The ongoing fight between the USWNT and the United States soccer federation about a new collective bargaining agreement appears to be headed for court. US Soccer is suing the United States women's national team players' association after the union's executive director, Richard Nichols, refused to rule out a players' strike. He believes that the players can terminate their agreement with the federation at will. The federation disagrees, so they've sued the players for anticipatory breach of contract and declaratory relief.
If you want to read the entire 217 page filing, knock yourself out. We'd recommend not doing that, because it's a lot of work to come to a very simple conclusion: the people who wrote this contract were not thorough. A judge is going to have one heck of a time figuring out who's right.
Quickly, some background. The CBA between the players and federation expired in 2012. In March of 2013, the two parties signed a Memorandum of Understanding that outlined changes to the previous CBA and allowed the players and USSF to continue working together.
Nichols, who did not negotiate the MOU, says the players can terminate it whenever they want because "the MOU is absent any reference to the MOU having any expiration date or definite means by which the MOU can be terminated." USSF disagrees, saying that the MOU has a clearly defined expiration date of Dec. 31, 2016.
Here is the entirety of references to the term of the contract or means of termination in the MOU.
That's it. That's the whole thing.
USSF's other piece of evidence is this testimony by former union representative John Langel during an arbitration hearing regarding the men's national team in 2014.
Q. So how many collective bargaining agreements have you had?
A. We had 2000 to 2004, 2005 to 2012, and now 2013 till December 31st, 2016. We have tried to do -- first agreement was five years. Second agreement was -- first agreement was five years. We've tried to cover both a World Cup and an Olympics. The second agreement we covered World Cup, Olympics, World Cup, Olympics. And this agreement we're covering World Cup, Olympics.
Q. So one is covering five years; one is covering eight years; one is covering four years?
The other point of contention in this case is whether the old CBA's no strikes/no lockouts clause is valid under the MOU. The players' representatives are likely to argue that they have the right to strike because the MOU does not mention that clause specifically. USSF disagrees on the basis of an email sent by Ruth Uselton, who represented the players' during MOU negotiations. It reads:
As we previously agreed, the general principle we are working under is that the 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.
But the lack of specificity on the matter of what parts of the old CBA apply to the MOU is surprising. On The Philly Soccer Page, Philadelphia labor lawyer Steve Holroyd wrote an analysis of the case, and was stunned by this particular oversight.
More important-and surprisingly-the MOU did not include "magic language" that nearly always accompanies extensions of existing agreements: "all terms and conditions of the preceding agreement not specifically modified herein continue in full force and effect for the duration of this agreement."
Darren Heitner, founder of Heitner Legal and sports law professor at the University of Florida's Levin College of Law, had a similar opinion.
"Typically in a longform document like a CBA, there will be a specific provision on how an amendment or termination is made," Heitner told SB Nation. "What matters is whether it states within the MOU if the entire [original CBA] is binding, some of it or none of it."
US Soccer thinks that their agreement is more black and white than what we can see in the documents, however, and provides communications with Nichols in the filing, which they say outline Nichols' failure to:
"[Review] the negotiating history in the file maintained by your predecessor or whether you have spoken with John Langel and his calleague [sic] who actually negotiated the agreement. Given your position, we can only assume that you have not yet done so and, therefore, once again request that you do so promptly."
Essentially, they'd like Langel and Uselton to tell Nichols "oh yeah, that's totally what we meant" and ignore the actual document, which provides no specifics.
The court's task is going to be figuring out what USSF and the players each believed they were agreeing to when they signed the MOU. If a judge takes the document very literally, they might enforce a contract until March of 2017, which no one is asking for. While the players' former representatives and US Soccer might have been clear on how long the MOU ran for, the document itself does not have a clearly defined termination date or means of termination.
"You have to look at every single word of the documents and make a determination," said Heitner. "I'm not sure if emails will stand up in court."
"The court's main role is to come to a resolution from the four corners of these documents," Heitner added, "but if they cannot determine how this can be adjudicated based on the documents, then [the testimony of] those who were involved will be extremely important."
This mess was created almost entirely by an MOU that is not thorough. And to make this look even worse, US Soccer's attorneys failed to be thorough again when they filed the claim itself without forgetting to redact personal information of players, which they've admitted was a mistake.
US Soccer re: WNT: 'It was unintentional on the part of US Soccer’s counsel and a redacted version of the complaint has already been filed.'— Andrew Das (@AndrewDasNYT) February 4, 2016
But it's hard to definitively pin down whose fault this is, even though US Soccer looks bad.
"Typically, ambiguity is construed against the drafter," said Heitner. "But in this case, both parties were involved in the drafting. It's a very difficult task for a judge or jury to handle, because you have this third party who wasn't involved in negotiations trying to involve themselves as if they were in it, and figure out what the parties intended."
The players, US Soccer CEO Dan Flynn and US Soccer president Sunil Gulati were understandably more focused on the financial and lifestyle aspects of the deal than they were on the contract itself. Both sides have attorneys to sort out the legal aspects, and the failure of both parties' representatives to nail down the specifics of an expiration date, means of termination and what parts of the 2005-2012 CBA applied to the MOU, is baffling.
Both sides will have a compelling case, and it's all because their 2013 agreement is extremely vague. "Hindsight is 20/20," said Heitner. "But I'm sure if you're the lawyers for these organizations, you'd like to go back in time and remove any ambiguity."
US Soccer had not responded to a request for comment at the time of publishing.