AP Rejects Claim that Pro Football Player was a Seasonal Worker
The Appeals Panel has reversed the decision of an ALJ that had found a pro football player to be a seasonal worker; the Appeals Panel rendered a decision that the claimant was not a seasonal worker, and adjusted his entitlement to benefits accordingly. The appeal is posted in Texas Division of Workers’ Compensation Appeals Panel Decision No. 180207, decided March 28, 2018.
Claimant sustained a knee injury while employed as a professional football player. He was employed under a contract effective from March 1, 2015, through February 29, 2016. He had previously been employed by under a four-year contract beginning March 1, 2011, and continuing through February 28 or 29, 2015. The claimant’s annual salary was paid in 17 weekly installments during the regular football season. The claimant received additional payments during the offseason for his attendance at team-sponsored “Mini Camps,” offseason workout programs, and training camp.
The ALJ determined that the claimant was required under his contract to play football during the regular football season but that he was not required to attend mini camps and offseason workout programs, which were voluntary. The ALJ wrote that the claimant “was free to devote his time to nonfootball related activities outside of training camp and the regular season.” Based on that reasoning, the ALJ permitted the carrier to adjust the AWW to $0.00 during the periods of time outside the 17-week regular football season.
The Appeals Panel reversed the decision of the ALJ:
Section 408.043(d) defines seasonal employee as “an employee who, as a regular course of the employee’s conduct, engages in seasonal or cyclical employment that does not continue throughout the entire year.” 28 TEX. ADMIN. CODE § 128.5(a) (Rule 128.5(a)) defines seasonal employee as “an employee who as a regular course of conduct engages in seasonal or cyclical employment which may or may not be agricultural in nature, that does not continue throughout the year.”
The claimant testified that, although mini camps and offseason organized training activities were technically voluntary programs, participation in such programs was vitally important in the competitive atmosphere of professional football. He further testified, and the documentary evidence supported, that his annual contract required, both during the football season and offseason, that he maintain himself in excellent physical condition subject to examination and/or testing at the discretion of the team; that he devote at least four hours of service on the (Web Site) during each month of the contract term; that he provide a minimum of eight charitable or public relations related events, such as speaking engagements and personal appearances, during the year; and that he provide autographed items and memorabilia for charitable or public relations use by the team. The claimant further testified, among other things, that he was not allowed to engage in dangerous activities such as skydiving; that he was not allowed to engage in football related activities not related to the team; that he was required to conduct himself on and off the field with recognition of the fact that the success of professional football depends on public respect; that he was required to cooperate with the news media; and even that he was prohibited from ingesting some legal substances contained in various foods.
We hold under the facts of this case that the claimant was required by his contract to further the business affairs of the employer throughout the term of the contract, which began on March 1, 2015, as well as the previous four-year contract, the term of which began on March 1, 2011. Although the claimant received payment of his annual salary in 17 weekly installments during the football season, the evidence fails to demonstrate a pattern of seasonal, cyclical employment that supports the ALJ’s findings in this regard. The decision of the ALJ that the claimant is a seasonal employee is contrary to the great weight and preponderance of the evidence and, for such reason, no adjustment to the claimant’s AWW should apply. We accordingly reverse the decision of the ALJ that the claimant is a seasonal employee and render a new decision that the claimant is not a seasonal employee. Because we have held that the claimant is not a seasonal employee, we reverse the decision of the ALJ that the claimant’s adjusted AWW is $0.00 from January 4 through April 19; $735.71 from April 20 through June 18; $0.00 from June 19 through July 26; $1,800.00 from July 27, 2015, through September 6; and $43,823.53 from September 7 through January 3 of the following year and render a new decision that because the claimant is not a seasonal employee, his AWW shall not be adjusted.
The Appeals Panel affirmed the remainder of the ALJ’s decision and order.
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