Collective Action
Grayson Chalmers
Another week, another game where the refs blatantly steal points from The FC. This time, the theft came in the form of a goal by Derrick Etienne Jr. that was allowed to stand despite the fact that it was clearly and obviously offside.
Fans, of course, booed. Some, after the game, threw beer on the field (which The Post would never condone, to be clear). Others are still fighting the good fight on Twitter, despite attempts by MLS and clearly MLS- and PROReferee- affiliated accounts to make us doubt what we have seen over and over again with our eyes.
While some of these responses might feel emotionally satisfying (again, please do not throw anything on the field, at all, under any circumstances), it’s fair to wonder whether there is anything more that we can do.
So I’ve come up with one suggestion – call the feds.
This might seem facially ridiculous, and I admit that it’s a bit of an unorthodox approach, but hear me out. MLS players are part of the MLS Players’ Association, a labor union, under the authority of the National Labor Relations Act. The players are employees of Major League Soccer directly, and when the MLS Disciplinary Committee imposes discipline (in the form of fines or suspensions, for example), it is doing so on behalf of the employer. Therefore, MLS discipline is an adverse employment action, and it is subject to the same legal restrictions as any other adverse employment action.
Now, before I lay out my case, I want to make clear that I am not entirely making all of this up. I spoke at length to a labor lawyer familiar with the National Labor Relations Act and its requirements. I am not naming that person here so that they are not held professionally to opinions that they offered regarding hypothetical situations with little to no time to prepare. (By providing this information, I am satisfying Society of Professional Journalist and AP guidelines by providing information both as to the source’s expertise and the reason why anonymity is being granted.)
The National Labor Relations Act
The National Labor Relations Act (as amended by the Labor Management Relations Act) (the “NLRA” or the “Act”) is the statute that governs unions and collective bargaining in the private sector in the United States. It has a long history of application to professional sports, in baseball, football, soccer, hockey, and plenty of other sports. For example, the National Labor Relations Board (“NLRB”), the federal agency tasked with enforcement of the Act, had a big hand in obtaining an injunction that effectively ended the 1995 baseball strike. In another case, the NLRB secured $30 million in back pay for NFL players who were unlawfully denied the right to return to play after going on a strike of their own.
In soccer, the NLRB fought for and won the right for North American Soccer Players to join a union in the late 1970s, and just this summer the NLRB ruled in favor of PRO2 Officials (operating in NWSL, USL, and MLS NEXT Pro) and certified their unionization vote. (The fact that I would like to see every PRO referee unemployed tomorrow does not mean that I won’t celebrate all union successes.)
Beyond the right to unionize, the NLRA also protects the right of employees to engage in “protected concerted activity,” or “PCA.” “PCA” is when two or more employees take action for their mutual aid or protection regarding terms and conditions of employment, or when a single employee takes such action while “acting on the authority of other employees, bringing group complaints to the employer’s attention, trying to induce group action, or seeking to prepare for group action." “Individual gripes” are not protected, but actions relating to group complaints are. If activity is concerted, then the protection can be broad – for example, employees have the right to engage in concerted activity on social media, such as Facebook, even though those communications are not going directly to their management.
Now, not all concerted activity is going to protect an employee from adverse consequences. Even if protected activity is a “motivating factor” for an employment decision, the employer can nevertheless show that it would have taken the same action regardless of the protected conduct. This defense might come into play when an employee who engages in protected activity does so in an abusive manner or also engages in violent conduct. Context is key in this defense, however; if other employees who engaged in the same conduct, but did not engage in protected activity, were not disciplined, then the employer will have a tough time showing it was not engaging in unlawful retaliation. For example, if employees in a workplace regularly drop F-bombs, then an employee should not be terminated for using the F-word in connection with protected activity.
So, to sum up: Employees have the right to advocate on behalf of each other regarding the terms and conditions in their workplace. Employers can still take action against employees who advocate in an abusive, harassing, or violent way. However, employers must apply such discipline consistently; if other employees (who did not engage in PCA) commit the same alleged misconduct but are not disciplined, then the employer has likely engaged in an unfair labor practice.
The Major League Soccer Employment Relationship
According to a law review article written by Christopher R. Deubert, the former General Counsel of DC United, MLS players are employees directly of the league, which is organized in a single-entity structure. (Most people reading this probably already know this, but I am trying to limit the number of things people have to take my word for.) The players negotiate a labor agreement (or collective bargaining agreement, or “CBA”) with the league through the MLS Players’ Association, the union that serves as the players’ exclusive bargaining representative.
The CBA covers a number of areas of the employment relationship, including discipline for “On-Field Misconduct.” According to the CBA negotiated for the years 2015-2019, “[d]iscipline for on-field misconduct will ordinarily be considered and imposed by the MLS Disciplinary Committee, acting as the Commissioner’s designee.” The CBA requires the Committee to be composed of five members, “all but one of which shall be appointed by the Commissioner, and at least two (2) of the League appointees must be former MLS players.” These requirements seems to be largely unchanged, as the MLS Competition Guidelines state that the Committee is three former MLS players, one former MLS coach, and one former MLS referee.
The key thing to remember regarding the Committee is that it is not some wholly independent body – it is “acting as the Commissioner’s designee” and the Competition Guidelines make clear that any discipline is deemed issued from "[t]he MLS Commissioner, in his sole discretion."
