REPLACE THE REPLACEMENTS: EXAMINING NFL PLAYERS’ RESPONSE TO
THE 2012 NFL REFEREE LOCKOUT
Randall L. Tatem
INTRODUCTION .......................................................................................................................1
I.
HISTORY OF THE 2012 NFL REFEREE LOCKOUT............................................................ 3
A. What is All the Fighting For? The Primary Issues of the 2012 NFL Referee
Lockout...................................................................................................................... 4
1.
Retirement Benefits........................................................................................ 4
2.
Salaries.......................................................................................................... 5
3.
Additional Crews........................................................................................... 6
4.
Full-Time Officials........................................................................................ 6
B. Here Come the Replacements ................................................................................... 7
C. Replacement Officials’ On-Field Performance......................................................... 10
D. Duties and Responsibilities of NFL Officials ........................................................... 12
II.
THE ABNORMALLY DANGEROUS CONDITION ARGUMENT............................................. 13
A. The Lack of “Ascertainable, Objective Evidence”.................................................... 14
1.
NFL Replacement Referee Lack of Knowledge and Implementation
of the Rules..................................................................................................... 16
III. THE NEGLIGENT HIRING ARGUMENT.............................................................................. 18
A. Existence of an Employment Relationship................................................................. 20
B. Employee was Unfit or Incompetent...........................................................................20
C. Employer Knew or Should Have Known that the Employee was Unfit .................... 22
IV. CONCLUSION.................................................................................................................. 23
INTRODUCTION
The National Football League’s (NFL) primetime broadcast of Monday Night Football
has been a staple in American households for over three decades. 1 During Monday Night
Football, the NFL pairs two premiere teams to play in front of a national audience.2 On Monday,
1
ABC Sports Online, History of ABC’s Monday Night Football, (Jan. 15, 2003),
http://espn.go.com/abcsports/mnf/s/2003/0115/1493105.html. (The first Monday Night Football game aired on
September 21, 1970 as the Cleveland Browns played host to the New York Jets.).
2
Id. (“NFL Monday Night Football . . . is not only the longest-running and most successful
primetime sports series in television history, but it has also become a way of life.”).
3
Mike Sando, Chaos, Confusion and a 14-12 Seahawks win, ESPN, (Sep. 25, 2012, 1:48 AM),
http://espn.go.com/blog/nfcwest/post/_/id/75896/chaos-confusion-and-a-14-12-seahawks-win.
1
September 24, 2012, the Green Bay Packers took on the Seattle Seahawks.3 The game was hard
fought, full of big hits and great plays, and controversial calls by replacement officials.4 In the
final play of the game, Russell Wilson, quarterback of the Seahawks, threw a Hail Mary pass.5
As the ball sailed into the end zone, Packer’s cornerback MD Jennings and Seahawk’s wide
receiver Golden Tate jumped for the ball.6 Once on the ground, each player struggled to gain
possession of the ball.7 While one official signaled for a touchdown, the other signaled for an
interception.8 After reviewing the play on instant replay, the officials determined that the correct
call was a touchdown; 9 however, it was clear to players, coaches, and fans that this was an
incorrect call that caused the Green Bay Packers a victory.10
Replacement officials have been and continue to be scrutinized, ridiculed, and villainized
for making questionable calls. 11 As a result of the recent NFL lockout, the NFL employed
replacement officials to supervise and monitor games.12 Many, including players and coaches,
believe that replacement officials’ lack of experience and familiarity with NFL rules increase the
4
Id.
5
Id.
6
Id.
7
Id.
8
Id.
9
Referee Wayne Elliot told The Seattle Times, "the ruling on the final play was simultaneous
catch." Id. Pete Carroll, Seattle Seahawks head coach, stated, “they said simultaneous catch, which goes to the
offense." Id.
10
Id. “The reigning NFL Most Valuable Player and a vicious Seattle Seahawks defense were no
match Monday night for the seven guys in stripes.” Id. New Orleans Quarterback Drew Brees tweeted, “I love this
league and love the game of football, but tonight’s debacle hurts me greatly. This is NOT the league we’re supposed
to represent.” Matt Yoder, Real Tweets From Real NFL Players- Replacement Refs Riot!, AWFUL ANNOUNCING,
(Sep. 25, 2012, 4:54), http://www.awfulannouncing.com/2012-articles/september/real-tweets-from-real-nfl-playersreplacement-refs-riot.html. Visanthe Shiancoe tweeted, “As an NFL player.. knowing how much goes into this
game.. [It’s] demoralizing & hurts.” Id.
11
See, e.g., A.J. Perez, Players sound off on referee disaster, FOX SPORTS,
http://msn.foxsports.com/nfl/story/nfl-replacement-referees-twitter-monday-night-football-players-sound-off-ondisaster-092412 (last updated Sep. 25, 2012, 2:21 PM).
12
NFL to use replacement refs, ESPN, http://espn.go.com/nfl/story/_/id/8314433/nfl-usereplacement-officials-start-regular-season (last updated Aug. 30, 2012, 10:36 AM).
2
likelihood of serious injuries to players; however, this belief alone is not enough to sustain a
claim under the “abnormally dangerous condition” exception or tort claim of negligent hiring.
Part I of this paper will provide an overview of the NFL referee lockout, background and onfield performance of replacement officials, and the duties and responsibilities of NFL officials.
Part II will examine whether the NFLPA can violate their collective bargaining agreement and
strike under the “abnormally dangerous condition” exception of 29 U.S.C. § 143. Next, Part III
will examine whether the NFLPA has a claim against the NFL for the negligent hiring of unfit
replacement officials. Lastly, the paper indicates that the NFLPA’s best option is to compromise
on a new collective bargaining agreement.
I. HISTORY OF THE 2012 NFL REFEREE LOCKOUT
In 2005, the NFL and NFL Referees Association (NFLRA) entered into a collective
bargaining agreement that would last until the end of the 2011 NFL football season.13 As the
2011 season approached, a labor dispute between the NFL and the NFL Players Association
(NFLPA) lead to a lock out of the players.14 In an effort to avoid losing the football season, the
NFL shifted its focus from renegotiation with the NFL officials to the NFL players.15 Following
a four-month lock out, the NFL and the NFLPA settled on a ten-year collective bargaining
agreement.16
13
Gary Mihoces, Timeline for NFL replacement officials, USA TODAY,
http://usatoday30.usatoday.com/sports/nfl/story/2012/09/25/timeline-for-nfl-replacement-officials/57841924/1 (last
updated Sep. 25, 2012, 7:14 PM).
