College Athlete Right To Organize Act

II 117TH CONGRESS 1ST SESSION S. 1929 To establish collective bargaining rights for college athletes, and for other purposes. IN THE SENATE OF THE UNITED STATES MAY 27, 2021 Mr. MURPHY (for himself and Mr. SANDERS) introduced the following bill; which was read twice and referred to the Committee on Health, Edu- cation, Labor, and Pensions A BILL To establish collective bargaining rights for college athletes, and for other purposes. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE. 3 This Act may be cited as the ‘‘College Athlete Right 4 To Organize Act’’. 5 SEC. 2. FINDINGS. 6 Congress finds the following: 7 (1) The National Labor Relations Act (29 8 U.S.C. 151 et seq.) seeks to remedy the inequality 9 of bargaining power between employees and employ- 10 VerDate Sep 11 2014 02:39 Jun 16, 2021 Jkt 019200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S1929.IS S1929 kjohnson on DSK79L0C42PROD with BILLS 2 •S 1929 IS ers primarily through establishing and protecting the 1 rights of employees to self-organize and designate 2 representatives of their own choosing for the purpose 3 of negotiating the terms and conditions of their em- 4 ployment or other mutual aid or protection. 5 (2) Labor organizations often originate to rem- 6 edy unfair and exploitative labor practices by em- 7 ployers through assisting employees in securing more 8 equitable terms and conditions of their employment, 9 including fair compensation and safe working condi- 10 tions, which individual employees would be unlikely 11 to negotiate successfully for on their own. 12 (3) Labor organizations serve unique and essen- 13 tial purposes for professional athletes competing in 14 sports leagues, where it is desirable to establish uni- 15 form rules and standards across multiple employers. 16 These rules and standards bear significant con- 17 sequences to the athletes in terms of compensation, 18 health and safety, and the ability or lack thereof for 19 athletes to choose their employer, among other 20 issues related to the athletes’ well-being. 21 (4) The formation of labor organizations rep- 22 resenting athletes in professional sports leagues in 23 the United States has helped end exploitative prac- 24 tices by team owners and management, particularly 25 VerDate Sep 11 2014 02:39 Jun 16, 2021 Jkt 019200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S1929.IS S1929 kjohnson on DSK79L0C42PROD with BILLS 3 •S 1929 IS through establishing collective-bargaining agree- 1 ments that have secured athletes a fair share of the 2 revenues their talent and labor produces, as well as 3 more equitable terms of their employment and pro- 4 tections for their short- and long-term health. 5 (5) College athletes face exploitative and unfair 6 labor practices by the National Collegiate Athletic 7 Association (referred to in this section as the 8 ‘‘NCAA’’) and its member institutions, primarily 9 through the denial of the basic economic and labor 10 rights of such athletes, which the NCAA and its 11 member institutions have justified by defining col- 12 lege athletes as amateurs. 13 (6) The NCAA and its member institutions 14 have denied college athletes a fair wage for their 15 labor by colluding to cap compensation; they main- 16 tain strict and exacting control over the terms and 17 conditions of college athletes’ labor; and they exer- 18 cise the ability to terminate an athlete’s eligibility to 19 compete if the athlete violates these terms and con- 20 ditions. 21 (7) College athletes exhibit the markers of em- 22 ployment as established under the common law defi- 23 nition of the term ‘‘employee’’: They perform a valu- 24 able service for their respective colleges under a con- 25 VerDate Sep 11 2014 02:39 Jun 16, 2021 Jkt 019200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S1929.IS S1929 kjohnson on DSK79L0C42PROD with BILLS 4 •S 1929 IS tract for hire in the form of grant-in-aid agreements; 1 these agreements assert significant control over how 2 athletes perform their work and the conditions under 3 which they work; and they receive compensation in 4 the form of grant-in-aid and stipends in exchange 5 for their athletic services. 