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Quick… name the top stars in women’s tennis. Even if you don’t know a lob shot from a lob wedge, you have probably heard of Venus and Serena Williams. As the U.S. Open continues this week, the Williams sisters will be favored to meet in the finals, playing for thousands of dollars, watched by millions of fans. The fact that the Williams sisters are black is, at this point, a footnote to their brilliant successes on the court. Mashiska Washington is at the other end of the professional tennis world. Far from being given a top seed that the Open, Washington’s ranking as a tennis player has never merited direct entry into the main draw of the tournament. Instead, Washington received wild card entries into the tournament from 1993 through 1997 and again in 1999 and 2000. Wild card entries are discretionary invitations given by the United States Tennis Association into the tournament which it runs. When Washington did not receive a wild card entry into the 1998 tournament, he brought suit against the U.S.T.A., claiming race discrimination against him as a black man in violation of Title VII. This suit was recently dismissed by the U.S. District Court for the Eastern District of New York in Washington v. U.S. Tennis Assoc., No. 99-CV-5148 (E.D. N.Y. July 22, 2002). WILD CARD ENTRIES DISCRETIONARY The USTA awards 13 discretionary wild card entries into the U.S. Open based upon the marquee value of the player, the desire to provide opportunities for developing players, a recognition of contribution to the game and to assist players who are recovering from injury or a leave from the game. This year, for example, Martina Hingis, a former top-ranked player recovering from injury, received such an entry. The committee that recommends wild card entries receives input from satellite tennis organizations throughout the country, but the final decisions are made by the tournament director and chairman. In 1998, Washington was not recommended for a wild card, based upon the fact that his world ranking had not significantly improved during the preceding year, his performance appeared to have plateaued, and he had performed poorly after receiving wild card entries from 1993 to 1997. Significantly, Washington was the only player in the world to receive five consecutive wild card entries during this period. In 1998, two black players and one Asian-American player received wild card entries, despite having lower rankings than Washington. NO EMPLOYMENT RELATIONSHIP BETWEEN WASHINGTON AND USTA Washington’s initial hurdle was to prove that he was an employee of the USTA, as Title VII applies only to employment relationships. Washington claimed that the USTA’s actions created an “implied” employment relationship between the parties. The court reviewed the common law of agency in considering the alleged “hiring party’s right to control the manner and means by which the product is accomplished.” Specifically, the court looked to such factors as whether the USTA has the right to assign projects to Washington, the extent of the Association’s right to control when and how Washington “worked”, Washington’s control over his working environment (such as the choice of equipment and coaches), and the method of payment of benefits and “wages.” The court found that Washington was not an employee of the USTA, based upon the fact that “he does not receive a salary or benefits from the USTA. He decides which events he wants to try to participate in. … He pays for his own equipment and chooses his own coach. The USTA does not supervise his training or set his hours. That he can receive prize money from USTA-sponsored competitions and a daily stipend during his participation in the U.S. Open does not” create an employment relationship. NO INFERENCE OF DISCRIMINATION Although the case’s dismissal was based upon the lack of the necessary employment relationship, the court went on to discuss briefly Washington’s substantive evidence that he had raised an “inference of discrimination.” As noted, two of the 13 discretionary wild card entries in 1998 went to black players. Washington failed to produce any evidence that this was a disproportionately low percentage of blacks. Furthermore, Washington’s “receipt of seven wild cards between 1993 and 2000 strongly negates any inference of racially discriminatory intent in the 1998 decision not to grant him a wild card.” In addition to granting summary judgment in favor of the U.S.T.A., the court denied Washington’s motion to amend the complaint to add a claim of race discrimination under � 1981, based upon a theory of “commercial nepotism.” That is, that the control by players’ marketing agents over the distribution of wild cards has a racially discriminatory impact on blacks. This motion was made after the U.S.T.A. had moved for summary judgment and, while leave to amend is to be freely granted, the motion to amend was denied based upon the substantial additional discovery which would be required to pursue this claim. NEW COMPLAINT FILED LAST WEEK Just last week, Washington filed a second complaint against the U.S.T.A. based upon the theory of “commercial nepotism,” alleging, according to New York’s Newsday, that tennis marketing agencies, which have mostly Caucasian clients, control the wild card distribution as they “create, own and run tennis tournaments in which their clients compete.” While this theory may be interesting, to the extent that the claim is based upon the 1998 denial, Washington’s claim will likely be subject to the three-year statute of limitations applied by New York federal courts to � 1981 claims. Sidney R. Steinberg is a shareholder in the business law and litigation department of Post & Schell, He concentrates his national litigation and consulting practice in the field of employment and employee relations law and may be reached at [email protected].

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