14
Simon Evans, NFL announces lock out of players, REUTERS, (Mar. 12, 2001, 2:30 PM),
http://www.reuters.com/article/2011/03/12/us-nfl-lockout-idUSTRE72B25I20110312 (“A lockout effectively closes
down the league's activities and will halt any trade activities and any other dealings between players and clubs.”).
15
See Mihoces supra note 13 (Tim Mills, the executive director of the referee union, stated, “the
players' situation led right into training camp last year, and therefore we were never able to do our [renegotiation].
We never had that free time a year in advance.").
16
Adam Schefter, Sources: deal to end lockout reached, ESPN,
http://espn.go.com/nfl/story/_/id/6797238/2011-nfl-lockout-owners-players-come-deal-all-points-sources-say (last
updated Jul. 25, 2011, 12:14 AM).
3
Once the agreement between the NFL and the NFLPA was finalized, the NFL turned its
attention back to negotiations with the NFLRA. 17 With the expiration date for the collective
bargaining agreement between the NFL and NFLRA approaching, the two sides were unable to
reach an agreement.18 On June 3, 2012, because both parties failed to resolve the labor dispute,
the NFL effectively locked out 120 officials with more than 1,500 years of experience
combined.19
A. What is All the Fighting For? The Primary Issues of the 2012 NFL Referee Lockout
The lockout of the NFL officials was the result of a disagreement over the following four
points: (1) retirement benefits; (2) salaries; (3) additional crews; and (4) full time officials.
1. Retirement Benefits
The 2005 collective bargaining agreement entitled officials to a pension-defined benefit
plan that guaranteed retired officials a fixed amount of income based on the length of their
employment.20 The NFL proposed to do away with this plan and institute a defined contributions
401(k) plan.21 Under this proposed plan, benefits were not guaranteed and would be based on
performance.22 The NFL officials opposed this change. They labeled the 401(k) plan “inferior”
because it would reduce the league’s funding obligation by 60% while shifting additional
investment risk to the officials.23
17
See Mihoces supra note 13.
18
Id.
19
Locked out refs: NFL engaged in misinformation campaign, USA TODAY, (Sep. 2, 2012, 11:19
PM), http://usatoday30.usatoday.com/sports/football/nfl/story/2012-09-02/NFL-locked-out-refereesmisinformation/57543138/1.
20
CNN Wire Staff, Four things the locked out NFL referees, league still negotiating, CNN, (Sep. 26,
2012), http://edition.cnn.com/2012/09/25/sport/nfl-officials-labor-dispute/index.html.
21
Id.
22
Id.
23
Id.
4
2. Salaries
With revenue of 9 billion dollars in 2011, the NFL is the most profitable and successful
sports league in the world.24 Despite this profit, the NFL pays their officials far less than Major
League Baseball (MLB), the National Basketball Association (NBA), or the National Hockey
League (NHL). The average starting salary for a first year NFL official is $78,000, compared to
$120,000 for a MLB umpire.25 In fact, the starting salary for a MLB umpire is equivalent to a
ten-year NFL official.26
Under the 2005 collective bargaining agreement, NFL officials were paid annually from a
shared pool of $18 million; this averaged out to approximately $149,000 for each of the 121
officials.27 During the 2012 negotiations, the NFL proposed to increase average salaries from
$149,000 to $189,000 by 2018, with an average annual increase of five to eleven percent.28 The
officials felt that the raise was lower than what they received in 2006.29 They believed they
should be compensated similar to officials in other sports leagues. 30 The officials claim that,
despite record revenues for the NFL, the NFL wants to cut costs by underpaying their officials.31
24
Darren Rovell, Referee negotiations put NFL in tough spot, ESPN, (Aug. 31, 2012, 5:14 PM),
http://espn.go.com/blog/playbook/dollars/post/_/id/1393/nfl-refs-put-league-in-tough-spot (“The NFL pulled in $9.3
billion in revenues last year. In 2010, NFL commissioner Roger Goodell said he hoped that the NFL would hit $25
billion in annual revenue by 2025.”).
25
Bryan Knowles, Breaking Down the NFL’s Referee Lockout, THE BEST SPORTS BLOG,
http://www.thebestsportsblog.com/breaking-down-the-nfl-referee-lockout.html.
26
Id. A NBA referee can start at $90,000 and make up to $225,000. While, NHL referees start out at
$115,000. Mark Simmons, Sports Officiating: Is It For You, ASK MEN,
http://www.askmen.com/sports/business_60/77b_sports_business.html.
27
CNN Wire Staff, Four things the locked out NFL referees, league still negotiating, CNN, (Sep. 26,
2012), http://edition.cnn.com/2012/09/25/sport/nfl-officials-labor-dispute/index.html.
28
Id.
29
See Knowles supra note 19.
30
Id.
31
Id.
5
3. Additional Crews
Currently, the NFL employs seventeen officiating crews, one for each of the sixteen
games played, and a reserve crew.32 The NFL proposed to hire three additional crews to improve
the quality of officiating, and alleviate stress and travel schedules of the existing officials.33
Likewise, the NFL claimed that the larger pool of qualified officials would give the league
flexibility to utilize the best performing officials and “bench” those who perform poorly. 34
However, the NFLRA considered the inclusion of additional referees as a threat to their job
security and pay.35 Officials get paid based on the number of games they oversee.36 As a result,
an increase in the number of officials would reduce the number of games supervised by each
official, affecting average pay.37 Additionally, referees believed that this proposal would make it
easy for the NFL to “bench” officials that they believe are underperforming.38
4. Full-Time Officials
32
Schuyler Velasco, NFL referee lockout drags on: 4 issues keeping replacement refs on the field,
THE CS MONITOR, http://www.csmonitor.com/Business/2012/0921/NFL-referee-lockout-drags-on-4-issues-keepingreplacement-refs-on-the-field/Extra-officiating-crews.
33
Id. The NFL wants to add three additional officiating crews, bringing the total to 20 crews and 140
referees. They say that this would improve the quality officiating, they say, because it would allow them to groom
more refs, root out officials who are performing poorly, and ease rookie refs into NFL officiating. Id.
34
Artiefufkin, Why Are The NFL And The Referees Still At A Stand Still, READ AND REACT, (Sep.
25, 2012), http://readandreact.net/2012/09/25/why-are-the-nfl-and-referees-still-at-a-standstill/.
35
Judy Battista, N.F.L. Chief Caught Between Bad Calls and Owners’ Hard Line, THE NEW YORK
TIMES, (Sep. 25, 2012), http://www.nytimes.com/2012/09/26/sports/football/nfl-commissioner-goodell-caughtbetween-bad-calls-and-owners.html?pagewanted=all.
36
Dave Jamieson, NFL Referee Lockout: Refs Resist Pension Freeze, Cite League Profits, THE
HUFFINGTON POST, (Sep. 13, 2012, 7:41 AM), http://www.huffingtonpost.com/2012/09/13/nfl-referee-lockoutpensions_n_1879049.html.
