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NWSL's landmark CBA has wins, but lingering questions for the future

Written by 
Published in Soccer
Tuesday, 21 June 2022 13:27

At a training session last month in Kansas City for an away game against the KC Current, Racing Louisville goalkeeper Jordyn Bloomer was injured when one of the goals she was standing in front of reportedly fell over and hit her in the leg.

Kim Björkegren, Racing Louisville's frustrated head coach, complained that the goal was not up to standard and the quality of the field was below that expected for a professional team.

"These kinds of things can't be a part of a professional league, to be honest," Björkegren said.

As Racing Louisville forward Nadia Nadim pointed out, however, this should not have occurred under the collective bargaining agreement recently signed between the National Women's Soccer League and the NWSL Players Association. Article 16.8 mandates that the host team provide the visitors "an appropriate facility for training the day prior to an away game." It's not clear exactly what makes a facility "appropriate," but surely the players envisioned goals that are adequately staked down and won't injure them, even if that wasn't specifically mentioned in the CBA.

Although this incident was a freak occurrence -- the Current said in a statement that the field is the same one they have provided to visitors all season -- it serves as a reminder that the new NWSL CBA is not a cure-all for NWSL's ills.

The league and the players have rightly called it a landmark deal, and it was universally lauded for securing players the kind of economic stability, autonomy and work conditions that professional athletes should expect -- but it still requires vigilance to enforce it and experience to learn what the players might want to do differently the next time.

By drilling down on some of the provisions that were included, as well as those that were not, we can see how far the players have come and some of the looming issues that future CBAs will need to address.

What wins did the players get?

Minimum salaries

Arguably, the most critical accomplishment for the NWSL Players Association -- which had been promoting a "No More Side Hustles" campaign during the six months prior to agreeing to a new CBA, a plea to highlight the plight of players who couldn't survive on their pro salaries alone -- was the simple act of securing a substantial increase at the bottom of the salary scale. Under the NWSL CBA, minimum pay increased by approximately 60% from $22,000 in 2021 to $35,000 in 2022.

This is a substantially larger initial percentage increase than the 12% raise MLS players received in their first CBA in 2004. Plus, NWSL players will now receive competition bonuses and 401(k) contributions. Although $35,000 plus bonuses and retirement contributions is still well below the current MLS minimum salaries of $84,000 for senior players and $65,500 for reserves, it's a big step in establishing a measure of economic independence for the players.

Guaranteed contracts and severance payments

A critical aspect of economic stability is having guaranteed contracts, or some form of severance payments in the event a player is released midseason. Under the NWSL CBA, players are permitted to negotiate guaranteed contracts, as is the case in Major League Baseball and the WNBA, but they are not automatically guaranteed for players of a certain age and years of service like in MLS.

That makes severance payments more important, and the NWSLPA negotiated for four weeks of severance pay, team housing or housing stipend and insurance premiums. Obviously, expanding access to fully guaranteed contracts would be better for players, but offering a month of transition payments and benefits is a good second-best alternative.

Free agency

Perhaps the most notable accomplishment for the players was securing free agency. Starting in 2023, players with six years of service in the league (dropping to five years in 2024) can move to any team within the league at the conclusion of their contract term. In 2024, players with at least three years of NWSL service can move in restricted free agency at the end of their contract, which gives their existing teams the opportunity to match any offers.

Free agency has always been a difficult concept for single-entity leagues like NWSL and MLS. In single-entity, the league, not a team, is the player's employer, and allowing teams to bid against each other for players in free agency undercuts the cost containment benefit of operating as a single-entity employer.

MLS players didn't obtain free agency until its third CBA in 2015, and at the time, it was only for players age 28 and above with eight years of service (which has subsequently dropped to 24 years of age and five years of service in the 2020 CBA). Not only did NWSL players obtain free agency in their first CBA, but unlike MLS, raises in free agency aren't limited (other than potentially by the salary cap discussed below).

