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Major League Soccer Collective Bargaining Agreement Negotiations May Lead to a Player Strike, but Are Potential Antitrust Ramifications Overstated?

Major League Soccer (MLS) and the MLS Players’ Union are currently negotiating over a new Collective Bargaining Agreement. In the world of major American sports leagues, this is not an unusual development, as sports leagues and player unions regularly negotiate every few years for new collective bargaining agreements.1 This negotiation, however, is not like every other CBA negotiation. The major sticking points in this CBA negotiation aren’t salary caps or fringe benefits, but the potential structure of the league itself.2

Major League Soccer is currently organized as a hybrid single-entity organization.3 This means that players sign contracts with the league rather than individual clubs.4 The owner/investors do not actually own their clubs, but a right to operate a team.5 The clubs themselves are owned by MLS, with the owners owning a share of the league.6 Some players joining or returning to MLS from leagues overseas are subject to an allocation process to determine what team they will join.7 In addition, individual clubs do not compete for players already within the league based on salary.8

The players, then, are pushing not just for a larger share of revenues from the league in the form of salaries, but the right to pick where they will play.9 In addition, the players are uniting behind their younger players by advocating for a raise in the minimum salary for all players.10

The free agency provisions demanded by players have the potential to undermine the league structure itself by opening MLS up to antitrust claims. A previous antitrust action won by the league and upheld by the 1st Circuit in 2002 allowed MLS to raise its single entity structure as a defense to the plaintiffs’ Sherman Act section 1 claims.11 Broadly, section 1 of the Sherman Act bans conspiracy, combinations, or agreements in restraint of trade.12 The 1st Circuit upheld the judgment that MLS, as a single entity, could not conspire with itself to restrain trade by not competing for players.13 The league, then, would potentially be opening itself up to Section 1 claims by installing some form of free agency that would increase competition between clubs for player services. The 1st Circuit upheld the MLS single-entity structure using the Copperweld14 theory of unity of interest between subsidiaries and a parent corporation.15 If the subsidiaries (here, the MLS teams) were to start competing for players in free agency, potential plaintiffs would potentially have a stronger case that the MLS is not actually a singe entity at all, and could indeed agree with itself to restrain trade in order to keep player salaries low.

However, it is important to note that the player-plaintiffs in Fraser failed to define a relevant market to establish their antitrust claim.16 Professional soccer is unique in the sports world because it is truly a global game. Any potential plaintiffs would have a difficult time with market definition, because if the relevant market includes competition from overseas leagues, the MLS would have much less market power than if the market were alleged to be soccer in the United States. The court in Fraser held that market power is relevant in deciding an antitrust claim like this one.17 Therefore, even if a potential plaintiff were to attempt to bring a section 1 antitrust suit, MLS may still be somewhat protected by their position in the global market for professional soccer. Players can always play overseas, because MLS is not a dominant global soccer league and most likely won’t be for the foreseeable future. Oddly then, MLS may actually have some protection from antitrust suit because of its position in the globalized world of professional soccer, and that could lessen the risk of a successful challenge to the current hybrid single-entity structure.

  1. See Cym H. Lowell, Collective Bargaining and the Professional Team Sport Industry, 38 Law and Contemporary Problems 3-41 (Winter 1973), available at 

  2. Joe Prince-Wright, MLS Strike: Players Have Resolve, If Not Upper hand, in Labor Negotiations, NBCSports Pro Soccer Talk, February 17, 2015, 

  3. About Major League Soccer,, last visited Feb. 25, 2014. 

  4. Fraser v. Major League Soccer, L.L.C., 284 F.3d 47, 53 (1st Cir. 2002). 

  5. Id. at 53-54. 

  6. Id. at 54. 

  7. Roster Rules and Regulations, MLS Soccer,, last visited Feb. 25, 2014. 

  8. Fraser, 284 F.3d 47 at 54. 

  9. Bobby Warshaw, Why MLS May Be Headed For A Work Stoppage,, Jan. 16, 2015. 

  10. Id. 

  11. Fraser, 284 F.3d 47 at 56-58. 

  12. Daniel A. Crane, Antitrust, Aspen Treatise Series at 14 (2014). 

  13. Fraser, 284 F.3d 47 at 59. 

  14. Copperweld Corp. v. Independence Tube Corp., 467 U.S. 752, 104 S.Ct. 2731, 81 L.Ed.2d 628 (1984). 

  15. Fraser, 284 F.3d 47 at 56. 

  16. Id. at 59-61. 

  17. Id. at 59.