STATE OF NEW YORK ________________________________________________________________________ 2748 2023-2024 Regular Sessions IN SENATE January 24, 2023 ___________ Introduced by Sens. BAILEY, PARKER -- read twice and ordered printed, and when printed to be committed to the Committee on Labor AN ACT to amend the labor law, in relation to collective bargaining rights for college athletes, and authorizes the public employment relations board to exercise jurisdiction over institutions of higher education and college student athlete employees of such institutions in relation to all collective bargaining matters The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. This act shall be known and may be cited as the "New York 2 college athlete right to organize act". 3 § 2. Legislative intent. (a) The National Labor Relations Act (29 4 U.S.C. 151 et seq.) seeks to remedy the inequality of bargaining power 5 between employees and employers primarily through establishing and 6 protecting the rights of employees to self-organize and designate repre- 7 sentatives of their own choosing for the purpose of negotiating the 8 terms and conditions of their employment or other mutual aid or 9 protection. Labor organizations often originate to remedy unfair and 10 exploitative labor practices by employers through assisting employees in 11 securing more equitable terms and conditions of their employment, 12 including fair compensation and safe working conditions, which individ- 13 ual employees would be unlikely to negotiate successfully for on their 14 own. Labor organizations serve unique and essential purposes for profes- 15 sional athletes competing in sports leagues, where it is desirable to 16 establish uniform rules and standards across multiple employers. These 17 rules and standards bear significant consequences to the athletes in 18 terms of compensation, health and safety, and the ability or lack there- 19 of for athletes to choose their employer, among other issues related to 20 the athletes' well-being. The formation of labor organizations repres- 21 enting athletes in professional sports leagues in the United States has 22 helped end exploitative practices by team owners and management, partic- EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD03834-01-3S. 2748 2 1 ularly through establishing collective bargaining agreements that have 2 secured athletes a fair share of the revenues their talent and labor 3 produces, as well as more equitable terms of their employment and 4 protections for their short- and long-term health. 5 (b) College athletes face exploitative and unfair labor practices by 6 the National Collegiate Athletic Association (referred to in this 7 section as the "NCAA") and its member institutions, primarily through 8 the denial of the basic economic and labor rights of such athletes, 9 which the NCAA and its member institutions have justified by defining 10 college athletes as amateurs. The NCAA and its member institutions have 11 denied college athletes a fair wage for their labor by colluding to cap 12 compensation; they maintain strict and exacting control over the terms 13 and conditions of college athletes' labor; and they exercise the ability 14 to terminate an athlete's eligibility to compete if the athlete violates 15 these terms and conditions. College athletes exhibit the markers of 16 employment as established under the common law definition of the term 17 "employee": They perform a valuable service for their respective 18 colleges under a contract for hire in the form of grant-in-aid agree- 19 ments; these agreements assert significant control over how athletes 20 perform their work and the conditions under which they work; and they 21 receive compensation in the form of grant-in-aid and stipends in 22 exchange for their athletic services. 23 (c) To establish more equitable terms and conditions for college 24 athletes' labor, college athletes need representation of their own 25 choosing to negotiate collective bargaining agreements with their 26 respective colleges and the athletic conferences that help set rules and 27 standards across the state. To organize effectively, college athletes 28 must be able to form collective bargaining units across institutions of 29 higher education that compete against each other, including within 30 athletic conferences in the state. 31 § 3. Section 718 of the labor law is renumbered section 700-a and a 32 new section 718 is added to read as follows: 33 § 718. Collective bargaining rights for college athletes. 1. The board 34 shall exercise jurisdiction over institutions of higher education and 35 college student athlete employees of such institutions in relation to 36 all collective bargaining matters under this chapter pertaining to such 37 employees, including any representation matter, such as recognizing or 38 establishing a bargaining unit for such employees and any labor dispute, 39 involving such institutions and employees. 