37
Id.
38
Jenna McGregor, The Fair Call on NFL Referees, THE WASHINGTON POST, (Sep. 21, 2012),
http://www.washingtonpost.com/national/on-leadership/the-fair-call-on-nfl-referees/2012/09/21/2c7c2adc-040411e2-91e7-2962c74e7738_story.html.
6
NFL officials are primarily part-time employees, with 90% of them holding other fulltime jobs.39 For instance, Ed Hochuli, one of the most visible referees in the NFL, is a successful
trial attorney, while Mike Carey owns a company that manufactures ski and snowboarding
equipment. 40 The NFL proposed hiring seven additional referees to serve as full-time
employees. 41 Full-time officials would work with the NFL year round on safety concerns,
interpretation of rules, and scouting and training of new recruits.42 The NFLRA was not opposed
to this proposal, provided there was assurance that full-time officials would be fairly
compensated.43
B. Here Come the Replacements
As the 2012 NFL season approached, negotiations between the NFL and the NFLRA
came to a standstill.44 As a result, Ron Baynes, the NFL’s Director of Scouting, sent a memo to
begin the recruitment of replacement officials.45 The memo informed scouts of the qualifications
and experience they should pursue in replacement referees.46 For example, the memo instructed
scouts to look for "official[s] who have recently retired from a successful career in college
officiating and [are] still physically able to officiate at a high level of competency.” 47
Additionally, the memo instructed scouts to recruit “lower division college officials, professional
39
See Knowles supra note 19.
40
Id.
41
See Jamieson supra note 30.
42
Associated Press, Refs Respond to NFL Proposal, ESPN, (Aug. 17, 2012, 11:25 PM),
http://espn.go.com/nfl/story/_/id/8275139/nfl-wants-reduce-referees-pay-add-three-full-time-crews (“The league is
proposing having seven officials -- one per position of referee, umpire, line judge, side judge, back judge, field
judge, head linesman -- who would train, scout, handle communications, safety issues and rules interpretations yearround.”).
43
Id.
44
See supra note 12.
45
Michael Freeman, Memo: NFL recruiting lower-division college ranks, semi-pro leagues for
replacement refs, NATIONAL NFL INSIDER, (Jul. 18, 2012, 10:23 AM), http://www.cbssports.com/nfl/blog/mikefreeman/19607785/memo-nfl-recruiting-lower-division-college-ranks-semi-pro-leagues-for-replacement-refs.
46
Id.
47
Id.
7
league officials and semi-professional league officials whose window of opportunity for
advancement has pretty much closed but who have the ability to work higher levels but just got
overlooked.”48
On June 4, 2012, the NFL announced that it would begin the hiring and training of
replacement officials for the start of the 2012 season.49 In contrast to the 2001 lockout, none of
the replacements were active Division I college officials.50 Division I college football officials
are the next best alternative to NFL referees. However, Division I officials were prevented from
participating in NFL games.51 NFL officials serve as the supervisors of major college football
conference officials. 52 These supervisors would not permit participation in NFL games as
replacement referees. 53 In an effort to support the NFLRA, other supervisors in Football
Subdivision (FBS) conferences also did not allow their officials to participate in NFL games.54
Thus, most of the replacement officials were retired, high school, or college officials from lower
48
Id. Mike Freeman, writer for the National NFL Insider wrote, “This is amazing. The NFL is going
to trust its billion-dollar business to semi-pro refs and dudes who just got off the back nine?” Id.
49
See Mihoces supra note 13. In late June and early July, about 300 applicants showed up in Atlanta
and Dallas for clinics. They were quizzed on NFL rules and put through a series of physical tests. There, after more
than a half-hour of stretching, the candidates ran 40-yard dashes and performed various agility drills, including
backpedaling and sidestepping as quickly and efficiently as possible. Elizabeth Merrill & Wayne Drehs, The life of a
replacement ref, ESPN, (Oct. 3, 2012, 4:02 PM), http://espn.go.com/nfl/story/_/page/hotread-replacementrefs/replacement-refs-tell-their-side-story.
50
Brian Murphy, Minnesota Vikings, NFL turning to replacement officials, for better or worse,
TWIN CITIES, (Aug. 4 2012, 12:01 AM), http://www.twincities.com/vikings/ci_21230619/minnesota-vikings-nflturning-replacement-officials-better-or.
51
Peter King, A League at the Crossroads, SPORTS ILLUSTRATED, (Jul. 30, 2012),
http://sportsillustrated.cnn.com/vault/article/magazine/MAG1203306/2/index.htm.
52
Id. NFL referees supervise referees in the Big East, Big 12, Pac-12, Big Ten and Conference USA.
Id.
53
Id. “Not a single current Football Bowl Subdivision official can be found among the 136
replacements signed and prepped by the NFL. Instead, the league staffed up by drawing from the high school ranks
and lower divisions, including some officials who had retired or been dismissed.” Pablo S. Torre, Black and White,
And Green All Over, SPORTS ILLUSTRATED, (Aug. 27, 2012),
http://sportsillustrated.cnn.com/vault/article/magazine/MAG1205285/2/index.htm.
54
Id. See also Sam Borden, With Referees Out, NFL Stars Throw Flag on Novice Fill-Ins, THE NEW
YORK TIMES, (Aug. 27, 2012), http://www.nytimes.com/2012/08/28/sports/football/calls-by-some-nfl-replacementreferees-raise-concerns.html?_r=2& (“For a number of reasons, high-level college officials are reluctant to
moonlight in the N.F.L. as replacements. They do not want to appear disloyal to their college conference supervisors
— some of whom are also regular N.F.L. officials — or jeopardize their current positions with little chance of
remaining in the pros after the labor issue is settled.”).
8
divisions.55 Some were also from professional leagues such as the Arena Football League56 and
the Lingerie Football League57.58
For example, Craig Ochoa, a replacement official, was previously employed by the
Lingerie Football League prior to his dismissal for poor performance. 59 Mitch Mortaza,
commissioner of the Lingerie Football League, stated, “it was a bit of a shock to see guys that
couldn’t officiate in our league . . . officiating in the NFL.” In addition, he stated that Ochoa was
released:
due to several poorly called games which included missed calls, poor judgment
and poor presentation for broadcast. They were hurting our overall broadcast
caliber. And if it's opening up our players for potential injury, those things raise
red flags here. When either of those two things are compromised, it's time to start
thinking about parting ways.60
Brian Stropolo, another replacement official, was removed from a New Orleans Saints game
upon discovering that he was a Saints fan. 61 Facebook pictures surfaced of wearing Saints
paraphernalia at a preseason game.62 Similarly, replacement official Lance Easley was deemed
55
Erik Brady, Answering 10 questions about replacement officials, THE USA TODAY, (Sep. 26,
2012, 10:34 AM), http://usatoday30.usatoday.com/sports/nfl/story/2012/09/26/answering-10-questions-about-thenfls-replacement-officials/57842558/1.
