o
CO
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON fo
3:
5S
£»* rn'~'
COURTNEY ROBINSON, No. 69739-1-1 ~<
f\> ^n^S "-.
->J
Appellant, DIVISION ONE :&» D—,
—V— ' ',,—--.
•"•**
scr-
SP G->Lr>
v.
~-i'cr-
en
DEPARTMENT OF LABOR & PUBLISHED OPINION
INDUSTRIES OF THE STATE OF
WASHINGTON, and FOOTBALL
NORTHWEST, LLC,
Respondents. FILED: May 27, 2014
Schindler, J. — For purposes of the Industrial Insurance Act, Title 51 RCW (IIA),
an employment relationship exists only where (1) the employer has the right to control
the employee's physical conduct in the performance of his duties and (2) there is mutual
consent to an employment relationship. Because substantial evidence supports the
determination that Courtney Robinson was not an employee of the Seattle Seahawks
when he injured his knee during an off-season minicamp tryout as a free agent, we
conclude Robinson was not entitled to workers' compensation benefits under the IIA,
and affirm.
FACTS
Courtney Robinson attended the University of Massachusetts on a football
scholarship and played defensive back and kick returner. Robinson participated in the
No. 69739-1-1/2
2009 draft but was not selected by any of the 32 National Football League (NFL) teams.
In April 2009, the Philadelphia Eagles entered into negotiations with Robinson,
resulting in the execution of an NFL player contract. In August 2009, the Eagles
released Robinson from his contract. As a free agent, Robinson could enter into an
NFL contract with other teams. In October 2009, Robinson tried out as a free agent
with two other NFL teams, the Cincinnati Bengals and the Detroit Lions, but "was not
signed" by either team.
In February 2010, sports agent and attorney Lyle Masnikoff began representing
Robinson. In an effort to try and get Robinson "an opportunity" to sign an NFL contract,
Masnikoff contacted a number of NFL team general managers.
The Seattle Seahawks invited Robinson and 15 other free agents to attend a
three-day minicamp tryout from April 13 to 15. On April 7, Masnikoff sent an e-mail to
the Seahawks confirming the invitation to try out at the minicamp and describing
Robinson's accomplishments. The Seahawks made the travel arrangements for
Robinson to fly from Connecticut to Seattle to attend the minicamp.
Seattle Seahawks Vice President of Football Administration John Idzik testified
that the Seahawks held three minicamps in 2010. Idzik described a tryout as an
opportunity "to bring the player in, meet the player, talk to him, give him a physical
exam, ... run him through the paces and witness his movement firsthand." Idzik said
players invited to a tryout are not "required to show up[.] There's nothing mandatory.
It's purely voluntary on the part of the player." Idzik testified that prior to signing a
player to an NFL contract, the team can "ask them to go through a tryout, through drills.
No. 69739-1-1/3
But ifthe player does not desire to do any of that, he does not have to. We can't
mandate it. The only players that we can govern, with mandatory rules and discipline,
would be players under contract."
Idzik testified that the NFL rules prohibit the use of pads and contact drills during
a minicamp, and the NFL monitors the "tempo" of the minicamps, "such that player
safety is always kept in mind." Idzik said drills during a minicamp are "significantly
different" than a training camp practice or a game. Idzik testified, in pertinent part:
So the type of drills that we're able to do in mini-camp versus
the type of drills that you're able to do in a full-pads practice during
training camp or the type of activities a player goes through on
game day in live competition are significantly different.
Q Okay. And this April 2010 was a mini-camp versus a training
camp?
A It was a mini-camp, yes.
Q Okay. That means nobody was wearing pads?
A We were allowed to wear helmets.
But we were not allowed to wear shoulder pads or any of the
customary pads that you see on game day.
By - by [collective bargaining agreement] rules, they're
allowed to wear elbow pads and knee pads and helmets. But they
are not allowed to wear anything else. And we're not allowed to
have live contact.
