Bad Call, Ref: Lawsuit Fails When Ref Sues the Wrong Party

Some athletic lads from the University of Illinois High School yearbook, 1921

When referees and umpires make bad calls, they can be truly memorable.

Remember when the University of Colorado beat Missouri on Fifth Down to win a 1990 NCAA football game? Or when the Saints were denied a shot at the Super Bowl in 2019 on a missed pass interference call? Or the blown safe at first call that ruined Armando Galarraga’s 2010 perfect game with two outs in the 9th?

In a lawsuit decided last week, a high school basketball ref made another bad call, resulting in dismissal of her claim.

Ginger Girard, a high school ref in Connecticut, sued the International Association of Approved Basketball Officials and the local Board, claiming that they engaged in employment discriminated by not giving her good ratings. She claimed the poor ratings were because of her gender, not her performance, and that the poor ratings caused her to lose financial opportunities.

But to bring a claim of employment discrimination under federal law, you have to sue your employer. The court ruled that the Association and the local Board were not the ref’s employer. She took a shot but didn’t even hit the rim. Case dismissed.

The ref then asked for the legal equivalent of instant replay, appealing to the Second Circuit Court of Appeals. But she airballed it again.

The Court of Appeals applied a Right to Control Test, finding that the Association and the Board did not control how she reffed games. (It’s worth noting that that the court used a 13-factor test, which is different from the Supreme Court’s 7-factor test, which is different from the IRS’s former 20-factor test, which is different from how several other courts define the relevant Right to Control Factors. To know your test, you’ve gotta know your court.) The Court of Appeals also pointed out that when she was retained to referee games, the participating schools paid her, not the Association or the Board. She sued the wrong party.

Refs make mistakes, and refs’ lawyers can whiff too. Whether on the court or in the court, you’ve got to know your opponent. Figuring out Who Is My Employee can make all the difference between victory and defeat.

© 2021 Todd Lebowitz, posted on, Exploring Issues of Independent Contractor Misclassification and Joint Employment. All rights reserved.

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