56
The Arena Football League (AFL) is a level of professional indoor football in the United States. It
is played indoors on a smaller field than NFL football, resulting in a faster-paced and higher-scoring game.
See Arena Football League, WIKIPEDIA, http://en.wikipedia.org/wiki/Arena_Football_League. See also
http://www.arenafootball.com/frontpage
57
The Lingerie Football League is a female seven on seven all indoor football league. The league is
full contact and the uniforms include, shoulder pads, elbow pads, knee pads, garters, bras, and panties. See Lingerie
Football League, WIKIPEDIA, http://en.wikipedia.org/wiki/Lingerie_Football_League. See also
http://www.lflus.com/.
58
Donald Wood, NFL Replacement Referees: Revealing Background Info on Officials, BLEACHER
REPORT, (Sep. 26, 2012), http://bleacherreport.com/articles/1348531-nfl-replacement-referees-revealingbackground-info-on-officials/page/2.
59
Id.
60
Id.
61
Associated Press, NFL removes replacement referee for being Saints fan, SPORTS ILLUSTRATED,
(Sep. 16, 2012, 12:11 PM), http://sportsillustrated.cnn.com/2012/football/nfl/09/16/replacement-refereesaints.ap/index.html.
62
Id.
9
unfit to become a Division I football official.63 According to Karl Richins, an instructor at the
Stars and Stripes Academy for Football Officials, “after three days at our academy, Lance was
determined by our staff not to be ready for Division I officiating." 64 Other examples of
replacement officials include: (1) Jim Winterberg, who worked in the Football Championship
Subdivision officiating college football games like Wagner versus Central Connecticut State in
front of a crowd of 2,357 people;65 and (2) Michael Malito, who had never officiated above the
Division III college level.66
C. Replacement Officials’ On-Field Performance
While the replacement officials’ qualifications were questionable, it was their on-field
performance that caused real concern. At first, officiating errors in the preseason were relatively
harmless. In one NFL preseason game, a replacement official announced a penalty with his back
to the television camera.67 Another official mixed up which team won the coin toss, and referred
to the team from Atlanta as Arizona on multiple occasions.68 In another instance, a replacement
official mistakenly ruled that a punt resulted in a touchback, despite the ball being downed at the
four-yard line.69
63
Jim Corbett, Tutor says replacement ref who called TD not ready for Division I, THE USA TODAY,
(Sep. 25, 2012, 10:37 PM), http://usatoday30.usatoday.com/sports/nfl/story/2012/09/25/tutor-says-replacement-refwho-called-td-not-ready-for-division-i/57842200/1.
64
Id. Karl Richins also stated, “I got to know Lance at a June academy I worked at in Reno and
when he came to my academy in July. . . . He's a very polite, good Christian gentleman, a good father to his son,
Daniel, who was at my academy as well. . . . But was Lance ready to work at the NFL level? Absolutely not." Id.
65
See Borden supra note 48.
66
Id.
67
See Borden supra note 48.
68
Id. “So bad was the first weekend of preseason that the NFLRA, which had circulated a list of 10
meaningful errors observed in the Aug. 9th Patriots-Saints tune-up, including a missed touchdown and an unflagged
helmet-to-helmet hit.” See Torre supra note 47.
69
Replacement refs make wrong call, ESPN, (Aug. 9, 2012, 9:46 PM),
http://espn.go.com/nfl/trainingcamp12/story/_/id/8253765/replacement-referees-booed-bad-call-game-buffalo-billswashington-redskins.
10
Once the regular season began, there was an increase in the severity of poor calls made
by replacement officials. In a game between the Seattle Seahawks and the Arizona Cardinals, a
replacement official incorrectly awarded an extra timeout to Seattle.70 With forty-six seconds left
in the game, a Seahawks wide receiver was injured during a play.71 NFL rules mandate that a
timeout be charged when there is a stoppage of play for an injury with less than two minutes
remaining in the game.72 However, the replacement officials did not charge Seattle with their
final timeout.73 They wrongly decided that no timeout should be charged since the clock was
already stopped.74
Likewise, in a game between the San Francisco 49ers and the Minnesota Vikings, the
49ers were awarded two extra replay challenges.75 The head coach for the 49ers challenged a
play where an opposing player fumbled the ball.76 However, the challenge should have been
denied since the team had no timeouts available.77 The referee ruled in the 49ers favor and they
were awarded a timeout, which was subsequently used to challenge another play later in the
game.78
In another instance between the Tennessee Titans and the Detroit Lions, a Lions player
received a fifteen-yard penalty for a helmet-to-helmet hit.79 The official enforced the penalty by
70
Gregg Rosenthal, Refs: Timeout ruling in Seahawks-Cards game wrong, AROUND THE LEAGUE,
(Sep. 9, 2012, 8:47 PM), http://www.nfl.com/news/story/0ap1000000060267/article/refs-timeout-ruling-inseahawkscards-game-wrong.
71
Id.
72
Id. See also The Official NFL Playing Rules, Rule 4, Section 5,
http://static.nfl.com/static/content/public/image/rulebook/pdfs/7_Rule4_Game_Timing.pdf.
73
See Rosenthal supra note 63.
74
Id.
75
Ben Shpigel, The Biggest Controversy, but Far From the Last, THE NEW YORK TIMES, (Sep. 25,
2012), http://www.nytimes.com/2012/09/26/sports/football/five-other-head-scratching-calls-by-replacementofficials.html.
76
Id.
77
Id.
78
Id.
79
Id.
11
marking it from the Detroit 44-yard line instead of the Titans 44-yard line, increasing the penalty
from fifteen yards to twenty-seven yards.80 As a result, the Titans were able to kick a field goal
to win the game.81
Lastly, in a game between the Pittsburgh Steelers and the Oakland Raiders, replacement
officials failed to penalize the Steelers for a helmet-to-helmet hit with a Raiders player.82 The
Raiders player was carted off the field, hospitalized, and diagnosed with a concussion and
strained neck.83 The NFL later reviewed the play and determined that a penalty should have been
called and the player responsible for the hit was fined.84
D. Duties and Responsibilities of NFL Officials
The NFL rulebook states that officials “have general oversight and control of [the]
game.”85 Furthermore, “all officials have concurrent jurisdiction over any foul, and there is no
fixed territorial division in this respect.”86 While the officials’ main duties are to facilitate the
game and call penalties, they are also responsible for ensuring each player’s safety.87 Due to
many instances of concussions, the NFL has recently come under fire for the lack of safety of its
80
Id.
