"I know a lot of people that think what we're getting ready to do is a big gamble," professional wrestling veteran Cody [Rhodes] said on episode 131 of the Being The Elite YouTube series. "Some people think it's very stupid, but I'm not filled with false hope. You, the fans, have given my real hope and that's what it takes for a revolution."
One week later, the formation of All Elite Wrestling, a brand new professional wrestling promotion, and a followup to the ALL IN pay-per-view named Double Or Nothing, were announced on Being The Elite by Cody, Adam 'Hangman' Page, and The Young Bucks.
While there is little doubt that Being The Elite revolutionized how professional wrestling angles can be produced and delivered to the audience, and there is little doubt that ALL IN was game-changing in being a sold out arena show in the United States for independent professional wrestling, but how can The Elite with AEW really revolutionize the business of professional wrestling?
With confirmation now that The Elite will team with the Khan Family, the owners of the NFL's Jacksonville Jaguars, to form AEW, The Elite have an incredible opportunity to put all their talk of changing professional wrestling into meaningful action by having AEW performers treated as employees instead of independent contractors, which has been the long-held status quo within the professional wrestling industry.
The Elite, comprised of Kenny Omega, Cody, Page, Marty Scurll, and The Young Bucks, is a stable of unique personalities bonded by their camaraderie and an unrelenting desire to change the professional wrestling business. With the success of Being The Elite and ALL IN, denying The Elite's talent, ability, passion, or business acumen would be a fool's errand. Instead, let us consider how The Elite and AEW could create a real and meaningful revolution in the professional wrestling industry.
'Change the world' is not just a catchphrase for Omega. 'The Cleaner' told ESPN in Toronto, Canada in May 2017 that he and The Young Bucks, "we're still trying to make a statement in terms of what [professional] wrestling should be [or] what it can be," also divulging to Tokyo Sports, "I want to evolve the business of professional wrestling."
Omega's mentor and confidant, Don Callis, echoed this sentiment on The Jim Ross Report podcast earlier last year, calling his fellow Winnipeg, Canada native "a revolutionary".
"I call him a revolutionary because he is all about changing the business for the better," Callis explained. "He's not a mark for any particular place or any particular idea of a big money contract. He really wants to make his mark on the wrestling business. This is not a guy who would cheat wrestling just because. He's doing it because he wants to impact change both in wrestling and I think he has [a] social message, as well, to put out there. He really is unique."
Similarly, in September 2018, Page told CBS Chicago that The Elite is not done changing the business of professional wrestling.
"As a collective, as a group, we have been able to change wrestling," Page said. "As a group, we are really onto something, and I think we wanna continue this. It would be a real disservice to everyone who has supported us and got us to this point if we were to abandon what we've built. It certainly doesn't mean it can't evolve and change, and it should, and it will. But I feel like we have too much of a good thing going to try to abandon it."
Very simply, in the United States, an employee works for another party and an independent contractor works for herself. For an employee, a company withholds income tax and certain benefits such as Social Security and Medicare. Also, an employee enjoys certain protections under employment and labor laws. An independent contractor does not receive such benefits.
Instead, independent contractor status is favorable to the contractor when there is a cost savings associated with taking care of one's own taxes and insurance. Additionally, for an individual who takes on work from various parties for a set or short term, the independent contractor model provides for a flexible schedule with variable hours. To determine whether someone is an employee or independent contractor, courts consider a number of factors, generally relating to the question of the worker's level of autonomy, or put another way, how much control the company exerts over the worker.
Obviously, the rationale for having an independent contractor relationship as opposed to an employment relationship is simply economic. The company saves money by not having to pay costs associated with employment such as health insurance and workers compensation insurance. The independent contractor is responsible for paying a Self-Employment Tax, which theoretically covers the contractor and company's share of Social Security and Medicare taxes. Additionally, hiring an independent contractor instead of an employee reduces the company's exposure to liability insofar as the independent contractor is not protected by employment and labor laws such as FLSA, OSHA, among others.
