Robin Johnson, a former lingerie football player, has filed a suit against the Legends Football League on August 12, 2014 in Federal Court for the District of Nevada. She claims that she and all other players have been misclassified as independent contractors when they are actually employees of the league. Consequently, she claims that the players are entitled to minimum wage and overtime.The Lingerie Football League, now known as the Legends Football League, began as half-time entertainment during the Super Bowl. It is has grown exponentially and now includes teams in multiple cities as well as Australia. The company is based in Las Vegas and is controlled by Mitchell Mortaza. Ms. Johnson claims that when she and other players were hired, they were required to sign employment contracts. The contracts purported that each player was an independent contractor. However, the agreement used the terms “employee” and “employment” throughout the document. Moreover, the agreement required players to attend practices, games and publicity events. In addition, they could not engage in injury-prone behavior outside of work. Their compensation was based on various factors including ticket sales. According to the complaint, some players did not receive any money during entire seasons. Ms. Johnson argues that she was actually an employee of the league under the Fair Labor Standards Act (FLSA) because she had no ability to negotiate the terms of her contract and her schedule was dictated by the league. As an employee she would have been entitled to minimum wage and overtime pay. Therefore, she requests back pay and penalties for herself and all the other players in the league.
Under the FLSA, whether or not a person has signed a document stating that he or she is an independent contractor is not determinative. Rather, the court looks at the relationship between the person and the employer. There are a number of factors that cause the court to consider a person an employee. A comprehensive guide to the FLSA factors can be found here. In this case, it would appear that two factors will be important: (1) whether the work is integral to the employer’s business and (2) the nature and degree of control of the employer. In this case, it appears that the players’ work is integral to the business. After all, if there are no players, there is no league. In addition, the league appears to have a high-degree of control over the players. The contract requires the players to follow the league’s schedule and even restricts their activities outside of work. Consequently, it may be difficult for the league to show that the players were independent contractors. If so, the league may be facing a large financial judgment for back wages and penalties. In addition, the league would have to pay players as employees on a go-forward basis.
It is interesting to note that Ms. Johnson is represented by a boutique employment law firm based in Los Angeles named Alexander Krakow + Glick, LLP. The fact that a high-powered L.A. firm is representing her gives credence to the idea that she has a valid claim.