81
Id.
82
Bill Williamson, Source: Darrius Heyward-Bey stable, ESPN, (Sep 23, 2012, 11:09 PM),
http://espn.go.com/nfl/story/_/id/8418055/oakland-raiders-darrius-heyward-bey-hospitalized-hit.
83
Id.
84
Dan Haznus, Reports: Ryan Mundy fined $21K for Heyward-Bey hit, NFL, (Sep. 26, 2012, 8:31
PM), http://www.nfl.com/news/story/0ap1000000066529/article/reports-ryan-mundy-fined-21k-for-heywardbey-hit
(“Pittsburgh Steeler Safety, Ryan Mundy [was] . . . fined $21,000 by the NFL for his helmet-to-helmet hit
on Oakland Raiders wide receiver Darrius Heyward-Bey.”) Replacement official, Mike Peek stated, “in football
officiating, there’s whole lot of just plain old instinct. If a guy’s been calling for forty years, if he in the right
position with instincts and experience, all that’s is going to take over and you’re going to get the calls right.”
Nathaniel Penn, Confessions of the Most Hated Men in Football, GQ, (Dec. 12, 2012),
http://www.gq.com/sports/profiles/201212/nfl-replacement-referees-interviews-oral-history?printable=true.
85
Official NFL Playing Rules, Rule 15, Officials: Jurisdiction and Duties,
http://static.nfl.com/static/content/public/image/rulebook/pdfs/18_2012_Officials_Jurisdictions_and_Duties.pdf.
86
Id.
87
James Alder, Football Officials and Their Duties, ABOUT,
http://football.about.com/cs/football101/a/bl_officials.htm
12
players.88 In light of this scrutiny, the NFL entrusted officials with the added responsibility of
maintaining order and safety on the field to prevent injuries.89 The NFLRA responded, “it is
unfortunate that as referees' responsibilities are expanded that the NFL would jeopardize player
health and safety and the integrity of the game by seeking amateur, under qualified referees to
administer professional games.” 90 For instance, Washington Redskins coach Mike Shanahan
commented about a game officiated by replacement officials: “I’ve never been in a situation
where you feel that there is going to be an explosion on the field . . . . You’re hoping that doesn’t
happen. It was very close to losing control.”91
II. THE ABNORMALLY DANGEROUS CONDITION ARGUMENT
Following the team’s 14-12 loss to the Seattle Seahawks, Green Bay Packers players
debated going on strike if the replacement officials were not removed.92 However, the collective
bargaining agreement between the NFL and the NFLPA included a no strike provision.93 Article
3, Section 1 of the agreement reads, “the NFLPA nor any of its members will engage in any
strike, work stoppage, or other concerted action interfering with the operations of the NFL or any
Club for the duration of this Agreement.”94
88
See Glen M. Wong, SN concussion report: NFL could lose billions in player lawsuits, SPORTING
NEWS, (Aug. 22, 2012, 7:14 PM), http://aol.sportingnews.com/nfl/story/2012-08-22/nfl-concussion-lawsuits-moneybankrupt-players-sue-head-injuries (More than 3,000 former NFL players are suing the NFL claiming that the NFL
fraudulently concealed long-term effects of head trauma).
89
NFL to hire replacement official, ESPN, (Jun. 4, 2012, 8:21 PM),
http://espn.go.com/nfl/story/_/id/8006771/nfl-hire-replacement-officials-talks-stall.
90
Nate Davis, NFL to begin hiring replacement referees, USA TODAY, (Jun. 4, 2012, 10:59 PM),
http://content.usatoday.com/communities/thehuddle/post/2012/06/nfl-to-begin-hiring-replacementreferees/1#.ULf1u-Oe-oM.
91
Marke Maske, Pressure Intensifies on NFL to bring back locked out refs, THE WASHINGTON POST,
(Sep. 18, 2012), http://www.washingtonpost.com/sports/redskins/pressure-intensifies-on-nfl-to-bring-back-lockedout-refs/2012/09/18/c76660c2-0138-11e2-bbf0-e33b4ee2f0e8_story.html.
92
Christy Strawser, Lang Says Players Could Take Action If NFL Issue Continues, CBS DETROIT,
(Sep. 25, 2012, 2:05 PM), http://detroit.cbslocal.com/2012/09/25/lang-says-players-could-take-action-if-nfl-refsissue-continues/.
93
NFL and NFLPA collective bargaining agreement, available at
http://images.nflplayers.com/mediaResources/files/PDFs/General/2011_Final_CBA_Searchable_Bookmarked.pdf
94
Id.
13
DeMaurice Smith, the executive director of the NFLPA, stated, “in America it is the
employer's obligation to provide as safe a working environment as possible.” 95 The NFLPA
could argue that the use of replacement officials creates an abnormally dangerous work
environment for the players.96 Pursuant to 29 U.S.C. §143 of the National Labor Relations Act,
“the quitting of labor by an employee or employees in good faith because of abnormally
dangerous conditions for work at the place of employment of such employee or employees [shall
not] be deemed a strike under this chapter.”97 This section provides a limited exception to the nostrike obligation in a collective-bargaining agreement. 98 Therefore, members of the NFLPA
would be able to strike without violating the collective bargaining agreement, provided they
prove that replacement officials create an abnormally dangerous working condition.99
A. The Lack of “Ascertainable, Objective Evidence”
The Supreme Court has held that it takes more than good faith belief of imminent danger
to support a strike based on abnormally dangerous conditions; there must be objective
95
DeMaurice Smith criticizes NFL, ESPN, (Aug. 29, 2012, 3:31),
http://espn.go.com/dallas/nfl/story/_/id/8313071/nflpa-executive-director-demaurice-smith-blasts-league-lockingrefs.
96
The NFL Players Association executive committee posted an open letter criticizing the NFL
owners for using replacement referees. The letter stated, “your decision to lock out officials with more than 1,500
years of collective NFL experience has led to a deterioration of order, safety and integrity. This affirmative decision
has not only resulted in poor calls, missed calls and bad game management, but the combination of those
deficiencies will only continue to jeopardize player health and safety and the integrity of the game that has taken
decades to build.” Report: NFL, refs meet but still no deal, CHICAGO TRIBUNE, (Sep. 23, 2012),
http://articles.chicagotribune.com/2012-09-23/sports/chi-nfl-players-accuse-owners-of-greed-compromising-safety20120923_1_replacement-referees-nfl-referees-referee-lockout.
97
29 U.S.C. §143
98
See Airborne Freight Corp. v. International Broth. of Teamsters Local 705, 216 F. Supp. 2d 712
(N.D. Ill. 2002).
