COUNT III
UNCONSCIONABLE CONTRACTS DECLARATORY JUDGMENT ACT, 28 U.S.C. § 2201(a)
(Against Defendant WWE, On Behalf of All Named Plaintiffs to whom WWE provided an Unconscionable Booking Contract, Contractor Nostalgia Agreement, or other documents purporting to limit their rights under applicable laws of the United States and her Courts)
Plaintiffs incorporate by reference the preceding paragraphs set forth above as if fully set forth herein, including all exhibits referenced.
The Declaratory Judgment Act, 28 U.S.C. 2201, provides that where there is a controversy within its jurisdiction “any court of the United States . . . may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought.”
The several tests for whether a declaratory judgment action is appropriate to the circumstances alleged are set forth in Grand Trunk W.R.R. Co. Consol. Rail Corp., 746 F. 2d, 323, 326 (6th1984). The facts of this case as above and herein alleged, amply meet the Grand Truck criteria.
The conduct of each of the Defendants with respect to the procurement, execution, and maintenance of the unconscionable “Booking Contracts” (including the “Contractor Nostalgia Agreement”) was and continues to be so egregious that to allow the Defendants to claim the benefits of or to enforce any part of these “contracts” against the Plaintiffs, including the forum selection clause and choice of law clause would create an unconscionable injustice and consequently reward the Defendants for conducting a carefully crafted and wrongful course of fraudulent conduct through intentionally duping the Plaintiffs into believing that they had no rights available under otherwise available state and federal statutes and were mere legal slaves of the WWE.
The Booking Contracts, the “Contractor Nostalgia Agreement”, the “handshake deals” are outrageous, were procured by fraud, coercion and unequal bargaining power, and violate public policy and the statutes which are set forth in this Complaint, as well as references to applicable law. For those reasons and applicable law, here repeated and realleged in every detail, the Booking Contracts should be set aside and declared null and void, as having been procured and necessary through fraud, coercion, intimidation, while a progressive disease process intentionally hidden from the Plaintiffs was allowed to proceed and the WWE to rob the Plaintiffs of any ability to comprehend their circumstances.
The unconscionable boilerplate booking contracts were employed by the Defendant WWE and its predecessors, through the direction of Defendant VKM and his straw men, to enshrine advantages for the WWE and its predecessors which violated the public policy of the United States and its individual States in order to procure monetary advantage for the Defendants by directly and intentionally duping the Plaintiffs with respect to valuable rights enjoyed by employees and others at the workplace.
Defendant WWE, operating through and under the control of VKM and his straw men, and through the employment of the unconscionable boilerplate booking contracts conducted their intentional violation of statutory rights of Plaintiffs, which scheme is illustrated by the following examples.
In 1970, Congress created OSHA, a part of the United States Department of Labor, “to assure safe and healthful working conditions for working men and women by setting and enforcing standards and by providing training, outreach, education and assistance.”
The Williams, Steiger, Occupational Safety and Health Act of 1970 (84 Stat. 1590) clearly applies to employees such as the Plaintiffs. Under the Act there are strict reporting requirements for injuries, which have been completely or substantially ignored by the Defendants because of their intentional and fraudulent misclassification of the Plaintiffs as “independent contractors,” through the imposition of the unconscionable boilerplate Booking Contracts. 29 U.S.C. § 654 sets forth the duties of employers and employees and provides as follows:
Each employer:
Shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees;
Shall comply with occupational safety and health standards promulgated under this chapter.
Failure to comply with 29 U.S.C. § 654(1) is evidence of the employer’s negligence, and may be considered under the Counts of this Complaint which seek compensation for the physical, psychological and financial consequences of Plaintiffs’ personal injuries suffered thereby.
OSHA provides:
The employer shall ensure that each affected employee wears a protective helmet when working in areas where there is a potential for injury to the head from falling objects.
Routinely, the Plaintiffs were subjected to danger from “falling objects” usually in the form of another wrestler, weighing typically over two hundred pounds and usually jumping from the top of a ring post, from chairs smashed over their head, and from otherwise being deliberately smashed into the ring floor, with the wrestler being the object driven to the floor resulting in rapid deceleration to brain matter, with consequent damage.
For example, Bryan Emmett Clark had his head driven full force into a ring post by Savio Vega in a WWE match and suffered memory loss. Clark states it was common to get hit in the head and knocked out.
Laurinaitis was double suplexed in 1992, landed badly and received herniated discs in his neck. None of this nor thousands of similar occurrences (collectively experienced by all of the Plaintiffs) were ever reported to OSHA by the WWE as required by law but for the fraudulent misclassification. Injuries were suppressed, not reported.
