Collective Bargaining Agreements, Player Contracts, and the Impact on O and P Major League Athletes of Work Stoppages, from Strikes to Pandemics
By Helena Tetzeli
Copyright © American Immigration Attorneys Association
Most of the major sports leagues in the United States hire and benefit from foreign national athletic talent. The vast majority of these ball players are here on O-1visas due to their “demonstrated extraordinary ability ” or on P-1 visas as “internationally recognized” athletes . As with other O-1 and P-1 visa holders, foreign national athletes must be sponsored by a United States petitioner , in the case of professional athletes usually a major league club or league, and must be coming here to work pursuant to a specific itinerary.
Unlike most other O and P visa holders, major league athletes’ terms of employment in the United States are governed both by a Collective Bargaining Agreement (“CBA”) between the relevant player’s union and the corresponding league, as well as each athlete’s individual player contract. For every professional sports league in the United States, the CBA outlines the basic employment relationship. These CBAs cover a wide array of topics, ranging from grievance and disciplinary procedures, to minimum salaries and benefits, length of season(s), schedules, revenue sharing, leaves, disability, disciplinary, and termination policies. However, each individual player negotiates his own salary with the team or club employer.
Because they are unionized , athletes’ employment may be affected by work stoppages outside of their individual control, including strikes or lockouts. In addition, force majeure type events leading to work stoppages unrelated to labor disputes, such as the COVID-19 pandemic of 2020, can also drastically affect their conditions of work and corresponding O and P visa status. This article addresses those scenarios.
II. The Impact of Labor Related Work Stoppages on O and P Visa Issuance and Status
Any work stoppage “involving a labor dispute ” may impact issuance of an O or a P visa, as well as the immigration status of the O or P visa holder.
Every major professional ball club in the United States has had significant labor-related work stoppages. Some of the more famous ones include the 1972 Major League Baseball strike, the 1981 Major League Baseball strike, the 1982 NFL strike, 1987 NFL strike, the 1994-1995 NHL lockout, the 1994-1995 Major League Baseball strike, the 1998-1999 NBA lockout, and the 2004-2005 NHL lockout.
It is worth noting that a “lockout” is not the same as a strike. A “lockout,” in the professional sports context occurs when the club (i.e. the O or P employer), imposes a work stoppage on its players. While a lockout is imposed by the employer, a strike is declared by the players as a collective, by their union. Whether the labor dispute resulting in the work stoppage is in the nature of a lockout or strike should not make a difference, as the regulations for O and P visas refer not just to the “[e]ffect of a strike” but to “…a strike or other labor dispute involving a work stoppage …”
The immigration impacts of either a strike or lockout instead depend on other factors, including whether any labor dispute or related work stoppage is certified by the Department of Labor, and whether the player is in the United States and employed in an O or P visa capacity at the time the strike is certified by the Department of Labor.
The regulations are quite clear on the impact of such labor dispute related work stoppages on pending visa petitions. Both the O and P regulations contain identical language providing for denial of, respectively, an O or P petition:
“…if the Secretary of Labor certifies to the Commissioner that a strike or other labor dispute involving a work stoppage of workers is in progress in the occupation at the place where the beneficiary is to be employed, and that the employment of the beneficiary would adversely affect the wages and working conditions of U.S. citizens and lawful resident workers…”
Moreover, if a “strike or other labor dispute involving a work stoppage of a worker …” occurs and is certified by the United States Department of Labor during the pendency of an I-129 petition to change or extend status to O or P for an athlete, the petition will be denied .
If the petition has already been approved, but the athlete has not yet entered the United States “and commenced employment” at the time the Department of Labor certifies a strike, the regulations provide that the O or P petition will be suspended, the issuance of the visa deferred and the athlete will be ineligible for admission with a P-1 or O-1 visa .
However, once the athlete has been admitted to the United States on the P-1 or O-1 visa, and has already commenced employment, if a Department of Labor certified strike occurs, the athlete will not be deemed to be failing to maintain status simply by participating in the strike . Thus, the O or P athlete may actively participate in any such strike and not work, without negatively affecting the O or P status.
Conversely, in the event of a work stoppage caused by a labor dispute that is not certified by the Department of Labor, the regulations expressly provide that an O or P visa petition shall not be denied or suspended .
In sum, in the event of a labor-related work stoppage certified by the Department of Labor, any O or P petition will be denied and if approved, but the athlete is not already in the United States working, visa issuance will be deferred. However, athletes already here on P-1 or O-1 visas will not be found to have violated the terms of their O or P status merely because they do not work during a lockout or actively participate in a strike, whether or not the strike or lockout is certified by the Department of Labor.
The regulations go on to explain that neither P-1 nor O-1 status is “modified or extended” by “virtue of his or her participation in a strike or other labor dispute including a work stoppage…” Thus, the regulations do not preclude filing of a request for an extension of P-1 or O-1 status during the pendency of a strike or other work stoppage. The regulations simply provide that no extension or modification of the P or O status may be granted simply because a player participates in a strike or lockout . However, whether or not an extension request made during a strike or lockout would be viable would depend on the specific facts. If the O or P athlete’s status is expiring but the player is still under contract (in the sense that the individual player contract is not expired) and the player is otherwise complying with the contract, such as by continuing to train or engage in any other duties required by the contract, presumably an extension could be approved. In the event the extension is required and the player’s contract is either expiring or has expired, then the fact that the player is on strike and thus may not be able to negotiate a new individual player agreement, may make it impossible to request an extension.
