In the potentially dangerous spectacle of big time WWE pro wrestling, performers work without Workers’ Comp or other recourse. Guest Mary Catena, a scholar and attorney, studies the issue.
While the WWE has successfully argued wrestlers are contract workers, Catena sees cracks in the wall. What might a favorable ruling mean for other contract workers – and employers?
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Intro: This is Workers Comp Matters hosted by Attorney Alan S. Pierce. The only Legal Talk Network program that focuses entirely on the people and the law in workers’ compensation cases. Nationally recognized trial attorney, expert and author. Alan S. Pierce is a leader committed to making a difference when workers comp matters.
Alan S. Pierce: Hello everybody. Welcome to another edition of Workers Comp Matters. I am Alan Pierce happy to be with you today on the Legal Talk Network as always. We got an interesting show which I will get to in a moment. I want to thank our sponsor, PInow. If you need a private investigator anywhere in the country, PInow.com is your source. I’ve got an interesting guest today. Our discussion is really a SmackDown on WWE, World Wrestling Entertainment, Inc. and our guest is Mary Catena. Mary has a stellar academic history, which is ongoing.
She has her bachelor’s and master’s in history and political science from the University of Texas. She along the way has picked up her master’s or Business Administration and just recently received her Juris Doctor from the University of Wyoming. She is now starting working on her LLM at Wayne State. So, she has prepared and is preparing for a career in the law and perhaps focusing on labor law. She was a favorite student of one of my favorite people and she reminded me her favorite professor. It’s Professor Mike Duff from the University of Wyoming Law School. It was through his tutelage that she wrote a paper which has an intriguing title; it’s putting the SmackDown on World Wrestling Entertainment, Inc. with the raw truth, World Wrestling Entertainment wrestlers are employees.
As you’re here in a few minutes, it’s a very significant question about that statement. This paper was submitted to the College of Workers’ Compensation Lawyers which holds a student writing competition every year and it was the winner and Mary will be presented with an award both for herself and for the University of Wyoming for presenting the winning paper. Really focusing on an issue that we don’t always think about or hear about and that is the status of certain types of workers and their eligibility for benefits. So, you know, with that as a beginning, Mary, I’d like to welcome you to work comp matters.
Mary Catena: Thank you Alan, I appreciate you having me today and I’m anxious to talk a little bit about this with you.
Alan S. Pierce: All right. First of all, let’s really dig in here. The main — I don’t want to use word “culprit” but the source of your paper is WWE. How big an organization is that? And in terms of the professional wrestling community; who and where are they positioned?
Mary Catena: WWE for a long time, has been the preeminent wrestling organization. They’re — over the course of the last 30 years or so, there have been some what they call independent promotions that have made a little bit of noise. But WWE has just traditionally just been really the place to be and in a lot of ways, they hold all the cards in terms of where wrestlers want to be and who they want to work for because it’s the biggest payday obviously.
Currently, there is AEW which is kind of making a lot of noise concerning WWE a little bit. But in the end, I mean, WWE is publicly traded, they make a lot of money and they’re worldwide. They’ve been around for a long time, so they’re preeminent for sure.
Alan S. Pierce: Okay. How many professional wrestlers are under contract with WWE?
Mary Catena: They right now have approximately 300 wrestlers under contract.
Alan S. Pierce: Now a lot of jurisdictions have difficulties in their workers’ compensation statutes and not just the workers’ compensation statutes, but all other types of benefit providing statutes or sources such as unemployment compensation, health insurance, and other protections. What comes to mind are professional athletes, there are exemptions in many workers’ comp statutes for professional athletes, especially if they’re injured while under contract and also about entertainers and it would seem to me as an observer, that the professional wrestlers, both the WWE or any other organization kind are in between. They’re clearly athletes but they’re also clearly entertainers. We don’t have to get into the legitimacy of the matches and the wins and losses. I think most of us know that this is an entertainment form rather than a sports form.
Mary Catena: Absolutely. You know, even WWE themselves, they actually changed — it was WWF for a long time, World Wrestling Federation. They changed it to the E because it is Entertainment, that’s what the E stands for.
