So You’ve Terminated an MLS Contract
Grayson
FC Cincinnati shocked* the world last week by announcing that Major League Soccer has terminated the contract of Designated Player Aaron Boupendza.
*Your mileage may vary on whether you were shocked.
The FC must be reeling from this news, having its high-priced forward’s contract suddenly* and unexpectedly* terminated by the league* with barely a week left in the transfer window.
*It was probably not sudden.
*It was probably not unexpected.
*The FC probably had some input.
Fans likely experienced some understandable confusion from the wording of the release and the nature of the transaction, so it felt right to break The Post’s ongoing strike against writing new articles in protest of [INSERT HERE] to try to make some sense of the situation.
Why did MLS terminate the contract?
If your question is “why was the contract terminated,” that’s kind of a longer answer and something that’s not entirely clear (more on that below). If your question is why did MLS do it and not the FC, the answer is a big technical but straightforward.
MLS is organized as a single entity, rather than a league regulating competition among independent teams. All of the teams in MLS are owned by the league. There are a number of reasons for this, but relevant to the Boupendza situation is that the league therefore is the party to each player’s Standard Player Agreement (“SPA”). In other words, the SPA is between Boupendza and MLS, and not between Boupendza and the FC. So MLS is the party actually terminating the agreement.
Is this one of those buyout things?
Apparently not! MLS fans by now should be familiar with two mechanisms for ending a contract prematurely, the one-time buyout and the “mutual termination.” Under the one-time buyout, the player gets paid all remaining amounts under his contract to go away. Under the “mutual termination,” the player agrees to go away for some amount of money between $0 and all amounts remaining under his contract, and (at least theoretically) the team has to carry whatever that payout is on its salary budget.
Here, MLS terminated Boupendza’s agreement and he is not owed any additional payment (at least that is the position of MLS and the FC). The FC therefore still has its one-time buyout (I do not expect this to be used this season) and also is not carrying any obligations to Boupendza on its salary budget moving forward.
Can they do that?
Generally no but maybe sometimes yes.
Helpful.
Well, players have contracts, and they’re usually guaranteed. There are a number of protections that come into play to ensure that contracts are respected, and among those are the contracts themselves, the Collective Bargaining Agreement (“CBA”) between MLS and the MLS Players’ Association (“MLSPA”), and FIFA regulations. These set forth various premises that ensure, from the starting point, that contracts are enforceable until they’re not. In other words, MLS needs some valid reason to terminate the agreement with Boupendza.
What was the reason?
We don’t know. There is some reporting that could be used to reach an educated guess. Laurel Pfahler reported that Boupendza had stopped coming to training and games. Pat Brennan reported that a league source told him that Boupendza didn’t fulfill his contractual obligations. Even without this reporting, fans are aware that Boupendza has previously been suspended for unexcused absences, missed months of the season due to injuries from a bar fight, has been inconsistently used even when available, and has looked for the most part out of shape and ineffective when on the field.
But this information only gets you part of the way there. MLS has not said outright what the specific contractual obligation was that Boupendza did not fulfill, or that Boupendza’s absence actually played part in the decision (although the inference seems reasonable). Regardless, to evaluate the decision, we need to go from the facts we know or believe to be true to some basis for terminating the contract early.
What do you mean “basis”?
For starters, I mean determining what the SPA or CBA might say about repeated unexcused absences, off-field misconduct, and poor play. (From there, we might also need to consider other sources, such as any FIFA regulations, but for now let’s stick to the MLS documents.)
The SPA is not a public document. It is listed as one of the exhibits to the CBA, but it is not included with the long-form version of the CBA provided on the MLSPA website. However, player SPAs from prior years can be obtained, and they provide at least a useful proxy for seeing what terms might be applicable now.