Robinson arrived in Seattle on April 12. The Seahawks arranged transportation
to the hotel and gave Robinson an itinerary for the three-day minicamp. The itinerary
included orientation, meetings, workouts, drills, and meals at the Seahawks practice
facility in Renton. NFL rules prohibit teams from compensating tryout players but permit
payment of travel and hotel expenses and meals. By contrast, Seahawks players under
contract who participate in a minicamp are entitled to a per diem. Idzik testified that the
Seahawks players who attended the minicamp received a pro rata portion of either $825
per week if they were a "rookie" or $1,000 per week if they were a veteran player.
No. 69739-1-1/4
Idzik said that at the beginning of orientation for a minicamp tryout, the
Seahawks go over the "Free Agent Tryout Waiver and Release of Liability" with the free
agent players. The Free Agent Tryout Waiver and Release of Liability states that the
free agent is "not an employee of the Seattle Seahawks," and the player agrees to
release the Seahawks, its employees, as well as the NFL from any liability for injury.
Idzik testified, in pertinent part:
Well, the first thing we do, with all of our tryouts coming to the Seahawks,
is make them understand that we - we have them sign a waiver of liability
so they understand they're not an employee of the Seahawks, that we're
granting them a tryout, that during the tryout they're in essence waiving
liability of the Seahawks if anything were to happen to them during the
tryout.
And - you know, and we explain that verbally, too. So we - we give
them the form and then run through - run through, you know, the -
basically the - what the form says.
And - and then at that point, if they're willing to go on, which most
all of them are, we conduct the interviews, and we conduct the physical
examinations and - and eventually the tryout.
Robinson signed the Free Agent Tryout Waiver and Release of Liability on April
12.1 Later that afternoon, a Seahawks team doctor examined Robinson. After passing
the physical examination, Robinson attended a meeting at the practice facility with other
1The Free Agent Tryout Waiver and Release of Liability states, in pertinent part:
Whereas, Courtney Robinson, (herein known as "Player") who is not an employee of the
Seattle Seahawks (herein known as "Club"), has a desire to participate in various .
exercises and workouts at the Seattle Seahawks' training facility, including but not limited
to participation in workout and/or mini-camp sessions from 4/13/10 through 4/15/10 and;
Whereas Player fully understands the risks involved in that it is possible to sustain
serious injury during the course of said exercises and workouts, and;
Now, therefore, in consideration of the opportunity to participate in the aforementioned
exercises and workouts, Player fully covenants not to sue and forever discharges the
Seattle Seahawks, its officers, coaches, scouts, athletic trainers, physicians, players, and
employees as well as the National Football League (herein known as "Releasees") from
any and all liability to the Player, his personal representative assigns, heirs, and next of
kin from any and all loss or damage, or claim or demands therefore on account of injury
to the person or property or resulting in the death of the Player, whether caused by
negligence of Releasees or otherwise.
No. 69739-1-1/5
free agents, players under contract, and the coaches. Afterwards, Robinson met with
Seahawks defensive coordinator Paul Bradley.
The next day, Robinson returned to the Seahawks facility for breakfast followed
by a meeting with other free agents, players under contract, and the coaches.
The coaches conducted on-field drills after lunch. Seahawks Head Coach Pete
Carroll lined up the defensive back players. Robinson testified that after signaling to
him "to go," Coach Carroll threw him the ball. Robinson testified that while he "was
back peddling, my foot got caught in the ground, or whatnot, but as I dove for the ball I
was injured, you know, on that current play." Robinson said he "knew something was
wrong because the knee started . .. swelling up." The team trainer examined Robinson
and told him "it wasn't a torn ACL [(anterior cruciate ligament)], but torn meniscus."
Robinson got ice for his knee and went to a meeting for defensive backs, followed by
dinner at the training facility. During dinner, a Seahawks employee told Robinson he
was booked on a return flight home that night.
On June 7, Robinson filed an application for benefits with the State of
Washington Department of Labor and Industries (Department). Robinson asserted that
on April 13 he sustained an industrial injury during the course of employment with the
Seahawks. The Department denied the claim. Robinson filed an appeal with the State
of Washington Board of Industrial Insurance Appeals (BIIA).
