Solution for the NFL-NFLPA: Change the Rules of the Game

Yesterday was the day the NFL and NFLPA had been hoping to avoid for two years. With no new collective bargaining agreement, the league has locked out the players, and so the players union has decertified itself in order to file an antitrust lawsuit against the league. The two sides may still reach agreement, but the move from the bargaining table to the courthouse is an unambiguously bad sign for football fans. The issues at stake -- division of revenue, rookie pay, health and safety, and the length of the regular season, among others -- have and will continue to be discussed. However, a solution that brings long-term success and stability to the NFL must change the very rules of the game under which both sides bargain. Consider applying planes, trains, and labor relations -- the Railway Labor Act (RLA) -- to pro sports.

Why does the NFL legal bargaining framework need to be changed? And what exactly is their legal bargaining framework in the first place? As a private business, the NFL (and all pro sports leagues) fall under the National Labor Relations Act (NLRA) and the law's enforcing body, the National Labor Relations Board. Very briefly, under the NLRA, labor and management are allowed to use economic weapons, such as strikes and lockouts, to resolve contract disputes as long as they don't commit any unfair labor practices in the way. These tactics should be familiar to sports fans: baseball has had eight work stoppages from 1972 to 1995, and the NBA and NHL have locked out players in 1998-9 and 2004-5.

The NFL and NFLPA have been through this before, and just like 1987, the ability to sue the league for antitrust damages emboldened the union to withstand a lockout, to the detriment of negotiations and a new collective agreement. FMCS Director George Cohen is as talented a mediator as one can find, but over sixteen days even he couldn't overcome the legal / lockout alternatives both parties had. His official (under)statement yesterday said it all: "No useful purpose would be served by requesting the parties to continue the mediation process at this time." Clearly, the mediation process and this private system doesn't incentivize the parties towards agreement.

Before explaining the RLA, a brief introduction to the public-sector labor law is helpful for context. As we're seeing now in Wisconsin, Ohio, and Indiana, policies vary by state, but the basic principles remain the same. Policeman, fireman, teachers, and others who do have the right to bargain and can't reach agreement are not allowed to strike, because the work they do is so essential to the public interest. Binding arbitration is instead generally the last step of the dispute resolution process.


The RLA was passed in 1926, the same year as Northwestern Airlines (above) was founded, but the Act has clearly lasted longer. In many ways, the RLA merges the interests of private- and public-sector labor law framework. Since deregulation, the airline and railway companies are privately owned. However, the transportation industry is strongly in the public interest, as a work stoppage would direct affect the rest of the country's economy. I see a clear parallel to the sports industry. Like transportation, sports leagues are privately run with private owners, yet again in the public interest. An NFL lockout doesn't just directly affect players, but thousands of stadium employees and hundreds of thousands of workers in secondary business (one study estimated a lockout would cost $160 million per city), not to mention indirect effects on morale of millions of football fans. This public interest may not be enough to establish a government regulatory body, but is sufficiently central to the future of the sport to warrant a private version of the RLA.

The RLA -- and a potential application to the sports industry -- is effectively a hybrid of the NLRA and public-sector labor law. A couple highlights from the Act:

• Contracts don't "expire", they simply have a date after which they can become amendable
• Strikes / lockouts cannot be used for disputes classified as "minor"
• They can only be used for "major" disputes after mandatory mediation, non-binding arbitration, and a cooling-off period.

The Act's enforcing body, the National Mediation Board, has strong discretionary power to control the process based on the interests of the parties and the affected public. While some may complain this process is cumbersome, I believe it highlights the best characteristics of private- and public-sector labor relations. Like the private-sector, both parties reach the agreement themselves, without a neutral third party arbitrator essentially telling the company how to run their business. And like the public-sector, work stoppages are exceedingly rare, since their jobs are directly in the public interest.

What would the RLA and its strategic private / public advantages look like if applied to sports? Imagine these NFL-NFLPA negotiations in a world where their contract never expired (the 2011 season would be played under their previous contract if they couldn't reach a new agreement) and we would see a lockout and courthouse battles only after a dispute resolution process many times more exhaustive than George Cohen and the FMCS can subject them to.

Will this ever happen? Congress is unlikely to intervene as they did in the transportation industry in 1926, and even if they did, sports leagues and unions would likely resist government intervention. Any legal change must come from within the sport itself, if both sides look beyond their short-term economic gains to truly re-structure their process in the interests of the most relevant parties not at the table -- fans and communities. There is no better time to explore this option than now.

Note: this post was adapted from part of my Evolution of Sport address at the 2011 MIT Sloan Sports Analytics Conference last weekend. Watch video here.