The following obligations are among those included in the SPA used under the 2015-2019 MLS CBA:
Players must comply with “the obligations set forth in the CBA”;
Players must “maintain a high level of physical and mental conditioning and competitive skills, not engage in alcohol abuse, not use drugs or any other substances in contravention of the MLS Player Substance Abuse and Behavioral Health Program and Policy”;
A player must “comport and conduct himself at all times, both on and off the field, to a high standard of honesty, fair play and sportsmanship and in a manner befitting his position”;
Players must “refrain from conduct which is detrimental to the reputation and public image of the Team or of MLS.”
The obligations in the CBA include:
A player must “devote whatever time is necessary to perform his duties as a player and promoter of soccer, the Team and MLS”;
“A Player shall be available and promptly report for a fully participate in all of the training and practice sessions, meetings and games of the Team.”
Fans could imagine how a number of these might be applicable to Boupendza’s situation, although there is little public information for how MLS has enforced these specific policies in the past.
As to Boupendza’s prolonged absences from training, the CBA includes a progressive discipline policy. For a first failure to appear, players are fined based on their salary levels – for Boupendza, the first offense would incur a $1,000 fine. After the first instance, the CBA states that “[a]dditional infractions will be evaluated on an incident by incident basis and subject to increased fines up to and including suspensions without pay and/or termination.” In other words, the MLSPA has agreed that continued failures to appear can reach a level where the contract may properly be terminated (although the actual level is left vague). Also, failure to appear for a match is subject to “other provisions in this Section, the CBA and the SPA,” although it is not clear what all other provisions might apply.
In addition, teams may create team rules that are subject to commissioner approval and cannot contradict what is expressly laid out in the CBA. If both the team and the league try to discipline a player, only the league discipline will be applied.
What about the other conduct rules aside from failure to appear?
Those are harder to evaluate, since there aren’t clear guidelines that apply to them. In particular, although they at least might be regarding as applying to Boupendza, I am not too focused on the alcohol and substance abuse rules. MLS has a Substance Abuse and Behavioral Health policy, which provides guidance to how players with substance abuse problems might be handled. Players might be referred to treatment or not, and there are different rules applicable in either case. There is no reporting that I am aware of that Boupendza has been referred to treatment, so I am assuming those rules do not apply. In addition, there are rules that apply in the event of Performance Enhancing Substances, but again, there is no reason to believe any Performance Enhancing Substances are at issue (and there is evidence from Boupendza’s performance that it was not being “enhanced” in any particular way).
That leaves us with a catchall provision for “Other Violations” of players who are not in treatment, which says simply that “A Player who otherwise violates the SABH Policy may be disciplined for just cause pursuant to the CBA.” Which is not very illuminating.
What’s “just cause”?
Lots and lots of money is spent every day trying to figure that out, so it’s not an opinion I’m about to just give away for free.
But I’ll offer this. Under the FIFA Regulations on the Status and Transfer of Players, Law 14, contracts can be terminated for “just cause.” According to the Commentary to those Regulations offered by FIFA, “just cause” is often analogized to the Swiss law concept of “good cause” (lol), which allows unilateral termination of an employment contract “when the fundamental terms and conditions which formed the basis of the contractual arrangement are no longer respected by one of the parties.” The Commentary goes on to say that “the breach is considered sufficiently serious when there are objective circumstances that would render it unreasonable to expect the employment relationship between the parties to continue, such as a serious breach of trust.”
This is a case-by-case determination, and the Commentary to the Regulations also sets forth the general principle that termination should “be an action of last resort” and “a party can only establish just cause to terminate an employment contract if it has previously warned the other party of its unacceptable conduct,” and that this prior warning applies “especially where a club attempts to terminate a contract with a player for alleged unauthorized absences from, or misbehaviour (sic) during, training sessions.” The Commentary offers an example of a player who is attempting to force their club to agree to a transfer to a new club who starts refusing to train or participating in matches; in those circumstances, the Commentary states that the club should still consider less stringent discipline, request the player to return to the club, and set a deadline for the return before termination. The Commentary cites one case, in particular, from the Court of Arbitration for Sport finding that just cause existed to terminate a player’s contract who was unjustifiably absent from training for more than three weeks despite warnings and messages from the club.