40 2. For the purpose of establishing an appropriate bargaining unit for 41 college athlete employees at institutions of higher education in an 42 intercollegiate athletic conference, the board shall recognize multiple 43 institutions of higher education within an intercollegiate athletic 44 conference as a multiemployer bargaining unit, but only if consented to 45 by the employee representatives for the intercollegiate sports bargain- 46 ing units at the institutions of higher education that will be included 47 in the multiemployer bargaining unit. 48 3. No person shall enter into or induce any person to enter into any 49 agreement (including a grant-in-aid agreement, as defined in section 50 3(15) of the National Labor Relations Act (29 U.S.C. 152(15)) or legal 51 settlement that waives or permits noncompliance with this section. 52 4. As used in this section, "intercollegiate athletic conference" 53 means any conference or other group or organization of institutions of 54 higher education that: (a) exercises authority over intercollegiate 55 sports at such institutions of higher education; and (b) is engaged in 56 commerce or an industry or activity affecting commerce; provided, howev-S. 2748 3 1 er, that such term does not include the National Collegiate Athletic 2 Association. 3 § 4. Subdivision 2 of section 701 of the labor law is amended by 4 adding a new paragraph (c) to read as follows: 5 (c) The term "employer" includes a public institution of higher educa- 6 tion as defined in section 102 of the Higher Education Act of 1965 (20 7 U.S.C. 1002) and located within the state with respect to the employment 8 of college student athlete employees of the institution. 9 § 5. Subdivision 3 of section 701 of the labor law is amended by 10 adding a new paragraph (d) to read as follows: 11 (d) The term "employee" or "college athlete employee" shall include 12 any individual who participates in an intercollegiate sport for an 13 institution of higher education located within the state and is a 14 student enrolled in such institution of higher education if: 15 (i) the individual receives any form of direct compensation, including 16 grant-in-aid, from the institution of higher education; and 17 (ii) any terms or conditions of such compensation require partic- 18 ipation in an intercollegiate sport. 19 § 6. Section 701 of the labor law is amended by adding a new subdivi- 20 sion 13 to read as follows: 21 13. The term "grant-in-aid" means a scholarship, grant, or other form 22 of financial assistance that is provided by an institution of higher 23 education to an individual for the individual's undergraduate or gradu- 24 ate course of study. 25 § 7. Nothing in this act, or any rule or regulation promulgated pursu- 26 ant to authority granted by this act, shall: 27 (a) cause any type of direct compensation described in section 2(3) of 28 the National Labor Relations Act (29 U.S.C. 152(3)) that was not previ- 29 ously treated as income for which a tax may be imposed under the Inter- 30 nal Revenue Code of 1986 to become a type of direct compensation for 31 which a tax may be imposed under the New York state tax law; 32 (b) cause any individual to be treated as an employee, or cause any 33 amounts received by an individual to be treated as wages, for purposes 34 of any provision in the New York state tax law relating to employment 35 taxes or the withholding of taxes by an employer if such individual or 36 amounts would not otherwise be so treated; 37 (c) affect the treatment of qualified scholarships under section 117 38 of the Internal Revenue Code of 1986; or 39 (d) otherwise affect the treatment of any direct compensation 40 described in such section 2(3) in determining income, including gross 41 income or adjusted gross income, for purposes of - 42 (i) reporting requirements under the New York state tax law; or 43 (ii) determining eligibility for any form of state financial assist- 44 ance available to student athletes. 45 § 8. Severability. If any provision of this act or the application of 46 such provision or amendment to any person or circumstance is held to be 47 invalid or unconstitutional, the remainder of this act and the applica- 48 tion of the provision or amendment to any other person or circumstance, 49 shall not be affected. 50 § 9. This act shall take effect immediately; provided, however, that 51 this act shall be deemed repealed if any federal agency determines in 52 writing that this act would render New York state or any student athlete 53 ineligible for the receipt of federal funds or any court of competent 54 jurisdiction finally determines that this act would render New York 55 state out of compliance with federal law or regulation provided, 56 further, that the commissioner of labor shall notify the legislativeS. 2748 4 1 bill drafting commission upon the occurrence of such determination in 2 order that the commission may maintain an accurate and timely effective 3 data base of the official text of the laws of the state of New York in 4 furtherance of effectuating the provisions of section 44 of the legisla- 5 tive law and section 70-b of the public officers law. Effective imme- 6 diately, the addition, amendment and/or repeal of any rule or regulation 7 necessary for the implementation of this act on its effective date are 8 authorized to be made and completed on or before such effective date.