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Tuesday, December 19, 2006

Unionize! (or I'll slap the Figure Four on you)

Whooooooooooo!

-- The Nature Boy, Ric Flair

One of the more interesting topics I saw presented at the Employment Law Conference that Blogs Built was John Hall's talk on workplace safety in the pornographic film industry.  (The only reason I went to this particular session was because of my deep interest in workplace safety.  Really.)  The thing that was most striking about Professor Hall's topic was, given the obvious risks of contracting sexually transmitted diseases, just how badly porn actors are in need of legal protection and just how little protection California safety and health officials actually provide.  According to Hall, this is an area in which California health officials have more or less turned a blind eye.

Hall's talk eventually got me thinking about another industry that has largely been ignored by the law and those who enforce it:  the professional wrestling business.  Like the porn industry, professional wrestling is a high-risk business for performers.  The number of professional wrestlers who have died young in the past few years is truly frightening.   

In many instances, the cause of death appears attributable, in part, to abuse of painkillers, steroid abuse, and/or general physical abuse resulting from risky on-the-job behavior.  Like performers in the porn business,  wrestlers take sometimes extreme risks in terms of their job performance.  While modern wrestlers spend less time in the ring than their predecessors, their style of wrestling has far more potential for serious injury.  High-risk maneuvers -- such as flips, leaps from the top rope to the floor, and unprotected chair shots (i.e., smacks to the head with metal chairs) -- are far more common now than in the past as workers try to push the envelope to keep the attention of the public.  The risky behavior doesn't end in the ring, however.  Steroid use is reportedly widespread in the business.  As a result of these factors, the potential for sudden paralysis (see Darren Drozdov) or death (see Owen Hart) is fairly high.  So too is the potential for long-term, chronic pain (see the Dynamite Kid), a condition frequently treated by copious amounts of painkillers (see Kurt Angle).

Like performers in the porn industry, wrestlers are easily exploited.   Because they are classified as independent contractors, wrestlers are not entitled to collect workers' compensation, so working with serious injury is a common occurrence.  Unlike football players, wrestlers don't have pensions.  They don't enjoy employer-provided health insurance.  State athletic commissions  generally take a hands off approach.  (At least as of a few years ago, Oregon was the only state whose commission tested wrestlers for steroids.  Coincidentally (?), the WWE didn't run shows in Oregon.).  In short, this is an industry that is largely unregulated to the detriment of the performers.

So, if the law won't protect wrestlers, what's the solution (short of siccing Professor "Samoa Joe" Slater on management)?  Unionization might be one possibility, but it would be a tough sell.  Because there are plenty of people who dream of being a wrestler, the performers are often quite willing to assume risks workers in other industries would never tolerate.  Years ago, Jesse "the Body" -- later "the Governor" -- Ventura actually tried to organize the WWE (then the WWF).  According to Ventura, however, he was ratted out to management by one Hulk Hogan. 

In discussing all of the above, I don't mean to overstate the seriousness of the situation.  There are plenty of occupations out there in which workers earn far less money and face greater health risks (say, coal mining, for example).  But there is something at least slightly offensive to me about the fact that lawmakers and regulators are unwilling to take steps to protect those such as wrestlers and porn actors because (I surmise), in part, they don't want to associate themselves with such "embarrassing" industries.

Posted by Alex Long on December 19, 2006 at 12:56 PM in Workplace Law | Permalink

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Comments

Perhaps not surprisingly, I think this is an excellent post on an important topic. Two quick questions/quibbles.

First, I don't think you need press the caveat about wrestlers making big bucks. Many "pro wrestlers" scrape by, if that, in the non-WWE leagues: TNA, ROH, and even more minor independent promotions (like the "Cleveland All-Pro Wrestling" show that comes on my cablesystem some times and seems to draw crowds of literally dozens). Plus, like other artistic or sports-like endeavors, injuries or random booking decisions by company owners can cut even well-paid careers very short.

