[Cite as Greco v. Cleveland Browns Football Co., L.L.C., 2020-Ohio-4745.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOHN GRECO, ET AL., :
Plaintiffs-Appellees, :
No. 108991
v. :
CLEVELAND BROWNS FOOTBALL :
COMPANY, L.L.C.,
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: October 1, 2020
Civil Appeal from the Cuyahoga County Court of Common Pleas
Case Nos. CV-18-897089, CV-18-897091, CV-18-897092,
CV-18-897093, CV-18-897094, and CV-18-897096
Appearances:
Garson Johnson L.L.C., Stuart I. Garson, Jeffrey D.
Johnson, and Grace A. Szubski; Kedir Law Offices L.L.C.,
and Shaun H. Kedir, for appellee.
Fisher & Phillips, L.L.P., Daniel P. O’Brien, Scott W.
Gedeon, and Jerry P. Cline, for appellant.
ANITA LASTER MAYS, P.J.:
Defendant-appellant Cleveland Browns Football Company, LLC (the
“Browns”) appeal the trial court’s decision denying summary judgment in its favor
and granting summary judgment in favor of the plaintiffs-appellees, John Greco,
Joel Bitonio, and Scott Solomon, former Browns players (the “players”). We affirm
the trial court’s decision.
I. Facts and Procedural History
The players were injured while playing football for the Browns. The
players were treated by two medical doctors, Drs. James Voos (“Dr. Voos”) and
Michael Salata (“Dr. Salata”) (collectively, the “doctors”), who were employed
through University Hospitals, but hired by the Browns to provide treatment to the
players. Under an agreement between the Browns and University Hospitals,
Dr. Voos and Dr. Salata agreed to provide medical services to all Browns’ employees
and act as their in-house physicians. University Hospitals agreed to pay the doctors’
salaries in exchange for the right to use the Browns’ trademark name for marketing
and promotional purposes.
As a result of their injuries, the players filed six workers’
compensation claims with the Ohio Bureau of Workers’ Compensation (“BWC”)
under R.C. 4123.512. The Browns rejected all six of the claims, stating that the
players’ claims were time-barred under R.C. 4123.84(A)(3) because they were filed
after the two-year statute of limitations. In a hearing held on February 6, 2018, the
Industrial Commission of Ohio (“ICO”) allowed all six claims. The ICO is an agency
within the BWC that steps in when BWC claims are disputed. The Browns argued
that the tolling exception under R.C. 4123.84(A)(3) does not apply in this matter
because the doctors were not employed by the Browns, and were instead,
independent contractors. The staff hearing officers (“SHOs”) of the ICO found that
the players timely filed their self-insured claims. The SHOs also addressed the
meaning of “employ” under R.C. 4123.84, and found the term ambiguous and
subject to more than one legal interpretation. As a result, the SHOs interpreted the
term “employ” in favor of the injured players, as required under R.C. 4123.95. As a
result of the ICO’s decision, the Browns appealed the decision to the Cuyahoga
County Common Pleas Court, arguing that the players’ claims were not timely filed
under R.C. 4123.84(A).
In May 2019, both parties filed motions for summary judgment. The
Browns contend that the tolling statute did not apply, and that the players’ workers’
compensation claims were time-barred because the doctors are independent
contractors and therefore, not in the employ of the Browns. The players contend
that the tolling statute did apply, and that their claims were timely. Both parties
agreed that the players received treatment from the doctors within two years of
injury, and that the injuries occurred during the course and scope of the players’
employment with the Browns. The issue between the two parties is whether the
tolling provisions of R.C. 4123.84(A)(3) apply to the players’ self-insured claims.
In August 2019, the trial court granted summary judgment in favor of
the players and against the Browns. After a nunc pro tunc entry, correcting the
original journal entry,1 the trial court issued its ruling, stating, in part,
1The trial court incorrectly stated in its original journal entry that summary
judgment was granted in favor of the defendants, the Browns. The trial court issued a nunc
[t]he court having considered all the evidence and having construed
the evidence most strongly in favor of the non-moving party,
determines that reasonable minds can come to but one conclusion,
that there are no genuine issues of material fact, and that plaintiff-
appellees are entitled to judgment as a matter of law as this court finds
that the tolling provisions of R.C. 4123.84(A)(3) apply to the plaintiff-
appellees’ self-insured claims. Summary judgment is therefore
entered in favor of plaintiff-appellees and against defendant-
appellant.
Journal entry No. 11025307 (Sept. 6, 2019).
