Biden Picks College Athlete Advocate as Acting General Counsel of NLRB

Michael McCann
·4 min read

President Joe Biden has selected a familiar name in the sports world to serve as acting general counsel of the National Labor Relations Board. Seven years ago, Peter Sung Ohr, then a regional director for the NLRB in Chicago, stunned athletes and coaches alike by finding that Northwestern football players who received grant-in-aid scholarships were employees within the meaning of Section 2(3) of the National Labor Relations Act.

Ohr, whose appointment was made public Jan. 25, can remain in the acting role for up to 40 days. Biden could nominate Ohr to become the next general counsel, though the U.S. Senate will need to confirm the choice. Ohr was appointed when his predecessor, Peter Robb, was fired along with his deputy, Alice Stock, after refusing to resign—the first such incident of an NLRB general counsel being forced out of office prior to finishing a term since 1950.

The general counsel plays an instrumental role at the NLRB. While his tenure might prove brief, Ohr can shape the legal topics that the NLRB Board considers for decision and offer input on how the Board should rule. Ohr now has the authority to investigate charges, issue complaints against employers and unions, seek temporary restraining orders, pursue appeals and author position statements. At the same time, Ohr is separate from the Board and limited accordingly. He cannot vote on matters that alter precedent.

Guided in part by the testimony of Northwestern players, most notably quarterback Kain Colter, Ohr concluded in his 2014 ruling that the players’ collegiate experience was largely controlled by their obligations to the Wildcats. The players’ ability to select courses and much of their time was dictated by coaches and athletic staff. Ohr also placed emphasis on football players generating substantial revenue for their school.

Ohr then directed the Wildcats players on scholarship to conduct a secret ballot vote on whether to unionize. Had they unionized, the players would have negotiated a collective bargaining agreement with Northwestern to govern their wages, hours and other working conditions (e.g., drug and PED testing). If the players had voted nay, each would have negotiated individual employment terms with Northwestern. Either scenario would have put the university in an unenviable position where compliance with labor law would have meant non-compliance with NCAA rules.

Northwestern averted those outcomes by successfully petitioning the Board to review Ohr’s decision. In a 5-0 vote in 2015, the Board declined to assert jurisdiction, effectively rejecting Ohr’s ruling. The Board eschewed voicing an opinion on whether the players were employees. It instead expressed worry that such a finding would destabilize labor relations.

That concern reflected, the Board explained, that of about 125 schools competing in FBS, only 17 are private. The potential employment of football players at public universities is governed by the labor laws of the states where their universities reside—not the NLRB. In other words, a ruling for Northwestern football players would have led to players at private colleges being employees, yet those at public colleges would have remained non-employees (absent action by their respective state agencies and lawmakers to designate them as employees).

Biden’s selection of Ohr does not necessarily reflect his or Ohr’s views on college athletes. Ohr has worked for the NLRB in various capacities since he began as a field attorney in 1997. While the Northwestern matter is perhaps the most known decision of his career, it was one of many and not necessarily the most important. Ohr has been involved in thousands of NLRB legal actions, the vast majority of which are unrelated to athletics.

Ohr’s appointment also doesn’t create an automatic pathway for the NLRB to reverse the Northwestern ruling. The Board would need a live controversy, where a group of athletes from a private university file a petition under the NLRA. A regional director would then review and decide. Acting on a petition, the Board could then conduct its own review.

Whether the Board would rule for players is uncertain. The Northwestern matter was decided only six years ago. At the time, the Board had three members who were Democrats—one, Lauren McFerran is still on the board—and two who were Republicans. All five voted against the players. The Board currently has four members (three Republicans and one Democrat) with one vacancy. It’s possible the Board might now be more willing to weigh in given recent developments (NIL, NCAA v. Alston etc.), but there’s no guarantee.

Ohr could advocate for certain policies in memoranda. In 2017, then-NLRB general counsel Richard Griffin opined in a memorandum that college athlete on scholarships are employees. The memo didn’t lead to change but advanced a policy sought by college sports reformers.

Daniel Libit contributed to this report.

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