Rethinking Sports Unionism (Part 2): A Public Sector Union / No Strike Alternative?

In my last post on this subject, I sketched some of the problems caused by player unions in a “mature” sports industry. Although at least one kind and thoughtful commenter found my argument “ridiculous,” I stand by the assertion that sports unions have gone astray. They concentrate too much on defending and protecting wrongdoers and not enough on the best interests of fans and their sports as a whole (in real sense, sacrificing players’ long run interests for the sake of the short run). In this post, I discuss a negative feature of the current model of sports unionism that, to be fair, can’t be blamed on unions alone: Strikes and Lockouts. (In fact, the owners, who have over the years engaged in shady bargaining tactics as well as outright collusion, have historically probably been more to blame). Regardless of who is to blame, however, the negative effects of a player strike or management initiated lock-out in the major sports (baseball, football, and to a lesser degree, basketball and hockey) are undeniable.

The worst thing that could possibly happen to America, other than a terrorist strike or an outbreak of Bird Flu, is a season-ending strike / lockout in football or baseball. While a football strike seems to have been averted (for at least the next six years), there is a fair chance that the widening Mitchell Steroids Probe could lead to labor strife in baseball by this winter. That would be a disaster for baseball, and for the country. A season-stopping strike or lock-out has far reaching economic and non-economic effects. Not only would businesses directly dependent on the league suffer (TV stations, memorabilia sellers, etc.), businesses that indirectly are affected (restaurants, bars, parking lots near stadiums) lose money too. And the psychological impact of a strike on communities across the country is severe. We look to sports as one of the few common passions in an increasingly divided society; the loss of even part of a season will leave us, for lack of better phraseology, collectively depressed.

Under the NLRA, sports unions have a right to strike, and the leagues have an equal right to lock out employees. But not all unions have such a right. It is illegal for federal employees to strike, as the Air Traffic Controllers learned in 1981. In many jurisdictions, other public sector unions like police and firefighter unions can’t strike either. In exchange for not having the right to deploy these tools of economic conflict, public sector unions and employers are afforded the right to “interest arbitration.” This is different than the “rights arbitration” currently available to sports unions/players. Under the current model, a covered employee or the union can seek to arbitrate a dispute about the meaning of the CBA (that is, what rights the CBA provides). Public sector unions, lacking the right to strike, may instead, at impasse, demand arbitration of their actual substantive disputes. The interest arbitrator sets the terms for the next CBA.

I think this model would both work in and be appropriate for the sports industry. A federal statute (amending the NLRA) would no doubt be necessary, and this brief post is not meant to outline all of the issues that would be involved in drafting and enforcing such a statute. While police, fire, or railway workers are barred from striking due to concerns about transportation and first-responder infrastructure, for players’ unions it would be a concern about the pecuniary and non-pecuniary externalities of athlete strikes that would justify a move towards the public-sector “interest arbitration” model.

Bradley S. Albert and Brian K. Albert proposed the public-sector model in their article on the non-statutory labor exemption in sports, which can be found at 2 Sports Lawyers Journal 185 (1995); their abstract can be found here. That proposal should be revisited, and I hope it does not take a baseball strike next year to make that clear.

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