Robinson, his sport agent Masnikoff, and Seahawks defensive coordinator
Bradley testified during the two-day hearing before the Board of Industrial Insurance
Appeals judge (IAJ). The IAJ also admitted into evidence the deposition testimony of
Seahawks Vice President of Football Administration John Idzik, the Free Agent Tryout
No. 69739-1-1/6
Waiver and Release of Liability Robinson signed, and a standard NFL player contract.
The parties stipulated that the Seahawks paid Robinson's travel expenses in the
amount of $1,124.80 for airfare, and hotel expenses for two nights at the Sheraton Hotel
in the amount of $180.76.
Robinson testified that the invitation to attend the Seahawks minicamp was an
opportunity to "show [his] skills to the Seahawks" and "reestablish" himself. Robinson
said that he was "hoping to sign [a] contract at the end of the mini camp." Robinson
testified that playing as a defensive back and kick returner "is very problematic to
injuries."
Sports agent Masnikoff testified that Robinson was a free agent when he
attended the minicamp, that NFL player contracts must be in writing, and that Robinson
did not have a written contract with the Seahawks. Masnikoff admitted that free agent
players invited to a minicamp tryout are not "guaranteed a position with the team," and
the percentage of players offered a contract is well below 50 percent.
Seahawks defensive coordinator Paul Bradley testified that he did not have the
authority to sign free agent players to the team. Bradley said that he makes a point of
telling free agent tryout players that there are "no guarantees but. . . you have a chance
to come in and compete .... You have a chance to show your skills and talents, and
what you have." Bradley testified that the Seahawks did not have a special or "out of
the ordinary" need for a defensive back in 2010.
Idzik testified that his responsibilities included drafting contracts and signing
players. Idzik said that when the Seahawks invite a free agent player to a tryout, the
No. 69739-1-1/7
free agent and his representation are informed that there is no guarantee the player will
be offered a contract at the end of the tryout:
We bring - and also I should say that it's - it's discussed with their
representation, when you're setting up the tryout, so that they know - the
player knows that we're bringing him in to acquaint ourselves with him, to
try him out; and at the end, we'll make our evaluation. And at that time,
we'll decide whether or not to offer a contract.
Idzik said that when the team extends an offer, it must to use the standard written
"National Football League Player Contract." Idzik testified there are "literally thousands"
of highly qualified players in the pool of noncontract players the Seahawks are able to
recruit and sign. Idzik said that in 2010, the Seahawks had approximately 100 "tryouts
and visits."2 Of the 69 "tryout" players the team was required to report to the NFL, the
Seahawks signed 13 players "immediately after the tryout" and 9 others "at some
subsequent date." Idzik testified that of the 16 free agents who attended the minicamp
tryout in April 2010, the Seahawks signed an NFL player contract with 5 players but only
2 of the 5 players made the final team roster. Under NFL rules, the Seahawks can have
a maximum of 80 contract players during the offseason but only 53 contract players on
the roster for the regular season.
The IAJ issued a proposed decision and order. The IAJ concluded that because
Robinson was not an employee of the Seahawks when he was injured during the
minicamp tryout, he was not entitled to benefits under the IIA.
The IAJ found Robinson's participation in the minicamp tryout was voluntary,
Robinson "did not receive any value from his attendance at the mini-camp," and the
Seahawks did not pay Robinson "any form of wage or other compensation." The IAJ
2 Idzik explained that "[a] visit would be bringing someone in. You may conduct a physical exam,
an interview, and not do any on-field work."
No. 69739-1-1/8
also found that "the mini-camp was not merely a training he had to undergo to be
qualified for the position." Rather, Robinson, like "everyone else at the mini-camp,...
hoped he would be selected by the Seahawks." The proposed decision and order
states, in pertinent part:
There is no question that the Seahawks dictate the schedule to be
followed for the mini-camp; however, Mr. Robinson's participation was
completely voluntary and did not provide any benefit to the team. Mr.
Robinson was not paid any form of wage or other compensation. Further,
just as with everyone else at the mini-camp, Mr. Robinson hoped he would
be selected by the Seahawks. However, the mini-camp was not merely a
training he had to undergo to be qualified for the position. Finally, Mr.
Robinson did not receive any value from his attendance at the mini-camp.
He did not learn any new skill that could be transferred to another team, or
benefit him independent of the Seahawks.