99
See Travis Waldron, Could NFL Players End the Referee Lockout?, THINK PROGRESS, (Sep. 26,
2012, 2:04 PM), http://thinkprogress.org/alyssa/2012/09/26/914591/could-nfl-players-end-the-referees-lockout/
(“Walking out, then, would require making the legal argument that use of scab officials is negligent and creates an
overly hazardous work environment, which would allow the players to void the entire CBA.”).
14
evidence.100 In a 1999 decision, the National Labor Relations Board (NLRB) described a fourpart test to determine if an employee strike is permissible under the “abnormally dangerous
conditions” exception.101 The NFLPA must prove that: (1) the employees believed in good faith
that their working conditions were abnormally dangerous; (2) their belief was a contributing
cause, but not the sole cause, of the work stoppage; (3) their belief is supported by ascertainable,
objective evidence; and (4) the perceived danger posed an immediate threat of harm to
employees' health or safety.102
To establish an abnormally dangerous working condition, the most challenging part for
the NFLPA to address would be the third prong of the test – obtaining ascertainable, objective
evidence. The term "abnormally dangerous conditions" relies on an objective as opposed to a
subjective test.103 In other words, the NFL players’ personal belief that an abnormally dangerous
condition exists is not sufficient; there must be actual evidence demonstrating that the conditions
might reasonably be considered abnormally dangerous.104
While courts have yet to set a standard for what constitutes, “ascertainable, objective
evidence,” case law shows that it is extremely difficult to prove abnormally dangerous working
conditions.
105
Courts extend the “abnormally dangerous condition” exception when there is
100
Gateway Coal Co. v. United Mine Workers of America, 414 U.S. 368, 386 (1974) (“If the courts
require no objective evidence that such conditions actually obtain, they face a wholly speculative inquiry into the
motives of the workers.”). Judge Max Rosenn, in his dissent, stated that, “the difficulty occasioned by this view is
especially apparent where, as here, the claim concerns not some identifiable, presently existing threat to the
employees' safety, but rather a generalized doubt in the competence and integrity of company supervisors.” Id.
101
Tns, Inc., 329 NLRB 602 (1999).
102
Id.
103
EMPC LABOR, § 25:76. Abnormally dangerous conditions defined, 10 Emp. Coord. Labor
Relations § 25:76.
104
See Redwing Carriers, Inc. (Teamsters, Local 79), 130 NLRB 1208 (1961).
105
See, e.g., NLRB v. Maryland Shipbuilding & Drydock Co., 683 F.2d 109 (4th Cir. 1982); Jones &
Laughlin Steel Corp. v. United Mine Workers, 519 F.2d 1155 (3d Cir. 1975); Nicholas A. Ashford & Judith E.
Katz, Unsafe Working Conditions: Employee Rights under the Labor Management Relations Act and the
Occupational Safety and Health Act, 52 NOTRE DAME L. REV. 802 (1977).
15
evidence of increased danger. For example, courts have upheld employees’ right to strike due to
abnormally dangerous conditions when: (1) a work stoppage occurred in a mine because there
was factual basis in the belief that imminent danger existed;106 (2) employees walked out of an
auto manufacturing plant because of a ventilation blower that resulted in the accumulation of
dust, grit, and dangerous abrasives, affecting the temperature and humidity of the working
conditions; 107 and (3) workers refused to perform their maintenance duties based on previous
occurences of employee injury and death.108
Conversely, examples of when courts have denied protection to employees who strike
under the “abnormally dangerous conditions” exception include: (1) an employee who refused to
deliver a shipment to a customer without significant proof that that the truck's excess weight was
abnormally dangerous;109 and (2) an employee who refused to install electric railroad wires in the
snow, even though employees had worked under wet conditions in the past and the crew was
able to brush the snow away.110
1. NFL Replacement Officials’ Lack of Understanding and Implementation of the Rules
The NFLPA’s most viable argument under the “abnormally dangerous condition”
exception would be that the replacement officials are not adequately knowledgeable of the rules
of the game, and do not make consistent calls. Football is an extremely physical and inherently
dangerous game;111 it has resulted in more serious brain injuries than any other contact sport.112
106
Jones & Laughlin Steel Corp. v. United Mine Workers of America, 519 F.2d 1155 (3d Cir. 1975).
107
National Labor Relations Bd. v. Knight Morley Corp., 251 F.2d 753 (6th Cir. 1957).
108
Whirlpool Corp. v. Marshall, 445 U.S. 1 (1980).
109
Gibraltar Steel Corp., 273 NLRB 1012 (1984).
110
L. E. Myers Co., 270 NLRB 1010 (1984).
111
See Sean Gregory, The Problem with Football: How to Make it Safer, TIME MAGAZINE, (Jan. 28,
2010), http://www.time.com/time/magazine/article/0,9171,1957459,00.html (“Football has been a rough sport since
the leather-helmet days, but today's version raises the violence to an art form.”).
16
The game becomes more dangerous when the fastest, most physically imposing athletes in the
world go head-to-head.113 Mike Pereira, the NFL's vice president of officiating in 2001, stated,
“at this level and at this speed, you cannot substitute over 1,400 years of experience with no
experience and not expect the integrity of the game to be brought into question." 114 The NFL’s
rules are both extensive and complicated. Specifically, the official NFL rulebook is 75,934
words, the NFL casebook is 77,260 words, the NFL instant-replay casebook is 25,617 words,
and the NFL Penalty Enforcement Hopper book is 11,519 words. 115 In total, replacement
officials must be well-versed in 190,330 words of material; this is almost 10,000 more words
than the New Testament of the Bible.116
The NFLPA would have to prove that the replacement officials do not sufficiently
understand these rules.117 To accomplish this, one could test the replacements officials on current
rules or use film of replacement officials missing calls as evidence. However, regular officials
would admit that they too are not perfect and missed calls occasionally occur.118
Statistics show that the calls made by replacement officials are consistent in number with
the calls made by regular officials. In a Wall Street Journal article, statistics show that during the
112
Id. “High school football players alone suffer 43,000 to 67,000 concussions per year, though the
true incidence is likely much higher, as more than 50% of concussed athletes are suspected of failing to report their
symptoms.” Id.
113
See Dave Siebert, Despite Rule Changes, Is the NFL More Dangerous Than Ever?, BLEACHER
REPORT, (Nov. 29, 2012), http://bleacherreport.com/articles/1424566-despite-rule-changes-is-nfl-more-dangerousthan-ever.
114
See Murphy supra note 44.
115
See Torre surpa note 47. The NFL Penalty Enforcement Hopper book was created by NFL official
Ed Hochili. It is a widely accepted manual that helps officials categorize infractions and determine their
enforcement. Id.
