The fine lines: Labour law, competitive balance, Canadians and MLS

Kyle Porter: Canadian player, U.S. team.

Just a little over a month ago, The 11 ran the first two parts of a series exploring if, one day, Canadian players could ever be treated as domestic players on the U.S-based MLS teams.

We have looked at the issue from the perspective of Canadian immigration (CLICK HERE) and U.S. immigration (CLICK HERE). Now, in the third part, we ask if it would pass the labour-law sniff test and, if not, why does USL-Pro, the third division of American soccer — allow Canadians to be treated as domestics on its teams’ rosters?

The whole series was spawned after MLS Commissioner Don Garber told TSN’s Jason DeVos during a March 2 First Kick broadcast that MLS would run into labour-law issues if it changed its rules and allowed the 16 U.S.-based teams to recognize Canadians players as “domestic” workers.

The reason the third part has taken so long to complete? I talked to several major law schools in the U.S. and labour-law specialists. I made contact with MLS. But what I underestimated was that, when it came to U.S. labour law, how complex the question was. Over and over, U.S. legal experts told me that the notion of Canadians being treated as domestics on American team rosters would have them venture into a legal grey area. And that meant they didn’t want to go on the record, because there really was no true legal test for the question. In a way, I felt like I had asked Deep Thought the answer to life, the universe and everything, and he replied, “tricky.”

So, based on many of these background discussions, I will try and take the reader through what is a very complex topic.

Earlier this year, MLS announced a partnership with USL-Pro, recognized as the third division in the U.S. In that deal, MLS teams will see their reserve sides play USL-Pro teams. MLS clubs have the opportunity to affiliate with USL-Pro sides.

But here’s the irony. While Canadian players are considered “internationals” on the rosters of U.S. MLS teams, they are considered “domestics” on USL rosters. From USL spokesperson Nicholas Murray:

“As long as they are legal workers in the United States, under a visa or green card, then teams can sign them. While they would be considered foreign to the government, they would be considered domestic for our purposes.”

USL-Pro roster rules state that no more than seven players can be internationals. All other players must be domestics — and that means American OR Canadian. So, when Ben Fisk plays for the Charleston Battery or Philippe Davies makes an appearance for the Richmond Kickers, they are seen as domestic players.

Under MLS rules, the three Canadian teams can count American or Canadian players as domestics, but American teams can ONLY count U.S. players or green-card holders as domestics.

For those among the Canadian supporters who see the distinction in MLS rules as a double standard, comes the obvious question: If USL can do it (and USL-Pro has no Canadian franchises at the moment, and isn’t even sanctioned by the Canadian Soccer Association) why can’t MLS do it?

After the second article in the series, which showed why changing the domestic rule would be OK under U.S. immigration laws, I got plenty of emails and comments that the laws in question weren’t immigration, rules but labour laws. And, in his answer to DeVos on March 2, Garber specifically mentioned the issue of labour discrimination.

THE EEOC
So, The 11 contacted the U.S. Equal Employment Opportunity Commission, the U.S. agency that ensures a fair labour market in America. When the rulebook was presented to the EEOC, its answer was simple: An MLS rulebook and how it reflects on labour is “not a topic we cover.” And, then we were told that the Department of Immigration and Homeland Security would be the ones to discuss whether a league’s “domestic” rule was appropriate or not.

Basically, it’s not the EEOC’s department. Which is interesting, because there has been so much discussion about labour law and National Origin law and how that would affect the MLS policy to not recognize Canadians as domestics.

No one has sued USL for recognizing Canadians as domestics. And, the EEOC doesn’t see a league rulebook as being under the auspices of labour-equality discussion.

This puts us back in the wonderful world of legal “grey area.” Let’s look at the law. The U.S. has National Origin laws in place, which forbid employers “to use an employment policy or practice that applies to everyone, regardless of national origin, if it has a negative impact on people of a certain national origin and is not job-related or necessary to the operation of the business.” In a nutshell, the law states that an employer can’t give preferential treatment for one “national origin” over the other unless it was vital to the business.

But USL doesn’t prefer Canadian talent. It gives the teams the option of hiring Canadians, who would be classified as domestics in the rulebook. No one is requiring the teams to hire Canadians, they just have an option to do so. This is a major distinction. If the rule allows general managers an option to hire a Canadian — who would still be seen as a foreigner under American law, just a “domestic” for league purposes — would that be discriminatory?

