Relates to collective bargaining rights for college athletes; 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.
NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
 
BILL NUMBER: A5099
SPONSOR: Solages
 
TITLE OF BILL:
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
 
PURPOSE:
To provide college athletes with collective bargaining rights, and
authorize 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.
 
SUMMARY:
Section 1. Provides the short title of the bill.
Section 2. Legislative intent.
Section 3. Amends section 718 of the labor law by renumbering it as
section 700-a and adding a new section 718.
Section 4. Amends subdivision 2 of section 701 of the labor law by
adding a new paragraph (c).
Section 5: Amends subdivision 3 of section 701 of the labor law by
adding a new paragraph (d).
Section 6. Amends section 701 of the labor law by adding a new subdivi-
sion 13.
Section 7. Sets standards for forms of financial compensation in
relation to the National Labor Relations Act.
Section 8. Severability clause.
Section 9. Sets the effective date.
 
JUSTIFICATION:
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 agreements; these agree-
ments 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.
In light of recent NCAA rules changes, New York State enacted a law that
allows for college athletes to be compensated for the use of their name,
image, and likeness (NIL). The goal of this law is to give college
athletes the ability to take advantage of NIL sponsorship opportunities
in exchange for the use of their NIL, and to eliminate the fear that a
NIL deal will cause an athlete to lose their scholarship. This legis-
lation takes the next step in bringing parity between the college and
professional sports industries by empowering athletes to advocate for
fair pay and safe working conditions.
Currently, collegiate athletes, although the foundation of the multi-
billion dollar sports enterprise in the United States, do not have a
proper method to advocate for improved working conditions, fair wages,
or benefits. This legislation would empower collegiate athletes within
the state to participate in various labor agreements granting them simi-
lar rights as other industry rank and file employees.
 
RACIAL JUSTICE IMPACT:
Many college athletes are students of color with dreams of pursuing a
professional sports career only to be met with high tuition costs and
harsh conditions at practice and competitions. According to Time, 57% of
college football players are Black, and these colleges gross nearly $3.5
billion a year from that sport alone.
It is an injustice for colleges to earn so much money on the backs of
these players who work for free, and receive no benefits and no strin-
gent workplace protections. This bill will allow college athletes to
collectively bargain to achieve these basic rights.
 
GENDER JUSTICE IMPACT:
TBD.
 
FISCAL IMPACT:
None.
 
LEGISLATIVE HISTORY:
2021-22: A8153; referred to labor.
 
EFFECTIVE DATE: 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 bill drafting commission upon the occurrence of such deter-
mination in order that the commission may maintain an accurate and time-
ly effective database of the official text of the laws of the state of
New York in furtherance of effectuating the provisions of section 44 of
the legislative law and section 70-b of the public officers law. Effec-
tive immediately, 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.
STATE OF NEW YORK
________________________________________________________________________
5099
2023-2024 Regular Sessions
IN ASSEMBLY
March 2, 2023
___________
Introduced by M. of A. SOLAGES -- read once and referred to the Commit-
tee 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.
LBD03834-01-3
A. 5099 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-
A. 5099 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 legislative
A. 5099 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.