Independent Contractors and Entertainment Law
This week World Wrestling Entertainment (WWE) was sued on behalf of dozens for former wrestlers who claim the company hid the adverse neurological effects of repeated poundings received in the wrestling ring. This misrepresentation and concealment of the potential injuries faced was compounded by the fact that the wrestlers are not employees, but independent contractors who are not covered by insurance .
In the spirit of full disclosure, I must first say I have never understood why wrestling is considered a sport. ( Similarly I never understood why boxing is in the Olympics either. )
The truth of the matter is WWE is not a sport, but rather entertainment. They are not legitimate contests, but rather scripted promotions, with specially choreographed moves designed to titillate the audience. These intentional moves are part of the reason the plaintiffs are seeking to be seen as employees; they were required to do these moves , hence WWE exerted direction and control, ergo there is an employment relationship.
Of course, it is not that simple. This claim has been made several times over the years , yet the issue has never been resolved. The claims were not dismissed, but settled which means the body of law governing the relationship has never been addressed. In other words, WWE has successfully avoided the legal determination of the employment status of the wrestlers.
As a rational and fairly non violent person, it is hard for me to believe that any entertainer engaged in body slamming and head bashing moves would be unaware of the inherent physical and neurological risks involved. Given the litigious nature of America, entertainment and sports, it is also hard to believe that the contracts committing the talent were silent on this subject. None the less, it does appear this suit could have merit.
In response to an earlier lawsuit in 2007, the WWE replied that its talent were independent contractors because they could negotiate their own contracts and had no corporate duties. They were much like the talent on soap operas, the company argued. However, the argument is specious on several counts. First, employees can also negotiate their agreements, so that is not a differentiation. Second, they have duties in terms of dress code and appearance requirements. And although a comparison could be made to soap opera talent, that talent is unionized. Jess Ventura tried and failed to unionize the WWE talent, but perhaps that is another option.
Various legal experts have chimed in on the independent contractor issue. Since independent contractor is an undefined term in the law, it is typically governed by the IRS 20 points. These 20 conditions need not all be true to make one an independent contractor, which adds to the ambiguity. According to a recent University of Louisville Law Review study, the consensus seems to be that WWE wrestlers meet the employee criteria in 16 of the 20 points. Most legal experts seem to see it the plaintiffs way.
Many of the wrestling cognoscenti have lamented the fact that few wrestlers wanted to challenge their employment status in the courts. Well that day has now come. I can’t help but wonder if all the focus on uber drivers and independent contractor status didn’t prompt some additional discussions. WWE says the suit will be quickly dismissed. I am interested to wait and see.