This USL scenario is what proponents of an “equality” domestic rule would like to see across MLS. Right now, in Canada, the teams have the OPTION to hire Americans and have them count as domestics. They can take up more domestic roster spots with Canadians if they choose, and need to have a minimum of three per roster. But there are no Canadian options for American-team GMs. If the rule was changed, American teams would have the OPTION (not a requirement, which, legally, are two totally different things) to bring in Canadians and count them as domestics on the roster. Using the USL example, it might not be considered prejudicial if they did so, because there is NOTHING in the rule that forces them to hire players from north of the border.

Why is “might” in italics in the preceding paragraph? Well, because this is law, and there isn’t really a precedent-setting decision when it comes to sports teams and national origin. So, there’s no guarantee that some jilted player or angry agent wouldn’t sue. An aggrieved Mexican player could sue, let’s say, the Philadelphia Union because he got cut while a Canadian got a job. But, as the U.S. legal experts told me, this would not be an easy case. It’s not clear, it’s not obvious, and no one would pin him or herself to a likely decision.

Why is it unclear? Because sports isn’t like hiring engineers or computer programmers. In what we’d consider to be “average” jobs, there are parameters of experience and skills that can be compared, apples to apples.

SPORT IS, BY NATURE, PREJUDICIAL
Taking a team or a league to court would be an entirely different animal. A lawyer once told me “if it’s not at least $250,000, it’s not worth suing.” In the case of pro soccer, the costs of a long, drawn-out court case would dwarf the salary — and possible judge’s award — of an average MLS fringe player or USL player. And that it makes it unlikely such a case would ever be heard.

But, if it did, sports is a business where apples aren’t compared to apples. We ACCEPT that sport is prejudicial. Based strictly on a resume (like how we’d compare computer programmers), a 30-year-old Brazilian striker with 100 career goals who was cut in favour of a 21-year-old Canadian would have a legitimate court case. But, in sport, we accept that there are intangibles. The 21-year-old has younger legs. He’s quicker. He has potential. He’s left-footed.

How does a judge rule on prejudice by national origin when it comes to a business that, by nature, is prejudicial?

American readers will wonder why roster equality this is so important to Canadian Soccer. If the Canadian MLS teams are given a minimum of three domestic slots to fill with Canadian talent, why the push to question the rules as they apply to U.S. teams?

The issue is the labour market for developing Canadians is extremely limited. In the case of American NCAA prospects, we see player after player latch onto team after team because the U.S. teams (and the Canadian ones, too), can all use a version of the everyman that system produces. Hard-working, full of grit, and always a great chance to find an MLS home, year after year.

When a young Canadian is cut, it’s awfully hard for him to re-enter the league. Heck, he doesn’t even have to be young. With only three teams who can claim that player as a domestic, the market is tough. U.S. teams would find it hard to give international slots to players like a Matt Stinson, who Toronto FC released earlier this season. He’s an NCAA product, has national-team experience; had Stinson been an American he’d likely get a look somewhere, as there is no roster risk for a U.S. team to take him on. But his options are limited to two other Canadian MLS teams, or to take his talents outside of the league. And, in that time, his development is stunted. Without naming names, I’m sure all regular followers of MLS can think of at least 10 American players who have bounced from team to team, employed every season, just because they are useful.

Now, to be fair to MLS, the league hasn’t reiterated the labour-law position since March 2. And, when MLS usually talks about the domestic rule, it doesn’t use law as part of its reasoning. That’s what made Garber’s position so surprising. Before the Garber interview and after the Garber interview, the MLS line has been simple: That if the American teams were allowed to treat Canadians as domestics, they could stock up on what is still a limited supply of players.

The MLS position: That there aren’t yet enough Canadian players good enough to allow the league to level the playing field. The league’s worry is that allowing Canadians to be domestics at all 19 clubs would upset the competitive balance.

Let’s just imagine a Canadian player coming back from Europe. There is a demand for him in MLS. The fact he’s an international for 16 of the 19 teams INCREASES the chances that he’ll be claimed by Montreal, TFC or Vancouver. The fact he takes up an international slot for 16 teams acts as a deterrent for those clubs and puts the three Canadian teams, at least figuratively, at the front of the line.

Because the Canadian talent pool is limited, the fear is that if 19 teams can equally bid for that Canadian player, the American clubs could prevent the teams from north of the border from fulfilling their mandates. Real Salt Lake or Portland or D.C. United could strategically sign the Canadians, knowing the Canadian teams want them, and could ask TFC, Vancouver or Montreal for kings’ ransoms if they wanted to repatriate these players.

And, really, had Garber stuck to that argument on March 2, we wouldn’t be here.

Down the road, as Canadian academies start developing talent, MLS will open the rulebook and look at the domestic rule again. As more good Canadian players become available, the labour pressure eases.