The NWSL is once again heading to arbitration with the NWSL players association over free agency later this month. According to multiple league sources briefed on the dispute who were not yet authorized to speak publicly about the decision, the league office is taking a similar position as it did last summer when it went to arbitration over the language in the collective bargaining agreement about player contract options. The dispute could affect multiple players who have signed contracts following the ratification of the league’s collective bargaining agreement.
Notably, though, league sources said that the NWSL’s board of governors were informed of the decision to head to arbitration with the NWSLPA only after it was made by the NWSL front office led by commissioner Jessica Berman and chief legal officer Bill Ordower. League sources did not know how the votes would have broken down across the teams, but it remains unclear whether the NWSL required BOG approval to head to arbitration. In this particular case, there are larger questions about the approach to free agency and the financial costs of arbitration.
On Tuesday, when asked for a statement, the NWSLPA confirmed that arbitration is set to begin on Aug. 29, and the dispute affects 46 players over the final three years of the CBA term (2024-2026).
The NWSL provided a statement to The Athletic via a spokesperson on Tuesday, which reads, “We continue to work closely with the NWSLPA to resolve disagreements where possible and have had many instances where we have found solutions. That said, that won’t always be the outcome, particularly in a first-ever collective bargaining agreement between the parties, and that’s why labor agreements typically have neutral arbitrators to determine interpretation disputes. We look forward to the resolution of this open question in a respectful manner.”
NWSLPA executive director Meghann Burke added on Tuesday that a vote took place with the board of player representatives before the PA opted for arbitration. “I’m surprised that an issue of this magnitude, which impacts the future of the NWSL, was not similarly run by the owners, whose teams are directly affected by this dispute.”
Free agency is governed by section 13.5 of the CBA. For this season, players who are eligible to become free agency this time around must have a contract that expires at the end of 2023 and have accrued five or more service years in the league. A “service year” means any season a player is on an NWSL roster, including seasons prior to the CBA. A player only has to be on a team roster at any point during the season in order to be credited with a service year.
The NWSLPA argued last year — successfully — that any player with a standard player agreement (SPA) set to expire at the end of the calendar year should qualify as a free agent.
The league’s competition calendar, which is publicly available on the NWSL website, lists relevant dates for specific roster actions related to free agency: teams have until Sep. 21 to exercise options for upcoming free agents and players are allowed to begin negotiations the next day. Players who are free agents are allowed to sign with teams beginning Dec. 5.
The sticking point in the dispute is around a single sentence from section 13.6: “For any SPA entered into following the effective date of this Agreement with a Player who possesses free agency rights, option year(s) in such an SPA may only be exercised with the Player’s consent.”
The league believes that for some players, clubs still possess the right to unilaterally exercise a contract option — and this impacts some players who were undisputed free agents last summer who signed new contracts, as well as some players who have yet to reach the number of service years required for free agency but will before the end of the CBA’s term in 2026.
Last time around, the arbitration process was announced on August 25 and resolved by October 17.
The NWSL’s front office opting to undergo another fight on this front despite last summer’s result and without a vote from the board of governors will raise questions — not just about if opting for arbitration again is the right decision, but about the balance of power between the NWSL commissioner and the board of governors, too.
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