The BIIA denied Robinson's petition for review and adopted the proposed decision and
order as its final order.
Robinson filed an appeal of the BIIA final order in superior court. The superior
court concluded Robinson was not an employee for purposes of the IIA when he was
injured during the minicamp tryout. The superior court entered extensive "Findings of
Fact and Conclusions of Law" affirming the decision of the BIIA.
ANALYSIS
Robinson contends the court erred in concluding he was not an employee of the
Seattle Seahawks for purposes of the IIA when he was injured during the minicamp
tryout.
Standard of Review
The superior court acts in an appellate capacity in an appeal from the BIIA
decision and reviews the decision de novo. Ruse v. Dep't of Labor & Indus., 138 Wn.2d
8
No. 69739-1-1/9
1, 5-6, 977 P.2d 570 (1999). The BIIA decision is prima facie correct, and the burden of
proof is on the party attacking the decision. RCW 51.52.115;3 Ruse, 138 Wn.2d at 5.
Our review of the superior court's decision is governed by RCW 51.52.140.
RCW 51.52.140 states that an "[ajppeal shall lie from the judgment of the superior court
as in other civil cases." Accordingly, the statutory scheme results in a different role for
this court than is typical for appeals from administrative decisions. Rogers v. Dep't of
Labor & Indus.. 151 Wn. App. 174, 180, 210 P.3d 355 (2009). We review only
" 'whether substantial evidence supports the trial court's factual findings and then
review, de novo, whether the trial court's conclusions of law flow from the findings.'"
Rogers. 151 Wn. App. at 180 (quoting Watson v. Dep't of Labor & Indus.. 133 Wn. App.
903, 909, 138 P.3d 177 (2006) (citing Ruse, 138 Wn.2d at 5)). We must review the
record in the light most favorable to the party who prevailed in superior court. Harrison
Mem'l Hosp. v. Gaqnon, 110 Wn. App. 475, 485, 40 P.3d 1221 (2002). We do not
weigh or balance the competing testimony and inferences, or apply anew the burden of
persuasion. Gagnon, 110 Wn. App. at 485. Substantial evidence is evidence sufficient
to persuade a fair-minded, rational person of the truth of the matter asserted. Ferencak
v. Dep't of Labor & Indus.. 142 Wn. App. 713, 719-20, 175 P.3d 1109 (2008).
3 RCW 51.52.115 states, in pertinent part:
The hearing in the superior court shall be de novo, but the court shall not receive
evidence or testimony other than, or in addition to, that offered before the board or
included in the record filed by the board in the superior court as provided in RCW
51.52.110. . . . In all court proceedings under or pursuant to this title the findings and
decision of the board shall be prima facie correct and the burden of proof shall be upon
the party attacking the same. Ifthe court shall determine that the board has acted within
its power and has correctly construed the law and found the facts, the decision of the
board shall be confirmed.
No. 69739-1-1/10
Employment Relationship under the IIA
The right to workers' compensation is statutory. Ochoa v. Dep't of Labor &
Indus.. 143 Wn.2d 422, 425, 20 P.3d 939 (2001). The IIA was designed to provide
"sure and certain relief to injured workers while limiting employer liability for industrial
injuries. RCW 51.04.010; Dennis v. Dep't of Labor & Indus., 109 Wn.2d 467, 469-70,
745 P.2d 1295 (1987). When first enacted, the IIA provided relief only to workers
injured while preforming "extra hazardous work." Laws of 1911, ch. 74, §§ 1-2. In
1971, the legislature amended the IIA to cover "all employments ... within the
legislative jurisdiction of the state." Laws of 1971, 1st Ex. Sess., ch. 289, § 1.
