Oral Argument November 14, 2013.
Appeal from King County Superior Court. Docket No: 11-2-37291-0. Date filed: 10/29/2012. Judge signing: Honorable Regina S Cahan.
William D. Hochberg (of Law Office of William D. Hochberg PLLC ), for appellant.
Robert W. Ferguson, Attorney General, and Jessica L. Creighton and Annika M. Scharosch, Assistants, for respondent Department of Labor and Industries.
Craig K. Connors (of Bauer Moynihan & Johnson LLP ), for respondent Football Northwest, LLC.
AUTHOR: Ann Schindler, J. WE CONCUR: Ronald Cox, J., C. Kenneth Grosse, J.P.T.
[181 Wn.App. 417] ¶ 1 For purposes of the Industrial Insurance Act (IIA), Title 51 RCW, an employment relationship exists only where (1) the employer has the right to control the employee's physical conduct in the performance of his [181 Wn.App. 418] 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.
¶ 2 Courtney Robinson attended the University of Massachusetts on a football scholarship and played defensive back and kick returner. Robinson participated in the 2009 draft but was not selected by any of the 32 National Football League (NFL) teams.
¶ 3 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.
¶ 4 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.
¶ 5 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.
¶ 6 Seattle Seahawks Vice President of Football Administration John Idzik testified that the Seahawks held three [181 Wn.App. 419] 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. But if the 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."
¶ 7 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.
Okay. And this April 2010 was a mini-camp versus a training camp?
It was a mini-camp, yes.
Okay. That means nobody was wearing pads?
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.
¶ 8 Robinson arrived in Seattle on April 12. The Seahawks arranged transportation to the hotel and gave Robinson [181 Wn.App. 420] 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.
¶ 9 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 - ...