So, they’re aware of that and they actually referred to themselves as Sports Entertainment so you’re exactly right. Right down the middle, kind of both.
Alan S. Pierce: And it would seem to me that performers/athletes do occupy a somewhat different stature or status than the typical worker who reports to work on Monday and punches a clock or is paid salary and goes home at the end of the day. So there clearly is a difference but what is the primary reason that somebody injured while engaged in a professional wrestling would not be eligible for workers’ compensation benefits?
Mary Catena: Well, the WWE contracts with these 300 wrestlers specifically state that they are independent contractors and not employees and also specifically have language that states that they are not eligible for workers’ compensation.
Alan S. Pierce: Okay, let me stop you right there. Why wouldn’t that be enough? If there’s a meeting of the minds between a corporation and somebody, they contract with to perform duties for that Corporation to define their relationship? Why isn’t that the end of the story?
Mary Catena: Well, courts traditionally, as you just mentioned, they traditionally will uphold. They have the meeting of the minds and they are loathe(ph) to interfere with contracts. However, in this particular situation, when it comes to employees versus independent contractors and language in a contract that states that someone is an independent contractor. The court generally will look at the real nature of the relationship in order to determine if an employment situation exists and they don’t the courts generally don’t just rely on the contractual language.
Alan S. Pierce: Okay. And speaking as an attorney who primarily if not exclusively represents employees. I’ve seen this in many settings, whether it’s painting contractors roofing contractors. It is not enough that the purported employer terms of relationship and independent contractor versus employee-employer relationship, nor is it conclusive that the person him or herself considers themselves an independent contractor. Allowing that to exist would allow pretty much any employer to just call all of its staff independent contractors and escape any type of scrutiny.
So, we are dealing with these issues and I’ve always dealt with the issue as to who is an employee versus who is an independent contractor and bodies of law have cropped up. Of course, every jurisdiction treats this in their statute and there’s also case law. But generally speaking, from a common-law point of view. What are the basic determinants that a court would look at to settle the question of employment status between employer-employee versus independent contractor?
Mary Catena: The first factor is the extent of control over the details of the work. When determining this, it’s the extent of control over the physical activity and time and also the absolute right to termination. In both of these situations with the relationship between WWE and the wrestlers, WWE has an extraordinary amount of control over the physical activity and time of the wrestlers. There have been several different pieces of information that have kind of been leaked, memos to directors of the live events that literally stage out every step of what the wrestlers are allowed to do, and not allowed to do, where they’re allowed to walk, what they’re allowed to say. There are some scripts that have been leaked as well for a Monday Night Raw event where literally pauses and gaps in in the conversation were scripted.
So, there’s a pretty high-level of control of the actual wrestlers during their time in the ring and in addition, the WWE has absolute right to terminate for any reason whatsoever. Generally, you would see like a reason to terminate that might not indicate absolute control would be like, if there’s a drug-abuse situation or something like that. But WWE has the right to terminate for any reason whatsoever at their sole discretion. And so, both of those things that WWE has that level of control really kind of prove out the extent of control that they have. And that extent does fall in line with the type of control that an employer would have over an employee.
Alan S. Pierce: Mary in your paper, you actually throw the words of the WWE back at them. On the one hand, in their contract specifically indicate in a sense they have no control over their professional wrestlers that they acknowledge that, they are independent contractors. But you quote a phrase that is in one of their pleadings in a lawsuit regarding that issue on page six. So, on the one hand, WWE is arguing that they really have no control over these wrestlers to the extent that it would render them an employer.
Mary Catena: Unfortunately, what has happened from what I’ve read and what I understand what has happened is that when these suits are being brought, because there have been several that have been brought in order to prove out that WWE is the employer. But unfortunately, these suits are being brought are really not getting to the proper issues. In my opinion, don’t seem very well thought-out in their attack. Honestly, I haven’t seen a case even since WWE claimed that, I haven’t seen a case where that has been brought up in a subsequent case to prove out the employment relationship. So, I feel like if somebody was to attack this — an attorney was to attack this with all the guns blazing, I feel like they could prove this out. I just don’t feel like that’s happened yet.
Alan S. Pierce: A work in progress, so to speak.