6 (8) To establish more equitable terms and con- 7 ditions for college athletes’ labor, college athletes 8 need representation of their own choosing to nego- 9 tiate collective-bargaining agreements with their re- 10 spective colleges and the athletic conferences that 11 help set rules and standards across an entire league. 12 (9) To organize effectively, college athletes 13 must be able to form collective bargaining units 14 across institutions of higher education that compete 15 against each other, including within athletic con- 16 ferences; and, accordingly, to establish effective col- 17 lective bargaining rights for college athletes under 18 this Act, the National Labor Relations Act must be 19 amended to cover both private and public institu- 20 tions of higher education to the extent that college 21 athletes attending such institutions fall within the 22 definition of ‘‘employee’’ under that Act, as amended 23 by this Act. 24 VerDate Sep 11 2014 02:39 Jun 16, 2021 Jkt 019200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S1929.IS S1929 kjohnson on DSK79L0C42PROD with BILLS 5 •S 1929 IS (10) The Constitution of the United States 1 vests Congress with the power to regulate commerce 2 between the States, and intercollegiate sports, which 3 are maintained by athletic associations that host 4 competitions between colleges across States, involves 5 interstate commerce that generates annual revenue 6 of more than $15,000,000,000. 7 (11) Intercollegiate sports’ significant engage- 8 ment in interstate commerce justifies application of 9 the National Labor Relations Act (29 U.S.C. 151 et 10 seq.) to regulate the labor market within which pub- 11 lic and private institutions of higher education com- 12 pete and set rules pertaining to the wages and work- 13 ing conditions of college athletes. 14 SEC. 3. COLLECTIVE BARGAINING RIGHTS OF COLLEGE 15 ATHLETES. 16 (a) DEFINITIONS.—Section 2 of the National Labor 17 Relations Act (29 U.S.C. 152) is amended— 18 (1) in paragraph (2), by adding at the end the 19 following: ‘‘Notwithstanding the previous sentence, 20 the term ‘employer’ includes a public institution of 21 higher education with respect to the employment of 22 college athlete employees of the institution.’’; 23 (2) in paragraph (3), by adding at the end the 24 following: ‘‘Any individual who participates in an 25 VerDate Sep 11 2014 02:39 Jun 16, 2021 Jkt 019200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S1929.IS S1929 kjohnson on DSK79L0C42PROD with BILLS 6 •S 1929 IS intercollegiate sport for an institution of higher edu- 1 cation, and is a student enrolled in the institution of 2 higher education, shall be considered an employee of 3 the institution of higher education if— 4 ‘‘(A) the individual receives any form of direct 5 compensation, including grant-in-aid, from the insti- 6 tution of higher education; and 7 ‘‘(B) any terms or conditions of such compensa- 8 tion require participation in an intercollegiate 9 sport.’’; and 10 (3) by adding at the end the following: 11 ‘‘(15) The term ‘grant-in-aid’ means a scholarship, 12 grant, or other form of financial assistance that is pro- 13 vided by an institution of higher education to an individual 14 for the individual’s undergraduate or graduate course of 15 study. 16 ‘‘(16) The term ‘institution of higher education’ has 17 the meaning given the term in section 102 of the Higher 18 Education Act of 1965 (20 U.S.C. 1002). 19 ‘‘(17) The term ‘intercollegiate athletic conference’— 20 ‘‘(A) means any conference, or other group or 21 organization, of institutions of higher education 22 that— 23 VerDate Sep 11 2014 02:39 Jun 16, 2021 Jkt 019200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S1929.IS S1929 kjohnson on DSK79L0C42PROD with BILLS 7 •S 1929 IS ‘‘(i) exercises authority over intercollegiate 1 sports at such institutions of higher education; 2 and 3 ‘‘(ii) is engaged in commerce or an indus- 4 try or activity affecting commerce; and 5 ‘‘(B) notwithstanding subparagraph (A), does 6 not include the National Collegiate Athletic Associa- 7 tion. 8 ‘‘(18) The term ‘college athlete employee’ means an 9 individual described in the second sentence of paragraph 10 (3).’’. 11 (b) MULTIEMPLOYER BARGAINING UNIT.