Lawsuit Proof

By Donald C. Collins

Officials associations are often involved in dispensing game assignments. Those associations literally play a role in deciding who makes money, who doesn’t make money and who gets to officiate a relatively limited number of prestigious games. Officials associations also take things away from officials by fining, penalizing and disciplining them. When you’re involved in giving and taking away resources, you are always vulnerable to a lawsuit.

The first thing an association needs to do is protect itself from employment-related lawsuits. That sounds simple, as most officials will tell you that they’re independent contractors. But in truth, officials associations are subject to employment law even if their member officials are independent contractors.  Officials’ independent contractor status generally takes the form of exemptions from workers compensation laws and unemployment insurance laws. Those are very limited exemptions, and they simply don’t impact employment-related lawsuits. Officials associations are the legal equivalent of a temp agency or a union hiring hall. They may or may not be employers, but they decide who gets the work and the government simply does not give them an exemption from employment-related lawsuits.

Employment-related lawsuits can take a number of forms. The most common forms are discrimination suits based on color, race, religion, gender, national origin, age and disability. But officials associations have an additional problem. All their game assignments aren’t equal, and all of their officials aren’t equally qualified. The result is a morass of potentially disappointed officials who can have a wide array of legal complaints.

Under the wrong circumstances, disappointed officials can bring lawsuits ranging from the aforementioned employment discrimination suits to a wide array of suits that claim that an officials association is violating some standard that it’s compelled to meet. Usually, that standard is set forth in the association’s bylaws. Occasionally, the standards are mandated by a state governing body or by state legislation.

An association’s best protection from an employment lawsuit is to make sure its bylaws: (a) provide a clear system of rating and evaluating officials; (b) link the evaluations/ratings to game assignments; (c) have clear requirements and procedures for training, meetings, testing and any other membership mandates; (d) clearly state what fines, penalties and other discipline apply to violations of various mandates; (e) have notice, hearing and appeal procedures for members who are being fined, penalized or subject to discipline; (f) try to separate the panels that issue fines, penalties and other discipline from the panels that hear appeals or hear grievances; and (g) have clear election and/or appointment standards and procedures for various board and committee positions.

Having good bylaws is not enough, though. Associations need to constantly assess their actions to make sure the actions square with the bylaws. The assessment should start by looking at elections and appointments. Election and appointment disputes are a frequent source of conflict that can give rise to lawsuits.

The assessment should also make sure the association hasn’t changed its procedures over time. For example, many associations give electronic notice, hold electronic elections and post documents on websites while their bylaws mandate that all of those things be done by mail. That seems benign until a member sues and claims they never received proper notice of charges against them or worse, that the board member or committee member who took an action was improperly elected or appointed.

Employment lawsuits are not the only lawsuits that associations must address. Associations can be liable for negligently training their member officials. Associations used to be able to address that problem by training officials to conduct safety checks on the fields and courts of play. Now, associations have to do more.

Associations have to train their member officials on signs and symptoms of concussions because officials have a duty to ensure that a player who exhibits signs and symptoms is removed. In some states, the duty and the means of training may be enshrined in the governing body’s bylaws or in state legislation. Officials also have to monitor changes in state laws and in governing body requirements to see if they’re gaining any new duties.

Finally, associations have to be sensitive to the changing nature of some of our sports. A number of states now have events for athletes with physical and intellectual disabilities. That could lead to current officials having to learn new rules. It could also lead to a gradual influx of disabled officials. The wise officials association would begin addressing questions such as whether an official with a prosthetic could cover an able-bodied basketball game, whether a wheelchair official could work a track meet, and what if any, accommodations any of those officials would need. In short, officials associations may need to take a refresher course on the Americans With Disabilities Act sooner rather than later.

Officials associations are at a crossroads. Associations need to continue to operate under the current paradigm and act to reduce lawsuits under that paradigm. But associations need to be flexible enough to adjust to what could be a new paradigm involving player safety and new sports playing populaces. Change could be coming … but officials have always dealt with change and will undoubtedly continue to do so.

Donald C. Collins is a longtime basketball official and lawyer from San Francisco. This article is for informational purposes and is not legal advice.