Mary Catena: Yes. Exactly.
Alan S. Pierce: Yeah, and I notice you also included some interesting language in the booking contracts which as an observer of some of these wrestling matches, of course more so when I was a kid than now. They actually talked about the type of activities they can do with pile drivers, give us an idea of how they define that, what the wrestlers can and can’t do?
Mary Catena: WWE is absolutely one — a hundred percent in control of that. The wrestlers are no longer allowed to bleed on camera and they have even gotten in trouble — even if it’s an accidental situation where they’ve bled and I believe that that is the “PG” rating that they’re trying to get with television. But also, you know, some moves that have become more dangerous that now — they have completely outlawed, so they are very much in control of what is allowed and not allowed in terms of in-ring performance. In addition to like I mentioned the one thing that had been leaked, the script that had been leaked, it showed that they can decide what wrestlers can do while they’re walking to the ring, what they’re allowed to say while they’re walking to the ring, how they’re allowed — if they’re allowed to walk around the ring before they get in inside the ring or if they just need to go straight to the ring. I mean, that is that is an extreme level of control for a company that’s trying to say that they’re not an employer and do not have that level of control.
Alan S. Pierce: And you’ve touched on and we don’t have to touch on it very much more. But the next important indicator of an employer relationship would be the right to terminate and that is a pretty significant right — that is also right in the contract which how do you interpret that provision?
Mary Catena: Yeah, absolutely and they have the absolute right to terminate for “any or no reason” I believe is the actual language if I remember it correctly. So that would — it gives them WWE just complete control. Again, not the type of control that you would expect to see of an independent contractor that is truly an independent contractor that that feels very much like an at-will employee. In essence, even flies in the face of any type of contract with an employee independent contractor, it just doesn’t play out the right way. That’s not what an independent contractor is.
Alan S. Pierce: What are the next important criteria that a court or an industrial board would look at to determine employment status beyond right to control and ability to terminate at will?
Mary Catena: Whether the independent contractor/employee is engaged in a distinct occupation and you know, that would mean that — like, if you were to be considering like somebody that had a home and they were building homes and they had a painter come in to paint the homes. That’s kind of a distinct thing a distinct occupation. But in this situation, WWE is there — on their website that they say that their success is primarily due to the continuing the popularity of their superstars when they have 450 live events each year. I mean, without those wrestlers, there is no wrestling, I mean that they’re an intricate part. So, they’re not in a distinct occupation there, they’re an intricate part of that and in addition, they’re not allowed to market their services to anyone else. Wrestlers are under contract to work solely and exclusively for WWE to the extent that they aren’t even allowed to take non-wrestling jobs without WWE’s approval including movies, any type of advertising, that’s all under WWE’s control.
Alan S. Pierce: In fact, even though this is scripted pseudo-athletic matches. I think we all kind of recognize that you’ve had some experience in your family. I think you had mentioned your ex-husband was a professional wrestler.
What is the real risk of physical injury here? I mean, you know, we watch these matches on television or in-person, it seemed pretty rough. And even though they’re kind of scripted — realistically, what type of injuries happened and how frequently?
Mary Catena: Very incredibly rough. There was a wrestler actually Beth Phoenix. She actually finished a match after suffering a broken jaw and she felt compelled to or else she felt she might lose her job if she didn’t. She said that the schedule is just absolutely grueling and every match, she said it feels like it’s — you’ve been in the worst car crash of your life. And these wrestlers in 2015, some of the top wrestlers were wrestling a 180 matches a year.
Alan S. Pierce: Every other day?
Mary Catena: Yeah, you can imagine being in the worst car crash in your life every other day. In addition, professional wrestlers are 2.9 times more likely to die prematurely than the general public. I just think that that’s hugely significant and even if you want to — say well, that’s the general public, this is a dangerous sport. But even compared to the NFL in 2014, 12 of the 36 wrestlers who had participated in the 1990 WrestleMania were dead and only one of the 44 starting NFL players in the 1990 Super Bowl were dead in 2014. So, I mean, a third of the roster was dead 14 years later. I think that that’s just huge, these guys are dying in the age of 50 to 55 so you have to see just how grueling the schedule is and the punishment to the body every night.
