A recent decision of a regional director of the National Labor Relations Board held that football players at Northwestern receiving grant-in-aid scholarships occupy the legal status of employees of the school under the National Labor Relations Act. That means they can choose a union to represent them. The decision immediately sent major reverberations throughout the sports world. Not since the NFL players, a couple of years ago, filed an anti-trust suit against that league in response to the latter’s lockout of them in the midst of contentious contract negotiations, have sports pages been filled with such befuddlement. Just like then, we now see experts in sports trying to become overnight experts in labor law. How nice it would be if expertise in labor law were so readily attainable.

Right after that decision was issued, sports reporters even were so bold as to write that it marks the first shot in some battle between college athletes and the NCAA that will eventually lead to the disintegration of the latter. Really? And then the most prominent face of the union here — the College Athletes Players Association, or CAPA — that filed the petition that triggered the director’s decision, former Northwestern Wildcat quarterback Kain Colter, has been far from guarded in making proclamations. His pronouncements foresee vast improvements in player benefits through the anticipated collective bargaining negotiations between NU and CAPA. Really? I have to wonder how carefully Mr. Colter has done his due diligence here.

Before further ado, let me disclose that I am a proud Northwestern Law School alum, class of 1964. In the further interest of full disclosure, I must note that I am also the proud owner of an honorable withdrawal card from the Teamsters union, stemming from eight summers working as a furniture mover in Chicago, back in my school days. That was followed by 37 years of prosecuting unfair labor practice complaints against employers and unions as an attorney employed by the NLRB. I’ve been retired since 2003. I do not speak for the Board or any other entity in saying that neither CAPA nor any other union would be able to affect any major alteration in the status quo at NU or any other school. That is not said out of bias against unions. On the contrary, I greatly respect unions — I always have and always will. They have been, and are vital engines for, industrial democracy in this country. As one who has devoted 50 years to labor law, I am well aware that every time unions have opened a new frontier in organizing employees, it has been met with unfounded cries that unions are ill-suited for that field. But this time, with collegiate athletes, I don’t think that such cries are unfounded. Let me explain.

First, I’m going to assume that the director’s well-reasoned decision will be upheld at every juncture of the myriad appeals that lie ahead. And I’m further going to assume, for discussion, that CAPA wins the election, and is selected by the Wildcat players as their collective bargaining representative. That puts CAPA at the bargaining table, across from Northwestern. Can anyone seriously believe that NU’s bargaining team will agree to proposals that will eviscerate or even simply undermine its football program? The very question carries its self-evident answer. No way!

Let’s understand that the statutory requirement to “bargain in good faith” does not mandate that an employer agree to terms cannibalizing its ability to successfully compete in its market. Here, for NU, that market is the tough Big Ten, with the further objective of a victorious Rose Bowl engagement. Anyone trying to tell you anything different from the above definitely does not understand labor law — or football, either.

Moving on, let’s say that CAPA and the players are displeased with the course of negotiations. What is their recourse? Why, of course, that would be strike action. A strike would be catastrophic for NU, its football program and all its players. If there were a strike during Northwestern’s season, it would mean forfeited games. If there were a strike during off-season, it would mean a poorly conditioned, poorly prepared squad and lost games. In each case, it would probably result in a lost season, far below .500.

As far as concerns for future seasons following a strike’s end, NU would, for years, be unable to attract any good recruits. Even the uncertainty attending simply the new phenomenon of collective bargaining would adversely impact recruitment enormously. Why would any recruit choose a school beset by such uncertainty?

It might be that everyone that would be facing Northwestern in negotiations might never call a strike, and might even promise that. But any union that has no viable threat of recourse to strike action in the context of collective bargaining is devoid of effectiveness in negotiations — a eunuch dependent upon management’s kindness. NU may be kind and public-minded, but it is not going to dismantle the structure of a football program that has served it well.

All that negotiations appear to offer are a major distraction for NU’s players, who need to play at their best in order to compete in the Big Ten, and to shut-off of the source of any infusion of more good players through recruitment.

I said that the Wildcats’ players have to play at their best to compete in the Big Ten. That’s because NU has very high academic standards, high enough to scare off many top recruitment prospects. It is also, by far, the smallest school in enrollment numbers in the Big Ten, further squeezing its supply source. Its head football coach, Pat Fitzgerald, as great as he is, already has tough, steep hills to surmount without the terrain being made tougher still to navigate by the potholes of uncertainties that a union injects.

Finally, let’s get a core concept straight here: Collegiate football players fall into one of two categories:  There are those who view college football as the apprentice period for the NFL. Then there are those who realize that college football is going to be the last time for them to soak up the experience of playing football. The upheaval and distractions that a union would inject into a football program do not serve players in either category, far from it.

Not to leave a loose end here, but I personally have the greatest difficulty in seeing any lurking threat to the NCAA in this matter. That appears to be wishful thinking.

David A. Nixon
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