During halftime of Saturday's MLS game between the Vancouver Whitecaps and Toronto FC, I asked MLS Commissioner Don Garber what the league's legal position was with respect to signing Canadian players to American MLS teams. At present, Americans are considered domestic players on both American and Canadian teams, while Canadians are not considered domestic players on American teams.
This is what the Commissioner had to say in response:
"...in the United States, if you are considered an international from a labour perspective, you can't discriminate between one nationality and another. So we would have a challenge if a Colombian player believed that they were treated differently than a Canadian player."
In 2013, a total of 152 international slots (used to sign non-domestic players) are divided among the 19 MLS clubs. Each club begins with eight international slots, which are tradable. There is no limit on the number of international slots on each club's roster. The remaining roster slots must belong to domestic players. For clubs based in the United States, a domestic player is a U.S. citizen, a permanent resident (green card holder) or the holder of other special status (i.e., refugee or asylum status).
The three Canadian MLS clubs may fill their domestic slots with either Canadian or American domestic players. Players with the legal right to work in Canada are considered Canadian domestic players (i.e., Canadian citizen, permanent resident, part of a protected class). Canadian MLS clubs must have a minimum of three Canadian domestic players on their roster.
Many passionate Canadian soccer supporters feel that league should be quid pro quo when it comes to Canadian players on American teams – that Canadians should be considered domestic players in both Canada and the United States, just like their American counterparts.
Those supporters argue that the other major sports in North America do not have the same restrictions with respect to Canadian players competing for American teams. It is an emotional argument, and one that will continue to rage on here in Canada. However, with regards to MLS, there are two important factors to consider.
1. MLS was created by Americans, for Americans
As Commissioner Garber stated, the league would open itself up to legal action if it treated one non-American nationality (Canadian) differently than the other non-American nationalities. If a lawsuit were brought forward, and the law sided with the foreign player, the floodgates to MLS could be opened to talented foreigners – who would very likely displace the American players that MLS was created to develop.
Where other major sports in North America have no worries about the threat of an influx of talented foreign players – and hence no restrictions on nationality - Major League Soccer does. If there were no nationality restrictions in place, there is a good chance that better players from abroad would replace many American players currently in the league.
In some respects, the nationality rules in MLS are in place to protect the owners from themselves. Professional sports being what they are, owners want to win. If the owners had free access to foreign players and weren't forced to employ American players, MLS would be flooded with talent from around the world, essentially driving out the American player. That goes against the very reason the league was established – the development of American players - and is one of the primary reasons why MLS does not want to go down this road.
It would, however, be very interesting to see what would happen if a foreign player – Canadian or otherwise – challenged the current nationality rules in Major League Soccer. Much like when Jean-Marc Bosman went to the European court of justice in 1995 to win freedom of movement for out-of-contract players in Europe, victory for the player in such a court case would have a dramatic impact on the composition of MLS.
2. Canadian players are not in demand in MLS
As of last Friday, MLS teams had occupied 111 of the 152 available international slots within the league. American MLS teams account for 87 of those 111 occupied international slots.
What this means is that there are plenty of international slots available for American MLS teams to sign Canadian players - if they wanted to do so. They just don't want to.
While it is uncomfortable for us to admit it, we in Canada must own up to the fact that there just aren't many Canadian players who are deemed good enough to play in Major League Soccer. Collectively, as a nation, we have done a very poor job of developing our young players, resulting in their inability to break into the professional game.
Yes, there are some players who are being overlooked, or whose situations – contractual or otherwise – prevent them from playing in MLS. For example, I'm sure there are a number of men's national team players that would be attractive to MLS teams if their salary demands were more reasonable.
And yes, MLS teams generally want to use their international slots on players who are difference makers. Those players generally tend to be big names that drive ticket sales, attacking stars that can win games single-handedly – something not generally associated with Canadian players - or value propositions that bring more for their money than their North American counterparts.
But the truth is there isn't a lengthy list of talented Canadian players who are being frozen out of MLS because they are Canadian. They are frozen out of the league because teams just don't think they are good enough.
Until such time as our country starts producing players who are in demand across Major League Soccer – by both Canadian and American teams – there will be little pressure on the league to change its existing rules. We might not like it, and it might not seem 'fair', but it isn't going to change unless MLS wants it to change.