Second, I've always wondered how the WWE could successfully/legally classify its performers as "independent contractors" (as opposed to "employees") given the various tests for being an independent contractor. These workers appear on WWE promotions and don't work for other promotions (except in the rare cases they are given permission); they don't have that much control over how the work is done (they're told when and where to perform, who "wins and loses," etc.); most of the equipment they use in performances is not theirs; etc. It's clear an employer can't make workers indpendent contractors simply by getting them to sign a contracts that says they are independent contractors. So what am I missing?

More broadly, I think Alex and John Hall are right that certain industries don't seem to be regulated sufficiently because they are seen as tacky, embarrassing, etc. Although I wouldn't ignore the point John made that they are also very profitable industries (meaning there may be some political pressure on regulators to leave them alone at the margins) -- see your point about Oregon not getting WWE shows.

Finally, there isn't enough serious scholarship on these industries, at least on the labor/employment law front.

Posted by: Joseph Slater | Dec 19, 2006 1:21:00 PM

Joe,

I think the classification of wrestlers as independent contractors is a joke too. There is actually a recent article on the subject of labor and employment issues in professional wrestling that discusses it. (Jamie Sharp, Pinned Down Labor Law and Professional Wrestling 23-WTR Ent. & Sports Law. 1 (2006)). Believe it or not, there is actually an old IRS ruling specifically on the subject.

Posted by: Alex Long | Dec 19, 2006 1:53:22 PM

Thanks, I'll check that out (you don't happen to have a cite handy for the IRS ruling, do you?). I can see how SOME indy wrestlers would properly be considered independent contractors, because they really do bounce from promotion to promotion, week to week even. But I don't see how it could be that, for example, John Cena is not an employee of the WWE.

Posted by: Joseph Slater | Dec 19, 2006 2:57:37 PM

Accordig to the article I mentioned, it's Rev. Rul. 69-225, 1969-1 C.B. 256, 1969 WL 19341 (1969).

Posted by: Alex Long | Dec 19, 2006 3:17:17 PM

Didn't the exotic dancers in San Francisco unionize some years ago?

Posted by: Michael Webster | Dec 19, 2006 4:25:47 PM

Thanks to "Samoa Joe" Slater for bringing this thread to my attention.
I was most interested to hear about the presentation on OH&S regulation in the porn industry. My academic home is in a school of business administration, and I'm always intrigued to see that it seems to be perfectly acceptable to conduct endless studies on the same Fortune 500 companies while ignoring other very large and profitable industries, such as porn (allegedly some hotels make up to 1/3 of their profit from in-room viewings of PPV porn), drugs (the Toronto Globe and Mail reports today that marijuana is now the most profitable crop in US agriculture), and, yes, professional wrestling. And as someone who teaches a number of employment-related courses, I'm also very interested in the employment issues of these types of industries.

Here's a link to one of my attempts to (pardon the pun) wrestle with some of the problems of research in these areas:
http://moh.sagepub.com/cgi/reprint/1/3/227

Posted by: Fiona McQuarrie | Dec 19, 2006 5:20:36 PM

Michael: Re the exotic dancers, briefly, yes, as the often-interesting documentary "Live Nude Girls Unite" shows. See: http://www.livenudegirlsunite.com/index2.html

But later, it folded into something more like a workers' co-op concept, and there were other complications. There was an interesting article in the New Yorker about it a while back.

Alex: Thanks for the cite. I'm thinking pro wrestling in 1969 was pretty different than it is today, in terms of business organization and employment policies.

Posted by: Joseph Slater | Dec 19, 2006 5:23:08 PM

To follow up to Michael's question, the dancers at a club called the Lusty Lady in San Francisco did unionize a few years ago - there's a great documentary called "Live Nude Girls Unite" about the organizing campaign. I found this article which gives some interesting updates on how the local's fortunes are unfolding:
http://melbourne.indymedia.org/news/2006/10/124769_comment.php

Posted by: Fiona McQuarrie | Dec 19, 2006 5:26:19 PM

Years ago the major wrestling groups were all SAG (Screen Actors Guild) members -- fully unionized. Has that ended?

Posted by: Stephen M (Ethesis) | Dec 24, 2006 1:26:08 PM

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