Good morning, and thanks for spending part of your day with Extra Points.
Last week, amid a news cycle already packed with updates from courthouses and Washington, D.C., one of the biggest stories in college athletics dropped on the West Coast.
The United College Athletes Association announced that more than 100 women’s college basketball players had signed up for a unionization effort. As part of that nationwide push, members of the Oregon State women’s basketball team filed a petition to unionize with the Oregon Employment Relations Board.
This isn’t the first time college athletes have attempted to unionize. But I believe this is one of the first efforts at a public university; previous attempts came from Northwestern football and Dartmouth men’s basketball. And that distinction is important, because it means the legal and administrative process won’t be the same.
The National Labor Relations Board — a federal agency whose membership is shaped by the current presidential administration — governs unionization among private employers. Formal unionization efforts at many institutions have paused or slowed, in part out of reluctance to bring a case to the NLRB under a Republican administration that’s less likely to be favorable toward organized labor.
But the Oregon State women’s basketball players are specifically filing for union representation under Oregon State University, which would make them public employees.
Their first step in what will probably be a long process would be to petition for Oregon State University to voluntarily recognize their union. This could happen, as momentum toward supporting collective bargaining with athletes has grown over the past decade among larger athletic departments, but it’s probably unlikely. Previous athlete unionization efforts did not bring voluntary recognition, and universities, even in blue states, often decline to voluntarily recognize other unions on campus.
So let’s say Oregon State says no.
What happens next?
I asked Keith Cunningham-Parmeter, a law professor at Lewis & Clark Law School in Portland, Oregon.
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That next step centers on the Oregon Employment Relations Board, a department Cunningham-Parmeter described as “the Oregon equivalent of the NLRB.” The OERB’s three board members are appointed by the state governor and confirmed by the state Senate. Since Oregon has not had a Republican governor since 1982, and Republicans have not controlled the state Senate since 2000, all three OERB board members were appointed and confirmed under Democratic administrations.
The OERB will be responsible for determining if the Oregon State women’s basketball team is eligible for employment classification and union representation under state law, such as the Oregon Public Employee Collective Bargaining Act. Administrative law judges and the full OERB board could be asked to determine if the basketball players should be considered independent contractors or employees, using “similar tests that would be applied by the NLRB for private sector workers,” according to Cunningham-Parmeter. “At the end of the day, it’s a judgment call.”
But he did point to one potentially important difference: “Oregon has a reputation for being a state is more friendly to organized labor in the public sector,” he said. “Oregon State University specifically, for example, already employs workers represented by Service Employees International Union (SEIU), United Academics of Oregon State University (UAOSU), Coalition of Graduate Employees (CGE) and Oregon State Public Safety Association (OSPSA). Many of those unionized employees are also students, undergrad or graduate.”
“If a workplace already has unionized workers who are also students, will it be harder to draw the line against athletes organizing just like their graduate student peers? How big of a leap is that?” he wondered.
What about everybody else?
One of the major conflicts in the Northwestern football unionization effort, according to Cunningham-Parmeter, was the challenge of integrating private and public schools into one cohesive competitive union. Back in the early 2010s, Northwestern was the only private school in the Big Ten, and thus the one institution under the direct jurisdiction of the NLRB.
The new Pac-12 also only has one private school, Gonzaga. But it’s also worth noting that while Oregon may have a favorable legal and political climate toward athlete labor organizing, other states in the league footprint, like Idaho, Utah and Texas, very much do not. Should athletes eventually decide to bargain with the Pac-12 (a possible way to get around state bans against public employee collective bargaining), then their organization effort would fall back under the NLRB.
Should Oregon State women’s basketball beat everybody else to official labor recognition and bargaining ability, could it galvanize other schools in other states to do the same? It could. But if athlete outcomes don’t improve, or the athletes don’t sign a CBA that is favorable compared to what athletes are getting elsewhere, it could also be a negative. There are a lot of unknowns that will depend greatly on how Oregon State University responds, how the athletes organize and bargain, what they seek to bargain for and more.
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How else is this different from other athlete-led organizing efforts?
Also last week, football players at Stanford established the first chapter of the College Football Players Association, or CFPA. The CFPA had been working for years to organize campus chapters, and I have to admit, I didn’t think they would be able to pull it off. I was wrong, and those involved in the Stanford effort should feel proud of what they’ve accomplished already.
ESPN reports that, unlike at Oregon State, the Stanford football players are not formally petitioning to form a union or bargain directly with their school. The CFPA’s long-term goal is to establish bargaining units around conferences, not schools. Folks I trust around the industry have told me over the past few days that the CFPA is working to organize other chapters, at both private and public institutions, and that it is confident in its ability to announce the formation of other chapters in the near future. I do not expect Stanford to be the only ACC school with a chapter when the dust settles.
But beyond the NLRB/state boards, it’s worth remembering that the day-to-day organizing efforts are going to look different in football than basketball, and men’s basketball probably will be different from women’s basketball. Football rosters are huge, meaning organization requires more effort to build solidarity across a larger bargaining unit, especially one that could have huge differences in earning potential economic mobility.
A basketball roster has 15 people, not 105. It’s generally a lot easier to get a dozen of them to agree on something, compared to 80-plus people, especially if the economic gap between those dozens of people isn't, say, $8 million. I do not think it is an accident that many of those most visible athlete rights advocates who are still currently college athletes have been women’s basketball players, not football players.
To me, there are two ways out of the current “crisis” in college sports labor management. One is getting Congress to give the NCAA and member conferences an antitrust exemption to allow them to enforce limits on transferring, athlete compensation, eligibility, etc. There’s a very real chance that Congress will actually grant this antitrust exemption now (more on that later this week), although even if the PCSA passes, portions of it will almost certainly be tested in court.
The other way is via the antitrust exemptions that come through collective bargaining, just like professional sports. But if you want to have a college sports CBA, you don’t just need athletic directors or agents saying it would be a good idea. You need somebody to bargain with, and that requires an organized, independent athlete-advocacy group. That means you’re gonna need a union.
This is another step in that process. We’ll see how it progresses … with, without, or alongside the Protect College Sports Act.
