‘Sex, Lies and Independent Contractors — A Cautionary Tale’

Mar 1, 2019

By Alan Goldberger
In the world of sports officiating, the legal phrase “independent contractor” is thrown about with great frequency — both by officials AND by those who commission their services. Most officials who work college and high school sports insist they are “independent contractors.” And, in lockstep fashion, most organizations that send officials out on the field or the floor swear up, down and sideways that the officials in their organization are, for sure, independent contractors.” Same with the contractual relationships of a number of college conferences to their officiating coordinators.
It is often believed that the tag “independent contractors” — if repeated enough and buttressed with sufficient attributes evidencing the desired legal status, prevents or at least mitigates a number of legal exposures. But does it? Usually not. But, sometimes?
Take, for example, the long-running legal battle in state and federal courts among a basketball official, a major college conference, and the Conference’s Coordinator of Women’s Basketball officials.
The plaintiff: Official Alicia Dukes, a resident of Jefferson County, Kentucky. The Conference: the Mid-East Athletic Conference (“MEAC”), a Virginia based NCAA Division I Conference with 12 university members, and the Coordinator of Officials, one Dwight Barbee. He may be “Barbee,” but according to the plaintiff, he was no “doll.” In fact, according to Plaintiff Dukes, Barbie was anything but.
Dukes originally sued Barbee and the MEAC in the Kentucky Circuit Court for Jefferson County, claiming harm resulting from sexual harassment, invasion of privacy, and intentional infliction of emotional distress, as well as” negligence per se” of an unspecified nature. Plaintiff claimed lost wages, benefits and other compensatory and punitive damages. According to the Complaint Barbee had long engaged in inappropriate actions of a sexual nature. As against the MEAC, plaintiff claimed negligent supervision on the part of Barbee’s “employer,” the MEAC.
Dukes averred that she was the subjected to repeated and egregious sexual advances from Barbee — all of which were unwelcome; and that these advances occurred nearly every time plaintiff encountered Barbee. Included in these personal affronts were suggestive comments on her appearance and frequent, overt sexual propositions. Dukes claimed that Barbee even offered to pay Dukes for sexual relations six times a year. As a result, Dukes reached a point where she declined to officiate in the Conference, affirming in what was undoubtedly a pronounced understatement, that she “… did not feel comfortable working with Barbee.”
At the core of plaintiff’s cause of action against the conference was the claim of negligent supervision of her Conference supervisor and MEAC employee, defendant Barbee. After the case was removed to federal court based on diversity, Barbee, a resident of North Carolina, moved to dismiss for lack of personal jurisdiction — maintaining that his contacts with the state of Kentucky — where Dukes resided — were non-existent, no less continuous and systematic. The trial judge agreed, finding that Plaintiff did not allege facts reading that Barbee had continuous and systematic contacts with Kentucky. Nor did the court have specific jurisdiction over a nonresident. The trial Court granted judgment on the pleadings dismissing Duke’s claims for invasion of privacy and negligence per se with prejudice; but not on the claim for intentional infliction of emotional distress. Nevertheless, the surviving claim against Barbee was dismissed without prejudice on jurisdictional grounds.
Negligent Supervision Claim
As a result, only plaintiff’s claim of negligent supervision against the MEAC was left for disposition.
As to “employment status,” Dukes agreed with the Conference that she, as a game official was an independent contractor. Plaintiff, though, maintained that Barbee was a conference employee; and that Conference knew of or should have known that Barbee might pose a risk of outrageous behavior, and the harm resulting from that behavior was caused by the MEAC’s failure to adequately supervise its employee.
Nevertheless, The MEAC contended — and Barbee agreed — that he was an independent contractor and not an MEAC employee. Still, the court stated that, under Kentucky law, claims for negligent supervision, to be viable, must allege that ‘the defendant [employer] knew or had reason to know of the employee’s harmful propensities; that the employee injured the plaintiff; and that the hiring, supervision, or retention of such an employee proximately caused the plaintiff’s injuries.
Which State Law Applies?
Superimposed on these issues was a dispute as to the substantive law applicable to the case. In Kentucky venues, said the court, the substantive law of Kentucky is preferred. Of note is that Virginia does not recognize “negligent supervision” as a cause of action. With the court electing to afford a Kentucky plaintiff the protections available to citizens of Kentucky, the court proceeded to rule on Duke’s claim against the MEAC on the merits. As such, the issue of Barbee’s classification was brought into sharper focus.
Employer or Independent Contractor?
Barbee described his work for the MEAC, which was based in Virginia, as “to run the women’s basketball program,” working from his home base of North Carolina. By contrast, the court described Barbee’s work as “…assigning and supervising the Conference’s 70-75 women’s basketball officials.” To accomplish this, working from home in North Carolina and not from the Conference’s Virginia office, used his own telephone and a proprietary scheduling software of his own choosing, without direction from the MEAC. Nor was he required to forward communications regarding his organizing the officials for the Conference.
Citing a Kentucky Supreme Court decision, the court encapsulated the applicable standard:
The most important factor in determining whether a person [*11] is an employee or independent contractor is the right to control one’s work and the way it is performed.” Id. (citing Turner v. Lewis, 282 S.W.2d 624, 625 (Ky. 1955)). As the Kentucky Supreme Court has explained:
‘If the employer retains the right to control the work and the manner in which it is done, those doing the work are [employees]. On the other hand, if an employee has the right to control the manner of work and the right to determine the means by which results are accomplished, he is deemed an independent contractor . . .’–
Turner, 282 S.W.2d at 625.
The End of Liability
On its motion for summary judgment, the MEAC argues that Barbee was an independent contractor, so the MEAC could not be liable for Barbee’s alleged conduct.
About 2 years and a vigorous motion practice later, U.S. District Judge Rebecca Grady Jennings, citing Dukes’ failure to present evidence demonstrating any issue of material fact as to whether the Conference was Barbee’s employer, granted summary judgment, dismissing the case with prejudice.
Goldberger is a New Jersey-based sports lawyer and author. For more on his practice and his books, visit http://www.reflaw.com/


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