Finally, the regulations go on to provide that the O or P athlete “shall remain subject to all applicable provisions of the Immigration and Nationality Act and regulations promulgated thereunder in the same manner as all other non-immigrants . Apart from this broad directive, the regulations specifically provide that the O or P athlete may not remain past any period of authorized stay or engage in unauthorized employment .
III. Force Majeure: The Impact of the 2020 COVID-19 Pandemic
A. Closures, Suspensions, and Cancellations of Seasons
In the United States the social distancing measures enacted by local, state, and federal governments and the resulting suspensions and interruptions of seasons and training, have affected each league differently. The NFL, which ended its season with the Super Bowl in February 2020 before social distancing measures were required, recently announced that it intends to release its 2020 regular season schedule “no later than May 9 .” Major League Baseball, on the other hand, has delayed the start of its 2020 regular season as a result of the coronavirus pandemic . The National Basketball Association suspended the remainder of its season , as did the National Hockey League .
At the time of publication of this article, USCIS had not taken a position on the impact of any of these events on the visa status of O and P athletes. However, these suspensions, cancellations, and termination of play (or those caused by future pandemic type events) may factor into USCIS’ determination of status for purposes of visa extensions or renewals for athletes here on O or P visas.
The pandemic-induced suspensions and interruptions of seasons and training were completely unforeseen. The regulations nowhere address this type of force majeure event. However, the regulations, when applied to the terms of the CBAs and individual player contracts, provide some guidance and grounds for asserting to USCIS, if necessary, that an O or P professional athlete has not violated his or her status by remaining in the United States following suspension or interruption of a season.
B. What is employment during a pandemic work stoppage?
1. Broad Scope of Services in Player Contracts and the Regulations
Undeniably, both the CBAs and the individual player contracts govern the terms of employment for players. But how does USCIS define “employment” in this context? This is unclear. While the regulations governing P visas refer to “providing services” and “performing, ” they do not define the term “employment.”
Both the O and P regulations define terms related to employment, such as the term “event ”, relatively broadly. Moreover, and significantly, the regulations on their face make clear that the athlete’s contract determines whether he is here pursuant to an “event.” Thus, 8 CFR § 214.2(o)(3)(ii) provides as follows:
“Event means an activity such as, but not limited to, a scientific project, conference, convention, lecture series, tour, exhibit, business project, academic year, or engagement. Such activity may include short vacations, promotional appearances, and stopovers which are incidental and/or related to the event. A group of related activities may also be considered an event. In the case of an O-1 athlete, the event could be the alien’s contract.” (emphasis in the original and added).
Similarly, the P regulations provide that “competition, event, or performance ” means:
“…an activity such as an athletic competition, athletic season, tournament, tour, exhibit…Such activity could include short vacations, promotional appearances… and stopovers which are incidental and/or related to the activity. An athletic competition…could include an entire season of performances… In the case of a P-1 athlete, the event may be the duration of the alien’s contract .” (emphasis added)
Thus, the regulations on their face indicate that there is some flexibility in determining the scope of the event or activity for which the athlete was given his P or O visa or status. In effect, it is not simply the “athletic competition” or “athletic season” alone , but the terms and conditions of the contract and related or incidental activities, can define and determine the duration of the relevant event, competition, or performance.
Moreover, as noted previously, the CBAs and individual player contracts generally define the scope of services very broadly. In the CBAs and individual player contracts, the services that the athlete is typically expected to provide to the employer include not only participating in games, but also participating in formal and informal training, and promotional and media events.
For example, the National Hockey League standard players’ contract requires the “Player,” inter alia, “to report to his Club’s Training Camp at the time and place fixed by the Club…”; “to keep himself in good physical condition…”; “to co-operate [sic] with the Club and participate in any and all reasonable promotional activities of the Club… and to cooperate in the promotion of the League and professional hockey generally…”; “…to report for practice at such time as the Club may reasonably designate and participate in such Exhibition Games as may be arranged by the Club…”
Similarly, the Major League Baseball CBA provides that the athlete is obligated to render “skilled services…including the Club’s training season, the Club’s exhibition games, the Club’s playing season, the Wild Card game, the Division Series, the League Championship Series, and the World Series (or any other official series in which the club might participate)…”
Even during the off season, and similarly, during a force majeure disruption, a major league professional athlete is arguably employed and/or “on call” to comply with the demands of these contracts and therefore engaged in an “event” or “competition” or “performance” as defined in the relevant immigration regulations .
