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Marcel Yonan v. United States Soccer Federation

June 22, 2011

MARCEL YONAN, PLAINTIFF,
v.
UNITED STATES SOCCER FEDERATION,
INC. DEFENDANT.



The opinion of the court was delivered by: Judge Virginia M. Kendall

MEMORANDUM OPINION AND ORDER

Plaintiff Marcel Yonan ("Yonan") is a soccer referee and lawyer. In 2007, defendant United States Soccer Federation, Inc. ("the Federation") told Yonan, then 50 years old, that he would not be assigned to work Major League Soccer ("MLS") games. He sued, alleging age discrimination in violation of the Age Discrimination in Employment Act ("ADEA") (29 U.S.C. § 621 et seq.) and retaliation. The Federation moved for summary judgment (Doc. 52), asserting that Yonan is an independent contractor not protected by the ADEA. According to the Federation, even if Yonan was an employee, Yonan cannot establish his ADEA and retaliation claims. For the reasons below, the Court does not reach the issue of whether the Federation fired Yonan because of his age because it finds Yonan is not an employee of the Federation and not protected by the ADEA. Consequently, the Federation is entitled to summary judgment.

I. MATERIAL UNDISPUTED FACTS*fn1

A. The Federation and Soccer Refereeing

The Federation is the statutory body that governs soccer in the United States. (Yonan 56.1 Resp. ¶ 3; Yonan Dep. 31.)*fn2 The Federation registers, trains and certifies referees to officiate in Federation games, which include national and international games as well as games for youth and professional leagues affiliated with the Federation. (Yonan 56.1 Resp. ¶¶ 4, 22.) Those professional leagues include the United Soccer League ("USL") and MLS. (Id.) Referees who want to officiate Federation-affiliated games must register with the Federation each year and pay a registration fee. (Id. ¶ 5.) Referees are certified at different grade levels depending on their ability and experience. (Id. ¶ 6.) To maintain certification as a national referee, a referee must fulfill certain annual requirements including a physical endurance test and a written test on the International Federation of Association Football's ("FIFA") Laws of the Game. (Id. ¶¶ 18-19.) National referees are invited to an annual camp to complete these tests. (Id. ¶ 19.) Provided that the referee passes the tests, individual test scores do not factor into referee assignment decisions for particular games. (Id. ¶ 20.)

Federation-registered referees are free to accept or decline the Federation's assignments for any reason. (Id. ¶ 25.) They also can officiate games not affiliated with the USSF, such as college and high school games. (Id. ¶27.) Almost all Federation-registered referees who work MLS games also work college games without penalty from the Federation. (Id.) When they work college games, the home team pays the referee his or her fees and expenses. (Id.) Referees who want to officiate college games must register with, and be certified by, a separate organization called NISOA. (Id. ¶28.)The Federation does not provide any offices or facilities to referees - their "workplace" which is the playing fields, which is generally not owned by the Federation. (Id. ¶53.).

During the time Yonan was a referee, before most professional and international games, a Federation referee "assessor" would contact him to provide his perspective on the teams and players. (Id. ¶47.)Those discussions were for the benefit of the referees and designed to enhance their performance during the game. (Id. ¶48.)MLS also hosted conference calls involving Federation officials to assist referees in officiating MLS games, to ensure that referees were applying the Laws of the Game consistently, and to enhance MLS's credibility. (Id. ¶¶ 49-50.) In addition, MLS hosted a meeting for referees during its All-Star break. (Id. ¶51.)MLS published a set of guidelines for referees working MLS games that set out details like arrival times, jersey colors, expense reports, and the forms that needed to be completed post-game. (Id. ¶52.)MLS required that the referee's uniform contrast with the colors of the jerseys worn by the teams. (Id. ¶56; Yonan Dep. 151.)For other Federation-affiliated games, the referee decided what color uniform to wear, often after packing several uniforms and selecting one based on the colors used by the teams. (Yonan 56.1 Resp. ¶ 57.) Yonan asserts he had to wear a Federation blazer and tie (that he purchased) while traveling to professional games, but admitted he did not always wear the special clothing and that he was unaware of any referee who was penalized for not doing so. (Id. ¶¶ 58-59.) Sportswear companies, not the Federation, gave Yonan uniforms for free. (Id. ¶54.)

