On August 22, the National Women’s Soccer League and National Women’s Soccer League Players Association announced a new collective bargaining agreement.

The agreement was shocking in that it was reached two years before expiration of the parties’ current agreement, that there had been no public awareness of the negotiations, and that it eliminated the player draft and provided all players with unrestricted free agency at the expiration of their contracts. In subsequent public comments, both League Commissioner Jessica Berman and Players Association Executive Director Meghann Burke described the changes as necessary for the League to compete in the global soccer market.

Left unsaid was how the agreement can also further the league’s advantage in its inevitable competition with the United Soccer League Super League.

The NWSL’s rebound and upward trajectory

The NWSL was founded in 2012 with support from U.S. Soccer, the sport’s National Governing Body, and with the stars from the U.S. Women’s National Team. After occasional instability, the league has settled in and begun to expand in exciting ways. 

In January 2022, the league and its players agreed to their first-ever collective bargaining agreement, providing important operational stability and labor peace. The agreement set minimum salaries of $36,400, established free agency for players after five years, and introduced a salary cap.  The league also agreed to provide its players with a variety of benefits, including full salary protection in the event of pregnancy. 

Then, in March 2022, the league made a widely-praised decision in hiring Commissioner Berman. Ms. Berman had been the Deputy Commissioner of the National Lacrosse League and before that had spent 13 years in legal and business roles at the National Hockey League. She has since helped guide the NWSL through a series of past scandals that resulted in five coaches’ being permanently banned from the league.

Business for the NWSL has otherwise been good. In November 2023, the NWSL announced new media rights agreements with CBS, ESPN, Amazon Prime and Scripps Sports worth $240 million over four years. The average NWSL club is now worth an estimated $66 million, and league revenues are believed to exceed $112 million. Relatedly, ratings, attendance, and sponsorship have all continued to climb. Everything appears to be going the NWSL’s way.

USL wants in on the action

The United Soccer League, however, has other ideas. To understand the USL’s incursion into women’s professional soccer, it is helpful to first take stock of its role in men’s professional soccer.

The USL has been effective in men’s soccer by operating like minor league baseball. The USL has started franchises in small and medium sized cities and built modest new stadiums as part of redevelopment and entertainment projects. The soccer clubs are not profitable businesses, but the enterprise as a whole is attractive to cities and successful businesspersons who happen to also be soccer fans.

The USL’s women’s league, the Super League, has been more ambitious. It was sanctioned as a Division I women’s league, same as the NWSL. The league started play in August with teams in eight cities.

New NWSL contract and Super League

The new National Women’s Soccer League collective bargaining agreement is being described as historic because of the ways in which it deviates from the practices in place with major American sports leagues. For decades, the National Football League, Major League Baseball, the National Basketball Association, the National Hockey League, and Major League Soccer have used player drafts to allocate the best new players to clubs. Those drafts were unilaterally imposed at first but later agreed to as part of collective bargaining agreements, which helped to ward off legal challenges by players on antitrust grounds. The drafts are a long-accepted part of the sports ecosystem.

The new agreement between the NWSL and the Players Association does away with the player draft, permitting new players to negotiate with multiple clubs in deciding where to start their careers. This is generally the process in European soccer leagues and the standard that the NWSL and Players Association want to follow.

The new agreement also eliminates the often-complex rules around free agency. In the other leagues, players do not become free agents until after a certain number of years in the league (six in MLB and four in the NFL, for example). Until that time, the club generally retains a variety of rights with regard to a player when the contract expires, such as the right to offer a minimum contract, match any offers, or receive compensation of some kind if another team signs the player. The NWSL and Players Association have excised this structure in their new agreement and instead have opted for a free labor market.

Next, the parties have agreed that all player trades will require player consent. In the past, players have expressed surprise and dismay at being traded after planning to remain in a specific city. Star players in some leagues occasionally negotiate for the right to approve trades, but the vast majority of players can be traded without their consent. In those leagues, the possibility of being traded is thought to be fair consideration for salaries in the millions or hundreds of thousands of dollars. In the NWSL, where salaries were an estimated $54,000 on average in 2022, players clearly desire greater control over their lives.

In a 40-minute conversation with Tulane law professor Gabe Feldman on his SportsWise podcast, the Players Association’s Meghann Burke repeatedly emphasized that the changes were designed to ensure the NWSL’s competitiveness in global soccer. Commissioner Berman similarly described the changes as a step in making the NWSL “the best league in the world.”

Yet, the new policies may end up having a bigger impact closer to home. In the conversations between Ms. Burke and Professor Feldman, the Super League was referenced only twice in passing. The changes to the NWSL’s operations are nevertheless certain to draw the league’s attention.

The Super League’s roster rules and practices are somewhat unclear and not publicly available. But there is no player draft and players appear to have considerable discretion in choosing which clubs with which to sign. There is no indication though that the Super League players can veto trades.

Players in the Super League are not currently represented by a union. However, one might be expected soon as players in the men’s USL leagues are represented by the USL Players Association, which has negotiated collective bargaining agreements with the USL concerning pay and terms and conditions of employment.

Either way, the NWSL adopted not only global practices concerning player movement but also some of those of the Super League. This fact matters because history suggests that both leagues will not survive.

History and present as a guide

The sports landscape is littered with the vestiges of failed leagues and the occasional merger. The 1960s and 1970s was the heyday of upstart leagues: the NFL absorbed the American Football League in 1966 in a move that included Congressional approval; the NBA incorporated four clubs from the American Basketball Association in 1976, which required court approval; and the NHL took in four clubs from the World Hockey Association in 1979. 

There are common factors in each of these cases. First, players benefited from competition, resulting in increased salaries. Second, efforts by the established leagues (the NFL, NBA, and NHL) to impose and enforce restrictions on players to prevent them from leaving the leagues were met with antitrust lawsuits. Third, the competition was financially challenging to the established leagues but ruinous to the upstart leagues. And fourth, only the established leagues were left standing.

Given this history, it is difficult to imagine that the NWSL and the USL can both operate successful and sustainable Division I women’s professional leagues. The players, understandably, will pursue their best interests, which may include jumping to different leagues in search of higher pay, better benefits, or greater rights. Such competition would put considerable financial strain on clubs that may already be operating at a loss (NWSL team revenues are only an average of about $10 million). At the same time, the leagues may be hurt by diluted talent, as the best players are not likely to all be in one league.

The world of professional women’s hockey is also a warning. The National Women’s Hockey League formed in 2015 and competed against the Canadian Women’s Hockey League, formed in 2007. The Canadian league folded in 2019 and the National league rebranded as the Premier Hockey Federation in 2021. However, the players union, the Professional Women’s Hockey League Players Association, was dissatisfied with the Premier Federation and formed its own league, the Professional Women’s Hockey League. The Premier and Professional leagues subsequently merged.

The NWSL has in recent years begun to amass a contingent of well-resourced investors and business partners. Although the USL has substantial experience operating professional soccer leagues, the NWSL is clearly the preeminent women’s professional soccer league in the United States. The recent changes to the collective bargaining agreement seem to remove any competitive advantage that the Super League might have had while strengthening the NWSL’s appeal to players, both nationally and globally.

To date, the NWSL has been complimentary of the Super League. But if history is any guide, the NWSL may be hoping that its new agreement will lead to its rival’s demise.