A glimmer of hope in the CBA talks
Last season, fans of Major League Soccer voted on the Save of the Year award for the first time. But if federal mediator George H. Cohen can move the league and its players union towards a new collective bargaining agreement, he'll be a shoo-in to walk away with the trophy this year before the first game has even been played.
Cohen is the head of the Federal Mediation and Conciliation Service, a government agency that exists outside the auspices of the U.S. Department of Labor. And both the league and the Major League Soccer Players Union issued separate press releases on Friday announcing that talks would resume between the two sides this Tuesday after a two-week hiatus -- and that Cohen would be at the bargaining table. The general consensus is that his presence can only help negotiations that have ground to a halt amid accusations and countercharges that the other side has not bargained in good faith.
"I think ultimately [having the mediator present] is a good thing, just to get the process going again," said one union source who asked not to be identified. "That way, we're not stuck trying to get something done the day before the season starts."
The two sides last met on Feb. 22, a meeting that some reports indicated had ended acrimoniously. The end result had MLS management indicating it would not lock the players out and would be happy to start the season under the terms of the old CBA, which after two extensions officially expired on Feb. 25.
The union's response was to hold firm in its demands for more guaranteed contracts, fewer unilateral contract options, and freedom of movement for players once their contracts have expired. The union also made it clear that if there wasn't more give-and-take on the part of management, then a strike was a distinct possibility.
With Cohen now set to be present during the negotiations, that likelihood has eased considerably, at least in the short-term.
"The ramifications of the mediator being present are that the two sides aren't going to do anything [related to a work stoppage] until the mediator is out of there," said Duke University law professor Paul Haagen, who is also co-director of the Center for Sports Law and Policy. "That generally is a signal that they intend to try to solve the problem."
While Haagen went to great lengths to say that he had no specific knowledge of the negotiations, he added that there are a variety of tactical and strategic reasons for resorting to mediation.
"One possibility is that you use the mediator essentially to negotiate with your own constituents. You might do it if what you're trying to do as a union is convince your membership that this is a fair deal. Or you might do it as a negotiating unit for teams if you're trying to convince your ownership that they've got to give on something. It could also be that there are just personal issues that they're trying to overcome between the negotiators."
Given some of the charges levied by both sides, all of the above-mentioned scenarios could be true to a certain extent, and the hope is that Cohen's 40 years of experience as a labor lawyer, negotiator and mediator will result in an agreement being hammered out.
As with most things in life, however, there are no guarantees. While Cohen's career has largely focused on pro-labor causes, his role in this case is to be an impartial facilitator. It's also important to note that mediation should not be confused with arbitration. Decisions made by an arbitrator are binding, whereas a mediator is there merely to help prod the parties closer to a resolution. Either side could walk away from the table if it decides the direction the talks are going is not satisfactory.
If that were to happen, the path toward a work stoppage would be free of obstacles, and the likelihood that significant damage could be done to both sides increases exponentially. The first domino to fall would see the negotiations declared as being at an impasse, at which point current labor law allows management to forcibly implement its last, best offer (in their eyes at least) over the objections of the union.
Then the union would be free to take the gargantuan step of determining when a strike, as Haagen put it, "could inflict the greatest amount of damage on management."
That point of no return could be the start of the season, or perhaps closer to the beginning of the playoffs. Clearly, it's a tactic the union feels it would be forced into, but it would be hugely damaging nonetheless.
Of course, in the big picture, it is Cohen's job to try to avoid such an eventuality. But at a deeper level, his ability to convince the two sides to give a little on the most important issues is what ultimately will determine if the MLS season kicks off on March 25 as scheduled.
In an ironic twist, Pat Onstad -- who claimed the inaugural Save of the Year award last season -- is an executive board member of the MLS Players Union. If Cohen can provide the impetus toward a new CBA, chances are Onstad will gladly cede his crown.
Jeff Carlisle covers MLS and the U.S. national team for ESPNsoccernet. He is also the author of "Soccer's Most Wanted II: The Top 10 Book of More Glorious Goals, Superb Saves and Fantastic Free-Kicks." He also writes for Centerlinesoccer.com and can be reached at firstname.lastname@example.org.