S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   7287
 
                        2021-2022 Regular Sessions
 
                             I N  S E N A T E
 
                               July 14, 2021
                                ___________
 
 Introduced  by  Sens.  BAILEY, PARKER -- read twice and ordered printed,
   and when printed to be committed to the Committee on Rules
 
 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:
 
   Section  1.  This act shall be known and may be cited as the "New York
 college athlete right to organize act".
   § 2. Legislative intent. (a) The  National  Labor  Relations  Act  (29
 U.S.C.   151 et seq.) seeks to remedy the inequality of bargaining power
 between employees  and  employers  primarily  through  establishing  and
 protecting the rights of employees to self-organize and designate repre-
 sentatives  of  their  own  choosing  for the purpose of negotiating the
 terms and  conditions  of  their  employment  or  other  mutual  aid  or
 protection.  Labor  organizations  often  originate to remedy unfair and
 exploitative labor practices by employers through assisting employees in
 securing more  equitable  terms  and  conditions  of  their  employment,
 including  fair compensation and safe working conditions, which individ-
 ual employees would be unlikely to negotiate successfully for  on  their
 own. Labor organizations serve unique and essential purposes for profes-
 sional  athletes  competing  in sports leagues, where it is desirable to
 establish uniform rules and standards across multiple  employers.  These
 rules  and  standards  bear  significant consequences to the athletes in
 terms of compensation, health and safety, and the ability or lack there-
 of for athletes to choose their employer, among other issues related  to
 the  athletes'  well-being. The formation of labor organizations repres-
 enting athletes in professional sports leagues in the United States  has
 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.
              

                                                            LBD11807-01-1

 S. 7287                             2
 
 ularly  through  establishing collective bargaining agreements that have
 secured athletes a fair share of the revenues  their  talent  and  labor
 produces,  as  well  as  more  equitable  terms  of their employment and
 protections for their short- and long-term health.
   (b)  College  athletes face exploitative and unfair labor practices by
 the National  Collegiate  Athletic  Association  (referred  to  in  this
 section  as  the  "NCAA") and its member institutions, primarily through
 the denial of the basic economic and  labor  rights  of  such  athletes,
 which  the  NCAA  and its member institutions have justified by defining
 college athletes as amateurs. The NCAA and its member institutions  have
 denied  college athletes a fair wage for their labor by colluding to cap
 compensation; they maintain strict and exacting control over  the  terms
 and conditions of college athletes' labor; and they exercise the ability
 to terminate an athlete's eligibility to compete if the athlete violates
 these  terms  and  conditions.  College  athletes exhibit the markers of
 employment as established under the common law definition  of  the  term
 "employee":    They  perform  a  valuable  service  for their respective
 colleges under a contract for hire in the form  of  grant-in-aid  agree-
 ments;  these  agreements  assert  significant control over how athletes
 perform their work and the conditions under which they  work;  and  they
 receive  compensation  in  the  form  of  grant-in-aid  and  stipends in
 exchange for their athletic services.
   (c) To establish more  equitable  terms  and  conditions  for  college
 athletes'  labor,  college  athletes  need  representation  of their own
 choosing  to  negotiate  collective  bargaining  agreements  with  their
 respective colleges and the athletic conferences that help set rules and
 standards  across  the  state. To organize effectively, college athletes
 must be able to form collective bargaining units across institutions  of
 higher  education  that  compete  against  each  other, including within
 athletic conferences in the state.
   § 3. Section 718 of the labor law is renumbered section  700-a  and  a
 new section 718 is added to read as follows:
   § 718. COLLECTIVE BARGAINING RIGHTS FOR COLLEGE ATHLETES. 1. THE BOARD
 SHALL  EXERCISE  JURISDICTION  OVER INSTITUTIONS OF HIGHER EDUCATION AND
 COLLEGE STUDENT ATHLETE EMPLOYEES OF SUCH INSTITUTIONS  IN  RELATION  TO
 ALL  COLLECTIVE BARGAINING MATTERS UNDER THIS CHAPTER PERTAINING TO SUCH
 EMPLOYEES, INCLUDING ANY REPRESENTATION MATTER, SUCH AS  RECOGNIZING  OR
 ESTABLISHING A BARGAINING UNIT FOR SUCH EMPLOYEES AND ANY LABOR DISPUTE,
 INVOLVING SUCH INSTITUTIONS AND EMPLOYEES.
   2.  FOR THE PURPOSE OF ESTABLISHING AN APPROPRIATE BARGAINING UNIT FOR
 COLLEGE ATHLETE EMPLOYEES AT INSTITUTIONS  OF  HIGHER  EDUCATION  IN  AN
 INTERCOLLEGIATE  ATHLETIC CONFERENCE, THE BOARD SHALL RECOGNIZE MULTIPLE
 INSTITUTIONS OF HIGHER  EDUCATION  WITHIN  AN  INTERCOLLEGIATE  ATHLETIC
 CONFERENCE  AS A MULTIEMPLOYER BARGAINING UNIT, BUT ONLY IF CONSENTED TO
 BY THE EMPLOYEE REPRESENTATIVES FOR THE INTERCOLLEGIATE SPORTS  BARGAIN-
 ING  UNITS AT THE INSTITUTIONS OF HIGHER EDUCATION THAT WILL BE INCLUDED
 IN THE MULTIEMPLOYER BARGAINING UNIT.
   3. NO PERSON SHALL ENTER INTO OR INDUCE ANY PERSON TO ENTER  INTO  ANY
 AGREEMENT  (INCLUDING  A  GRANT-IN-AID  AGREEMENT, AS DEFINED IN SECTION
 3(15) OF THE NATIONAL LABOR RELATIONS ACT (29 U.S.C. 152(15))  OR  LEGAL
 SETTLEMENT THAT WAIVES OR PERMITS NONCOMPLIANCE WITH THIS SECTION.
   4.  AS  USED  IN  THIS  SECTION, "INTERCOLLEGIATE ATHLETIC CONFERENCE"
 MEANS ANY CONFERENCE OR OTHER GROUP OR ORGANIZATION OF  INSTITUTIONS  OF
 HIGHER  EDUCATION  THAT:  (A)  EXERCISES  AUTHORITY OVER INTERCOLLEGIATE
 SPORTS AT SUCH INSTITUTIONS OF HIGHER EDUCATION; AND (B) IS  ENGAGED  IN
 COMMERCE OR AN INDUSTRY OR ACTIVITY AFFECTING COMMERCE; PROVIDED, HOWEV-

