Many weeks after the WWE filed its motion to dismiss the lawsuit brought by three former WWE wrestlers ("Raven" and "Kanyon" and others — otherwise known as Scott Levy, Chris Klucsartis and Michael Sanders ), the wrestlers have fired back filing their papers opposing WWE’s motion. (For full coverage of this lawsuit, click here.)
The papers, filed late Wednesday afternoon, are available for download here. There aren’t, as some much have hoped for, any more source documents attached to it (such as the wrestlers contracts that were attached to WWE’s original motion) so readers will just have to make do with legal arguments.
For those following the matter, the opposition papers use much of the same theory that was advanced in the complaint — that the WWE is pure entertainment, not sport, and the WWE controls everything about it.
Specifically, the wrestlers claim that the WWE exercises:
virtually complete dominion and control over its wrestlers — determining when and where the wrestlers will perform, where and how they will train, scripting the fight and wrestlers’ pre- and post-fight interviews, controlling the wrestlers’ costumes, props and personas and pre-ordaining the results of each fight.
The wrestlers argue that the court should look to the specifics of the relationship, not the contracts themselves. They contrast themselves with professional boxers, an interesting comparison. Moreover, they argue that its too early for the court to decide the issues — and that the case should proceed with discovery (in other words, each party asking the other party questions and for certain documents).
Interestingly, the wrestlers also bring up the fact that in 2001 WWE argued that a former wrestler (Nicole Bass) should be barred from bringing certain claims because she was an employee, not an independent contractor — the reverse position argued here.
However, the wrestlers highlight an interview given to a British newspaper in August 2008 about the case that suggests a bit more complicated of a picture. While the result is the same — she was treated as an employee, not an independent contractor, it appears the WWE argued that she was not an employee.
In the interview, K&L Gates attorney Jerry McDevitt noted that the only time WWE litigated the issue – it actually lost on the legal argument (though ultimately prevailed in the case on other grounds).
The independent contractor v employee situation has only come up once before in litigation in the long history of the WWE, when they were sued for sexual harassment by former female wrestler Nicole Bass.
Jerry reveals: “The sexual harassment laws, of the United States at least, are purposely designed to protect employees and do not extend to independent contractors.
“However the interpretation given under Title VII of the Civil Rights Act which covers sexual harassment is very broad, as it wants to include in it as many people as possible.So a preliminary issue that came up was whether she was an employee, for Title VII purposes, or an independent contractor.
She was determined to be an employee.
As I’ve often said, you can’t do complete justice to an argument in a short post, so review it for yourself to get a complete picture.
The WWE will now have 10 days to file a reply to this, if it wishes (and I can’t imagine that it will leave this argument unchallenged). After that, the court will rule on the motion. Don’t expect a decision overnight, however. It is likely that a decision won’t be forthcoming for at least 2-3 months.