A workers' compensation claimant bears the burden of establishing eligibility for
benefits. Ehman v. Dep't of Labor & Indus., 33 Wn.2d 584, 595, 206 P.2d 787 (1949);
Jenkins v. Dep't of Labor & Indus.. 85 Wn. App. 7, 14, 931 P.2d 907 (1996). In order to
receive workers' compensation benefits pursuant to the IIA, the claimant must prove he
is a "worker injured in the course of his or her employment." RCW 51.32.010; Acklev-
Bell v. Seattle Sch. Dist. No. 1. 87 Wn. App. 158, 165, 940 P.2d 685 (1997). "Worker" is
defined as "every person in this state who is engaged in the employment of an employer
under this title, whether by way of manual labor or otherwise in the course of his or her
employment." RCW 51.08.180; Acklev-Bell. 87 Wn. App. at 165. Under RCW
51.08.013(1), an individual is "acting in the course of employment" when their actions
are at the employer's direction or in the furtherance of the employer's business.
Therefore, a workers' compensation claimant must prove the existence of an
employment relationship in order to establish the claimant is entitled to benefits.
10
No. 69739-1-1/11
Although we liberally construe the IIA "in favor of persons who come within the
act's terms," the IIA liberal construction "does not apply to defining who those persons
might be." Berry v. Dep't of Labor & Indus.. 45 Wn. App. 883, 884, 729 P.2d 63 (1986).
Instead, persons who claim rights under the IIA are held "to strict proof of their right to
receive the benefits provided by the act." Olvmpia Brewing Co. v. Dep't of Labor &
Indus.. 34 Wn.2d 498, 505, 208 P.2d 1181 (1949), overruled on other grounds by
Windust v. Dep't of Labor & Indus., 52 Wn.2d 33, 323 P.2d 241 (1958).
In Clausen v. Department of Labor & Industries. 15 Wn.2d 62, 69, 129 P.2d 777
(1942), the Washington Supreme Court held common law rules apply to determine
whether an employment relationship exists, but "[i]t is impossible to lay down a rule by
which the status of a person performing a service for another can be definitely fixed as
an employee. Ordinarily no single feature of the relation is determinative, but all must
be considered together." Clausen. 15 Wn.2d at 69 (citing 1 W. Schneider, Workmen's
Compensation Text § 220, at 575 (Perm. Ed. 1941)). Nonetheless, the court identified
factors to consider, such as "the right of control and discharge, payment of wages, and
the contractual relationship, whether express or implied." Clausen. 15 Wn.2d at 69
(citing 1 Schneider, Workmen's Compensation Text, at 575).
In Novenson v. Spokane Culvert & Fabricating Co.. 91 Wn.2d 550, 588 P.2d
1174 (1979), the Washington State Supreme Court adopted a two-prong test for
determining whether an employee-employer relationship exists for purposes of the IIA.
The court held that "[f]or purposes of workmen's compensation, an employment
relationship exists only when: (1) the employer has the right to control the servant's
physical conduct in the performance of his duties, and (2) there is consent by the
11
No. 69739-1-1/12
employee to this relationship." Novenson. 91 Wn.2d at 553. The court clarified that
unlike the common law, "[t]he right of control is not the single determinative factor."
Novenson, 91 Wn.2d at 553. Rather, a "mutual agreement must exist between the
employee and employer to establish an employee-employer relationship." Novenson,
91 Wn.2d at 553. Whether the two-prong test of Novenson is proved is a question of
fact. Smick v. Burnup & Sims. 35 Wn. App. 276, 279, 666 P.2d 926 (1983).
Robinson concedes he did not have an express contractual agreement with the
Seahawks. Robinson claims the high degree of control the Seahawks exercised over
him during the minicamp tryout and payment of his travel expenses, hotel expenses,
and meals establishes an implied employment agreement. Robinson asserts the facts
are strikingly similar to the facts in BIIA significant decision In re Kimberly J. Bemis, No.
90 5522, 1992 WL 160668, at *1 (Wash. Bd. of Indus. Ins. Appeals May 1, 1992). We
disagree.4
In Bemis. the BIIA considered whether the claimant Kimberly J. Bemis was an
employee of Alaska Airlines and, if so, whether she suffered an industrial injury during
the course of employment. Bemis. 1992 WL 160668, at *1.
Bemis was injured during a five-week flight attendant training program conducted
by Alaska Airlines. Bemis. 1992 WL 160668, at *2. Federal regulations require flight
attendants on commercial flights to be Federal Aviation Administration (FAA) certified.