Yonan was the "head referee" most of the time. (Id. ¶60.) Under the Laws of the Game, in place for all professional matches, the head referee has "full authority to enforce the Laws of the Game in connection with the match to which he has been appointed." (Id. ¶61.) The head referee has final authority over control of the match, ensuring appropriate equipment and attire is used, timing, and disciplinary action against players and coaches. (Id. ¶62.) Being a good referee requires a great deal of skill and natural ability to manage assistant referees, players and coaches in a fast-moving environment. (Id. ¶62.)

B. Yonan's Refereeing History

Yonan first registered with the Federation in 1982 or 1983 and rose to the rank of "national referee" in 1992, which then allowed him to work professional games. (Id. ¶¶ 6-7.) On his 2007 registration form, he acknowledged that he understood that registering with the Federation "does not create an employment contract or relationship with [the Federation]." (Id. ¶ 7.) Since first registering with the Federation, Yonan has refereed college games not affiliated with the Federation. (Id. ¶¶ 8, 26.)*fn3 The only Federation-affiliated professional leagues that Yonan has refereed were in the MLS and the USL. (Id. ¶ 33.) When Yonan worked those games, the leagues, not the Federation, compensated him. (Id. ¶¶ 34-35.) Specifically, either MLS or USL would cut a check to Yonan and issue him an IRS Form 1099 to report the income for tax purposes. (Id.) The leagues also paid Yonan's expenses and reimbursed him for those expenses. (Id. ¶ 36.) Yonan also refereed U.S. Open Cup games between the mid-1980s and 2006. (Id. ¶ 40.) Generally, the home team of those games paid Yonan and sent him a Form 1099. (Id.) The Federation paid Yonan to referee the occasional "regional game," armed forces game, or international game involving the U.S. national team when sponsored by the Federation. (Id. ¶¶ 34-35.) Referees for international games involving two foreign national teams or an international club team like Manchester United were paid by someone other than the Federation. (Id. ¶ 41.) In early 2007, the Federation told Yonan that he would no longer be assigned to referee MLS games. (Id. ¶ 66.)

C. Yonan's Financial and Tax Records

In addition to being a soccer referee, Yonan is an attorney operating as a solo practitioner. (Id. ¶ 9.) He received the majority of his annual compensation from his legal practice, and he generally received less than $15,000 from refereeing. (Id. ¶ 45.) In his 2003-2007 tax returns, he lists his profession as a combination of "legal services" and "soccer referee" and represented that he was a self-employed "sole proprietor." (Id. ¶ 10.) Yonan confirmed that the representations he made on his tax returns were accurate. (Id., Yonan Dep. 95-96.) Yonan has no record of ever receiving an IRS Form W-2 or 1099 from the Federation, and has never listed the Federation as an employer on his tax returns. (Yonan 56.1 Resp. ¶ 11.) Similarly, he listed himself as self-employed on mortgage and life insurance applications. (Id. ¶ 12.) The Federation gave Yonan liability insurance coverage while he refereed Federation games, but did not give him a general health insurance policy or any sick-pay, vacation or other benefits. (Id. ¶ 11, Yonan Dep. 141-42.)

II. STANDARD OF REVIEW

Summary judgment is proper when "the pleadings, the discovery and disclosuire materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c)(2). In determining whether a genuine issue of fact exists, the Court must view the evidence and draw all reasonable inferences in favor of the party opposing the motion. See Bennington v. Caterpillar Inc., 275 F.3d 654, 658 (7th Cir. 2001); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, the Court will "limit its analysis of the facts on summary judgment to evidence ...


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