Per Laurel, Boupendza was absent from training for more than a week prior to August 4, a few days before the contract termination was announced. There were known absences before that time (and potentially unreported unexcused absences), so it is possible that the league determined there was a sufficient track record of absences and lighter discipline to justify termination at this point.
What about the fact that he has just been not very good, was one of the highest-paid players on the team, and was occupying an important Designated Player spot?
“Not playing well,” unless it is based on sanctionable misconduct, is not a reason to terminate the agreement. The Commentary to the FIFA regulations say that “poor (sporting) performance is not a just cause for a club to unilaterally terminate a contract[.]” The CBA also says that the MLSPA can appeal commissioner discipline for misconduct on the basis that the reasons are pretext for a termination that is really “because of MLS’s belief that the Player’s ‘value’ is not commensurate with his contractual compensation[.]”
This raises an interesting question, of course: Even if MLS was justified in terminating Boupendza’s contract, what if the actual motivating reason was getting him off the books before the end of the transfer window? It seems that, under the CBA, that would be grounds for a valid appeal. And the timing at least suggests that the FC (sorry, I mean MLS, which made this decision on its own) might have been motivated by the impending end of the transfer window and not some pressing need to get Boupendza out of the locker room.
What if the MLSPA appeals?
The MLSPA has the right to appeal the discipline to a Grievance Committee and potentially up to an Impartial Arbitrator. Under the CBA, the MLS and MLSPA have a standing arbitrator who may be replaced, at the request of either party, once a year. I could not find confirmation of who the arbitrator is currently, but in the past the league has used Shyam Das, an experienced arbitrator who was infamously fired by Major League Baseball after he case the deciding vote overturning Ryan Braun’s suspension for steroid use due to the mishandling of his sample.
The MLSPA has appealed such terminations in the past. For example, Portland Timbers terminated Andy Polo’s contract after it came out publicly that he had been arrested for domestic abuse. The team had known about the arrest for a year or more when it decided to terminate his contract. While domestic abuse seems like a clearcut reason to terminate a contract, you might not be so justified when you do not act on the abuse and only act when people find out about it. So the MLSPA filed a grievance and Polo got his contract paid out.
Based on what I’ve read, the termination clears Boupendza off of the FC’s roster and opens his DP spot, and any grievance or appeal moving forward would not affect that. It is possible that the termination would be found to be unjustified and Boupendza could be owed some money, but I believe that any money paid out to him would not be considered part of the FC’s salary budget so should not tie their hands with player acquisition moving forward.
The FIFA Regulations provide various categories of compensation that a player might be entitled to in the event of a termination without just cause, but I am simply not going to worry about them if they don’t count against the salary budget.
Would they win an appeal?
No idea, and I don’t know how anyone could speak confidently on it. Like, it might seem self-explanatory that if he stopped showing up for an extended period of time, then the FC is fully within its rights to be done with him, especially given the whole context.
But what if, say, he was given the green light to try to find a new team, and was either expressly excused or reasonably believed that he didn’t have to go to training in the meantime? This might be seen as a justifiable excuse for missing training. (For the record, I don’t have any reason to believe this is the case, but if MLS and the FC aren’t going to elaborate on the specifics then that’s permission to imagine any situation you want.)
The FC is going to fill that DP spot then, right?
Your guess is as good as mine. All indications throughout the window have been that the FC assumed that Boupendza would be off the books one way or the other this window and has been shopping for DPs. Weston McKennie was linked ahead of the window, and more recently some Mexican media has mentioned a potential move for Club America’s Richard Sanchez (although Tom Bogert has poured water on that one), but there has not been much concrete information from the FC side or in local media except for vague gestures toward the club’s “ambition.”
I don’t want this article to be outdated three days after publishing, so let’s just say they either will or won’t sign a DP.
What’s the TLDR?
Boupendza’s gone, off the books, and the FC has three days to fill his DP spot.
