Has President Biden already made college athlete activism easier?

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Your subscriptions also allow me to pay freelancers! I’m excited to do that today, with a newsletter from my former colleague, and good friend, Alex Kirshner. Alex is a host of the excellent college football podcast Split Zone Duo, a former college football writer at SB Nation, and now, a special Weird Stuff People Do With Money correspondent over at Slate.

He’s also a bit of an expert on the intersection of college athletics and labor organizing, which is why I wanted to have him explain a recent development that I’ve been very curious about. I yield my time to Alex.

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In the days leading up to Joe Biden’s inauguration, his team telegraphed most of what he’d do on his first day. Primarily, he’d sign a bunch of executive orders to roll back Trump administration orders, many of which were themselves rollbacks of Obama-era orders.

But Biden threw in a surprise that delighted his allies in organized labor: He fired Peter Robb as general counsel of the National Labor Relations Board. Robb was doggedly anti-union and did what he could to steer the NLRB in that direction, most notably by sidelining the agency’s regional directors, who man field offices all over the country, and consolidating his power. The move to fire an NLRB general counsel with 10 months left in his term had no modern precedent.

The reason you’re reading about it in a college sports business newsletter is that Biden’s appointed replacement is Peter Sung Ohr.

In 2014, in his capacity as the regional director in the NLRB’s Chicago office, Ohr ruled Northwestern football players were university employees with the right to form a union. The NLRB only has jurisdiction over private institutions – there are just 18 in FBS – and this decision didn’t even carry over to the rest of them, though it could have helped if players at other schools mounted their own union drives and cited the Northwestern case as precedent.

They never got the chance. The next year, the five-member NLRB, which sits above the regional offices as a quasi-Supreme Court, overturned Ohr’s order. Technically, the board took up a university appeal of Ohr’s decision, dismissed the players’ petition to form a union, and avoided ruling on whether the players were employees. But the implication was clear: the NLRB was denying a bid by players to be recognized as employees with unionization rights.

It was, to use a Northwestern football term, a punt. But Ohr remains the highest-level government official to issue an order with any force that says college athletes are employees. That makes his appointment to an important NLRB job notable for the college athletic industry.

I spoke about the significance of Ohr’s appointment with Anastasia Christman, who leads the Worker Power Program for the National Employment Law Project.

Christman is an expert on labor law and familiar with the world of college sports labor relations, and she views Ohr’s appointment as a positive for the future of the labor movement.

“He comes with a lot of very specific experience, a deep understanding of how the law is supposed to protect these workers,” Christman says. “In his role as the regional officer, he made not always decisions that favored the unions or the workers, but always decisions that were thoughtful and he clearly was really trying to apply the statute appropriately. So it’s just refreshing to think that I actually have to do my homework now to remember, ‘What could they be doing if they weren’t simply trying to decimate workers’ rights to organize?’”

Ohr will bring the NLRB a serious understanding of how college sports work.

In Ohr’s later-overruled Northwestern decision (which you can download here), he wrote at length about the control Pat Fitzgerald’s program had over its players' athletic and academic lives and the essential function the football team filled in the university’s core business. Those are the key prongs of a statutory test of whether a worker is an employee.

Ohr drew on the obvious math at hand (that the football program generated $235 million in revenue in a nine-year period ahead of his ruling) and also on the impact a Big Ten football team can have on campus at large. In doing so, he almost sounded like a school president:

“Less quantifiable but also of great benefit to the Employer is the immeasurable positive impact to Northwestern’s reputation a winning football team may have on alumni giving and increase in number of applicants for enrollment at the University,” Ohr wrote.

So, he gets how football fits into a university community. But what does Ohr’s appointment actually mean for labor relations in college sports? Maybe everything, and maybe nothing.

In Ohr’s new job, he might find himself in a position to bring another college athlete case to the five-member NLRB.  But a lot has to happen first.

Here, it’s key to understand the NLRB’s institutional setup. The general counsel is independent of the board itself. The task falls to the regional directors and, in cases like Northwestern’s where the matter is elevated to the national board, to its five members. The board is currently three Republicans, a Democrat, and a vacancy, though the schedule of term expirations should give Biden a chance to get two Democrats confirmed before the end of this year. (When I talk about “the board,” I’m talking about this committee. The NLRB is a whole agency.)

But as general counsel, there’s still “a bunch of stuff” Ohr can do, per Christman. The general counsel supervises regional offices like the one Ohr used to lead, and he can provide guidance and priorities to those 26 offices. He also recommends which cases go before the board committee, and then crafts what amounts to a prosecutor’s argument on behalf of the agency. It’s his responsibility to make sure the National Labor Relations Act is followed.

“There’s a number of ways they could make sure the election process itself was free and fair, democratic – that workers have the right to choose for themselves if they want a union or not, free of intimidation or threats of retribution from employers,” she says. “I would say that’s really the biggest thing they could be doing.”