Alan S. Pierce: Before we take a break let’s just touch on some of the other couple or so factors that are looked at. One is whether the employer or the purported, employer supplies the instrumentalities tools in place of work and the person doing that work. You know, we see this all the time, somebody hires a painting contractor, they come with their own brushes, paints, ladders, drop cloth scaffoldings et cetera, to paint the house. That doesn’t mean the homeowner is the employer, how does this play into what we see with WWE?
Mary Catena: Well, WWE is in my opinion fairly crafty in their contract because they do state in there that the wrestlers are responsible to provide their own gear, attire and their outfits and all those types of things however — and that seems to me like that that is specifically designed for this factor test so they can kind of prove out that they don’t Supply those things. However, they do Supply the bulk of the tools and instrumentality. They provide all of the electronics, all of the microphones, the setups, they provide the space with which to do the work. Those typically, the courts will look at those issues and if what the independent contractor or employee is providing is kind of minor compared to what’s being provided by the employer. The courts will generally find that that factor would weigh in favor of an employment relationship.
Alan S. Pierce: I guess with the last factor is whether this particular work is part of the regular business and I think that’s self-explanatory. Obviously, the WWE is in the regular business of wrestling. You don’t have wrestling without wrestlers.
Mary Catena: Exactly.
Alan S. Pierce: All right. So, we’re going to take a brief break and then we’re going to come back and finish up with how else the WWE Might overreach legally to deprive its workforce of remedy. So, we’ll be right back after this brief break.
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Alan S. Pierce: Welcome back to our interesting discussion I hope, I think it is. With Mary Catena and the status of professional wrestlers. Are they employees? Are they independent contractors? What rights if any are they eligible for in the likely event of injury or permanent injury or even death? You know, this is a legal show, you can’t really have a legal show without a little Latin to be thrown in. So, I’m going to give my stab at my high school Latin, which (00:19:46) that is a long-standing precept in the law, that the law will not suffer a wrong to be without a remedy. So aside from a professional wrestler entering into a contract in which he or she agrees that they are an independent contractor and not an employee.
What other potential employment-related remedies has WWE crafted in their contracts that would allow or deprive a wrestler who’s injured an alternative remedy and I’ll just preface that by saying “Generally speaking, an employer, cannot be sued or a company cannot be sued by its employee for an injury because it’s covered by workers’ comp, but if that employee is an independent contractor and the employer is negligent, that employer can be sued. There is no exclusivity, there’s no quid pro quo.” So how does WWE deal with the fact that if they are correct, that these wrestlers are not employees been independent contractors, can they then be sued for the injury?
Mary Catena: Yeah. So actually, the booking contract contains this language, which releases WWE from “all liability, for loss or damage on account of injury to the wrestler’s person resulting in serious or permanent injury to wrestler or in wrestler’s death, whether caused by negligence of promoter or other wrestler under contract to promoter.” So basically, it takes the tort remedy off the table. There’s no remedy for negligence on the part of WWE or any other wrestler that’s under WWE contract.
So, you know for one independent contractor, wrestler injures another, WWE cannot be held liable for that. Even if it’s negligent, and you know, to me there’s no remedy then. If there is no workers’ comp and there’s no tort, then there’s no remedy which is not going to fly. I mean, that’s not going to work.
Alan S. Pierce: And you know again, somebody might look at this and say, “Hey, this is a contract, it’s a two-way street.” It’s a bargain, a professional wrestler wants to become part of WWE and earn the money that might come from that type of career and of course WWE would want a wrestler to a service and entertainer. What are some of the — or perhaps the best legal argument to attack such a provision that in effect, creates a situation where they could be a wrong and no remedy?
Mary Catena: I know that the Connecticut Supreme Court, WWE is based in Connecticut, and the Supreme Court there has written that the law does not favor a contract provision, which relieve a person from his own negligence and exculpatory provisions undermine the policy considerations governing our tort system. And so basically, at least the Connecticut Court which is by the way, the contract does stipulate that that would be the court that the laws of the State of Connecticut are the laws that the contract would follow. The Supreme Court there is basically has said that they’re not going to favor a contract that has those provisions. So, you know, that would indicate that again, if this was brought to court in the proper way at the proper time, it wouldn’t stand.