On September 19, 2019, the trial court granted a joint motion to
consolidate all six of the cases. After the trial court’s decision, the Browns filed this
timely appeal assigning one error for our review:
I. The trial court erred in denying defendant-appellant’s motion
for summary judgment and granting plaintiff-appellee’s motion
for summary judgment.
II. Summary Judgment
A. Standard of Review
We review an appeal from summary judgment under a de novo
standard of review. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d
241 (1996); Zemcik v. LaPine Truck Sales & Equip. Co., 124 Ohio App.3d 581, 585,
706 N.E.2d 860 (8th Dist.1998).
“We apply the same standard as the trial court, viewing the facts in
the case in a light most favorable to the nonmoving party and resolving any doubt
in favor of the nonmoving party.” Thompson v. Lyndhurst, 8th Dist. Cuyahoga
pro tunc, correcting the journal entry, stating that summary judgment was granted in favor
of the plaintiffs.
No. 107695, 2019-Ohio-3277, ¶ 19, citing Viock v. Stowe-Woodward Co., 13 Ohio
App.3d 7, 12, 467 N.E.2d 1378 (6th Dist.1983).
Summary judgment shall not be rendered unless the moving party
demonstrates that (1) no genuine issue of material fact exists, (2) the moving party
is entitled to judgment as a matter of law, and (3) reasonable minds can come to but
one conclusion and that conclusion is adverse to the party against whom the motion
for summary judgment is made, with the nonmoving party being entitled to have the
evidence construed most strongly in its favor. Civ.R. 56(C); State ex rel. Grady v.
State Emp. Relations Bd., 78 Ohio St.3d 181, 183, 677 N.E.2d 343 (1997).
The party moving for summary judgment bears the burden of demonstrating that
no material issues of fact exist for trial. Dresher v. Burt, 75 Ohio St.3d
280, 292-293, 662 N.E.2d 264 (1996). The moving party has the
initial responsibility of informing the trial court of the basis for the
motion and identifying those portions of the record that demonstrate
the absence of a genuine issue of material fact on the essential
elements of the nonmoving party’s claims. Id. After the moving party
has satisfied this initial burden, the nonmoving party has a reciprocal
duty to set forth specific facts by the means listed in Civ.R. 56(C)
showing that there is a genuine issue of material fact. Id.
B. Law and Analysis
The Browns identified four issues they want this court to address:
(1) The term “in the employ of an employer[,]” as set forth in
R.C. 4123.84(A)(3)(a) means a traditional, common-law
employer-employees relationship and does not mean an
independent contractor relationship;
(2) The NFL Collective Bargaining Agreement does not create an
employer-employee relationship between the clubs and the
team physicians;
(3) The independent contractor agreements at issue herein do not
establish an employer-employee relationship between
Dr. Voos, Dr. Salata, and the Browns, and;
(4) There is no Civil Rule 56 evidence that the Browns made a
payment to, or on behalf of, players for a hospital bill, a medical
bill, to a licensed physician or hospital, or an orthopedic or
prosthetic device pursuant to R.C. 4123.84(A)(3)(a),
4123.84(A)(3) and 4123.84(F).
We will answer these four issues jointly.
The Browns argue that because the team physicians2 were considered
independent contractors, they were not in the employ of the Browns, as defined in
R.C. 4123.84(A)(3)(a), which states,
[i]n all cases of injury or death, claims for compensation or benefits
for the specific part or parts of the body injured shall be forever barred
unless, within one year after the injury or death:
(3) In the event the employer is a self-insuring employer, one
of the following has occurred:
(a) Written or facsimile notice of the specific part or parts
of the body claimed to have been injured has been given to
the commission or bureau or the employer has furnished
treatment by a licensed physician in the employ of an
employer, provided, however, that the furnishing of such
treatment shall not constitute a recognition of a claim as
compensable, but shall do no more than satisfy the
requirements of this section.
The Browns further argue that the phrase “employ of an employer”
does not apply to independent contractors. The Browns cite Walters v. Americab,
118 Ohio App.3d 180, 692 N.E.2d 234 (8th Dist.1997), and Bostic v. Connor, 37 Ohio
2 “The doctors,” “team physicians,” or “physicians” are used interchangeably herein.
St.3d 144, 524 N.E.2d 881 (1988), where the Ohio Supreme Court rejected
claimants’ argument that they were employees and determined that although each
were injured while working they were not eligible for workers’ compensation
because they were independent contractors or not in employ of the employer.
In Walters, John Walters was a taxi cab driver. Americab leased taxi
cabs to its drivers. Walters signed a contract acknowledging his status as an
independent contractor and his ineligibility for state workers’ compensation
benefits and federal and state unemployment. Walters also acknowledged
responsibility for paying his own income taxes. Walters at 183. However, Walters
argued that he was an employee of Americab because they exerted control over his
driving. Americab controlled what taxis would be driven, set the length of shifts,
rates to be charges, dress code, and code of conduct. Id. at 183.