For any of this to touch college sports, players on some other team – specifically, at a private school that is thus under NLRB jurisdiction – would have to make a Northwestern-like union effort. If that happened, Ohr could theoretically make it likelier that an NLRB field office took on the case and gave it a fair hearing. And theoretically, if a regional office ruled as Ohr’s did in 2014 and deemed athletes at a given school to be employees, Ohr would have the leeway not to push the case before the five-member board.

Alternatively, if a regional office ruled against the players, Ohr could try to push the case to the national board hoping for a reversal. (Here, it’s worth noting that the board that decided against the Northwestern players was majority Democratic. Nothing is a slam dunk.)

Everything here is theoretical but possible, and Ohr hasn’t said anything about hypothetical cases that don’t exist. But the mere possibility is a difference from the NLRB under Ohr’s predecessor, Robb, who would not have lifted a finger to help athletes organize.

That the NLRB can’t touch public schools is a significant limiting factor, though.

A previous general counsel (the one before Ohr’s immediate predecessor) issued a non-binding opinion in 2017 that football players at private FBS schools are employees. So, Ohr wouldn’t have to rock the boat to make that argument once again.

But where does that leave 112 public schools in FBS?

If the 2014 union drive happened at Illinois instead of Northwestern, it wouldn’t have been a matter for the NLRB at all. The state government would’ve had to sort it out.

In the Northwestern case, the NLRB said its “primary premise” for not asserting jurisdiction over college football (and thus negating Ohr’s ruling) was that it would create an incongruity between FBS’ private and public schools, in which private schools’ players became employees and their public school peers did not. The NLRB said that “would not promote stability in labor relations.”

Christman likens it to preventing private-sector teachers from unionizing because public schools have teachers’ unions already. “That doesn’t make any sense,” she says. “Nobody’s asking them to rule on the public sector. They’re asking them to rule on the question in front of them, which is the private sector.”

Whether a differently composed board would rule more aggressively is unknowable. But the only players to whom the NLRB could grant employee status are those at private schools.

That wouldn’t do much good for players at public schools in states that have right-to-work laws and other legal devices designed to inhibit organized labor. These tend to be states with Republican legislatures and governors, which tend to be states with big football programs.

But not all of them are. Wisconsin, Michigan, and Virginia are among 27 states with “right-to-work” laws that limit unions’ effectiveness and might chill organizing momentum. Arizona and Georgia, which are trending blue but still have Republicans controlling state government, also have them. And even some of the most Democrat-controlled cities and metros in the country do not always operate in a uniformly pro-union fashion.

The point is that states and cities all over the country have various ways of making union organizing and bargaining more onerous than it has to be. Schools have demonstrated they’ll fight intensely to prevent players from taking a direct share of the profits they help generate.

If the NLRB told, say, USC it had to treat players like employees, it’s not clear that would mean anything for players at UCLA.

Maybe, over the long term, the NLRB could get a ball rolling toward wider change.

Christman outlines one such scenario: Players become employees at private schools and begin negotiating detailed benefits packages, including payment and longer-range health benefits. In short order, that becomes a recruiting advantage that prompts public schools to catch up.

“The laws in Texas don’t say you can’t join a union, and they don’t say you can’t allow your employees to unionize,” Christman says. “And I suspect that Texas A&M or the Longhorns or whomever would start to see that it is a bad business decision to lose those players to another state, and that they would end up doing something about it.”

Another vision is that players organize at a handful of schools and make the case that they are jointly employed by their university and either the NCAA or a conference. This theory got some run around the time of the Northwestern decision, though it hasn’t been fully tested. Because the NCAA and conference offices are private organizations, they’d fall under NLRB oversight.

Either outcome would have to follow a massive organizing movement in athletic programs all across a given region or even the country. The loose organizing efforts of Pac-12 and Big Ten players before the 2020 season were the biggest such events in college sports history, but that’s mainly a consequence of how little organizing has been done in this field. The Pac-12 and Big Ten players came away with few concessions of any consequence, in part because some of their peers made public statements that undermined their leverage, but mostly because college athletes have little leverage against their schools to begin with.

None of this means Ohr’s ascension isn’t a big deal for workers, or that the federal government won’t do something for college athletes.

Ohr could use the perch of the general counsel’s role to help the cause in some way. Biden could make progressive board appointments that pay dividends for athletes some time down the line. And Congress may pass a name, image, and likeness bill if the NCAA continues to sit on its hands. The return of college football video games may well include athlete payments. There are a lot of different avenues, including state laws, for regulatory reform.

In Trump’s NLRB, the prospects for any help getting players declared employees were nil, and it turned out no players even brought a case. In this new NLRB, the door is at least cracked open.

Still, college football is not exactly a bastion of progressive political change. Broadly speaking, no one should expect this sport to lead the way into a new era of labor relations.

Ohr might help, but the real change will come not just when players decide they want to organize, but when the rest of us decide we’re ready to support them if they do.

“Having the broader conversation about how important it is for people to be able to unionize does just create a context for this fairly young group of people to be able to win if they want to,” Christman says. “They face enormous opposition from very entrenched, wealthy opponents who are willing to throw a lot of money at efforts to defeat them. To the extent that there’s a more general climate of support for people’s rights to organize, it would make it easier for them to make whatever decision they want to make.”

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