Joey Mercury is the latest pro wrestling talent to fire up the “independent contractor vs. employee” debate in a recent lawsuit filed against Ring of Honor. The former agent and trainer makes strong claims against his former place of employment in the suit that includes disregard for talent safety.
On February 25, Mercury (real name Adam Birch) filed suit in the state of Maryland against Ring of Honor and Sinclair Broadcasting claiming that he was an employee rather than an independent contractor during his time at the company, a tenure that spanned from May of 2018 to October 2019. The suit also claims that he was forced to resign due to the company’s “lack of concern for the talent” and his increased workload for the company without a “commensurate increase” in pay. Article 33 through 35 in Mercury’s lawsuit describes his resignation as follows:
- During the time that Birch was performing services for ROH and Sinclair, Birch devoted himself to improving the working conditions and salaries of the Talent (wrestling performers). Birch expressed concerns to ROH and Sinclair regarding the lack of safety protocols and available medical supervision during the matches. Birch attempted to secure Talent for ROH and Sinclair and attempted to obtain reasonable compensation for the Talent. Birch endeavored to initial effective communication between ROH and Sinclair and the Talent. Birch’s efforts were disregarded by ROH and Sinclair and this disregard produced an unsafe working environment and poor overall working conditions and morale.
- During the time Birch was performing services for ROH and Sinclair, he was paid substantially less than other individuals performing these same services for similar companies.
- Due to the complete lack of concern for the Talent and the increasing responsibilities without a commensurate increase in compensation, Birch was forced to leave ROH and Sinclair on October 25, 2019.
The lawsuit also notes Maryland’s strong public policy when it comes to employment status and then makes the claim that Mercury is misclassified as an independent contractor (Articles 63- 67):
- “The general trend in Maryland has been to narrowly define ‘independent contractor’ and to protect employee access to unemployment insurance, workers’ compensation insurance, and other benefits.” (See, Id.)
- “The Workplace Fraud Act, which became effective on October 1, 2009, makes it a violation to fail to properly classify workers as employees, and imposes penalties on those employers who knowingly misclassify their workers. LE § 9-402.1.” (See, Id.)
- The “Recovery of Benefits and Penalties for Fraud Act,” which became effective on October 1, 2016, imposes significant civil penalties for knowing misclassification of workers as independent contractors.
- The Agreement clearly misclassifies Birch as an independent contractor when he was, in fact, an employee. Sinclair and ROH retained the right to control every aspect of Birch’s performance of services and overrode his independent judgment regarding the best manner in which to perform his services. Sinclair and ROH also retained the right to prohibit Birch from performing services for other entities without consent. Sinclair and ROH retained the right to terminate Birch’s performance of services for Sinclair and ROH, but denied Birch the right to terminate his provision of services during the first six months of the Agreement. Sinclair and ROH retained the right to terminate the relationship for cause and imposed a restrictive covenant.
- The intent and import of the Agreement was to make Birch an employee while misclassifying him as an independent contractor.
If Mercury is indeed misclassified as an independent contractor, then the lawsuit continues to file claim of breach of contract. He also seeks royalties due and his final claim happens to be abusive discharge (in the alternative) and makes the following statements further alleged that ROH failed to conduct matches in a safe manner for its talent (Articles 93-97):
- A nexus exists between Birch’s actions in attempting to ensure the safety of the Talent and obtaining reasonable compensation for the Talent and Birch’s forced resignation from Sinclair and ROH.
- Birch repeatedly expressed opinions to Sinclair, ROH, and others regarding the actions of Sinclair and ROH. These opinions that were expressed regarded the safety of the professional wrestlers and the inadequacy of the pay for the Talent.
- Sinclair and ROH were the promoters of the wrestling matches in which Birch expressed concern regarding the safety of the wrestlers.
- COMAR 19.14.08.06(B) requires that the promoter shall be responsible for conducting wrestling contests in a safe, peaceable, and orderly fashion.
- Sinclair and ROH failed to conduct the wrestling matches in a safe manner. Wrestlers suffered injuries from wrestling that were not recognized and not addressed. Sinclair and ROH permitted unsafe wrestling practices to occur and failed to respond to Birch’s complaints regarding the unsafe practices.
- As a direct and proximate result of Birch’s complaints and actions regarding the lack of safety protocols at Sinclair and ROH wrestling events and Sinclair and ROH’s complete lack of concern for the safety of the wrestlers, Birch was forced to resign.
- Birch is entitled to compensatory damages directly resulting from the termination of the relationship with Sinclair and ROH.
Mercury isn’t the only former ROH star filing such a claim against the company. Former Women of Honor Champion Kelly Klein filed a discrimination suit in late February. Klein also challenges her classification as an independent contractor.
RELATED: Kelly Klein Files Discrimination Lawsuit Against Ring Of Honor, Sinclair Broadcasting