Bemis, 1992 WL 160668, at *7. Alaska Airlines designed the five-week training
program to satisfy the requirements of the FAA for certification of flight attendants and
4 While decisions of the BIIA are not binding on this court, we accord substantial weight to the
Department's interpretation of regulations within its area of expertise. Postema v. Pollution Control
Hearings Bd.. 142 Wn.2d 68, 77, 11 P.3d 726 (2000).
12
No. 69739-1-1/13
to meet specific company needs. Bemis. 1992 WL 160668, at *8. Alaska Airlines
assumed the cost of the training. In addition, each participant received an $8 per diem.
Bemis. 1992 WL 160668, at *2.
Attendance during the 8-hour-a-day training program was mandatory and
"[a]bsence from any portion of the training disqualified a trainee from completing the
course." Bemis. 1992 WL 160668, at *5, *2. Alaska Airlines had the right to discharge
trainees and preclude future employment with Alaska Airlines. Bemis. 1992 WL
160668, at *5. But successful completion of the training program guaranteed future
employment with Alaska Airlines. Bemis. 1992 WL 160668, at *5.
The BIIA concluded that the guarantee of a job "upon successful completion of
the training course" and "the control the airline exercised over the trainees' attendance
at the training program, the right to discharge them from the course at any time, and the
consideration paid to the trainees in the form of per diem and free training," created "an
implied contract of employment at the onset of training." Bemis. No. 1992 WL 160668,
at*6.
Unlike in Bemis. the findings do not support the existence of an implied contract
of employment between Robinson and the Seahawks. First, substantial evidence
supports the findings that show the Seahawks did not have the "right to control"
Robinson's "physical conduct in the performance of his duties." Novenson. 91 Wn.2d at
553. The superior court's Findings of Fact state, in pertinent part:
5. The purpose of the mini-camp was for the Seahawks to see Mr.
Robinson and fifteen others perform before proceeding with any offer
of employment; the mini-camp also gave Mr. Robinson and others an
opportunity to meet Seahawks personnel and view Seahawks
procedures before considering whether they wished to be employed
with the Seahawks.
13
No. 69739-1-1/14
7. Mr. Robinson accepted the invitation to the Seahawks mini-camp with
the understanding and knowledge that his participation was voluntary
and he could have gone home anytime, as he did not have a contract
with the Seahawks.
The record makes clear that participation in the minicamp was voluntary and the
on-field drills at the minicamp were "significantly different" from preseason training or a
game. Unlike in Bemis. the Seahawks did not control Robinson's conduct during the
minicamp tryout, and Robinson did not attend the minicamp tryout to learn new skills.
Attendance at the three-day minicamp was solely for the purpose of giving Robinson
and the other free agents the opportunity to try out. As Robinson acknowledged, the
minicamp was an opportunity for him to "show [his] skills" and "reestablish" himself in
the hopes that the Seahawks would offer him a contract. Robinson also admits he did
not "come to Seattle to learn how to play football." Further, the record also establishes
successful completion of the minicamp tryout did not guarantee employment with the
Seahawks.
While the Seahawks provided Robinson with an itinerary to follow during the
minicamp, substantial evidence shows the Seahawks did not have the authority to
discharge or discipline Robinson for either not following the itinerary or not participating
in the scheduled activities. By contrast, Seahawks players under contract are subject to
"mandatory rules and discipline."5
5 For the first time in his reply brief, Robinson cites Bolin v. Kitsap County, 114 Wn.2d 70, 785
P.2d 805 (1990), to argue the Seahawks' rightto control establishes an employment relationship. Bolin is
distinguishable. In Bolin. because a juror's "entire service was involuntary," the court held that the
Novenson two-prong test did not apply. Bolin, 114 Wn.2d at 73-77.
14
No. 69739-1-1/15
Second, substantial evidence supports the determination that there was no
mutual agreement to an employment relationship between Robinson and the
Seahawks, and no objective evidence supports the reasonable belief that Robinson was
an employee. Although an employee's subjective belief as to the existence of an
employer-employee relationship is material, "[a] worker's bare assertion of belief that he
or she worked for this or that employer does not establish an employment relationship."