Perhaps a relic from the so-called 'territory days', where performers traveled from town to town and could work for any number of parties, professional wrestling promotions have long hired performers as independent contractors. While WWE is the only major promotion left standing in the ashes of the territories, other North American promotions such as ROH and Impact Wrestling have nonetheless followed suit and continue to hire performers as independent contractors. Arguably, in the territory system, promoters, such as the McMahons in WWE, would merely provide the platform for the talent to earn as much money as they could for themselves. WWE does not pay for the employment benefits, insurance, pensions, taxes, travel, or business expenses of its WWE Superstars.
In the context of professional wrestling, it is most challenging to identify the benefits of independent contractor status for performers signed to major promotions when one considers that professional wrestlers have a notoriously difficult time securing affordable health insurance and talent such as WWE-exclusive performers are known for working extremely demanding and inflexible schedules, with WWE performers not being able to take outside bookings since the days before 'The Attitude Era'. Moreover, unlike the 'territory days', where professional wrestlers would see short-term stints with promotions, it is now commonplace for WWE Superstars to stay with the company for 10 or more years.
In a statement on the subject of WWE Superstars being considered independent contractors, WWE wrote:
"WWE talent are highly skilled professionals who only perform and promote their appearances; unlike employees, they do not have any corporate responsibilities or duties, and thus are independent contractors. As independent contractors, WWE talent are able to negotiate all aspects of their contracts including length of agreement, compensation, time off, disability provisions and other benefits that would not be afforded to an employee."
The rather vague statement above does not explain how WWE Superstars promoting WWE corporate social responsibility initiatives like Be A Star or Connor's Cure is not considered 'corporate responsibilities or duties' of WWE Superstars. Further, it does not explain why employees of the WWE cannot negotiate all aspects of their employment contracts. It is clear that only a select few WWE Superstars have the luxury of negotiating as true independent contractors - current Universal Champion Brock Lesnar comes to mind with his WWE deals that have permitted him a flexible schedule and the ability to take outside sponsorships and even UFC fights. Additionally, WWE has not disclosed the range of "disability provisions or other benefits" that it frequently makes available to its independent contractors.
The implication seems to be that only independent contractors can benefit from not having a cap on how much they could earn from the company. No defensible explanation is provided as to why WWE Superstars would not receive bonuses, like for pay-per-views or merchandise sales, if they were employees. Nor is it explained why WWE Superstars cannot have differing base salaries as employees.
Professional wrestling icon Jesse Ventura, who tried to unionize professional wrestlers as early as WrestleMania 2, said on The Steve Austin Show in 2016 that WWE Chairman Vince McMahon is "lucky" that 'The Body' did not become a United States Senator.
"I would have started a senatorial investigation as to why pro wrestlers are called 'independent contractors' when they're not. You work for one company. They order you around, control your whole life. How are you possibly an independent contractor? Except, they don't have to pay your social security. That's why. And so Vince is lucky that I never got to the Senate because I would have investigated that because, to me, look at the thousands of dollars it [has] cost all of us wrestlers to have to pay 15% or whatever it is as an independent contractor on our taxes. That's a bee that has been under my saddle since I began wrestling. I thought, 'we are not independent contractors - we can't work for another promotion on Wednesday and work for you on Friday. It don't work that way. How are we independent contractors?'"
Ventura's rhetorical question is quite illuminative. The independent contractor model was sensible in professional wrestling's 'territory days', but today, WWE Superstars are still labeled by the company as independent contractors even though they are not usually free to take on outside bookings or sponsorships. Every aspect of their performances and appearances is out of their control, and their conduct outside of work, such as what they wear and even what they tweet, is often dictated to them by the company.
As recently as 2009, former WWE Superstars Raven, Kanyon, and Mike Sanders were waging a legal war against WWE premised on the argument that WWE has mislabeled its performers as independent contractors. WWE prevailed on a legal technicality involving a statute of limitations rather than winning on the legal merits of the case.
In 2015 on professional wrestling great Chris Jericho's Talk Is Jericho podcast, Raven claimed "the [presiding] judge was in Vince [McMahon]'s pocket" and that losing the case would have made WWE liable for $225 million. In addition to being liable to past and present WWE performers, losing to Raven & Co. in court for misclassifying professional wrestlers as independent contractors would have resulted in WWE owing the IRS a lot of money as well, high stakes for a judge to rule on in an uncertain area of law.