The Ohio Supreme Court rejected Walters’ argument stating that
Walters “had total control over the days and hours he worked.” Additionally, per
Walters’s affidavit, he was permitted to choose shifts, starting and stopping times,
he could refuse fares within the bounds of the law, he was not obligated to accept a
fare from Americab’s dispatchers, he kept all his money earned, and was under no
duty to report his earnings. The court stated that Americab’s work rules did not
“exert a degree of control over [Walters’s] driving to the point where they direct the
manner or means of driving.” Id. at 183. Additionally, unlike the doctors in the
present case, Walters signed an agreement acknowledging his status as an
independent contractor and had control of the manner and means of his
employment.
In Bostic, the question of whether someone was an employee or an
independent contractor was at issue. There was substantial evidence submitted by
Bostic’s heir that he was possibly an employee of Connor on the day of his death.
The trial court denied Connor’s motion for summary judgment determining that
there was an issue of fact to be determined by a jury, and the Sixth District affirmed
the trial court’s judgment. Bostic v. Connor, 6th Dist. Lucas No. L-86-112, 1987 Ohio
App. LEXIS 5547 (Jan. 16, 1987). The Supreme Court stated “the key factual
determination is who had the right to control the manner or means of doing the
work.” Id. at 146. The court went on to state:
The determination of who has the right to control must be made by
examining the individual facts of each case. The factors to be
considered include, but are certainly not limited to, such indicia as
who controls the details and quality of the work; who controls the
hours worked; who selects the materials, tools and personnel used;
who selects the routes travelled; the length of employment; the type
of business; the method of payment; and any pertinent agreements or
contracts.
(Internal citations omitted.) Id.
The Supreme Court affirmed the appellate court’s determination that
the trial court did not err when it denied Connor’s motion for summary judgment.
Id. at 147. Unlike Bostic, in this case, there is no dispute regarding the facts.
We find that the Browns’ reliance on Bostic and Walters are not
determinative in this case. We look to the National Football League’s (“NFL”)
collective bargaining agreement (“CBA”) with the NFL’s Player’s Association.
Through the CBA, both the NFL teams and players agreed to be bound by specific
terms and conditions, and Article 39 of the CBA governs the Player’s Rights to
Medical Care and Treatment. We also look at how the courts have historically
defined independent contractors versus employees.
In Billman v. Massillon Dev. Group, LLC, 5th Dist. Stark No. 2007-
CA-00169, 2008-Ohio-287, the court states,
[i]n Gillum v. Industrial Commission, 141 Ohio St. 373, 48 N.E.2d 234
(1943), the Ohio Supreme Court set forth the test to determine
whether a person is an independent contractor or an employee. If the
employer reserves the right to control the manner or means of doing
the work, the worker is an employee, whereas if the worker controls
the manner or means of doing the work, or if the worker is responsible
to the employer only for the result, the worker is an independent
contractor. Gillum, syllabus by the court, paragraph 2. In Bostic v.
Connor, 37 Ohio St. 3d 144, 524 N.E.2d 881 (1988), supra, the Ohio
Supreme Court found the question of employee or independent
contractor must be determined upon the individual facts of each case.
The court set out various factors, including, but not limited to: who
controls the details and quality of the work; who controls the hours
worked; who selects the materials, tools and personnel used; who
selects the routes traveled; the length of the employment; the type of
business; the method of payment; and any pertinent agreements or
contracts.
Id. at ¶ 11.
Using the standard set forth in Gillum, we must determine if the
Browns reserved the right to control the manner or means of the physicians’ work,
in order to classify them as employees or independent contractors. The agreement
between the Browns and physicians mandated and required that the physicians
“disclose to a player any and all information about the player’s physical condition
that the physician may from time to time provide to a coach or other Club
representative, whether or not such information affects the player’s performance or
health.” The Browns argue that simply requiring the physicians to communicate
with the team about the medical records of each player does not mean that the
Browns controlled the manner and means of the physicians’ work. However, in
addition to required communication, the Browns required the physicians to
participate in the conduct of physical examinations for each player; review the
players’ test results, lab reports, x-rays, MRI’s, CT scans, and any other diagnostic
test films; visit the training facility with such frequency as the Browns deemed
necessary for consultations with the athletic trainers, coaches, and management;
and examine and treat players for orthopedic related conditions.