In addition, there is no question that the NLRA applies to MLS and its players, even if people ordinarily don’t think of professional athletes as “workers” or “employees.” A few years ago, former MLS coach Piotr Nowak was fired from the Philadelphia Union for (in short) poor behavior towards his players. He filed a lawsuit against MLS and the union for “tortious interference with contractual relations,” which is a claim under state law where a plaintiff argues that its contractual rights were violated by wrongful conduct by a defendant that was not a party to the contract and had no right tointerfere with that contract. Nowak argued that he was terminated after the MLSPA demanded an investigation into his conduct. The federal district court dismissed the claims against the MLSPA, finding that they were preempted by the NLRA because the NLRA preempts state tort claims that “concern conduct that is actually or arguably either protected or prohibited by the NLRA."
There does not seem to be any doubt, in fact, that professional athletes (such as MLS players) are covered by the same labor laws as anyone else. In 1999, Rob Manfred, Jr. – then the Executive Vice President for Major League Baseball and now the Major League Baseball commissioner – wrote an article in the Hofstra Labor and Employment Law Journalexpressing his opinion that “[i]n general, rules that have developed under the labor laws should be applicable to all types of employees, including professional athletes.” He went on to say that “[t]here is obviously no statutory basis under the [Act] to treat professional athletes any different than any other type of employee. Furthermore, the United States Supreme Court . . . has rejected the notion that professional athletes are somehow entitled to different treatment under the labor laws.
One wrinkle worth mentioning is that the MLS and the MLSPA have an arbitration agreement in the CBA, which generally requires disputes to go through a grievance and arbitration process. However, violations of the NLRA are not necessarily subject to mandatory arbitration. Under certain circumstances, the NLRB will defer its investigation while arbitration moves forward, but the NLRB can also simply decide not to do that. So while arbitration is relevant to how unfair labor practices will be adjudicated, it does not swallow up the process entirely.
Therefore, MLS players have the right to engage in protected concerted activity, under the NLRA, and the same principles apply to MLS players as to non-athlete employees.
Lucho Acosta: A Case Study
On July 9, 2022, FC Cincinnati played against the New York Red Bulls. Near the end of the game, FC captain Lucho Acosta felt that he was fouled and confronted Red Bull defender Aaron Long. After that altercation, Acosta received a red card. He attempted to argue the card, and in the process of arguing he touched the referee’s arm.
After the game, Acosta had this to say:
“I’m angry. I’m angry at the result. I’m angry at the way the game was officiated and it’s the same stuff every time. It feels like it’s against us. I did not think Allan’s was a red and, for me, it was chest-to-chest. I’m just not as big as Aaron Long, but it was a product of frustration, of being hit over and over again during the game and it boiling over in the moment. I don’t know why it happens that way. That’s why I wanted to come out here and show my face and say something. . . . I’m here to defend my team and defend my club.”
I have bolded and italicized certain parts of that quote for a reason. Acosta makes clear three times in the paragraph above that he is advocating on behalf of his teammates/co-workers. He says “it’s against us.” He complains about a red card given to his teammate, Allan Cruz. And he closes by saying he’s defending his “team” and his “club.”
The week later, MLS announced that it was suspending Acosta for two matches and fining him an undisclosed amount “for exhibiting aggressive behavior toward and making unwanted physical contact with a match official[.]”
I would argue that there is no question that Acosta engaged in protected concerted activity. The way that games are officiated certainly relates to the “terms and conditions” of the workplace. And although Acosta was speaking on his own, as team captain he is acting with the authority of his co-workers and he is bringing complaints on behalf of the group (hence his references to “us,” “the team,” “the club,” and “Allan’s” red card). And he was disciplined (suspended and fined) after bringing those complaints. In addition, investigation would possibly uncover that the quality and fairness of the refereeing had been a topic of discussion and repeated complaint within the team.
Players sometimes turn to the NLRB to review discipline, such as fines and suspensions. Former Cincinnati Bengal Cedric Benson, for one, filed a charge with the NLRB regarding a three-game suspension he received for conduct occurring during an NFL lockout. Other players have filed charges for discipline they received for engaging in national anthem protests.
Now, MLS would of course argue that the discipline was for Acosta’s “aggressive behavior” toward the ref and the “unwanted” physical contact. But that argument opens up the question of whether Acosta’s behavior was in fact aggressive and whether MLS consistently disciplines players who engage in similar “unwanted physical contact.” On the latter point, anyone who has seen more than one MLS game knows that players routinely get away with contact with the referee at least as aggressive as Lucho’s. On the former point, FC coach Pat Noonan had this to say:
“It’s really alarming that he’s not on the field tonight based on the video evidence of what took place, you know, in that match and that a committee can look at that video evidence and say ‘ this is a two match suspension’ with a referee that handed out a necessary red card and then decided to be a showman in the moment and involve himself more than he needed to.”
Noonan, as a supervisory employee, is not protected by the NLRA. (But coaches are affected by certain other laws that prohibit discrimination in hiring.) But as Acosta’s direct supervisor, his opinions as to whether Acosta was treated fairly as compared to other, similarly situated, employees would certainly carry a lot of weight.
What’s the Point of This?
An interesting fact is that you don’t have to actually be one of the affected employees to file a charge with the NLRB – anyone aware of a labor violation can file a charge. To be clear, I am not suggesting that fans file labor charges over everything in MLS that bothers them. But am I saying that players at least arguably have a legally protected right to complain about unfair treatment from the referees? Yes, yes I am.
So, what I'm ultimately suggesting is that if unfair refereeing continues, then the players should complain about it at every opportunity - every press conference, interview, and podcast appearance. They should post about it on social media. They should make clear that the quality of refereeing is affecting not just them personally, but also their teammates, and even other players across the league. And they should dare MLS to do something about it.