Health and welfare

Although most professional sports leagues offer benefits for their players' health and welfare, the NWSL players clearly prioritized this element and obtained some benefits that go beyond what more established leagues provide.

For example, while most leagues provide mental health benefits, NWSL agreed to provide players up to six months' paid leave of absence (net of workers compensation or disability benefits) if recommended by a licensed psychologist or psychiatrist. Players also negotiated for a one-week in-season break between June 1 and Sept. 1, which is like an informal mental and physical health break. Even the National Football League, which has one of the most comprehensive CBAs, only provides players with a break of four consecutive days during a team's bye week.

What lingering issues will be concerns for future CBAs?

Salary compression

The NWSL CBA didn't ignore players who were already being paid more than the minimum in 2021, but their increases are smaller than that provided for minimum salary players. This means the gap between player salaries will narrow, as the comparison table demonstrates, which starts with the minimum salary and goes up from there.

This salary compression will increase in future years because while minimum salaries will go up by 4% annually for the duration of the deal through 2026, other salaries will go up by only 2.5% and only for the term of their current contracts. Veteran players may become unhappy if the gap between their salaries and the league minimum shrinks.

Salary cap/team salary budgets

The CBA's management rights section expressly reserves to NWSL the right to make decisions regarding player and team salary budgets. The league must notify the NWSLPA of "the amount of the annual salary cap, and any salary cap regulations and/or any rules affecting allocation money," but the amount of the cap is left to the discretion of the league. This is uncommon.

CBAs in American professional sports leagues subject to a salary cap generally include a detailed discussion of that cap.

Some leagues, such as the WNBA, MLS and the United Soccer League, which use a set dollar amount, list the salary cap number each year over the term of the agreement, usually by starting with a set amount and providing for annual percentage increases. Others, such as the NFL, NBA and NHL, which calculate their cap as a formula based upon revenues, have reams of pages describing how the formula works, what revenue will be included, and how those numbers will be audited. Even Major League Baseball, which does not have a salary cap, discusses its competitive balance tax in its CBA, which applies to teams that spend over a certain threshold.

There are at least two reasons that salary caps (plus a minimum spending requirement) are usually negotiated in the CBA. For the players, it prevents leagues from artificially restraining salary growth and pocketing the profits. For the league, it ensures that it is covered by an exemption under federal labor law for what otherwise could be construed as an agreement between the league and its teams to restrain wages in violation of antitrust laws.

Perhaps, based on the final language of the CBA, neither the NWSL nor the players are particularly concerned about those issues. The players can take comfort in the fact that even without a CBA and without NWSL generating profits, the salary cap has grown modestly every year since the league's inception. Moreover, the players negotiated some protection for themselves in the form of a requirement under the CBA that the league will pay 10% of media and broadcast revenues toward player compensation starting in the third year of the agreement if the league becomes profitable.

Similarly, since the league has already been unilaterally setting salary budgets for years and it may be planning to continue annual increases in line with its previous practice and those agreed to for the minimum salary, it may not be concerned about an antitrust lawsuit. Moreover, although a negotiated salary budget or an express waiver of the right to negotiation by the players might be safer, the league might be comfortable that it will still qualify for the antitrust exemption. A 2019 ruling issued by the National Labor Relations Board relaxed the standard for management to take unilateral action and still comply with federal labor law, although that new standard is currently being challenged.

Nevertheless, as the league grows and discretionary funds available for player compensation increase, it seems likely that the players will want to at least set a floor for salary budgets, rather than leaving it entirely up to the league, and the league may prefer the legal certainty of a negotiated number. Not only will this enable the players to maximize their value in free agency and help relieve the salary compression issue, but it may help the NWSL mediate between team ownership groups with differing ambitions as the league competes with other countries for players.

For now, however, the players in the NWSL will focus on enforcing the CBA they do have, and determining whether all the provisions in it play out as expected.

Steven Bank is a professor of business law at UCLA and an avid soccer fan who teaches the course "Law, Lawyering and the Beautiful Game."

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