Minnesota Football Boycott and the Future of U.S. Labor Unions

The Minnesota football team is boycotting its university by not participating in practice. Their goal is to reinstate players whom they believe the university has unjustly suspended in a sexual assault case.

This action speaks volumes about the future of the American labor movement. But how?

The incoming Congress and President will likely push for a national right-to-work law. This will hurt unions in their ability collect dues. But that’s just a start.

The Department of Labor will harass labor leaders for financial filings (already required but likely to intensify, and with greater penalties).

Public sector unions will face threats to their existence (see Wisconsin for an example).

Davis-Bacon, a law that requires union wages to be paid on federally funded jobs, will be repealed or scaled back.

States are enacting harsh antiunion laws. In late November, Michigan’s House of Representatives passed a bill that criminalizes union protests.

What do these developments have to do with Minnesota’s football team? First, recall that Northwestern University football players sought to unionize. The NLRB ruled that it has no jurisdiction over NCAA athletics (a good call). Now, if  college football were subject to the National Labor Relations Act, college football players could only strike for wages, hours, and terms and conditions of employment. They would also have a no strike clause. Instead of walking out, they would be required to file a grievance and go to arbitration.

If they boycotted a football game, the university would take them to court and seek an injunction to enforce the terms of their labor agreement.  The court would almost surely order an injunction. If players violated the order, they would be subject to fines and imprisonment.

But that’s not how things will play out at Minnesota. The players have much more leverage by NOT having collective bargaining. They can boycott. They can cause cancellation of a bowl game. And after they do all that, they can do more damage—for example, agree in concert not to meet and greet incoming recruits.
And consider the secondary boycott, a very potent union weapon that was outlawed in 1947 by the Taft-Hartley Act. Minnesota could take its cause to the football championship and get other teams to boycott. That would be enjoined by a court under collective bargaining-- but not so in the unregulated environment for college football. 

I made these and similar arguments in my article, “How a ‘Labor Dispute’ Would Help the NCAA” (University of Chicago Law Review, 2014, https://lawreview.uchicago.edu/page/how-%E2%80%9Clabor-dispute%E2%80%9D-would-help-ncaa).

Now, back to the U.S. labor movement.

Collective bargaining is going to become very expensive and with few benefits for some unions, especially those who have little bargaining power. They will increasingly forsake collective bargaining and its strictures for the type of disruptive activities that are going on with Minnesota football. Want evidence? Look at the Fight for $15, which features quickie strikes by fast food workers, generally to good effect for their cause.

For perspective, think about the NFL lockout in 2011. Who went to court to enforce the rules surrounding the National Labor Relations Act? Roger Goodell and the NFL. Who folded the union and said they were done with collective bargaining? The football players/employees who concluded they had much more to gain outside of collective bargaining than taking concessions at the bargaining table.

Collective bargaining is great for employers. It’s bad for employees. And some employees have better options outside of negotiating labor agreements.