In
a lawsuit filed in federal court in Chicago on February 3, 2016, the United
States Soccer Federation is seeking a “declaratory judgment” that its
collective bargaining agreement (CBA) with the Women’s National Soccer Team
Players Association, remains in effect through the end of 2016. The Players
Association, the union representing the U.S. Women’s Soccer Team, is alleged in
the lawsuit to have declared that the CBA either already expired prior to 2016,
or was terminable at will. The union
therefore contends that the players are free to go on strike at any time of
their choosing. Women’s team players
have made no secret of their dissatisfaction with the fact that they are paid
less than players on the men’s national team, despite the fact that the women
are past Olympic and recent World Cup Champions, whereas the men have failed to
advance in world competition. No doubt
the players’ union intends to leverage its demands for improved wages and other
terms for the women’s national soccer team players, under threat of a strike. The federation’s lawsuit seeks to enforce a
CBA it contends bans the union from striking in 2016.
The
U.S. Women’s Soccer Team are the 2015 World Cup champions and are expected to
qualify for and play in the 2016 Summer Olympics, in Brazil. Additionally, the national
team serves as the backbone of the newly formed National Women’s Soccer League
(NWSL). Not only does it allocate its nationally
known players such as team captain Carli Lloyd, Alex Morgan and Hope Solo to play
in the new professional league, the national team also pays their salaries. A
players’ strike in 2016 would be devastating to the national team as well as to
women’s professional soccer in America. With
so much as stake, how is it that there is any uncertainty as to the expiration
date of the CBA governing the terms and conditions of the U.S. Women’s National
Soccer Team? An examination of the
recently filed lawsuit and the parties’ contentions, holds important lessons
for employers and unions alike, regardless of their industry.
The
U.S. Soccer Federation’s complaint states that activities for the Women’s
National Team focus on four (4) year periods, due to the World Cup and
Olympics, each of which takes place every 4 years. In 2000 the Players
Association was certified as the exclusive bargaining representative for the players
on the Women’s National Team. The most
recent collective bargaining agreements covered two such 4-year periods, from January
1, 2005 – December 31, 2012.
Consequently, in the fall of 2012 the parties began negotiations
presumably for a new 4-year CBA commencing in January of 2013.
There
appears to have been nothing particularly unusual about the collective
bargaining between these parties. Negotiations took place over a 6 month period
and included in-person sessions scheduled in various cities around the country,
as well as telephone and email discussions between representatives of the
Players Association and U.S. Soccer. However – and this is the source of all the
problems now, in 2016 – the parties never reduced the results of their
negotiations to a concise and complete, written contract. As a
result, the Player’s Association, now under new and seemingly more aggressive union
leadership, is disclaiming the existence of a binding CBA in 2016. U.S. Soccer’s lawsuit alleges that the
player’s union is threatening to strike based on its position that there is no
CBA to prevent it from doing so.
Lacking
any signed contract, the U.S. Soccer Federation’s lawsuit is relying on a
number of documents and communications to support its claim that a CBA exists,
barring the union from striking and that it remains in effect until December
31, 2016. Exhibits to the federal
complaint include:
- A short, written Memorandum of Understanding (MOU), signed by the union in March of 2013, memorializing an agreement on terms and conditions for players participating in the newly formed professional soccer league, the NWSL. The MOU had a stated term of 4 years.
- An email forwarding the MOU, in which Ruth Uselton, an attorney representing the Players Association in its negotiations, stated: “As we have previously agreed, the general principle we are working under is that items we have not specifically covered in the Memorandum of Understanding would remain the same as under the prior CBA, but with appropriate increases/adjustments/changes.”
- A transcript of sworn testimony from the previous Executive Director of the Players Association from an unrelated hearing, in which he stated that the parties were under a CBA which will expire on December 31, 2016.
It
appears the parties had anticipated drafting a stand-alone, written, 4 year
contract, as Ms. Uselton’s email went on to state that “[w]e will address the
specifics when we get to drafting the new CBA.” Yet for reasons unknown, they
never got around to doing so although the lawsuit contends that both parties
acted as though they were bound to an agreement during the past 3 years. As a result, U.S. Soccer now lacks any actual
written CBA signed by the union and explicitly providing for an effective date
through the end of 2016 (i.e. a clear “duration clause” standard in CBAs). Now that the union has disavowed any
agreement in 2016, management is left to argue that its handful of
communications with the union comprise an enforceable agreement of the parties to
continue to be bound to the 2005 - 2012 CBAs (including its “no strike” clause),
through the end of 2016. Clearly, this is not a good position in which
management in any industry wants to find itself.
It
may be that the parties never actually achieved an agreement, in which case the
U.S. Soccer Federation will lose its lawsuit and may wish it had continued
bargaining in 2013 until a clearly written CBA was completed and signed. On the other hand, if an agreement truly was
achieved and the players’ union simply refused to put it in writing, its
conduct arguably would have violated Section 8(d) of the National Labor
Relations Act. Federal labor law requires
parties to union negotiations to reduce bargained for agreements to a writing
signed by the parties. Therefore, the federation could have filed an Unfair
Labor Practice, or ULP charge against the union with the NLRB back in 2013. In
either case, the apparent failure to deal with things years ago has created a
potential catastrophe for the federation and NWSL, should the players go on
strike in 2016.
To
think that all this uncertainty and litigation could have been avoided by
reducing the parties’ 2013 agreement to a clearly written document, with an
unambiguous “duration clause” specifying that the CBA remained in effect
through December 31, 2016, is a powerful lesson to all who negotiate with
unions. Considering how union contract
negotiations frequently involve multiple meetings, over many weeks or months,
it is well worth the time to prepare a complete, stand-alone contract with
clearly written language, especially on such critical provisions as
prohibitions on strikes and the duration of those prohibitions! Unfortunately, it is all too common for
parties to protracted union negotiations to cut corners in the end by relying
on a short memo, letter of understanding, etc. While there is nothing
inherently unlawful or wrong in doing this, management should always exercise
great care to ensure that its interests are protected in an enforceable
writing. Relying on union complacency is extremely risky, especially where
union representatives may come and go.
So
the take-away of this soccer related labor dispute? Get it in writing and get
it all in writing!
James
Sherman is a management-side labor and employment attorney with over 25 years
of experience in this field. He is
licensed to practice law in the states of Minnesota, Wisconsin and Illinois,
where the referenced lawsuit is pending.
Mr. Sherman has negotiated contracts with a number of labor unions in a
variety of industries, in many states. Contact him by phone (952) 746-1700 or
email jasherman@wesselssherman.com.
