Part I here. Part II here. Part III here. Sort of where this all started. Among the reasons that this document was disclosed was that Real Salt Lake decided to […]
Sort of where this all started. Among the reasons that this document was disclosed was that Real Salt Lake decided to attempt to try to send the Mike Petke lawsuit to arbitration, where Commissioner Don Garber would be the arbitrator. The justification for this maneuver was outlined in the lawsuit: The MLS Constitution. This section covers the powers of the Commissioner generally, and the leagues purported ability to send disputes to arbitration specifically (MLS docs in italics), as we’ll as how the league handles allegations of misconduct.
Section 2. Commissioner’s Authority
As permitted by Article 6.1.4 of the MLS LLC Agreement, MLS employs a Commissioner to serve as the Chief Executive Officer of MLS and the principal public spokesperson for the League. The Commissioner reports to the Board of Governors and is charged with managing the overall business of MLS, protecting the integrity of MLS and preserving public confidence in the League.
A. General Authority of the Commissioner. The Commissioner has the responsibility for the general supervision and direction of all business and affairs of MLS and all such other authority as may be necessary or appropriate to fulfill his responsibilities. The Commissioner is responsible for the coordination and general supervision of policy matters.
B. Authority of the Commissioner. The Commissioner’s authority and duties include, but are not limited to, the authority specified in the League Rules, and any others authority and duties that are granted or assigned to the Commissioner by the Board of Governors.
1. Policy and Procedures. The Commissioner may establish League Rules unless any such League Rule directly contradicts an express provision of any Governing Document. All decisions and enforcement by the Commissioners are final, binding, conclusive and unappealable, unless a decision has a material adverse financial impact on Team value, in which case, the decision will be subject to reversal by the Board of Governors by a Super Majority Vote under the Governing Documents.
2. Appointment of Staff. The Commissioner may, subject to the approved budget, hire a League Office staff. The Commissioner will determine the duties, compensation, and term of employment of the League Office staff.
3. Financial Matters. The Commissioner will present the Board of Governors with an annual budget for approval. Subject to the approved budget, the Commissioner may incur expenses on behalf of MLS in order to conduct the business and affairs of MLS, including, but not limited to, the leasing of office space and hiring of employees, outside legal counsel and other professional assistance. The Commissioner may also establish and maintain bank accounts and credit facilities on behalf of MLS and approve payment of all proper charges.
4. Contracting Authority. The Commissioner may arrange for and negotiate on behalf of MLS all ordinary business, including, without limitation, contracts with Players, media partners, sponsors, licensees, stadia, consultants and other soccer leagues, teams and associations.
5. Scheduling and Approvals. The Commissioner has the right to set the date and time of all MLS Games, including playoff games, and approve all games involving one or more Teams consistent with the obligations of MLS and SUM under their media contracts, the availability of stadium facilities and, in the Commissioner’s judgment, the best interests of all Teams involved.
6. Officials. The Commissioner is responsible for selecting and appointing the game officials and all other League officials, other than officials required to be appointed by the United States Soccer Federation.
C. Disciplinary Powers.
1. Subject only to Section 3 below, the Commissioner has full and complete authority to discipline any Member (including all Team Operators), Owner, officer, director, manager, Governor, Alternate Governor, Team president, general manager, coach or other employee of any Team Operator or any employee of MLS, in the manner he determines to be in the best interests of the League. The Commissioner has full and complete authority to discipline any Player, subject only to the terms and conditions of the Collective Bargaining Agreement.
2. In all cases involving the integrity of the game of soccer or public confidence in the League, the Commissioner’s determinations under this Section 2 are final and binding and not subject to any appeal or other review.
The following section–dispute resolution–is the subject of the ongoing litigation between Don Garber, MLS, Real Salt Lake and Mike Petke, who is suing all of those entities. There is a hearing scheduled for November 15 to determine whether Petke’s lawsuit will be dismissed and sent to arbitration, where Don Garber would be the arbitrator.
D. Dispute Resolution. Subject the Collective Bargaining Agreement, the Commissioner has full and (subject to Section 2.E) exclusive jurisdiction and authority to arbitrate and resolve:
1. any dispute that involves two or more Members or two or more Owners (regardless of whether such Owners are Owners of the same Member or different Members);
2. any dispute (i) between any Player and any Member or (ii) between any Member and any employee of such Member if the dispute relates to such Member’s MLS business;
3. any dispute between or among Players, other employees of MLS, or coaches or other employees of any Member (unless the dispute is unrelated to and does not affect MLS); and
4. any dispute involving any Member, any Player or any other employee of MLS or any Team Operator that in the Commissioner’s opinion is detrimental to the reputation and public image of MLS, any Team or the game of soccer or involves or affects League policy.