Rideau v. Cort Furniture Rental. 110 Wn. App 301, 307, 39 P.3d 1006 (2002); Jackson
v. Harvey. 72 Wn. App. 507, 519, 864 P.2d 975 (1994). The court must determine
whether the claimant's belief is objectively reasonable. Jackson, 72 Wn. App. at 519.
The court's Findings of Fact state, in pertinent part:
8. Mr. Robinson tried out for at least two other teams before the
Seahawks mini-camp but had not been offered employment.
9. On April 30, 2009, a year before the Seahawks mini-camp, Mr.
Robinson had tried out for the Philadelphia Eagles, an offer of
employment had been made, the parties had negotiated the
particulars of employment and ultimately the parties had executed a
standard National Football League player contract form which created
an employment relationship and contained the particulars thereof.
10. Prior to attendance at the Seahawks mini-camp in April, 2010, Mr.
Robinson knew that attendance at such mini-camp did not create an
employment relationship between prospective players such as himself
and National Football League teams.
11. Prior to attendance at the Seahawks mini-camp in April, 2010, Mr.
Robinson knew that the National Football League and the Seahawks
had well established and formalized employment procedures in place,
and that pursuant to such procedures, an employment relationship
was not created between prospective players and teams until an offer
of employment was made, complete employment particulars were
negotiated and agreed, and both the prospective player and the team
had executed a standard National Football League player contract
form creating an employment relationship and containing the
particulars thereof.
21. Of the sixteen persons (including Mr. Robinson) who attended the
Seahawks mini-camp in April, 2010, five were approached with
employment offers from the Seahawks which led to execution of a
15
No. 69739-1-1/16
standard National Football League player contract and creation of
employment relationships between the Seahawks and those players;
Mr. Robinson was not one of those five players.
The Seahawks expressly informed Robinson and his agent that attendance at
the minicamp did not guarantee a place on the team or create an employment
relationship. At orientation, the Seahawks reiterated that attending the minicamp tryout
did not mean Robinson was "an employee of the Seahawks." Further, substantial
evidence shows that the successful completion of a minicamp tryout did not guarantee
future employment with the Seahawks. Of the 16 tryout players at the minicamp
Robinson attended, only 5 were offered contracts, and only 2 eventually made the final
53-man roster.
Substantial evidence supports the finding that Robinson knew an employment
relationship with an NFL team did not exist unless the team made an offer and the
parties executed a standard NFL player contract form. There is no dispute Robinson
signed a contract with the Philadelphia Eagles NFL team in 2009 before becoming a
free agent, and he previously attended a tryout with two other NFL teams that did not
offer him a contract.
Robinson also argues that payment for transportation, lodging, and meals
constitutes "wages" under RCW 51.08.178. Cockle v. Department of Labor &
Industries. 142 Wn.2d 801, 16 P.3d 583 (2001), does not support his argument. Cockle
addresses whether the value of employer-provided health care coverage should be
included in the calculation of compensation payments under RCW 51.08.178. Cockle.
142Wn.2dat805.
16
No. 69739-1-1/17
RCW 51.08.178(1)(g) states that" 'wages' shall include the reasonable value of
board, housing, fuel, or other consideration of like nature received from the employer as
part of the contract of hire." Because RCW 51.08.178 wage calculation applies to
workers covered by the IIA, the statute is "not applicable to the facts in this case."6
Here, unlike in Bemis where the claimant received the value of a training course
in addition to a per diem, the Seahawks did not pay Robinson wages or a per diem, and
Robinson concedes he "did not gain any benefit or value by ... participating in the
tryout during the mini-camp." Substantial evidence supports the conclusion that the
statute defining "wages," RCW 51.08.178, "is not applicable to the facts of this case."7
Relying heavily on the decision in Bemis, Robinson asserts that in determining
whether an employment relationship exists, we should consider the exposure to risk and
whether the activity provides a benefit to the employer. Bemis does not support his
argument.
