April 22, 2016
It’s not often that I have the chance to write on a legal matter that is relevant to my personal life, but a press release published this past Wednesday has presented me with such an opportunity. That press release is from Wizards of the Coast, a subsidiary of major toy-maker Hasbro, and discusses a new class-action lawsuit (the second of such lawsuits, with the first being filed last October) brought by a number of “judges” for Wizards proprietary trading card game “Magic: the Gathering.”
For those of you unaware of what “Magic: the Gathering” is or what Magic “judges” do, here’s a quick summary:
Magic: the Gathering and its judges
Magic is a fantasy collectible card game in which players build decks from an allowed pool of cards (the pool varies by the specific Magic format). The game also boasts a robust competitive scene in which players may often win monetary prizes. This system is directly managed by Wizards and is largely used by the company to advertise and sell its Magic products. With the exception of a handful of major tournaments, most competitive events are logistically run on an individual basis by local gaming stores. However, Wizards ultimately maintains control over these tournaments by dictating the tournaments’ rules and format – and whether an event is even a “sanctioned” Magic event at all. A “sanctioned event” status comes with certain benefits to the local tournament organizer.
As the lawsuit states, “[t]he activities necessary to conduct Wizards’ events/tournaments are carried out by judges.” Judges are individuals certified by Wizards to have a minimum level of familiarity with Magic’s rules and cards, and are often called upon by players at tournaments to resolve rule disputes. At larger events, though, judges do much more than just answer rules questions: they “are required to perform labor necessary for Wizards’ events/tournaments to function, routinely fulfill duties and responsibilities including administration and oversight regarding Magic gameplay, and evaluate and train other judges.”
It’s important to note for the purposes of the lawsuit that Wizards regulates all judge certification. It administers the tests and training for certification, and imposes certain duties and responsibilities on active judges. A violation of any of Wizards’ rules and regulations for judges can lead to a number of disciplinary actions, up to and including the loss of one’s judge certification.
Throughout most of the history of the judge program, Wizards has provided promotional cards (some extremely valuable) to judges, as an implicit “thank you” to them for their service.
Why are judges suing Wizards of the Coast?
These lawsuits allege that “[t]he work performed by judges for the benefit of Wizards is performed under close supervision and control by Wizards that creates an employer-employee relationship.” As readers familiar with the duties of judges at larger tournaments are likely already aware, their responsibilities at these events keep them very busy, with many often putting in shifts longer than eight-hours, and, as the lawsuits allege, not even having sufficient time for a break to eat a meal.
These judges are alleging that they are already being treated as employees by Wizards, and wish to collect the benefits legally attached to such a relationship – wages, meal breaks, overtime, etc.
Wizards, through its aforementioned press release and its director of organized play, have responded that the suits “are without merit,” and that with the exception of a few major tournaments, “Magic events are run by tournament organizers and local game stores who directly engage judges.”
Is Wizards an “employer” to these judges?
Any employment lawyers reading this may be perplexed as to why Wizards’ latter statement is even relevant in determining the employer/employee relationship here, particularly in light of last year’s National Labor Relations Board (NLRB) Browning-Ferris Industries, Inc. (BFI) ruling.
BFI broadened the employer/employee relationship back to its pre-1984 scope, which found multiple parties to be joint “employers” if (1) the entities are employers within the meaning of the common law; and (2) the entitles share or codetermine those matters governing the essential terms and conditions of employment.
A common law employer is one that we generally think of when we think of an “employer:” this entity has “the right to control and direct the results of the work and the way in which it is done.” The NLRB has stated that one of the foremost factors it will be considering in determining whether an employer/employee relationship exists is “whether an employer has exercised control over terms and conditions of employment indirectly through an intermediary, or whether it has reserved the authority to do so.”
So is Wizards an employer of these judges?
It’s difficult to envision a scenario wherein a federal judge, bound by the NLRB’s decision, somehow determines that these judges aren’t employees of Wizards of the Coast.
After all, although tournament organizers do run most Magic events, these events are highly regulated by Wizards. Further, it is Wizards, through its judge certification program, that has complete and singular control over who is allowed to be a judge, and what a specific judge’s responsibilities are to be – both in general and for a specific event. True, a local tournament organizer may assign certain assignments or responsibilities to the Magic judges operating at the event, but it’s Wizards that actually schedules and regulates these events – not to mention determining the format and assigning judges to specific events. Furthermore, Wizards can unilaterally decide to terminate an individual’s judge status at any time.
In other words, Wizards undoubtedly controls the terms and conditions of the employment of these judges – even through the intermediaries of local tournament organizers – such that it would be considered an employer of Magic judges under BFI. Trying to redirect employment responsibilities onto local gaming stores simply won’t work in court.
Are these judges considered “volunteers?”
Finally, we should address the question of whether these judges could be considered “volunteers,” thus rendering any question of an employment relationship immaterial.
Although Wizards has backed away from using the term “volunteer” when speaking about judges, the language that it currently uses heavily implies that the company views judges to be as much. Take a look at the language in Wizards’ press release:
Fans choose to become judges out of a sincere love of the game and as a way to enjoy their favorite hobby.
Sounds an awful lot like a volunteer, no?
The problem for Wizards is that there is no way that judges would ever be legally considered “volunteers.” There is a lot of regulatory guidance on this matter. Volunteers are those “who perform hours of service for a public agency for civic, charitable, or humanitarian reasons, without promise, expectation or receipt of compensation for services rendered.” Neither Wizards nor its local tournament organizers are public or non-profit organizations. And judges usually expect some kind of compensation for judging at events (although it’s usually in the form of Magic products).
And the extensive case law on this issue is such that any argument by Wizards to classify judges as volunteers would be instantly and soundly rejected. Categorically, judges are not volunteers.
So where does that leave things? If Wizards can get caught up on the legal times (i.e. become familiar with last year’s BFI ruling), they’ll probably scramble to follow Uber’s recent move and settle as soon as possible. These are not friendly times for employers seeking to divest themselves of labor and employment regulations through loopholes and technicalities.
In short, rather than spending exorbitant sums litigating these cases out to their conclusion (conclusions which more than likely won’t be pretty for the company), Wizards will likely work out some kind of agreement that more clearly delineates the employer-employee relationship – one that sees judges at larger events assigned their legal rights as employees, but also one which may not have the same entitlement for judges at minor weekly events at local stores.