HR Hero Line

The HR guide to Super Bowl XLVIII

by Mark I. Schickman

Sometimes the Super Bowl is a great game, but more often, it’s a blowout long before the dip and punch disappear. In case we need something to hold our interest between the $8-million-a-minute commercials, here are some employment law points to think about as the Seahawks and Broncos square off, representing the USA’s two recreational marijuana states. 

Last vestiges of employee ownership
Nowhere outside of league sports can a group of employers lawfully meet, conspire, and decide who will bid exclusively on which employee, but football owners draft players, who then must work for that team or work for nobody.

Apple, Google, Oracle, and Intel allegedly attempted that backroom arrangement recently, and they have been hit with—and partially settled—an antitrust action attacking that practice. Only professional sports leagues can control and trade employees as if they were livestock.

Crises hamper performance
The NFL wins the “Hypocrite of the Year” award for feigning surprise at the racist, profane major-league hazing that has always been a fixture in NFL locker rooms. In 2013, Miami Dolphins rookie Jonathan Martin, from Stanford, couldn’t take the hazing from known bad-boy teammate Richie Incognito, who (among other things) threatened to kill him and called him a “half n____r piece of s___.” As it had to, the NFL responded with mock outrage. Ever since the scandal broke, Incognito has been listed on the Dolphins’ roster as “suspended by club” and Martin on “injured reserve—non football injury.”

You won’t see the Dolphins anywhere near the Super Bowl. They were handed a playoff berth on a platter, having to win only one of three games against underdog opponents already eliminated from contention, but they couldn’t win any of them. Drama in the workplace is never good for production.

Provide a safe workplace
Like any other employer, sports teams are required to provide a safe place of employment. Two thousand former NFL players sued the league for breaching that duty in a series of actions that were consolidated in June 2012. Among other things, the suit claimed that the NFL knew and concealed by 1994 (if not decades before) that playing pro football caused concussions, head trauma, and serious long-term medical problems. The league recently settled that suit for $765 million.

The NFL has changed its rules to better protect players. Even an accidental hit to the head is likely to draw a penalty flag. But any way you look at it, it can’t be healthy for two 300-pound men to smash into each other 50 times every afternoon.

Pay a fair wage
Keep in mind the numbers involved in the big-business NFL, which collects over $3 billion per year for the broadcast rights to its games. Super Bowl starting quarterbacks Tom Brady and Peyton Manning work under multiyear contracts that provide almost $100 million to each. The average NFL player earns $2 million per year; the average referee earns $173,000.

But how about the cheerleaders, jumping their hearts out for team spirit? Well, the Oakland Raiderettes, one of the original NFL cheerleading squads, have filed suit against the club, claiming they’re employees rather than independent contractors and that their $1,250 annual fee violates California labor laws. They likely are employees since the Raiders dictate their clothes, hair style, schedules, and routines—indeed, when they are told to jump, they literally ask, “How high?”

That $1,250 covers all of the season’s games, eight hours of practice per week, photo shoots, publicity events, and travel. The cheerleaders say this effectively pays them less than $5 per hour. They also have to pay for their own uniforms, travel, and other expenses and aren’t given their $1,250 until the end of the season. Their lawyer, Shawn Vinick, says she has “never seen an employment contract with so many illegal provisions.”

So I hope you enjoy a terrific game with spectacular commercials and that you can keep your mind off of the violent, sexist, and racist locker room bullying, cheerleaders working below minimum wage, players who are among the last of America’s indentured servants, and Occupational Safety and Health Administration (OSHA) violations that occur when 300-pound men repeatedly butt heads to knock each other down. Oh, then there are the illegal plays.

Mark I. Schickman is a partner with Freeland Cooper & Foreman LLP in San Francisco. He may be contacted at schickman@freelandlaw.com.