The BIIA in Bemis did not rely on exposure to risk or benefit to the employer to
determine whether there was an employment relationship. In Bemis. the BIIA
considered two separate issues. First, whether the claimant was an employee and
second, whether the claimant suffered an industrial injury during the course of
employment. Bemis. 1992 WL 160668, at *1. After concluding Bemis established an
implied contract of employment with Alaska Airlines based on the guarantee of
employment, the high degree of control, including the right to discharge, and the
6 Further, reimbursement for incidental expenses like travel and food is not sufficient to transform
that individual into an employee for purposes of the IIA. See Doty v. Town of S. Prairie, 155 Wn.2d 527,
542-45, 120 P.3d 941 (2005) (holding the stipend paid to volunteer firefighters constituted reimbursement
for expenses incurred in performing assigned duties and did not render a volunteer an employee under
the IIA).
7 Finding of Fact 16 states, "The Seahawks did not pay Mr. Robinson wages or per diem, but they
paid for his air-fare, transportation, lodging and provided him food while at the tryout during the mini
camp." Conclusions of Law 5 states, "RCW51.08.178 is not applicable to the facts in this case."
17
No. 69739-1-1/18
payment of a per diem, the BIIA then addressed whether Bemis met her burden of
proving the injury occurred "in the course of her employment." Bemis. 1992 WL
160668, at *5-6. The BIIA cites the undisputed evidence that Bemis "undertook flight
attendant training at the direction of Alaska Airlines" to conclude the injury occurred
during the course of employment. Bemis. 1992 WL 160668, at *6. As further support
for the conclusion that the injury occurred in the course of employment, the BIIA cites
two out-of-state cases addressing "the question of workers injured during 'tryout'
periods," Smith v. Venezian Lamp Co.. 168 N.Y.S.2d 764 (N.Y. App. Div. 1957), and
Laeng v. Workmen's Compensation Appeals Board. 494 P.2d 1 (Cal. 1972), noting that
those cases consider the risks to which the applicant was exposed and the benefit to
the employer to determine whether an "injury to a worker who is being trained but has
not yet begun performing the full duties of the intended job" is covered. Bemis. 1992
WL 160668, at *6-7.8
Alternatively, Robinson urges us to adopt an exception to the requirement in
Novenson that the claimant must establish a mutual agreement to an employment
relationship for a minicamp tryout. We cannot ignore the well-established and binding
8 In Smith, the claimant applied for a job as a lamp polisher. Neither wages nor hours were
discussed but a manager said that "he would try him out." Smith, 168 N.Y.S.2d at 765-66. The claimant
was injured while polishing a lamp. After the accident, the employer admitted "that itwas the employer,
that claimant was employed as a polisher, and that claimant was being given a trial to test experience to
establish base pay." Smith, 168 N.Y.S.2d at 765-66. The court held that where the undisputed facts
show "a tryout involves an operation that would be ordinarily viewed as hazardous," under New York law,
an employment relationship exists. Smith, 168 N.Y.S.2d at 766.
In Laenq, the claimant was injured during a physical agility test that was part of a tryout for the
position of refuse crew workerwith the city. Laenq, 494 P.2d at 2. Under California law, "employee" is
defined as" 'every person in the service of an employer under any appointment or contract of hire or
apprenticeship, express or implied, oral or written.'" Laenq, 494 P.2d at 4 (quoting Cal. Labor Code, §
3351). " 'Any person rendering service for another, other than as an independent contractor, or unless
expressly excluded herein, is presumed to be an employee.'" Laenq, 494 P.2d at 4 (quoting Cal. Labor
Code, § 3357). The courtconcluded that the claimant was entitled to workers' compensation because his
injury was incurred in the performance of a "potentially hazardous" task in the service of, and for the
benefit of, the employer. Laenq, 494 P.2d at 9.
18
No. 69739-1-1/19
Washington Supreme Court precedent that requires a claimant to establish mutual
consent to an employment relationship for purposes of the IIA. 1000 Virginia Ltd. P'ship
v. Vertecs Corp.. 158 Wn.2d 566, 578, 146 P.3d 423 (2006).
Because substantial evidence supports the superior court findings and those
findings support the conclusion that Robinson was not an employee of the Seahawks
for purposes of the IIA, we affirm denial of workers' compensation benefits.
%(hAM^
WE CONCUR:
Cc^J
19