Section 17, sub parts (a) and (i) of the OSHA Act provide:
- Any employer who willfully or repeatedly violates the requirements of section 5 of this Act, any standard, rule, or order promulgated pursuant to section 6 of this Act, or regulations proscribed pursuant to this Act, may be assessed a civil penalty of not more than $70,000 for each violation, but not less than $5,000 for each willful violation.
- Any employer who violates any of the posting requirements, as prescribed under the provisions of this Act, shall be assessed a civil penalty of up to $7,000 for each violation.
The Defendants have willfully and consciously conspired to violate the OSHA Act by falsely knowingly and falsely characterizing their employees as “independent contractors”, thus conspiring to deprive them of the benefits of the Act, and further to intensely pressure the wrestlers not to report injuries or to discuss dangerous conditions in any way, upon pain of losing their careers.
OSHA requires notice be given to the protected employees. WWE did not ever post in any place of employment the poster notice required by OSHA informing their wrestling workers of their right to have an injury reported, or their workplace inspected. Wrestling workers were never informed that they were protected from retaliation “in any way” by exercising their rights under OSHA, and were duped into believing that they were “independent contractors” having no rights, thus being deprived of their statutory rights and being subjected to unreasonable danger of physical and economic harm which all of the Plaintiffs thus suffered in silence, knowing retaliation would be swift and certain and as they were unaware of their rights.
Instead of being informed of their statutory rights under OSHA the wrestlers were induced through fraud and intimidation, into signing boilerplate contracts that allegedly “signed away” their rights – a proposition void at the outset as known to WWE, but not known to the uneducated wrestlers who were uniformly subjugated to dictatorial control by the WWE, and who knew full well what the consequences of any attempt to exercise their “rights” would be – ruination of their careers and potential serious physical harm, and whose cognitive decline was created by WWE’s conduct.
Pursuant to 29 C.F.R. § 1904.35(b)(1)(i) and (ii), the following requirements must be honored and implemented by covered employers such as the WWE:
You must set up a way for employees to report work-related injuries and illnesses promptly; and….
You must tell each employee how to report work-related injuries and illnesses to you.
1904.35(b)(1)(i) and (ii).
The Plaintiffs were never told how to report work-related injuries and instead were actively discouraged from doing so, since not wrestling, even if injured, would have a serious adverse effect upon their career as each employee well new through the coercive and intimidating culture of the WWE established under the direction and control of VKM and his agents.
In addition to being deprived of rights under OSHA, the Plaintiffs were wrongfully classified as “independent contractors” and were deprived of the Worker’s Compensation laws of the various States and the substantial medical benefits and language compensation that would have been available to them in many States in which they worked for WWE.
Instead of having Workers’ Compensation rights and receiving NOTICE of same as is required by most States (NOTICE is to be posted as with OSHA), no notice was given, no Workers’ Compensation policy provided and the Plaintiffs had to either pay for their own health insurance (which before recent changes in the law did NOT cover consequences due to “pre-existing injuries”) or to pay for surgeries and rehabilitation out of their own pockets. To question the system imposed by the WWE was to have no career instead of a meager one.
Connecticut, the jurisdiction imposed by WWE’s boilerplate Booking Contract, requires that NOTICES of the availability of Workers’ Compensation be provided to employees, together with instructions concerning how to report injuries. WWE ignored its obligations to its Wrestler employees and created the medical costs of a culture in which exercises of rights guaranteed by statute swiftly led to unemployment. Permanent injuries would have been covered. WWE’s motive was simple – Workers’ Compensation insurance would have cost millions of dollars yearly and diminished profits.
National Labor Relations Act
Additionally, the deliberate and cynical misclassification of the Plaintiffs as “independent contractors” deprived them of the ability to seek to organize and to bargain collectively. “Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other mutual aid or protection.” See NLR Act, 1935.
The NLR Act forbids employers from interfering with, restraining, or coercing employees in the exercise of rights relating to organizing, forming, joining, or assisting a labor organization for collective bargaining purposes, or from working together to improve terms and conditions of employment, or refraining from any such activity. Title 29, Chapter 7, Subchapter II, Section 8, United States Code. The right to organize a union is considered a fundamental human right.
The NLR Act further provides: “Sec. 8. [§158.] (a) [Unfair labor practices by employer] It shall be an unfair labor practice for an employer—(1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7 [section 157 of this Title]”
Section 8(c) provides in important part: that employers may NOT (3) by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization. (emphasis supplied).
In 1948, the United States, operating through the General Assembly of the United Nations, adopted and affirmed the “Universal Declaration of Human Rights”. Article 23 of that Declaration contains the following language: “Everyone has the right to form and to join trade unions for the protection of his interests.”
