Employment & Labor Insider

Last week, a reported 97 percent of players in the United Soccer League Super League voted to unionize and be represented by the USL Players Association. The unionization comes in the middle of the league’s first season and about two months after the National Women’s Soccer League and the NWSL Players Association reached a groundbreaking collective bargaining agreement that seemed to give the NWSL a competitive advantage over the Super League.

Super League players can be expected to push for a similar agreement, which might eventually push the leagues to combine.

The NWSL and the Super League

The NWSL has been in existence since 2012 and has experienced considerable growth in recent years across various metrics. The league has expanded to 14 teams, with more expansion on the way. Nevertheless, the USL, which operates two levels of men’s professional soccer beneath – but unaffiliated with – Major League Soccer, thought that the market for professional women’s soccer in the United States was still underserved.

Consequently, in 2021, the USL announced the formation of the Super League, which began play this past August with eight clubs. Before the league started play, U.S. Soccer awarded the Super League Division 1 status, the highest level of sanctioning by the sports’ governing body. That status was based on the size of the league’s markets and stadiums.

The NWSL is also a Division 1 league, inviting comparisons between the leagues. The leagues already play in some of the same markets (New York City area, Washington, D.C., North Carolina, Kentucky), a fact that will become more complicated as the leagues expand. The leagues’ seasons overlap as well, with the NWSL playing from March through November, and the Super League playing from August through May.

History is unkind to the leagues’ prospects as independent businesses. In every prior situation where a new sports league challenged an established rival, the leagues eventually merged or the challenger folded. This dates back at least to the 1903 merger between the National League (founded in 1876) and the American League (1901) to form today’s Major League Baseball. The National Football League, the National Basketball Association, and the National Hockey League have also warded off rivals by incorporating some of their teams.

The NWSL’s response to the Super League launch, however, is a historical aberration. Many of the prior competitions between leagues resulted in antitrust litigation. In contrast, the NWSL congratulated the USL and surmised that the Super League would contribute to the continued growth of women’s soccer.

NWSL Players Association’s early mover advantage

NWSL players formed their union in 2017, which was formally recognized by the NWSL in 2018. In 2022, the league and the union agreed to their first ever collective bargaining agreement, principally concerned with nuts-and-bolts employer-employee issues, such as setting a minimum salary ($35,000), and establishing a 401(k), health insurance, and other benefits, including paid pregnancy and mental health leave.

But then, this past August, without any forewarning, the league and union agreed to a new collective bargaining agreement unprecedented in American sports. Specifically, the agreement eliminated the player draft, provided all players with unrestricted free agency at the expiration of their contracts, and provided players with a veto over trades. The agreement also provided the players with an explicit share of league broadcast revenues, a risky model first negotiated for by MLS players.

The parties explained the agreement as one that aligned with global standards. Left unsaid was how the player-friendly agreement might provide the NWSL with an advantage over the Super League.

Super League negotiations

The USL has voluntarily recognized the USL Players Association as the union representing Super League players. Pursuant to the National Labor Relations Act, the league is now bound to negotiate with the union in good faith over the players’ wages, hours, and other terms and conditions of employment.

The Players Association has recent useful experience. It negotiated with the USL for the first ever collective bargaining agreements for the USL Championship (a Division 2 league) and League One (a Division 3 league) in 2021 and 2022, respectively. Those agreements provided some stability and also basic levels of income and benefits to the players. An agreement with the Super League agreement would be likely to provide the same types of core employment protections and benefits.

What will be more interesting is the degree to which the union and league might copy the provisions of the NWSL agreement, including the terms that provide players with an open labor market. It seems the Super League will have no choice but to do the same. Seeking to implement rules that significantly restrain player pay or movement is likely to drive the league’s best players to the NWSL at their first opportunity.

Merger deferred or expedited?

The effect of the players’ unionization on the Super League’s potential merger with the NWSL is uncertain. If the Super League agrees to the same player-friendly provisions as the NWSL, it will mitigate the NWSL’s competitive advantage. However, if both leagues permit widespread free agency, the leagues may end up in costly and unsustainable bidding wars like those that precipitated the mergers in other American sports leagues.

The unions will resist consolidation. Mergers historically result in the elimination of at least some teams, which means fewer jobs. Moreover, a merger would eliminate competition between the leagues for the players’ services, which is likely to depress player salaries in at least the short term. For similar reasons, the U.S. Department of Justice has been investigating the possible merger between the PGA TOUR and LIV Golf on antitrust grounds, among others.

Operating a professional soccer team in the United States – men’s and women’s – is a money-losing proposition, buffeted only by increased team valuations in the long run. If players assert their rights, that is likely to make the businesses even more costly.