—Section 12 9(b) of the National Labor Relations Act (29 U.S.C. 13 159(b)) is amended by striking the period at the end and 14 inserting the following: ‘‘: Provided, That, for the purpose 15 of establishing an appropriate bargaining unit for college 16 athlete employees at institutions of higher education in an 17 intercollegiate athletic conference, the Board shall recog- 18 nize multiple institutions of higher education within an 19 intercollegiate athletic conference as a multiemployer bar- 20 gaining unit, but only if consented to by the employee rep- 21 resentatives for the intercollegiate sports bargaining units 22 at the institutions of higher education that will be included 23 in the multiemployer bargaining unit.’’. 24 VerDate Sep 11 2014 02:39 Jun 16, 2021 Jkt 019200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S1929.IS S1929 kjohnson on DSK79L0C42PROD with BILLS 8 •S 1929 IS (c) JURISDICTION RELATED TO INTERCOLLEGIATE 1 SPORTS.—Section 14(c)(1) of the National Labor Rela- 2 tions Act (29 U.S.C. 164(c)(1)) is amended by striking 3 ‘‘Provided,’’ and inserting the following: ‘‘Provided, That 4 the Board shall exercise jurisdiction over institutions of 5 higher education and college athlete employees of such in- 6 stitutions in relation to all collective bargaining matters 7 under this Act pertaining to such employees, including any 8 representation matter, such as recognizing or establishing 9 a bargaining unit for such employees and any labor dis- 10 pute involving such institutions and employees: Provided 11 further,’’. 12 (d) PROHIBITION ON WAIVER.—An individual may 13 not enter into any agreement (including a grant-in-aid 14 agreement, as defined in section 3(15) of the National 15 Labor Relations Act (29 U.S.C. 152(15)) or legal settle- 16 ment that waives or permits noncompliance with this Act 17 or the amendments made by this Act. 18 SEC. 4. TREATMENT OF DIRECT COMPENSATION FOR TAX 19 PURPOSES AND ELIGIBILITY FOR FEDERAL 20 FINANCIAL ASSISTANCE. 21 Nothing in this Act, or an amendment made by this 22 Act, shall— 23 (1) cause any type of direct compensation de- 24 scribed in section 2(3) of the National Labor Rela- 25 VerDate Sep 11 2014 02:39 Jun 16, 2021 Jkt 019200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S1929.IS S1929 kjohnson on DSK79L0C42PROD with BILLS 9 •S 1929 IS tions Act (29 U.S.C. 152(3)) that was not previously 1 treated as income for which a tax may be imposed 2 under the Internal Revenue Code of 1986 to become 3 a type of direct compensation for which such a tax 4 may be imposed; 5 (2) cause any individual to be treated as an em- 6 ployee, or cause any amounts received by an indi- 7 vidual to be treated as wages, for purposes of any 8 provision in the Internal Revenue Code of 1986 re- 9 lating to employment taxes or the withholding of 10 taxes by an employer if such individual or amounts 11 would not otherwise be so treated; 12 (3) affect the treatment of qualified scholar- 13 ships under section 117 of the Internal Revenue 14 Code of 1986; or 15 (4) otherwise affect the treatment of any direct 16 compensation described in such section 2(3) in de- 17 termining income, including gross income or ad- 18 justed gross income, for purposes of— 19 (A) the Internal Revenue Code of 1986, in- 20 cluding any reporting requirements under such 21 Code; or 22 (B) determining eligibility for any form of 23 Federal financial assistance, including assist- 24 ance under subpart 1 of part A of title IV of 25 VerDate Sep 11 2014 02:39 Jun 16, 2021 Jkt 019200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S1929.IS S1929 kjohnson on DSK79L0C42PROD with BILLS 10 •S 1929 IS the Higher Education Act of 1965 (20 U.S.C. 1 1070a et seq.). 2 SEC. 5. SEVERABILITY. 3 If any provision of this Act, an amendment made by 4 this Act, or the application of such provision or amend- 5 ment to any person or circumstance is held to be unconsti- 6 tutional, the remainder of this Act and the amendments 7 made by this Act, and the application of the provision or 8 amendment to any other person or circumstance, shall not 9 be affected. 10 Æ VerDate Sep 11 2014 02:39 Jun 16, 2021 Jkt 019200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6301 E:\BILLS\S1929.IS S1929 kjohnson on DSK79L0C42PROD with BILLS