 S. 7287                             3
 
 ER,  THAT  SUCH  TERM  DOES NOT INCLUDE THE NATIONAL COLLEGIATE ATHLETIC
 ASSOCIATION.
   §  4.  Subdivision  2  of  section  701 of the labor law is amended by
 adding a new paragraph (c) to read as follows:
   (C) THE TERM "EMPLOYER" INCLUDES A PUBLIC INSTITUTION OF HIGHER EDUCA-
 TION AS DEFINED IN SECTION 102 OF THE HIGHER EDUCATION ACT OF  1965  (20
 U.S.C. 1002) AND LOCATED WITHIN THE STATE WITH RESPECT TO THE EMPLOYMENT
 OF COLLEGE STUDENT ATHLETE EMPLOYEES OF THE INSTITUTION.
   §  5.  Subdivision  3  of  section  701 of the labor law is amended by
 adding a new paragraph (d) to read as follows:
   (D) THE TERM "EMPLOYEE" OR "COLLEGE ATHLETE  EMPLOYEE"  SHALL  INCLUDE
 ANY  INDIVIDUAL  WHO  PARTICIPATES  IN  AN  INTERCOLLEGIATE SPORT FOR AN
 INSTITUTION OF HIGHER EDUCATION  LOCATED  WITHIN  THE  STATE  AND  IS  A
 STUDENT ENROLLED IN SUCH INSTITUTION OF HIGHER EDUCATION IF:
   (I) THE INDIVIDUAL RECEIVES ANY FORM OF DIRECT COMPENSATION, INCLUDING
 GRANT-IN-AID, FROM THE INSTITUTION OF HIGHER EDUCATION; AND
   (II)  ANY  TERMS  OR  CONDITIONS  OF SUCH COMPENSATION REQUIRE PARTIC-
 IPATION IN AN INTERCOLLEGIATE SPORT.
   § 6. Section 701 of the labor law is amended by adding a new  subdivi-
 sion 13 to read as follows:
   13.  THE TERM "GRANT-IN-AID" MEANS A SCHOLARSHIP, GRANT, OR OTHER FORM
 OF FINANCIAL ASSISTANCE THAT IS PROVIDED BY  AN  INSTITUTION  OF  HIGHER
 EDUCATION  TO AN INDIVIDUAL FOR THE INDIVIDUAL'S UNDERGRADUATE OR GRADU-
 ATE COURSE OF STUDY.
   § 7. Nothing in this act, or any rule or regulation promulgated pursu-
 ant to authority granted by this act, shall:
   (a) cause any type of direct compensation described in section 2(3) of
 the National Labor Relations Act (29 U.S.C. 152(3)) that was not  previ-
 ously  treated as income for which a tax may be imposed under the Inter-
 nal Revenue Code of 1986 to become a type  of  direct  compensation  for
 which a tax may be imposed under the New York state tax law;
   (b)  cause  any  individual to be treated as an employee, or cause any
 amounts received by an individual to be treated as wages,  for  purposes
 of  any  provision  in the New York state tax law relating to employment
 taxes or the withholding of taxes by an employer if such  individual  or
 amounts would not otherwise be so treated;
   (c)  affect  the treatment of qualified scholarships under section 117
 of the Internal Revenue Code of 1986; or
   (d)  otherwise  affect  the  treatment  of  any  direct   compensation
 described  in  such  section 2(3) in determining income, including gross
 income or adjusted gross income, for purposes of -
   (i) reporting requirements under the New York state tax law; or
   (ii) determining eligibility for any form of state  financial  assist-
 ance available to student athletes.
   §  8. Severability. If any provision of this act or the application of
 such provision or amendment to any person or circumstance is held to  be
 invalid  or unconstitutional, the remainder of this act and the applica-
 tion of the provision or amendment to any other person or  circumstance,
 shall not be affected.
   §  9.  This act shall take effect immediately; provided, however, that
 this act shall be deemed repealed if any federal  agency  determines  in
 writing that this act would render New York state or any student athlete
 ineligible  for  the  receipt of federal funds or any court of competent
 jurisdiction finally determines that this  act  would  render  New  York
 state  out  of  compliance  with  federal  law  or  regulation provided,
 further, that the commissioner of labor  shall  notify  the  legislative

 S. 7287                             4
 
 bill  drafting  commission  upon the occurrence of such determination in
 order that the commission may maintain an accurate and timely  effective
 data  base  of the official text of the laws of the state of New York in
 furtherance of effectuating the provisions of section 44 of the legisla-
 tive  law  and section 70-b of the public officers law.  Effective imme-
 diately, the addition, amendment and/or repeal of any rule or regulation
 necessary for the implementation of this act on its effective  date  are
 authorized to be made and completed on or before such effective date.