Are referees independent contractors or employees?

A determination of whether referees are independent contractors or employees may have significant ramifications including tax liability, workers’ compensation responsibility, unemployment compensation responsibility, and tort liability. The determination of employment status centers on which party has the right to direct and control the method in which services are performed. If the party requesting the services controls, then the individual performing the services will be considered an employee. If the party delivering the services controls, then the individual will be considered an independent contractor.

Determination of employment status is made on a case by case basis. The Internal Revenue Service has issued regulations establishing multiple factors to consider in making the determination. However, no single factor is determinative. Further, states determine employment status under their own laws to resolve workers’ compensation, unemployment compensation, or tort liability issues. Although states typically follow the IRS factors in making this determination, each state’s analysis can be different. It may be necessary to consult legal counsel regarding your specific state’s laws on these topics.

The following table illustrates the factors used by the IRS to determine employment status. The “Interpretation” column explains how the factor influences the overall analysis of employment status. No single factor is determinative of an individual’s employment status, nor is a majority of the factors one way or the other necessarily controlling. The analysis is fact-specific; a determination is made by examining all factors together.

FACTOR	INTERPRETATION
Is there a contract (job-based, term-based)?	A contract that is job-based indicates that the worker is an independent contractor, while a contract for a term is most likely an employment contract.
Training given by the hiring entity?	The more training given to a worker, the more control the hiring entity has over the worker. Intense training indicates that the worker is an employee.
Does hiring entity give instructions?	Detailed instructions as to how the worker is to perform indicates that the person is an employee.
Does the hiring entity have the right to change the methods used by the worker?	Control of the hiring entity over the methods used by the worker indicates that the worker is an employee.
Does the hiring entity have the right to direct the worker on how to do the work?	The right of the hiring entity to direct the worker indicates that the worker is an employee.
Does the operation of the hiring entity’s business require that the worker be supervised?	The more supervision over the worker that occurs, the more control the hiring entity has over the worker. Broad authority to supervise a worker indicates that the worker is an employee.
Is the worker engaged to complete a particular job or to work at a job for an indefinite period of time?	Independent contractors are typically hired to perform a specific task. Engagement of a worker for an indefinite period of time indicates that the worker is an employee.

FACTOR	INTERPRETATION
Does the worker report to a hiring entity representative, and how often?	Frequent reporting requirements exhibit the hiring entity’s control over the worker and indicate that the worker is an employee.
Does the worker furnish a time record to the hiring entity?	A hiring entity’s requirement that a worker furnish a time record exhibits control over when the individual works and indicates that the individual is an employee.
Is the worker required to follow a work routine or schedule established by the hiring entity?	A hiring entity’s authority to establish a work routine or schedule indicates control over the worker and indicates that the worker is an employee.
Does the hiring entity furnish tools, equipment, supplies or materials to the worker?	Typically independent contractors invest in their own equipment, tools, etc. Provision of these materials by the hiring entity indicates that the worker is an employee.
Does the hiring entity reimburse worker for expenses incurred by the worker in doing the job?	Typically independent contractors remain responsible for their own business expenses. The more expenses are reimbursed to the worker, the more likely the worker will be considered an employee.
Does the worker perform the services required personally?	A worker’s authority to delegate the work to others of his/her choice indicates that he/she is an independent contractor.
Are services performed at the hiring entity’s location?	A worker’s ability to perform services at a location independent from the hiring entity indicates that he/she is an independent contractor.
How is the worker paid (lump sum, hourly, salary, etc.)?	Lump sum payment for performance of a job indicates that the worker is an independent contractor.
Is the worker eligible for hiring entity benefits such as pension and health insurance?	Eligibility for benefits indicates that the worker is an employee of the hiring entity.
Does the hiring entity set specific hours for the work to be done?	The hiring entity’s control over the specific hours of work indicates that the worker is an employee.
Does the worker perform similar services for others?	The worker’s ability to do work for other hiring entities indicates that the worker is an independent contractor.
Does the hiring entity have priority on the worker’s time?	Independent contractors typically have the authority to balance their jobs as they see fit. The hiring entity’s authority to claim priority over worker’s time indicates that the hiring entity is an employee.
Is the worker prohibited from competing with the hiring entity currently or during any later period?	Independent contractors typically may engage in business that may compete with the business of hiring entity. A hiring entity’s control over a worker’s ability to compete indicates that the worker is an employee.
Can the hiring entity discharge the worker at any time without incurring a liability?	Independent contractors can generally be discharged without the hiring entity incurring a liability. A hiring entity’s ability to discharge workers without liability indicates that the worker is an independent contractor.
Can the worker terminate the services at any time without incurring liability?	A worker’s ability to terminate the services without liability indicates that the individual is an independent contractor.
Does the hiring entity represent the worker as an employee to others?	The hiring entity’s representation of the worker as an independent contractor indicates that he/she is an independent contractor.
Does the worker make his services available to the general public?	That the worker’s services are available to the public indicates that he/she is an independent contractor.
Is a license necessary for the work? If so, who pays the fee for the license?	Typically, independent contractors pay their own licensing fees. That a worker pays for his/her own license indicates that he/she is an independent contractor.

FACTOR	INTERPRETATION
Does the worker have a financial investment in some business related to the services performed?	Independent contractors typically invest in their own businesses rather than relying upon the hiring entity’s resources. Thus, a worker who has a financial investment in a business will be considered an independent contractor.
Can the worker profit or suffer loss in the performance of services for the hiring entity?	The ability to suffer losses and gain profits indicates that the worker is an independent contractor.
Are the worker’s services integrated into the business operations of the hiring entity?	The more a worker’s services are integrated into the business operations of the hiring entity, the more likely the worker will be considered an employee.

Referee-Helpful Suggestions

The following are some suggestions for maintaining independent contractor status of referees. While these guidelines may minimize the likelihood that referees will be considered employees, there is no guarantee of independent contractor status because this determination is made on a case by case basis.

v State Referee Committees should be responsible for assigning referees instead of state and local associations and leagues (i.e., the entity running the competition should be different from the entity assigning the referees)

v Organization bylaws and policies should reflect that referees are independent contractors

v State Referee Committees should remain the entity that trains, certifies and evaluates referees

v Contracts should not be used; any assignment acceptance form should reflect that the referee is an independent contractor

v Referees should be hired to work on a game by game basis rather than for a season or other longer period of time, and should be permitted to work for multiple soccer groups

v State and local associations and leagues should refrain from giving referees instructions regarding how to call a game; referees should retain the right to control games without interference using the Laws of the Game.

v State and local associations and leagues should not supply equipment or uniforms to referees

v Referees should be able to turn down assignments freely

v Referees should be covered by their own liability insurance through registration with USSF and should not be covered by state and local associations and leagues