116
Id. There are 158 possible penalties, 36 hand signals and at least 1,100 rules altogether. See Craig
Wolf, So you want to be an NFL referee? As the replacement officials showed, it's not easy, THE STAR LEDGER,
(Sep. 30, 2012, 5:00 AM, http://www.nj.com/giants/index.ssf/2012/09/so_you_want_to_be_an_nfl_refer.html.
117
Jim Tunney, an NFL ref for 31 years, said, “ it takes most rookie refs at least three to five years to
fully understand the spirit of the rulebook.” See Merrill supra note 43.
118
See Borden supra note 48.
17
first two weeks of the 2012 regular season, replacement officials called 471 penalties.119 During
that same time period in 2011, regular officials issued 459 penalties. 120 This number is only
eleven less than the number of penalties called by replacement officials. 121 Furthermore,
common penalties like delay of game, illegal block, offsides and roughing the passer were nearly
identical between replacement and regular officials.122 One can assert that because replacement
officials have made more penalty calls, they arguably help avoid unnecessary injury to players.
For instance, there were fifty pass interference calls made during the first two weeks of the 2012
season, an increase of 28% from the first two weeks in 2011.123 Holding calls were made 121
times throughout the first two weeks of the season, in comparison to only 107 in 2011.124 Lastly,
replacement officials have called 21 personal fouls, up from four during the prior season.125
These statistics demonstrate that the replacement referees are making calls comparable to regular
referees.126 Therefore, the NFLPA lacks ascertainable, objective evidence necessary to prove that
the replacement officials’ perceived lack of knowledge and understanding creates an abnormally
dangerous condition.
III. THE NEGLIGENT HIRING ARGUMENT
While it would be difficult for the NFLPA to go on strike under the “abnormally
dangerous condition” exception, it may have a negligent hiring claim. The NFLPA could utilize
a widely recognized tort to argue that the NFL was negligent in hiring unqualified replacement
119
Kevin Clark, The NFL Replacement Ref Audit, THE WALL STREET JOURNAL, (Sep. 19, 2012),
http://online.wsj.com/article/SB10000872396390443816804578004613701813182.html.
120
Id.
121
Id.
122
Id.
123
Id.
124
Id.
125
Id.
126
Id.
18
officials.127 An employer may be liable to a third person for the employer’s negligence in hiring
an employee who is incompetent or unfit.128 The extent to which the employer investigates a
potential employees’ background is fundamental to this claim.
129
Thus, the doctrine
of negligent hiring directs particular scrutiny to whether an employer exercises due care in
hiring an employee.130
Negligent hiring exists when the four traditional elements of a negligence claim are
established.131 In addition, a plaintiff must show that: (1) there was an employment relationship
between the person causing the injury and the defendant; (2) the employee was unfit for the job
in some way; and (3) the employer knew or should have known of the unfitness.132
127
The tort of negligent hiring is utilized in numerous jurisdictions. See e.g. Shore v. Town of
Stonington, 187 Conn. 147 (1982); J. v. Victory Tabernacle Baptist Church, 236 Va. 206 (1988); D.R.R. v. English
Enterprises, CATV, Div. of Gator Transp., Inc., 356 N.W.2d 580 (Iowa Ct. App. 1984); Island City Flying Service
v. General Elec. Credit Corp., 585 So. 2d 274 (Fla. 1991); Gaines v. Monsanto Co., 655 S.W.2d 568 (Mo. Ct. App.
E.D. 1983); Tichenor v. Roman Catholic Church of Archdiocese of New Orleans, 32 F.3d 953 (5th Cir. 1994)
(applying Louisiana law); Henley v. Prince George's County, 305 Md. 320 (1986); Pennington v. Dollar Tree Stores,
Inc., 28 Fed. Appx. 482 (6th Cir. 2002) (applying Kentucky law); Hutcherson v. Progressive Corp., 984 F.2d 1152
(11th Cir. 1993); Svacek v. Shelley, 359 P.2d 127 (Alaska 1961); Kassman v. Busfield Enterprises, Inc., 131 Ariz.
163, 639 P.2d 353 (Ct. App. Div. 2 1981); Moses v. Diocese of Colorado, 863 P.2d 310 (Colo. 1993); Gregor by
Gregor v. Kleiser, 111 Ill. App. 3d 333 (2d Dist. 1982); Plains Resources, Inc. v. Gable, 235 Kan. 580
(1984); Ponticas v. K.M.S. Investments, 331 N.W.2d 907 (Minn. 1983); Jones v. Toy, 476 So. 2d 30 (Miss.
1985); Greening by Greening v. School Dist. of Millard, 223 Neb. 729 (1986); Pacifico v. Froggatt, 249 N.J. Super.
151 (Law Div. 1991); Welsh Mfg., Div. of Textron, Inc. v. Pinkerton's, Inc., 474 A.2d 436 (R.I. 1984); Carlsen v.
Wackenhut Corp., 73 Wash. App. 247 (Div. 2 1994).
128
See Interim Personnel of Central Virginia, Inc. v. Messer, 559 S.E.2d 704 (2002); Doe v. Evans,
718 So. 2d 286 (Fla. Dist. Ct. App. 4th Dist. 1998).
129
Vanderhule v. Berinstein, 285 App Div 290, 136 NYS2d 95.
130
USA v. Superior Court, 5 Cal.Rptr. 674 (Ct.App.1992). “An employer who fails to employ a
competent and careful contractor may be liable for injuries caused by the contractor's failure to exercise due care.”
Id. at 677.
131
To establish a prima facie case of negligence under, plaintiffs must prove: (1) that the defendant
owed a duty to the plaintiffs; (2) that the defendant breached that duty; (3) that the defendant's breach was a
proximate cause of the plaintiffs' damages, and (4) that the plaintiffs suffered damage. McLean v. 988011 Ontario,
Ltd., 224 F.3d 797, 800 (6th Cir. 2000).
132
See NEGLIGENT HIRING, C429 ALI-ABA 221.
19
A. The Employment Relationship Between the NFL and the Replacement Officials
A number of factors may be considered in determining if an employer-employee
relationship is formed;133 the fundamental factor is “the extent of control the principal exercises
or may exercise over the agent.” 134 The NFL has substantial control over the replacement
officials. For example, the NFL is responsible for training and supervising replacement officials;
reviewing their performance weekly; providing uniforms, supplies, and all other materials
needed for replacement officials to perform their duties; controlling their work hours; and lastly,
determining where they provide services within the NFL’s arenas and facilities.135 Thus, the NFL
and the replacement officials have an employer-employee relationship.136
B. Replacement Officials are Unfit for the Job
Next, the NFLPA must prove that the replacement officials were unfit to serve as referees
for the NFL.137 Prior examples demonstrated instances of replacement officials missing calls.138
However, statistics also show that replacement officials have made calls comparable to those
made by regular officials during a similar time span.139 According to the NFL website, applicants
need to have at least ten years of officiating experience, five of which must be above the high
133
See Santiago v. Phoenix Newspapers, Inc., 164 Ariz. 505 (1990).
