The petition seeks enforcement of an arbitrator's ruling last month that Kaku, despite his actions to the contrary, is still under contract to the Red Bulls, and violated his contract when he signed with Saudi Arabian side Al-Taawoun, and proceeded to appear in official matches for the club.
In its latest filing, MLS stated that "Each additional game that Kaku plays for Al-Taawoun not only constitutes a continuing breach of the CBA and the [Standard Player Agreement], but also the Arbitrator's Award."
The web site Law360.com was the first to report the existence of the filing. Both MLS and the MLSPA declined to comment.
A source with knowledge of the situation told ESPN that the petition is merely the latest legal maneuver to compel Kaku to honor his contract, though practically speaking there is little expectation that the player will return to the Red Bulls. The desired endgame is some form of financial compensation. The source added that the MLSPA's inclusion in the petition was procedural in nature, and that the filing is essentially against Kaku.
The source declined to indicate at what point FIFA might become involved. Up to this point, FIFA's stance has been that the dispute is a domestic issue, and thus didn't require the organization's involvement.
The dispute centers around whether MLS exercised a unilateral contract option on Kaku prior to Dec. 31, 2020. The MLSPA and Kaku contend that the Red Bulls didn't exercise the option, and he is thus free to sign a contract with another club. As such, Kaku signed with Al-Taawoun on Feb. 1 and has gone to make 11 league and cup appearances, scoring seven goals.
According to court documents, MLS and the Red Bulls contested Kaku's actions, saying that notice of the option exercise was hand delivered by sporting director Denis Hamlett to Kaku on March 3, 2020. Kaku and the MLSPA countered that the meeting never took place, with Kaku saying Hamlett lied about the meeting. So per the Collective Bargaining Agreement between MLS and the MLSPA, the case went to an arbitrator.
The arbitrator, Shyam Das, didn't buy Kaku's version of events and ruled against him.
"Based on the total record before me, I find Kaku's denial not credible, and credit Hamlett's testimony," Das wrote in his ruling.
Citing Article 26.2 of the CBA, the MLSPA also argued that 'personal delivery' meant the contract exercise should have been sent to Kaku's last known address as opposed to in person. Das was not convinced.
"The evident purpose of Article 26.2 is to ensure actual and timely delivery of required notices to the designated recipient," Das wrote. "In the case of notice to a Player, I do not read this provision to require that notices sent by personal delivery -- in particular, hand delivery by an MLS or team official, as occurred in this case - must be delivered to the Player only at his last known address. As MLS asserts, the plain definition of "personal delivery" means into the Player's hands. The evidence, in my judgment, shows that is what occurred here."
Das ruled that Kaku had breached his contract with MLS, and ordered him to cease playing for Al-Taawoun. But the ruling had no subsequent impact on Kaku's behavior, and he has continued to play for the Saudi club.
In the filing, MLS added, "Despite the Union's obligation under Article 6.1 of the CBA to "exert all reasonable efforts to induce compliance" by a player who declines to fulfil his obligations under his [Standard Player Agreement], the Union's efforts are ineffective or being ignored -- thus requiring judicial intervention to confirm and enforce the Arbitrator's Award."