A federal judge from the Northern District of Illinois has granted the United States Soccer Federation’s motion for summary judgment in a case in which it was sued by a jilted referee for age discrimination.
In so ruling, the court found that the plaintiff was an independent contractor for the Federation based on several factors, meaning he was not protected by the Age Discrimination in Employment Act (ADEA). 29 U.S.C.A. § 621 (West 2011).
The plaintiff was Marcel Yonan, a soccer referee and lawyer. In 2007, the Federation told Yonan, then 50 years old, that he would not be assigned to work Major League Soccer (MLS) matches. He sued, alleging age discrimination in violation of the ADEA.
The court first explored the background of the Federation and its relationship with referees before rendering its judgment.
The Federation is the statutory body that governs soccer in the United States. It registers, trains and certifies referees to officiate its matches, which include national and international contests, as well as matches for youth and professional leagues affiliated with the Federation.
Those professional leagues include the United Soccer League (USL) and MLS. Referees who want to officiate Federation-affiliated games must register with the Federation each year and pay a registration fee. Referees are certified at different grade levels depending on their ability and experience. To maintain certification as a national referee, a referee must fulfill certain annual requirements including a physical endurance test and a written test on the International Federation of Association Football’s (FIFA) Laws of the Game.
Federation-registered referees are free to accept or decline the Federation’s assignments for any reason. They also can officiate games not affiliated with the USSF, such as college and high school games. Almost all Federation-registered referees who work MLS games also work college games without penalty from the Federation. When they work college games, the home team pays the referee his or her fees and expenses. Referees who want to officiate college games must register with, and be certified by, a separate organization. The Federation does not provide any offices or facilities to referees. The Federation did, however, host conference calls and stage meetings from time to time.
The court next looked at Yonan’s refereeing history, and the fact that he first registered with the Federation in the early 1980s and rose to the rank of “national referee” in 1992, which then allowed him to work professional games.
“On his 2007 registration form, he acknowledged that he understood that registering with the Federation ‘does not create an employment contract or relationship with [the Federation],’” wrote the court. “Since first registering with the Federation, Yonan has refereed college games not affiliated with the Federation. The only Federation-affiliated professional leagues that Yonan has refereed were in the MLS and the USL. When Yonan worked those games, the leagues, not the Federation, compensated him. Specifically, either MLS or USL would cut a check to Yonan and issue him an IRS Form 1099 to report the income for tax purposes. The leagues also paid and reimbursed Yonan for his expenses.
In addition to being a referee, Yonan is an attorney. Operating as a solo practitioner, “he received the majority of his annual compensation from his legal practice, and he generally received less than $15,000 from refereeing…Yonan has no record of ever receiving an IRS Form W-2 or 1099 from the Federation, and has never listed the Federation as an employer on his tax returns. Similarly, he listed himself as self-employed on mortgage and life insurance applications.”
The impetus for the legal dispute occurred in early 2007 when the Federation told Yonan that he would no longer be assigned to referee MLS games.
Early on in its analysis, the court wrote that when determining whether an individual is an employee or an independent contractor under the ADEA, the courts apply a five factor “economic realities test,” inspired by agency principles. Alexander v. Rush N. Shore Med. Ctr., 101 F.3d 487, 492 (7th Cir. 1996). The factors are:
• the extent of the employer’s control and supervision over the worker, including directions on scheduling and performance of work;
• the kind of occupation and nature of skill required, including whether skills are obtained in the work place;
• responsibility for the costs of operation, such as equipment, supplies, fees, licenses, workplace, and maintenance operations;
• method and form of payment and benefits; and
• length of job commitment and/or expectations.
“Because they implicate several of the five factors, it is important to discuss at the outset Yonan’s unequivocal admissions that are entirely inconsistent with the position he has taken in this suit, namely, that he is an employee of the Federation,” wrote the court. “In August 2006, just six months before the Federation told him he would not be refereeing any more MLS games, Yonan told the Federation he understood that his registration did not create an ‘employment relationship’ with the Federation. Perhaps even more importantly, under the risk of substantial criminal and civil penalties if he lied on his tax returns, he told the IRS every year he was ‘self-employed’ operating as a ‘sole proprietor,’ and never listed the Federation as his employer. He said the same in a mortgage application, where any knowing misrepresentations would also subject him to criminal liability. See 18 U.S.C.A. § 1014 (West 2011). It is difficult, if not impossible; to reconcile these statements with his current position that he was an employee of the Federation. In any event, the five factors weigh in favor of finding that Yonan was an independent contractor, not an employee covered by the ADEA.”
Marcel Yonan v. United States Soccer Federation, Inc., N.D. Ill.; Case No. 09 C 4280, 2011 U.S. Dist. LEXIS 66383; 6/22/11.
Attorneys of Record: (for plaintiff) Annemarie Elizabeth Kill, LEAD ATTORNEY, Rebecca Elin Cahan, Avery Camerlingo Kill, LLC, Chicago, IL; Marcel Elia Yonan, Law Offices of Marc W. Sargis, Des Plaines, IL. (for defendants) Adam Carl Wit, LEAD ATTORNEY, Michael Giuseppe Congiu, Littler Mendelson, P.C., Chicago, IL.