134
Id. See also Central Management v. Industrial Commission, 781 P.2d 1374, 1377
(App.1989); Hamilton v. Family Record Plan, Inc., 217 N.E.2d 113, 117 (1966).
135
See, e.g., Michael David Smith, If Mike Perieira still graded NFL refs, he’d give replacements an
F, NBC, (Sep. 5, 2012, 5:26 PM), http://profootballtalk.nbcsports.com/2012/09/05/if-mike-pereira-still-graded-nflrefs-hed-give-replacements-an-f/ (“Mike Pereira’s job used to entail supervising the NFL’s officials and grading
them on the quality of their work.”).
136
See Darryll M. Halcomb Lewis, After Further Review, Are Sports Officials Independent
Contractors?, 35 AM. BUS. L.J. 249, 252 n.7 (1998) (“Sports officials at the professional level are conceded by their
respective leagues (e.g., Major League Baseball (MLB), the National Basketball Association (NBA), the National
Football League (NFL) and the National Hockey League (NHL) to be employees of those organizations.”).
137
Chris Long, defensive end for the St. Louis Rams, said, "People compare them to a substitute
teacher, which I think is a valid comparison. When you're a kid and a substitute teacher comes in and introduces
themselves, there's always going to be a couple of kids who are going to act up and test the limits. I think that's what
happened for a couple of weeks." Merrill supra note 43.
138
See supra Part I., Section C.
139
See supra Part II., Section A, Subsection 1.
20
school level;140 yet the majority of the replacement officials were retired, or officiated for high
school football or lower division college conferences.141 The hiring process for NFL officials
usually begins at the high school level.142 As the referee moves up into the college ranks, he is
evaluated; the lucky few are then offered a position by the NFL. 143 Jilane Rodgers, a
spokeswoman for the NFLPA, stated, “in normal times, the league never assigns more than one
rookie official to a crew . . . . But during the lockout, every official was a rookie overwhelmed by
more information than he could absorb.”144 The NFLPA could claim that the NFL disregarded
prior, established hiring practices.
As a result, these less experienced officials were not
accustomed to the speed and physical demands of the NFL game.145
Conversely, the NFL could argue that these officials were the best available option given
that officials from Division I college conferences were prohibited from participating in NFL
games. 146 In addition, the NFL could argue that it took the necessary steps to remove unfit
replacement officials. For example, replacement official Wayne Elliot confirmed, “they
definitely cut the weakest officials. In one preseason game, there was a pretty obvious fumble,
but [the official] called the guy down. It was challenged and reversed, and he was cut a couple of
days after that.”147
140
Steve Almasy, For NFL officials, it’s a side job that requires a lot of work, CNN, (Sep. 27, 2012),
http://edition.cnn.com/2012/09/27/sport/nfl-officials/index.html.
141
See supra Part I, Section B.
142
Gary Mihoces, Path to becoming NFL referee usually long, USA Today, (Sep. 19, 2012, 11:04
PM), http://usatoday30.usatoday.com/sports/nfl/story/2012/09/19/path-to-becoming-nfl-referee-is-usuallylong/57809626/1.
143
Id.
144
See Wolf supra note 110.
145
“The speed of the game and the amount of time starters are on the field increase exponentially for
real games, making the replacements' task more challenging.” See supra note 12.
146
See supra Part I., Section B.
147
See Penn supra note 77.
21
C. The NFL Knew or Should Have Known that Replacement Officials were Unfit
Lastly, the NFLPA must show that the NFL knew or should have known that the
replacement officials were unfit to oversee NFL games. The NFLPA could argue that because
the NFL recruited replacement officials from high school and lower division leagues, they were
aware of their credentials. In scouting replacement officials, the NFL would reasonably know
about potential employees’ work history, prior training, and whether they were dismissed for
poor performance.
In addition, the NFLPA could argue that the NFL did not adequately train replacement
officials; therefore, they knew that replacement officials were unfit. Replacement official Bruce
Hermansen referred to the training he received as a “crash course; we had about a month to get
ready.”148 Though regular officials are technically part-time employees, the demands of being an
official require them to work year-round. Ed Hochuli stated that NFL officials “watch film for
hours, have to take . . . weekly rules test[s] and read what are called case books -- thick binders
full of plays that give guidance on rules. And there's also conditioning.” 149 As a result, the
NFLPA could assert that the NFL knew that these replacement officials could not effectively
meet the demands of the game in a short period of time.150 Hermansen also stated, “we had a lot
of support from the NFL, but they knew from the get-go we were in a no-win situation.”151
Therefore, the NFLPA would not likely have a viable claim against the NFL for negligently
hiring unqualified replacement officials given that statistics show that replacement officials’
148
See Penn supra note 77.
149
See Almasy supra note 133.
150
Jim Tunney, an NFL ref of 31 years said, "None of these people who worked as replacements are
on the NFL list to be hired. They're not there. They're just not qualified." See Merrill supra note 43
151
See Penn supra note 77.
22
performance was comparable to regular officials and the NFL took the steps to remove
underperforming replacement officials.
CONCLUSION
In thinking about Americans' most beloved and favorite pastimes, watching Football
usually tops the list. The 2012 referee lockout has cast a disappointing shadow over NFL
football. Instead of enjoying the competiveness of the game, fans, players, and coaches alike
have been complaining about replacement officials and what could be done to restore the
integrity of the game. In an effort to bring back regular officials, the NFLPA could either strike
or sue the NFL for negligently hiring unqualified replacement officials. The NFLPA would not
be able to strike because of a lack of objective, ascertainable evidence proving that replacement
officials create an abnormally dangerous working condition. Also, the NFLPA would likely not
have a claim for negligent hiring. Thus, the most reasonable solution to the dispute between the
NFL and NFLRA is to come to a compromise on a new collective bargaining agreement. 152
152
On September 27, 2012 the NFL and NFLRA came to terms on an eight-year collective
bargaining agreement, effectively ending the lockout and immediately putting regular referees back to work. See
generally Sam Farmer, NFL, referees reach 8-year agreement, CHICAGO TRIBUNE, (Sep. 27, 2012),
http://articles.chicagotribune.com/2012-09-27/sports/chi-reports-nfl-referee-lockout-could-end-soon20120926_1_regular-officials-nfl-referees-association-nflra.
23