly siphoning American talent.

    I think fans get a lot more upset when their team is saddled with an underperforming and untradeable player with a long term contract that is also a large percentage of the cap. It would only be worse if his contract were guaranteed.

    As for "alienating" players, even with this labor issue, there seems to be no shortage of players willing to come to MLS and "back" to MLS from the frozen paradises of Scandinavia.

    I think this "pretend" lack of independence is used by I/O's to shift the blame to the faceless "League Office".
     

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