As the Industry Debates a One Dollar MLS Field, U.S. Policymakers are Rapidly Moving Ahead With or Without Us

The following is a statement from M. Ryan Gorman, CEO of Coldwell Banker Real Estate.

When my declaration in the Burnett/Sitzer antitrust case became unsealed, I knew it would not be without controversy. I want to clear up any perceived confusion or misunderstanding. It’s important to me to get this right.

  • Buyer representation is extremely valuable. Period.
  • Realogy and Coldwell Banker fully support and believe in cooperative compensation.
  • Washington regulators and courts are actively scrutinizing the mandatory nature of the participation rule.
  • The current participation rule allows for compensation as low as $1 (or even a penny, according to some), so our position challenges why this requirement is even necessary. And there is no truth to the speculation that this would bring any additional harm to veterans (with VA loans) or first-time buyers.
  • In MLSs where the mandatory nature of the rule does not exist today, market forces continue to prevail. 

We strongly support seller’s offers of compensation to buyer’s agents as it is in the best interests of both buyers and sellers to have expert, trusted advisors working with both parties to achieve the mutually desired outcome: a successful transaction.

I have noticed some criticism suggesting that we are advocating for the elimination of cooperative compensation. That is simply not the case and could not be further from the truth. Frankly, it fails the basic logic test. Supporting unilateral offers of compensation AND believing that the mandatory nature of the buyer broker commission rule is unnecessary are not at all inconsistent. By rescinding the mandatory nature of the rule, the MLS would still remain the facilitator of cooperative compensation, and the buyer broker compensation field would remain intact. And, as I have said before, I believe not only should a seller offer compensation to a buyer broker but also that offer should be completely transparent to all concerned, including the public.

In policy terms, rescinding the mandatory nature of the participation rule could be as simple as changing “shall” to “may”. That’s it.

NAR Policy Statement 7.23 “In filing property with the multiple listing service, participants make blanket unilateral offers of compensation to the other MLS participants and shall may therefore specify on each listing led with the service the compensation being offered by the listing broker to the other MLS participants. This is necessary because cooperating participants have the right to know what their compensation will be prior to commencing their efforts to sell.

MLSs do not set, control, or fix commissions, often citing that cooperative compensation can be as little as $1.

This is the root of our position. Commissions are negotiable. The requirement to offer cooperative compensation is unnecessary considering current implementation allows a listing broker to offer as little as $1, which is demeaning to and tremendously undervalues the work of every buyer’s agent I know. So why then are we as an industry focused on keeping this requirement in place?

The mandatory participation rule is actively under scrutiny by Washington regulators and courts.

Regulators and courts looking at this issue are analyzing the mandatory nature of the rule and considering whether it is anticompetitive. The scrutiny and misunderstanding of why the rule is required (particularly, if it can be as little as $1) is overshadowing the more important issue, which is the valuable role buyer’s agents play in the transaction. This has led us to our view that the current rule appears to pose unnecessary complications with little to no actual benefit.

Attacking my character is one thing but allowing the Rule to remain — with its unnecessary complications — interferes with our ability to put the attention where it belongs, on the value of buyer’s agents and defeating attempts to devalue their role.

I am not easily flustered. But, candidly, I am upset at the responses that insinuate this is some devious plan to eliminate buyer’s agents. Everyone, particularly those in the industry, know buyer’s agents work their tails off to support their clients. If you look at Seattle as a case study for a market that eliminated a “mandatory” rule, you will see that listing agents have not forgotten the tremendous value buyer’s agents bring to the transaction that benefits buyers and ultimately sellers alike. Cooperative compensation still exists, and market forces are prevailing.

In closing, if you took the time to read to this point, thank you. If you have been a voice of change on this issue, thank you.

The simple truth is we have an opportunity to come together as an industry. I hope you’ll join us.

Senior Manager, Public Relations & Giving for Coldwell Banker. Grew up in Sarasota and attended college at Western Carolina University. Athena wanted to wake up in that city that doesn’t sleep so headed to Madison Avenue to start her marketing career. She has been with this awesome brand for more than 15 years and can be found generating buzz about CB in every way possible. Athena helps to grow the brand’s position as the most storied real estate company within the industry and has led many high-profile endeavors; she was at the forefront of the brand’s pioneering smart home campaign, raised $6 million in two years to build 130 Habitat for Humanity homes, and led the Homes for Dogs program in partnership with that resulted in tens-of-thousands of dogs finding their furever home. She currently leads the CB Supports St. Jude program, which encourages the Coldwell Banker network’s 96,000+ real estate agents to make donations to St. Jude’s Children’s Research Hospital for every real estate transaction they represent. In her spare time, you can find her either digging up a new area in her yard for another flower bed or planning her next travel adventure. She's the proud mom of three cats Jolene, Ziggy and Lucy.

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