The NLRB Thinks High School Sports Referees Can Unionize

By Elizabeth Torphy-Donzella - Shawe Rosenthal LLP

July 20, 2017

I became the commissioner of my daughter’s county basketball league when she was nine.  No one else would “step up.”  The prior year, a player had slapped another player in the handshake line at the end of a game in retribution for rough play (by an 8-year-old girl!) and no game commissioner was there to intervene.  I decided to take on the role of cool-headed logistics manager: a non-coach who could make sure the game schedule was set, the rules were observed, and each game had a designated adult in attendance to avoid bad sports behavior (whether by players, coaches or parents).  But this “cool headed commissioner” is ripping mad at the NLRB (or, to be more precise, the NLRB majority) for concluding that junior and senior high school lacrosse referees are employees and not independent contractors entitled to unionize!

In Pennsylvania Interscholastic Athletic Association, Inc. the majority concluded that lacrosse referees were employees of the Pennsylvania Interscholastic Athletic Association (PIAA) based essentially on the following (I focus on the key factors used by the majority under the established “common law test” use to determine independent contractor or employee status):

• PIAA exercises control because to be a PIAA referee, an individual must undergo a background check and satisfactorily pass examinations about officiating rules. The PIAA also requires officials to follow the rules of lacrosse, wear uniforms and use good “officiating mechanics” on the field.

• On the factor of whether the work is done under direct supervision, the majority concedes that the referees are not supervised on the field. Nonetheless, says the majority, “PIAA tightly controls the work that the officials perform through mandatory adherence to rules, regulations, policies, and procedures.”

• Referees have to attend games according to the assignments they have chosen and – get this – on dates and at locations where the games are scheduled, whether by the school (during regular season) or the PIAA (during post-season play).

• The manner of compensation – per game and with no wage withholding – does, the majority concedes, favor independent contractor status. However, PIAA requires schools to pay the referees if they show up (including if the school mistakenly “double books” referees”) and does not permit referees to collectively seek more in compensation than what the schools negotiate directly.

The majority has more to say beyond this, but you get the picture.  It seems unless the PIAA allows people with unverified criminal histories and unvalidated officiating skills decide whether to show up to referee games and whether to follow established rules on the field, they are employees.  In addition, the fact that they are paid by the game and are not permitted collectively to negotiate fees with the schools (which for contractors would violate federal anti-trust laws, by the way) is outweighed by the fact that the PIAA requires schools to pay referees if they show up!

I will now decompress from the stress this case caused me as a former sports league commissioner by closing with a statement of the obvious from dissenting NLRB Chairman Miscimarra (who currently finds himself the lone voice of reason on the Board), who displays the sportsmanship that I am unable to muster:

With all due respect to my colleagues, I believe [their conclusion] defies common sense for a simple reason: in every team sport – regardless of whether an official is an independent contractor or employee – there must be a common understanding of the rules of the game. Therefore, when two teams play a game of lacrosse, everybody expects the officials to apply the rules of lacrosse, and likewise, it is hardly indicative of employee versus independent contractor status that the officials would wear uniforms and use ‘standard mechanics.’ There things are required by the nature of competitive sports.

Indeed.