Interestingly, WWE has been unsuccessful at enforcing non-compete clauses against Lesnar as well as former world champions CM Punk and Alberto Del Rio. This is notable because non-compete clauses cannot generally be enforced against independent contractors. On independent professional wrestling star Colt Cabana's Art Of Wrestling podcast in November 2014, Punk explained:
"If [WWE talent contracts] were [legally enforceable], [WWE] wouldn't have settled. They would have held me over a f--king barrel and I wouldn't be doing this podcast. I waited until all the legal BS was out of the way. I never sued them - it was all about a settlement. Lawyers didn't jam anything up - they expedited the process. Now I'm a free guy," Punk said. "Look at Del Rio, bless his heart. I love the guy. He's wrestling [for] other [promotions] now. Do you know why? You can't put a non-compete clause on an independent contractor. Period."
Punk's argument makes sense if you consider, by analogy, hiring a contractor to remodel your kitchen. If, for example, you terminated said contractor, no court would enforce a contract provision that prevents the fired contractor from remodeling another person's kitchen on the basis of the overreaching contract provision alone.
On the same infamous episode of The Art Of Wrestling, Punk claimed, "I was sick, and hurt, and sick and tired, and burnt out, and I walked. And, I can do that because I'm an independent contractor." Seemingly, WWE Superstars suffer the worst parts of employment, like having no creative freedom or little say in the creative process, while receiving few of the benefits of being independent contractors, like being able to work outside of the company. Very few performers have walked away or even challenged the validity of the independent contractor status of WWE Superstars.
As alluded to above, part of the reason professional wrestling promotions may avoid hiring performers as employees is to get around paying health benefits and being exposed to liability under various employment and labor laws such as the Civil Rights Act. The professional wrestling business has always been an industry where performers are paid per appearance. This has perhaps inadvertently created a situation where talent working while injured is accepted as standard practice. Of course, performers working hurt can lead to a host of other problems like possibly injuring other performers, exacerbating existing injuries, and even drug abuse to cope with pain. There are countless tragic stories in professional wrestling involving drug abuse and dependency. Even Darren Aronofsky's acclaimed film, The Wrestler, depicts the stereotypical professional wrestler as a drug-abusing former star of the squared circle.
To WWE's credit, the world's largest professional wrestling promotion has adopted a Wellness Program to monitor the health of its performers and WWE also makes drug rehabilitation programs free to its past and present performers. With that said, the reactionary policy of covering rehab costs after long, hard-fought professional wrestling careers may not be so necessary if WWE Superstars enjoy the protections that company employees receive such as scheduled vacation time and health benefits while they work for the company. The independent contractor model in professional wrestling breeds an environment where talent will lose their spot on the card or even lose their jobs when stricken with injuries. On the above-mentioned episode of The Art Of Wrestling, Punk explained the precarious position of WWE performers:
"WWE doesn't do anything to protect the wrestlers. They do things to protect themselves." Punk continued, "you'll get punished [for not working hurt]; you'll get left off a pay-per-view; they'll take you off of RAW; they'll take you off of house shows; and, now you aren't making any money."
Speaking to injured WWE Superstar, Sami Zayn, on Talk Is Jericho in Winter 2018, Jericho echoed the notion that talent do not get time off till it is too late.
"The only time you really ever get off in [professional] wrestling is when you get hurt." Jericho continued, "and the one thing I've realized in working elsewhere from WWE is that, like, you get caught in the mindset there and going out of our way to make sure we impress and worried, 'do I have heat?' and 'what did I do wrong?' And that's not the case [outside of WWE]."
Of course, from the talent's perspective, when you are paid per appearance, making towns is essential to earning a living and there is a distinct financial disincentive to revealing injuries to 'the office' and being taken off the road; however, from the point-of-view of the promoter, the company has no choice but to send home talent who are unable to perform. In either scenario, the only solution seems to be hiring talent as employees instead of independent contractors. Greater collaboration and communication between the talent and promoter are necessary to ensure that there are contingency plans in place in case of injury to talent and that talent are confident in their place with the company even in case of injury.
ECW standout Justin Credible recently weighed in on the subject of independent contractors in professional wrestling on the WINCLY podcast. Credible regrettably told Wrestling Inc. Managing Editor Nick Hausman that 'The Impact Player' believes that there will never be a solution to the substance abuse problem in professional wrestling because professional wrestlers will always be treated as independent contractors.