E. Right to Designate or Decline. Notwithstanding the foregoing, the Commissioner may, in his sole discretion, (i) designate any individual of his choosing to exercise his authority under Section 2.C, and/or conduct any arbitration and resolve any dispute within his authority under Section 2.D, and all references in Sections 2.C and 2.D to the Commissioner shall include any individual so designated in writing by the Commissioner, and (ii) decline to arbitrate any dispute listed in Section 2.D.1-4 that the Commissioner determines should not be arbitrated by the Commissioner for any reason.
Section 3. Misconduct
A. Player Misconduct. Subject to the Collective Bargaining Agreement, if, in the opinion of the Commissioner, any Player (i) commits an act at or during any MLS Game that is detrimental to the reputation and public image of MLS, any Team or the game of soccer, (ii) engages in off- field misconduct that is detrimental to the reputation and public image of MLS, any Team or the game of soccer, (iii) engages in off-field misconduct that provides just cause for discipline (subject to the MLS grievance-arbitration policy of the CBA) or (iv) violates his Standard Player Agreement or his obligations under the Collective Bargaining Agreement, the Commissioner, or the MLS Disciplinary Committee (as defined in the Collective Bargaining Agreement) in the case of clause (i) above, may impose a fine upon such Player, suspend such Player (for a definite or indefinite period) from participating in MLS Games (or may order both such a fine and a suspension), or terminate such Player’s Standard Player Agreement.
B. Misconduct of Persons Other Than Players.
1. Violations; Discipline. If, in the opinion of the Commissioner, any Member (including any Team Operator) or any Owner, officer, director, manager, coach or other employee, representative, agent or third party contractor of any Member (including any Team Operator) violates any provision of a League Rule or makes any statement or engages in any conduct that is detrimental to the League or soccer in general, unless the League Rules establish a specific penalty for such violation, the Commissioner has full and complete authority to determine the penalty. Examples of penalties the Commissioner may impose include, without limitation, (i) a fine upon such Person of up to $1,000,000 (or greater amount as may be expressly provided by a League Rule), (ii) the suspension such Person for a definite or indefinite period from involvement in, association with and participation in the League and any League or Team matter, including the operation of the Team; provided that any indefinite suspension or any suspension of at least 17 games or 6 months shall be subject to review by the Board of Governors, which may rescind (or shorten the length of) such suspension by a Super Majority Vote, (iii) loss of draft picks, allocations (including their monetary value), discovery player slots or designated player slots, (iv) the deduction of points in the League standings or (v) disqualification from a tournament or competition. Furthermore, each Member (including each Team Operator) must take appropriate action as directed by the Commissioner in order to address misconduct.
2. Evidentiary Standard. In the absence of a specific provision in the applicable League Rule that provides for a different evidentiary standard, in determining whether any Person has violated any provision of a League Rule, the Commissioner shall determine, in his sole discretion, whether it is more likely than not that such a violation occurred.
3. Examples of Misconduct. Misconduct for which the Commissioner may impose discipline include, without limitation, any violation of a criminal law, domestic violence, illegal or excessive gambling and similar conduct. For clarity, the foregoing list is non-exclusive, the Commissioner has sole discretion to identify and discipline any type of conduct as he deems appropriate, and nothing in this Section 3 shall limit MLS’s right to terminate the Operating Agreement or an Owner’s Ownership Interest in any Team Operator in accordance with the terms of the Operating Agreement.
4. Procedure. Prior to the Commissioner, directly and in his capacity as Commissioner (and not, for the avoidance of doubt, through or on behalf of a designee, such as the MLS Disciplinary Committee, which is generally responsible for discipline for on-field misconduct), imposing any discipline under this Section 3, he shall provide the applicable Person an opportunity to respond in writing (or in such other manner as the Commissioner in his sole discretion determines appropriate) to address the allegation. Any Person subject to discipline that is imposed directly by the Commissioner in his capacity as Commissioner (and not, for the avoidance of doubt, through or on behalf of a designee) shall have the right to petition the Commissioner for discretionary review of such discipline. Each such petition shall be filed with the League Office promptly following the delivery of notice of such discipline to such Person. Such petition shall state in reasonable detail the basis for the appeal. The Commissioner shall have the sole discretion to determine whether the appeal should proceed to a hearing, or if a decision based upon the facts as presented is appropriate, which decision shall be final and binding. If the Commissioner determines that the appeal should proceed to a hearing, the Commissioner shall designate procedures and a date, time and place for such hearing. On the appeal, the Commissioner may affirm, reverse or modify the earlier discipline in his sole discretion, and the Commissioner’s determination shall be final, binding and non-appealable.
C. Right to Designate. Notwithstanding the foregoing, the Commissioner may, in his sole discretion, designate any individual of his choosing to exercise his authority under Sections 3.A and 3.B, and all references in this Section 3 to the Commissioner shall include any individual so designated in writing by the Commissioner.