By way of example, NFL players who are classified as employees have a union, the National Football Players Association (NFLPA) that is a member of the AFL-CIO. This right to unionize was conferred under federal law – the NLR Act. The NFLPA has been in existence since 1956 and formally represents the players in negotiating agreements under seven Collective Bargaining Agreements (“CBA”) since 1968. The most recent CBA was ratified in 2011 and governs working conditions, benefits, workers’ compensation, revenue distribution, player benefits and safety issues.
In November, 2015, Jesse the “Body” Ventura, the 38th governor of Minnesota, was asked by a journalist: “You famously tried to get wrestlers to unionize before Wrestlemania 2. What was Vince McMahon’s reaction when he found out?” Ventura replied, “Well, he threatened to fire me.”
On October 25, 2016, Mr. Ventura told the audience on the Steve Austin Show: “Vince is lucky I didn’t go for the Senate. Had I got into the Senate I would have started a Senatorial investigation into why professional wrestlers are called ‘independent contractors’ when they’re not. You work for one company, they order you around, they control your whole life. How are you possibly an independent contractor, except they don’t have to pay your social security.” … “Look at the thousands of dollars it’s cost all of us wrestlers to have to pay fifteen-percent, or whatever it is, as independent contractor on our taxes. That’s a bee that’s been under my saddle since I began wrestling. We are not independent contractors. I can’t work for another promoter on Wednesday, and then work for you on Friday, it don’t work that way.” See Csonka, Larry, “Jesse Ventura Says Hulk Hogan Ratted Him Out When He Tried To Start A Union”, 411Mania.com (Oct. 25, 2016), 411mania.com/wrestling/jesse-ventura-says-hulk-hogan-ratted-him-out-when-he-tried-to-start-a-union/
The very same bullying techniques utilized by the WWE and its agents to coerce and intimidate the Plaintiffs into signing boilerplate “Booking Contracts” wrongfully classifying them as “independent contractors” for the purpose of violating their rights as employees have been and are utilized by the WWE to insure that no wrestler, unlike all of their compatriots in other professional sports, will ever attempt to organize a union. Specifically, any wrestler who attempted to organize a union or speak in favor of union activities would quickly have any “push” stopped and be subjected to a string of humiliating defeats thus effectively ending their careers in violation of Section 8(c) as above quoted.
WWE, principally through its Chairman VKM (and others at his direction) enforced WWE’s policy of “keep your mouth shut and don’t ask questions”, and through the deception inherent in their unconscionable “boiler plate” “Booking Contracts”, cunningly created conditions and terms of employment designed to stifle the rights of the Plaintiffs under the NLR Act, and thus deprive the Plaintiffs of fundamental and valuable human rights.
The Defendant WWE operating under the direction and control of its Chairman VKM, and through VKM’s straw men, recklessly endangered Plaintiffs and caused significant injury.
The unconscionable boilerplate booking contracts procured from the Plaintiffs as above alleged, cause the Plaintiffs substantial economic harm and damage including but not limited to consequential damages, loss of wages, loss of tax payments earned which ought to have been paid by the Defendants on behalf of the Plaintiffs for Social Security and Medicare, loss of earning capacity, damages due to the loss of the ability to enjoy life, loss of benefits guaranteed under state and federal statutes and the consequent harm caused by the denial of these rights and benefits. The establishment of these entirely unfair and illegal contracts intentionally deprived the Plaintiffs of money and property.
A just amount should be assessed for all of the damages caused by the unconscionable booking contracts, which contracts not only existed in the past, but continued to this day to injure the Plaintiffs as above alleged, and as a result of unjust, improper, and unconscionable advantage being taken of the intellectual property of the Plaintiffs, including their right to fair and just compensation for the use of their images and likenesses, and performances, all as alleged in this Complaint, whether in this Count or elsewhere.
The contracts should be set aside as void ab initio as having been procured by fraud, and with the intent to enshrine an illegal purpose, that of depriving the Plaintiffs of the protections of federal law, and the numerous State workers’ compensation laws that would have otherwise attached to their actions as employees.
The economic rights of the parties and fair compensation to the Plaintiffs ought to then be re-determined on an equitable basis as if the contracts had not existed, particularly those current rights of the parties in their own likenesses, images, copyright materials, videos, images, products, and other intellectual property.
See Giri, Raj, “Jesse Ventura On The Only Time Vince McMahon Stopped Him, Suing WWE, Problems with Hulk Hogan, Trump”, Wrestling, Inc., http://www.wrestlinginc.com/wi/news/2015/1123/604137/jesse-ventura-on-the-only-time-vince-mcmahon-stopped-him/ (Nov. 23, 2015).