"With professional wrestling, and this is something former Governor of Minnesota Jesse Ventura was trying to say back in the 80s, was 'wrestlers should unionize,' but unfortunately, if I want an indie booking and I ask for $500, somebody else will go, of my stature, and do it for $250. And that's the point. It'll never happen. I wish it would. Wrestling is as big as it [has] ever been, in my opinion, as far as globally, with all the wonderful independent organizations happening worldwide, not just in the United States, but in England, all over, Australia, all throughout Europe, Mexico, et cetera, Japan." Credible concluded, "I mean, it's ridiculous, but I never see it being unionized, unfortunately."
If The Elite are truly interested in changing the professional wrestling industry for the better, they have a rare opportunity to create a real revolution by having AEW employ its performers instead of classifying talent as independent contractors. As Omega explained on Talk Is Jericho emanating from Chris Jericho's Rock 'N' Wrestling Rager At Sea in 2018, the inaugural IWGP United States Champion sees an opportunity with The Elite to change the pro wrestling business as a whole.
"The Elite, the best friends that I have in the business and in my personal life, these are guys that I can still talk to as friends and as family, and that goes both ways for these guys as well," Omega said. "So I'd rather make these statements and change the business with The Elite and with you [fans] as well."
Speaking with Vice Sports in 2016, Matt Jackson of The Young Bucks suggested that creating new and better opportunities outside of WWE has long been on their agenda:
"It's very important for us to show the guys there's hope… you don't have to go [to WWE]."
The Elite will have the financial backing of billionaire Shahid Khan for the project. If AEW's trademark filings are any indication, a television program called Tuesday Night Dynamite is on the horizon. Surely, a professional wrestling promotion backed by the Khans, that will likely secure a television deal, can afford to pay employment benefits to its performers. Moreover, the Khans, being the principal owners of the Jacksonville Jaguars and Fulham F.C., understand the importance of protecting its talent and taking care of its athletes. Quite possibly, the idea of treating contracted athletes as independent contractors would be foreign and unnecessary to the likes of AEW President Tony Khan.
AEW is rumored to be having a weekly television show; however, we do not know whether AEW will be a regularly touring promotion. It is possible that AEW may be reluctant to hire talent as employees if said talent will have to take outside bookings to supplement their income. In the realm of sports, professional athletes are often required to obtain special permission from their professional squad to participate in events such as The Olympics. Similarly, AEW just needs to communicate with its employee performers and do its own research to ensure that its talent will be safe taking outside bookings and other projects.
Although off-seasons make sense in professional sports, practically speaking, given the constant churn that is required to produce episodic television in professional wrestling and the all-year live event touring requirements of larger promotions, multinational professional wrestling promotions should employ their talent as a cost-saving measure. When performers are able to take scheduled vacations, injuries due to wear-and-tear and body fatigue will be reduced. Employment status can also remove the impetus to work at all cost, or in spite of existing injuries. Only when performers are employees can they report injuries to the promoter without fear of losing their spot or even dismissal. With scheduled time off, performers would not have to worry about losing their position or job and know in advance how they will be figured back into the program upon returning.
While this writer's hope is that AEW revolutionizes the business of professional wrestling with its treatment of its performers, it is not out of the realm of possibility to see similar improvements in WWE. NXT has recently become a touring brand for WWE and talent often travel and lodge as a large group rather than what is generally required of WWE Superstars. Similarly, when WWE tours Europe, WWE Superstars are treated more like professional athletes on an athletic team than commission-based traveling salespeople. NXT's more efficient and beneficial practices will undoubtedly pollinate to the so-called main roster of WWE, so it is likely that we will see things like WWE Superstars traveling by bus and staying at the same hotel as such initiatives prove to be worthwhile to the company.
Whether the rationale is keeping talent out of trouble or for the sake of efficiency, WWE will make changes when the braintrust deems it makes sense from a business standpoint. The question is whether that time is before or after the company's hand is forced. As WWE apparently attempts to impose greater control over its talent, the more WWE Superstars appear to be employees of the publicly traded company as opposed to independent contractors. This may inadvertently result in WWE moving toward an employment model for its performers.