2. Length or Duration of Player Contracts as Determinative to Approved Length of Stay
Whether or not delay or cancellation of a season, early termination or even cancellation of other events, such as spring training affects the O or P visa player’s status may also depend on the length of the contract. USCIS takes the position in its Policy Manual, at least as to NHL and MLB players in P-1 or O-1 classification, that if training, or indeed any event or performance, is not part of the relevant contract, it is not within the “approved length of stay.” Thus, for Major League hockey players, USCIS states that:
“the length of approved stay for the P-1 hockey player will be the length of the event. The length of the event can be either the season or the length of the player’s contract. The P-1 for hockey players procedures were established to allow the alien beneficiar(ies) to play hockey, not to engage in outside activities, such as summer camps ” (emphasis added).
For Major League Baseball players, USCIS states that:
“the approved length of stay for the P-1 baseball player will be the length of the contract (not to exceed five years) or the length of the season. (A multi-year contract is considered to be one ‘event’). Approval is only for playing baseball and other activities included in the contract, not for participation in off-season camps or other activities not covered in the contract .” (emphasis added).
Thus, if the off-season training (or other activity) is “included in the contract,” then pursuant to USCIS’ stated policy, it should be relevant to determining the authorized length of stay in O or P visa status. If the season has been delayed or cancelled, this may be a material change to the terms of employment. However, to the extent the athlete is participating in other events, such as promotional events, media contact obligations, informal training, and fitness obligations, which are typically included in the athlete’s individual contract or in the applicable CBA, USCIS could find that such an interruption of spring training does not by itself negatively impact the athlete’s O or P status, so long as the individual player contract itself has not expired.
Thus, even if Major League Baseball or Hockey does not have a season in 2020 or 2021, if a player is still under contract, according to the USCIS Policy Manual, this may not be a material change in employment. While there is no similar USCIS guidance for O and P major league football or basketball players, as there is for NHL and MLB players in the USCIS Policy Manual, the O and P regulations are instructional as they provide in relevant part that “in the case of an O-1 athlete, the event could be the alien’s contract .”
Using virtually identical language, the P regulations similarly provide that “a competition, event, or performance” may include, “in the case of a P-1 athlete…the duration of the alien’s contract.” To the extent the contracts have not been cancelled or terminated by the league or club, this language in the Policy Manual should be pointed out to USCIS in any renewal application or RFE response. USCIS may determine that even if the season for players in these leagues was cancelled or interrupted, that if they were still here pursuant to their contract that they were still in valid P or O visa status.
3. Payment of Salary to Players as a Factor in Determining O or P Status
Whether or not a league continues to pay its player should also be a relevant factor in determining whether an O or P player is in status. While there is no prevailing wage requirement for O and P visa holders as in the case of H-1B visa holders, the consideration forming the basis for any such contract is monetary in the form of salaries and bonuses for the athlete player.
In a case where the O or P athlete continues to be paid pursuant to the contract during a work stoppage, the O or P petition seeking an extension should document this fact to support the claim that the contract is still in force, despite the lack of play. Each case will of course be different, depending on league policies and negotiations. During the current pandemic crisis, some of the major leagues are continuing to pay players even though no games are scheduled. For example, Major League Baseball has announced that it has reached an agreement to keep its players paid, even if its season never starts due to coronavirus distancing mandates . The NHL has announced that it would pay its players through the end of the season, as originally contemplated, even though the season was suspended . This is true despite the existence of a force majeure clause in the CBAs for both Major League Baseball and the NHL.
In contrast, the NBA just announced that it will reduce salaries for players during the ongoing pandemic and season suspension, relying on a force majeure clause in that CBA. Arguably, while the NBA has reduced salaries, it reduced them pursuant to the force majeure provision of the CBA and thus, as this was an event contemplated by the contract, it is not a breach of the contract, and the O or P player continues to be performing or participating in an event, as he is being paid, pursuant to the contract, the bargained for consideration.
While discussion of the various force majeure provisions in Major League CBAs is outside the scope of this article, the point is that the CBAs and especially the individual player contracts governing the terms of employment for major league athletes can be used so that an O or P visa holder, despite not being able to perform during a regular season, is still employed and in valid O or P status to the extent he continues to be paid, and/or continues to comply with other contractual obligations, including training and participation in promotional and media events.
C. Amending the O or P Petition
Moreover, the regulations expressly allow for amendments or notifications to USCIS when there are changes in the terms of employment or itinerary. Indeed, an O-1 or P-1 employer is required to immediately notify USCIS of “…any changes in the terms of employment of the beneficiary which may affect eligibility…” for the O-1 or P-1 visa status.
The practitioner should, therefore, discuss the need for and risks associated with filing an amended petition notifying USCIS of the modifications to the beneficiary’s contract or itinerary caused by cancellation or suspension of spring training or other events.
In sum, while the regulations are specific and clear in guiding the practitioner representing an O or P major league athlete in the event of a strike or lockout, immigration attorneys will need to be thoughtful and creative in responding to any RFEs, NOIDs, or other adverse actions from USCIS or the Department of State in the future related to any issues relating to work stoppages as a result of the 2020 pandemic or similar future force majeure events.
However, the regulations, especially when used in the context of the broad scope of the CBAs and player contracts, offer a strong basis for arguing to USCIS that interruption, delay, or cancellation of a season do not, ipso facto, result in loss of O or P status.