D. Duty to Report Personal Conduct Violations. Each Team Operator and Team-Related Party shall be obligated to report, in reasonable detail, any off-field personal conduct known or suspected by such Team Operator or Team-Related Party, as applicable, that may constitute a violation of the League Rules, regardless of how such information came to be known or suspected. Team Operators are responsible for educating their Team-Related Parties with respect to this reporting obligation. League personnel shall have a similar obligation to report such known or suspected prohibited off-field personal conduct. The failure promptly to disclose any such information required by this Section 3.D shall be grounds for disciplinary action as determined by the Commissioner in his sole discretion.
E. League Investigations. The Commissioner may, on his own initiative or based upon reports or complaints, commence an investigation into whether any violation of the League Rules has occurred. The timing and scope of any such investigation shall be based upon the particular circumstances of the matter and determined by the Commissioner in his sole discretion, and there shall be no limitation of time barring any such investigation by the Commissioner. The Commissioner may conduct such investigation directly, or he may designate one or more representatives to conduct any such investigation on his behalf, including internal League staff members and/or outside persons, as determined by the Commissioner in his sole discretion.
In connection with any such investigation, the League may rely on information obtained by law enforcement agencies, court records, the Commissioner’s own direct or indirect investigations, or any other source deemed credible by the Commissioner. Additionally, the League investigator(s), including the Commissioner, may consult with expert and independent advisors in conducting investigations and evaluating potential violations.
The Commissioner and/or his representatives shall have the authority to require any Team, Team- Related Party and, subject to the provisions of the Collective Bargaining Agreement, any Player or Player-Related Party, to meet with and respond to all inquiries from the Commissioner and/or his designee(s), to provide any other assistance requested by the Commissioner and/or his designee(s), and/or to produce any relevant information, including documents (in any form), digital information and data, communications (including without limitation telephone, text and electronic mail records) and physical evidence. Without limiting the generality of the foregoing, relevant individuals may be required to produce insurance records, tax returns or other relevant tax materials or accounting information disclosing (i) the income or revenue information of the relevant Player, Player-Related Party, Team or Team-Related Party and/or (ii) any information of the Team or any Team-Related Party relevant to the investigation. The League will make reasonable efforts to safeguard the information it receives in connection with its investigations as confidential, and such information will not be released to the general public or the media.
F. Relationship to Criminal Investigations. With respect to matters that both the League and law enforcement are investigating, the League will work to cooperate with and to avoid any conflict or interference with the law enforcement proceeding. To that end, the League may, in its sole discretion, delay its own investigation until the conclusion of a parallel law enforcement investigation.
The League expressly reserves the right to indefinitely suspend Players or non-Players with or without pay (as determined in the Commissioner’s discretion based on the relevant circumstances) for alleged conduct that is potentially detrimental to the League or the game of soccer, pending resolution of an external law enforcement investigation and/or a final disciplinary decision by the League. Any such suspension of a Player shall be subject to the Commissioner appeals process set forth in Section 20.2(iv) of the Collective Bargaining Agreement.
In cases where there has been a finding of criminal liability, such finding may not be challenged in a League disciplinary hearing (if any). Additionally, in cases where the applicable conduct did not result in a criminal conviction, an individual may still be subject to League discipline if the Commissioner (or his designee(s)) determines that it is more likely than not that such individual violated any League Rule. The League reserves the right to compel an individual to cooperate with its investigation even if such individual is the target of a pending law enforcement investigation or proceeding. Under such circumstances, the League may proceed with an investigation despite the pending criminal proceeding. The League may also impose discipline for the underlying conduct being investigated, notwithstanding the applicable individual’s refusal to cooperate with the League’s investigation. In such a case, the League may draw a negative inference with respect to liability for the underlying conduct based on any such failure to cooperate, but such failure to shall not be an independent basis for discipline.
G. Duty to Cooperate. Each Team and Team-Related Party shall have an affirmative obligation to cooperate with any League investigation into any violation of the League Rules, including without limitation with respect to salary budget circumvention, tampering and personal conduct. Additionally, each Team and Team-Related Party shall have an affirmative obligation to ensure that any person acting on his, her or its behalf shall cooperate with any such investigation. Such cooperation shall include prompt and substantive compliance with any requests by the Commissioner and/or his designee(s) in connection with any investigation.
Each Team and Team-Related Party shall be subject to independent sanctions as determined by the Commissioner in his sole discretion for failure to cooperate with League investigations as required above. The League will not tolerate retaliation of any kind against individuals cooperating in good faith with a League investigation. Additionally, any person who directly or indirectly interferes with a League investigation in any manner, including by retaliating or threatening to retaliate against an individual, shall be subject to such sanctions as determined by the Commissioner in his sole discretion, subject to any limits imposed by the Collective Bargaining Agreement.
Next: Board of Governors Committees and Transfer of Membership.