Alan S. Pierce: Again, going back to my contracts law introductory course back all those years ago, I think there’s a legal term for this as a “contract of adhesion.” Where there is an unequal bargaining power, perhaps no bargaining power on one side of the contract and the courts look with disfavor on those types of contracts irrespective of what the parties might have signed on to
Mary Catena: Absolutely, absolutely and I think that the contract of adhesion going from that angle is even more supported by the fact that there really isn’t another company out there for these wrestlers to work for that is anywhere close to what WWE is. So, if these wrestlers have put in their time and done their work and gotten in shape and done everything they’re supposed to do. If they want to participate in this career, they have to submit to that contract and there is no other option, there is no other way. There’s really no other way in and so, yes, I definitely agree with that.
Alan S. Pierce: Now, I think at the beginning of our discussion, you mentioned that WWE is publicly traded. Give us just an idea of their revenue stream are they in the millions? Tens of millions, hundreds of millions? What type of enterprise is profiting on the laborers of professional athletes that are engaged in a very dangerous occupation?
Mary Catena: When I did the research for this paper at the end of 2020, they had at that time a net worth of $2.83 billion and a net income of $118.2 million through the third quarter of 2020 and it was on pace to set record profits in 2020 and that was despite the crippling effects of the COVID related shutdowns of the live events.
So, they make a lot money on the backs of these wrestlers who just aren’t being treated fairly in terms of having an opportunity to be compensated for injuries that they may incur while making that money for the WWE.
Alan S. Pierce: I can assume there is no player’s union, there’s no major league players union, NFL players union, et cetera. These folks have no representation?
Mary Catena: That is absolutely correct. They attempted to you unionize back in the late 80s but the CEO of WWE interrupted that quite quickly and actually got rid of several of the wrestlers who were trying to get that to happen so yes.
Alan S. Pierce: So, before we close, just one final area of question or perhaps, final question, what is the status legally? Have there been any successful lawsuits that have sought to challenge the applicability of workers’ comp or if they’ve been unsuccessful or where are we?
Mary Catena: There have been a lot of unsuccessful ones and I say a lot. Most recently, not really in terms of workers’ comp but there were a — 60 wrestlers joined together in a suit, the 60 wrestlers had all suffered from CTE.
Alan S. Pierce: That’s a brain injury, not unlike the NFL and soccer players at the –
Mary Catena: Exactly, exactly. This recently, just really recently, I believe it was last year maybe even at the first part of 2021 that it had made its way up I believe to the Supreme Court of the Connecticut Supreme Court who at that time dismissed the case. And again, I feel — in reading through that material, I feel like it was a matter of it just didn’t hit on the right, it didn’t hit the right points and I feel like it could have been successful if it would have hit on the right points and but it wasn’t.
So, I feel like this is this is an open opportunity really for — if somebody is interested in challenging this — to challenge it the proper way. I feel like especially, at this time and where we’re at in society, I feel like it’s a good thing to try to do.
Alan S. Pierce: Okay, that’s a good that’s a good point to end. Hopefully, perhaps you might be one of those people that might find the right set of facts and bring that case because as an observer, even though I have some background in the field, it seems to me that there are ripped issues here for a determination that would settle this issue. Mary, if somebody wants to contact you or obtain a copy of your paper. I know they can get it from me at apierceatppnlaw.com but what’s your contact info Mary?
Mary Catena: It is [email protected].
Alan S. Pierce: That’s short for University of Wyoming dot edu.
Mary Catena: Yes, exactly
Adam Schlegel: Uwyo.edu. I want to thank you very much for being a guest on workers’ comp matters, delving into what I think is a very interesting issue. So, all of our listeners, thank you for tuning in and we look forward to presenting our next show for you. Bye-bye.
Outro: Thanks for listening to Workers Comp Matters today on the Legal Talk Network hosted by Attorney Alan S. Pierce where we try to make a difference in workers’ comp legal cases for people injured at work. Be sure to listen to other Workers’ Comp Matter shows on the Legal Talk Network. Your only choice for legal talk.