California Professional Football Players and Cheerleaders are Employees

The main differences between an employee and independent contractor, which make hirers want to classify employees as independent contractors, are the benefits afforded to employees, such as the right to minimum wage, overtime pay, meal and rest breaks, protection against discrimination[1], and the requirement to pay payroll taxes, and provide unemployment insurance, workers compensation insurance, specific types of leave and other benefits[2]. Typically, some ways to tell if an independent contractor is really an employee include if the hirer has control over the worker, if the hirer can control the manner and means by which the work is being done, if the hirer can discharge the worker at any time, if the worker does not have a separate business from the hirer, if the work does not require a special skill, and if the hirer supervises and trains the worker.

In California, professional football players are considered employees[3]. “In team sports, such as football and baseball, where the player competes under the direction and control of a coach or manager, he/she is an employee.[4]” Besides being subject to training, coaches’ supervision and dictation of the way the players perform their jobs, employee status means professional football players generally have benefits of employees. One of these benefits, which is especially important to professional football players, is the ability to file workers’ compensation claims for injuries suffered on-the-job. California professional football players have the ability to file workers’ compensation claims. This is significant, especially as we hear about the long-term mental and physical effects of these athletes’ injuries.

California law formerly allowed any professional football player to file a workers’ compensation claim in California regardless of whether he played for a California team. The non-resident had to demonstrate that he played in at least one game in California. As of approximately 2013, California Labor Code section 3600.5(b) exempts outside resident players and their professional sports teams from California workers’ compensation coverage if certain conditions are met:

• the team-employer has provided the non-California resident players with its own workers’ compensation insurance coverage or a similar type of insurance that covers the players’ work while in California;

• the state in which the team-employer operates recognizes California’s extraterritorial provisions; and

• California team-employers and their players who have state workers’ compensation insurance coverage are exempted from the other state’s workers’ compensation insurance or similar insurance.

The “employee” classification also applies to another class of individuals involved in professional football games: cheerleaders. Effective 2016, Labor Code section 2754 defines a cheerleader as “an individual who performs acrobatics, dance, or gymnastics exercises on a recurring basis. This term shall not include an individual who is not otherwise affiliated with a California-based professional sports team and is utilized during its exhibitions, events, or games no more than one time in a calendar year.” The code section provides that California-based team cheerleaders are considered employees. Therefore, like football players, they generally are entitled to employee benefits that they previously did not have as independent contractors. Importantly, these cheerleaders can now be paid minimum wage and overtime, which is better than the approximately $5 per hour they used to make, not including rehearsals and appearances, for which they were not paid at all[5].

[1] Cal. Gov’t Code 12940, et seq.

[2] See e.g., http://www.dir.ca.gov/dlse/FAQ_IndependentContractor.htm.

[3] See e.g., Tax Decision 2363.

[4] California Unemployment Insurance Benefit Determination Guide, TPU 415.4.

[5] http://www.nbclosangeles.com/news/local/New-California-Law-Recognizes-Cheerleaders-as-Employees-315824851.html.