In addition, the Browns required the doctors to be on call during the
entire football season, visit the training facility during hours mandated by the
Browns, and attend scouting events, meetings, and all training camp sessions. The
Browns supplied the doctors with an office and all necessary medical equipment and
tools required for their job. The employment contract extended for five years with
an option to extend for an additional five years.
The Workers’ Compensation statute, R.C. 4123.01(A)(1)(b) states, in
part:
“Employee” means: Every person in the service of any person, firm,
or private corporation, including any public service corporation, that
(i) employs one or more persons regularly in the same business or in
or about the same establishment under any contract of hire, express
or implied, oral or written.
The facts reveal that the doctors were in the service of the Browns, a
private corporation, which employs one or more people regularly in the medical
business under a contract of hire. The evidence shows that the Browns controlled
the manner and means of the physicians’ work through the CBA and contract
between the doctors. Additionally, in this case the facts are not in dispute.
“Generally, where the evidence is not in conflict or the facts are admitted, the
question of whether a person is an employee or an independent contractor is a
matter of law to be decided by the court. See Schickling v. Post Publishing Co.
(1927), 115 Ohio St. 589, 155 N.E. 143, syllabus.” Bostic, 37 Ohio St.3d at 146, 524
N.E.2d 881. As a result, we find that the trial court did not err.
Next, we must look to the NFL’s CBA with the NFL’s Player’s
Association. According to CBA, Article 39, Section 1(a), it states, in part: “Each
Club3 will have a board-certified orthopedic surgeon as one of its Club physicians,
and all other physicians retained by a Club to treat players shall be board-certified
in their field of medical expertise.” Additionally, each team is responsible for paying
for the cost of the medical services for the players. Article 39, Section 1(C), states, in
part: “The cost of medical services rendered by Club physicians will be the
responsibility of the respective Clubs, but each Club physician’s primary duty in
providing player medical care shall be not to the Club but instead to the player-
3 “Club” or “Team” or “Member,” used interchangeably herein, means any entity
that is a member of the NFL or operates a franchise in the NFL at any time.
patient.” The CBA mandates that each team is responsible for paying the cost of
medical services for the players. Although the Browns argue that they did not pay
the doctors, as the doctors received their salary from University Hospitals, the
Browns entered into an agreement with University Hospitals where the hospital
would have the right to use the Browns’ trademark name for marketing and
promotional purposes in lieu of the doctors’ salaries.
It is not disputed by the Browns or the players that the agreement
between the hospital and the Browns to pay for the doctors’ services with trademark,
advertising, and marketing rights qualify as legal payment. However, the Browns
claim that R.C. 4123.84(A)(3)(b) only applies if the Browns paid for a specific injury
for the purposes of notice to a self-insured employer. The Browns further argue that
if they paid a doctor bill for a specific injury, the players would be on notice for a
possible workers’ compensation claim. The players argue that the tolling exception
applies when a self-insured employer has paid or furnished benefits, which includes
the payment of self-insuring employer to, or on behalf of, an employee, for a medical
bill for treatment. The players argue that the Browns paid and furnished benefits to
the players in lieu of medical bills under the CBA, and that these payments satisfy
the tolling requirements under R.C. 4123.84.
R.C. 4123.84(A)(3)(a) and 4123.84(A)(3)(b), the portions of the
statute at issue, state,
(A) In all cases of injury or death, claims for compensation or benefits
for the specific part or parts of the body injured shall be forever barred
unless, within one year after the injury or death:
(3) In the event the employer is a self-insuring employer, one
of the following has occurred:
(a) Written or facsimile notice of the specific part or parts
of the body claimed to have been injured has been given
to the commission or bureau or the employer has
furnished treatment by a licensed physician in the
employ of an employer, provided, however, that the
furnishing of such treatment shall not constitute a
recognition of a claim as compensable, but shall do no
more than satisfy the requirements of this section;
(b) Compensation or benefits have been paid or
furnished equal to or greater than is provided for in
sections 4123.52, 4123.55 to 4123.62, and 4123.64 to
4123.67 of the Revised Code.
According to the record, the Browns provided medical treatment to
the players through the doctors, whose manner and means of work were controlled
by the Browns. The Browns’ compensation was the use of their trademark for
marketing. According to the CBA, each team is responsible for paying for the cost
of the medical services for the players. Thus, we find that these payments satisfy the
tolling requirements under R.C. 4123.84.
Therefore, the Browns’ sole assignment of error is overruled, because
we find that the trial court did not err in granting summary judgment to the players.
Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
__________________________________
ANITA LASTER MAYS, PRESIDING JUDGE
FRANK D. CELEBREZZE, JR., J., and
LARRY A. JONES, SR., J., CONCUR