What if Northwestern Didn’t Fight Its Players and Negotiated Instead?

According to an NLRB ruling Northwestern’s football players are employees who can join a union and negotiate for better benefits than they presently receive. You can read my analysis of that ruling here. Northwestern plans an appeal of the ruling and if the appeal board upholds the ruling that football players are employees then they would likely take the case to federal court and challenge the opinion there. So far every Northwestern response has been premised on the school fighting the designation rather than bargaining in good faith with the union, as they are required to do under federal law. Which leaves me with an interesting question — why can’t Northwestern just accept the ruling and negotiate with its players on a new scholarship plan?

If Northwestern did this, irony of all ironies, the Wildcats would be able to offer legal benefits that no other school could offer. What if, say, Northwestern agreed to give players $10k cash a year and better medical coverage? Ten thousand dollars per player would equate to $850,000 a year. That’s a drop in the bucket given Big Ten football revenues. Better medical coverage would, honestly, cost the university virtually nothing since it already treats all medical issues in-house.

In the process Northwestern would save millions in court costs, years of legal fighting against its own players, and, most significantly, would gain a recruiting advantage over every other school in the country.   

Right now Northwestern can offer something that no one else in the country can offer, it can legally pay football players to play football for the school. 

Sure, the NCAA would be upset, but what do you want Northwestern to do, not comply with federal law? The NCAA is a voluntary organization, its rules have no force of law. Northwestern already fought the employee designation and lost, why risk taking the case all the way to the Supreme Court and losing there too? In reality, it might be better for the NCAA if Northwestern doesn’t fight. Right now there’s legal uncertainty as to what the ruling means, once you pursue this case through the entire NLRB appeals process and throughout the court system, all uncertainty is lost. Sure, you might get a reversal of the employee determination, but what if you lose? 

Think losing a Supreme Court court case about college football isn’t a big deal to the NCAA? Go back and look at what happened in 1984 when the NCAA lost the ability to control television rights. Other than setting rules for all athletes, the NCAA now has no role whatsoever in college football. If this ruling is ratified by the nation’s highest court then the NCAA is dead. What’s more, this is just the beginning of the litigation, we’re talking a decade or more of uncertainty, a mess of unholy proportions, all unspooling from a single school’s players challenging the status quo and then Northwestern challenging those player’s victory.

So why not flip the script and accept the ruling, why not be smarter and use this ruling as a competitive advantage for your football team? Negotiate with the Northwestern football players and agree to give them a better deal than they receive right now. Now that Northwestern’s football players are employees, your collective bargaining is protected by law, so you can’t be successfully sued for the results that emerge from those negotiations. Give your football players a better deal than they can get anywhere else, announce that while you disagree that they are employees you respect the decision of the NLRB and have decided to avoid the protracted expense and unnecessary outcome of challenging the ruling in court, and then reap the benefits of your decision.

Immediately every football player in the country will know that Northwestern cares about its players and wants to take care of them better than any other program in America, They’ll also know that Northwestern can legally give them a better deal to play football than any other school in the country. It’s the best recruiting advertising possible. Sure, copycats might emerge, but the number of private schools subject to the NLRB is small and the likelihood of state schools being able to replicate Northwestern’s legal victory is small. The irony of Stanford, Vanderbilt, Duke, and other private schools that aren’t known as football factories suddenly stealing a recruiting march on the big state football schools is hysterically entertaining. Would ten thousand dollars or more change a prospective recruit’s mind about where to go to school? It might. And if it doesn’t at least you’ve put your best offer forward. An offer that no one else can match.

So why can’t Northwestern, a school long known for progressive and intelligent thought, make the smart decision here and negotiate a new deal with its football players?

Sometimes the smartest play is not fighting at all.