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How the PRO Act could affect professional sports

And how it could affect college athletes, as well.

NFL: JAN 30 Super Bowl LIV - NFLPA Press Conference Photo by Rich Graessle/PPI/Icon Sportswire via Getty Images

On March 9th, the House of Representatives passed the Protecting the Right to Organize Act of 2021 or the PRO Act. The PRO Act is largely considered the biggest boost to labor in the last few decades as it seeks to increase America’s dwindling union membership. Amidst a deadly pandemic that has wiped out millions of jobs and transferred trillions of dollars upward, the PRO Act partially seeks to level the playing field and give workers more power as we head towards some semblance of economic recovery.

A labor sector that has been under-discussed in the impact of the PRO Act is what these new labor laws can do for major sports in America. Professional athletes are mostly union workers and there is a wide range of ways this new law could empower athletes across the country.

Creating leverage in existing unions

The NFLPA, the player’s union, is just coming off a new CBA (Collective Bargaining Agreement) vote in the summer of 2020. The 10-year collective bargaining agreement passed narrowly with 60 votes, and 500 players abstaining.

Since the slim passage of this CBA, the NFL has experienced some serious shifts in the general labor dynamic between the owners and the players.

Playing during a pandemic put the players at unique risk for contracting a deadly virus and the league’s enforcement of “safety” protocols was uneven at best. While the pandemic threatened player health, it also impacted league revenue. A four billion dollar drop in revenue will be reflected in the salary cap, as established by the CBA. This ultimately impacts pay for players despite the athletes putting their bodies even more on the line to make the season possible. Factor in the ongoing tension between players and owners over political involvement and racial justice initiatives, and you see the makings of an unhappy labor force.

While the PRO Act mostly encourages new organizing, it also creates avenues for existing unions to build leverage between bargaining agreements. The PRO Act repeals bans on “secondary” activity, which allows workers to boycott and picket third-party entities to create pressure on the primary employer. A rough example of this happening would be FedEx withholding naming rights from the Washington Football Team’s field until they changed their previous, racist name. If that pressure had originated from players threatening and encouraging boycotts of FedEx, that would be a “secondary” activity, which would now be allowed under the PRO Act.

The next CBA is not for 10 years, but the PRO Act’s allowance of “secondary” activity would create a “potential leverage point” for the player’s union, according to a labor expert who spoke with me on condition of anonymity. The league and its teams have hundreds of sponsors nationally and locally, while owners themselves usually have dozens of their own vested private interests. These create great opportunities for players to wield their power to put pressure on the league to make critical changes and concessions in the wake of a tumultuous year.

The NFL’s example is the most extreme of the major league unions. The NBA, MLS, MLB, and the NHL are also unionized leagues that experienced strains on owner/player relations in the last year. They could take similar avenues to regain the upper hand in the event of the PRO Act’s Passage through the Senate and White House.

New union power for unorganized labor in sports

While the major leagues enjoy strong unions and great pay, a mass of for-profit sports in America is still not protected by a union, despite great efforts being made by athletes and activists. The PRO Act could completely change that dynamic.

Minor League Baseball has tried unionization efforts in the past, to no avail. Meanwhile, Minor League Players are paid ridiculously low wages while the sport still serves to bring in large profits for the league and owners. Despite the NHL making half as much as the MLB on any given year, the average pay for minor league hockey players is substantially higher than their counterparts in baseball. Why? Because they are protected and negotiated for by the NHLPA while minor leaguers are outside of the baseball player’s union.

The PRO Act would give minor league baseball players tremendous leverage to organize a union. The law forces employers to the table and lays out negotiating timelines to prevent owners from stalling and killing organizing through a drawn-out arbitration process. It also gives players the resources to organize by making contact information available to fellow workers instead of giving owners a monopoly. Owners would not be able to use replacement labor during a negotiating process to undermine the organizing workers and, importantly, the PRO Act seeks to nationally ban Right To Work Laws. Twenty-seven states allow workers in a union to decide if they want to pay into the union that is protecting them. These laws weaken union funding substantially and have played a large role in union labor’s decrease in the last few decades. Making sure a new minor league union is well funded is a guarantee that it will be able to maintain power and advocate for its players.

The minor league not only provides affordable entertainment to hundreds of communities across the country, but it also creates thousands of jobs. While the MLB is trying to cut the number of teams in order to offset labor demands, the PRO Act would create a great platform for these athletes to establish a union and get better wages.

Non-union, for-profit sports have been trying to organize for decades now. Combat sports is just another field where players are at immense risk and don’t have any type of labor organization to protect them. The individual nature of boxing, wrestling, and cage fighting makes it even harder for athletes to organize, but the PRO Act would give fighters the resources to contact their fellow athletes. Also, the “contractor” label would no longer stand in the way of organizing with the PRO Act creating joint-employer agreements that would cover athletes constantly moving in between professional leagues. Despite a long history of union-busting within these sports, this could finally turn the table on greedy owners.

Organizing the “amateurs”

The debate about paying college players has been ongoing for decades and efforts to organize have seen an uptick in the last year. The PRO Act’s ability to create leverage for college players hinges on the “amateur” label being removed. While hopes for that happening on a national level are bleak in the short term, states like California are putting laws on the books to give athletes some foothold as workers. This could open the door for college athletes to unionize in these states and potentially create a domino effect across the country.

Previous efforts to unionize college athletes by the Northwestern football team saw some life when their efforts were supported by the United Steelworkers Union, but ultimately the National Labor Relations Board did not recognize their union. With the PRO Act, it would become easier for athletes to create larger networks of workers to create leverage against their employers (schools, conferences, the NCAA) while also forcing the employers to the bargaining table. This hinges on other laws going into effect to even label these athletes as workers, but history suggests that a rising tide of labor lifts all workers.

Leveling the playing field

When talking about sports and labor, the high pay of major league players obfuscates the reality that these are workers. Not only are they workers, but they are often the most visible workers in the country. The high pay of stars also distorts that the majority of athletes in for-profit sports aren’t enjoying long, lucrative careers.

More often than not, players are in and out of professional sports after a few years and tend to incur a physical toll on their bodies.

Being an athlete in these cases is a 24/7 commitment and often the owners are still seeing the broader share of profits from leagues. In the case of non-union and amateur sports, the majority of athletes are seeing little to none of the profits while owners get rich off them. Unions can rapidly change the dynamic of fairness for all athletes in for-profit sports and the PRO Act opens the door to make that possible.