In September 2017, 16-time world champion John Cena talked on E&C's Pod Of Awesomeness about "complacency" hitting the WWE locker room as talents see fewer and fewer opportunities to make names for themselves.
"The amount of complacency is staggering. I mean, these guys are all so gifted and there [has] never been a better time ever to make a name for yourself in WWE." Cena said, "[if] you ever thought you can do it, step up right now. And I don't know. I think the guys right now just feel like a piece of the system rather than this creative force."
Even former world champion JBL, who tends to side with WWE on business matters, admitted to Busted Open Radio's Dave LaGreca and WWE Hall Of Famer Bubba Dudley, also known as Bully Ray, in the Fall of 2018 that WWE Superstars are somewhat "micromanaged".
"I think they are micromanaged a bit," JBL acknowledged. "Now, you have guys that are just happy to have a job, from my understanding. A lot of them, some of them, not so. And they're just conforming to the cookie cutter mold that they were given."
Along these lines, in December 2018, Bully Ray told his fellow WWE Hall Of Famer Jim Ross on The Jim Ross Report that unlike in the past, in today's WWE, only those who are chosen by WWE brass are given the opportunity to get to the top of the card. The Hell's Kitchen native suggested that nowadays, a talent like the legendary Steve Austin would not have even been given the microphone to cut his career-defining 'Austin 3:16' promo.
"You don't go to the top of the mountain and stay at the top of the mountain unless you are chosen to be at the top of the mountain," Bully explained. "And that's not the way it was. One of [Ross's] best friends in the [pro] wrestling business and in real life is a guy named 'Stone Cold' Steve Austin. He was told to never talk. What would've happened if he never grabbed that microphone and never would have said, 'Austin 3:16 means I just whooped your ass'? Now, back then, it worked. Now, if you're not told to say something like that, how can you ever get to the top of the mountain?"
If there is a glass ceiling for WWE Superstars, the independent contractor model is untenable. Independent contractor status plays to the ambitions of the contractor and her expectation that limits will not be placed on her ability to achieve. With all this talk of "complacency", feeling like cogs in a machine rather than artists and creators, and being "micromanaged", it would seem that the independent contractor model is not even motivating some of today's WWE performers to reach new professional heights.
On the heels of WWE's $2 billion television deal with FOX, it may be high time for WWE Superstars to revisit the idea of unionizing. To do so, they will first need to prove that they are in fact WWE employees rather than independent contractors despite what their WWE contracts state. Instead of fighting the tide, WWE could implement steps to move to an employment model in the future where WWE Superstars would receive employment perks such as health insurance, paid time off, and even basic employment rights such as access to the ERISA and FMLA.
The move to an employment model could prove very beneficial to WWE. If WWE Superstars feel that they have real opportunities in WWE and are signed to unique, individually tailored employment contracts, WWE could avoid the formation of a talent union even if said talent are recognized as WWE employees. A key benefit for WWE would be to implement the employment status for current and future performers in a way that precludes past performers from claiming employment status as to prevent liability exposure to past performers and the IRS. WWE would need to point to some other specific changes in the nature of its relationship with its performers, such as contributing to Social Security for its performers, to buttress its position.
During Cody's ALL US - Epilogue YouTube video, 'The Grandson Of A Plumber' hinted that The Elite's indelible mark on professional wrestling would not be limited to the success of ALL IN.
"Pro wrestling is not immune to the changes, to the creators taking over, to the fans taking back." Cody said, "[ALL IN] could have just been a great night of matches at Chicago [Illinois], for sure, that's all it could have been. But it felt like more. It felt like a revolution. Revolutions aren't just one night."
Now, we know that ALL IN was not the intended extent of the revolution envisioned by The Elite, but will Cody's words prove to be mere rhetoric or will The Elite along with AEW continue to revolutionize professional wrestling? If we are truly in a revolutionary period of professional wrestling, as The Elite would say, the professional wrestling industry must also advance with the times. To really be a multinational professional wrestling promotion today, such major players cannot be held to the same low standards of any small-town independent show from a bygone era. It is time for the true leaders of the industry to emerge. It is time for the fans to stand up for the performers and the genre that we love and respect and demand higher quality products, better lives for industry workers, and a new deal for professional wrestling performers.