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AGO 1984 No. 5 - February 14, 1984
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Ken Eikenberry | 1981-1992 | Attorney General of Washington

INDUSTRIAL INSURANCE ‑- WORKERS' COMPENSATION ‑- COVERAGE ‑- ATHLETES ‑- APPLICABILITY OF INDUSTRIAL INSURANCE ACT TO CERTAIN ATHLETES 

(1) Professional athletes who enter into contracts with, and are paid by, athletic organizations domiciled outside of the State of Washington are, nevertheless, covered by the Washington industrial insurance (i.e., workers' compensation) system when they are assigned to, and are playing for, an organization or team domiciled in Washington.

 (2) Hockey players under contract with a Washington domiciled "amateur" hockey league team are not covered by the Washington industrial insurance system if the only remuneration they receive is limited to, and is the nature of, travel expense reimbursement or coverage and no other form of compensation is paid; if, however, the players are receiving some further compensation for their services, as well, they would be "workers" and, therefore, covered.

 (3) Industrial insurance coverage for semiprofessional athletes will be dependent upon the particular facts of each case from the standpoint of whether or not the athletes are compensated for their services as such so as to cause them to be "workers" within the meaning of RCW 51.08.180.

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                                                                 February 14, 1984

Honorable Sam Kinville
Director
Department of Labor and Industries
General Administration Building
Olympia, Washington 98504

Cite as:  AGO 1984 No. 5                                                                                                           

  Dear Sir:

             By letter previously acknowledged you requested our opinion on several questions relating to state industrial insurance coverage for certain professional, semiprofessional and amateur athletes.  We paraphrase your questions as follows:

             (1) Are professional athletes who enter into contracts with, and are paid by, athletic organizations domiciled outside of the State of Washington nevertheless covered  [[Orig. Op. Page 2]] by the Washington industrial insurance (i.e., workers' compensation) system when they are assigned to, and are playing for, an organization or team domiciled in Washington?

             (2) Are hockey players under contract with a Washington domiciled "amateur" hockey league team covered by the Washington industrial insurance system where they receive only subsistence or meal money for their services?

             (3) Are "semiprofessional" athletes covered by the Washington industrial insurance system when playing for, or practicing with, a team sponsored by their employer or by a third party‑-

             (a) When they receive no compensation for playing the sport; or

             (b) When any compensation they receive will come solely from gate receipts after deducting expenses, with no guarantee of any payment?

             We answer your first question in the affirmative and respond to your second and third questions in the manner set forth in our analysis.

                                                                      ANALYSIS

             Question (1):

             Such a compensated, professional athlete as described by your first question is, we believe, a "worker" as that term is defined (for purposes of the Industrial Insurance Act) in RCW 51.08.180; i.e.,

             "'Worker' means 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; . . ."

             In turn, the organization with which the athlete has contracted, and by which he or she is paid, is an "employer" as that term is defined in RCW 51.08.070; i.e.,

             "'Employer' means any person, body of persons, corporate or otherwise, . . . while engaged in this state in any  [[Orig. Op. Page 3]] work covered by the provisions of this title, by way of trade or business, or who contracts with one or more workers, the essence of which is the personal labor of such worker or workers."

             By virtue of RCW 51.12.010, all employments are embraced by the Industrial Insurance Act except those expressly excluded by RCW 51.12.020(1) through (9).  None of those exclusions, however, involve professional athletes.

             We also note that, in recognition of the proposition that professional athletes are covered by our industrial insurance system, the Department of Labor and Industries has classified such employment through its adoption of administrative regulations now codified as WAC 296-17-738 and WAC 296-17-745.  In addition, we further should point out that under RCW 51.12.120‑-relating to extraterritorial coverage‑-the athletes here involved would be covered by the Washington industrial insurance system whether injured in this state or in some other state (or province), so long as they are acting in the course of their employment at the time of the injury.  With that in mind, however, two subsections of RCW 51.12.120 deserve further mention.

             First, under RCW 51.12.120(3), if the injury occurs in this state but the employer is domiciled in another state, that employer (if it has not secured workers' compensation coverage in this state) can file a certificate with the director establishing (a) that it has secured payment of compensation under the laws of its state of domicile and (b) that the injured worker is entitled to benefits under the laws of such state.

             Second, there is RCW 51.12.120(5).  In essence, that subsection permits a worker who is required to travel regularly in this and one or more other states to enter into a written agreement with his or her employer for the purpose of stipulating that the worker's employment is deemed to be principally localized in either this, or another, state. In turn, under the proper factual pattern, this subsection of the statute could apply in the case of an injury suffered by the worker outside Washington under circumstances which would have entitled that worker to compensation under Title 51 RCW had the injury occurred in this state.  The "principally localized" test is utilized in determining coverage by this state's laws with respect to out-of-state injuries.  See, RCW 51.12.120(1).  Unless the other state denies jurisdiction over the claim, the agreement would then govern an injury occurring after  [[Orig. Op. Page 4]] the effective date thereof in which the "principally localized" concept is an issue.1/

             In conclusion, therefore, we answer your first question in the affirmative.  It is our opinion that compensated professional athletes who are assigned to, and are playing for, a professional team domiciled in this state are generally entitled to the benefits of our workers' compensation laws even though their contract is with an organization domiciled outside this state and they are paid by that out-of-state employer.

             Question (2):

             Your second question, repeated for ease of reference, asks:

             Are hockey players under contract with a Washington domiciled "amateur" hockey league team covered by the Washington industrial insurance system where they receive only subsistence or meal money for their services?

             Our court has been very liberal in interpreting the coverage of Title 51 RCW and finding an employer-worker relationship.  Again, as noted earlier, unless there is a specific exemption (as under RCW 51.12.020) all employments are included.  There is no minimum employment exclusion provision in the act.  Wilkie v. Department of Labor and Industries, 53 Wn.2d 371, 334 P.2d 181 (1959).  And, from the standpoint of theform of the compensation involved in a particular case, even one who was paid only merchandise and groceries in return for relief work has been held to be a worker.  See,Fitzgerald v. Department of Labor and Industries, 181 Wash. 325, 42 P.2d 805 (1935).  Therefore, as long as there is compensation (even though minimal) the players who are involved would be considered to be workers entitled to industrial insurance benefits‑-assuming, as well, that the players have signed playing contracts and that their "employer," as a consequence, exercises some degree of control over their playing activities and has the right to discharge the player.

             What the foregoing means, in turn, is that the answer to your second question will depend upon the particular facts of each case.  [[Orig. Op. Page 5] If what you have referred to as "subsistence" or "meal money" is strictly limited to, and is the nature of, travel expense reimbursement or coverage and no other form of compensation whatsoever is being paid, the players should not be considered to be workers.  But if, instead, the players are receiving some further compensation for their services, as well, they would be "workers" and, therefore, covered.

             Question (3):

             Your third question, also repeated for ease of reference, asks:

             Are "semiprofessional" athletes covered by the Washington industrial insurance system when playing for, or practicing with, a team sponsored by their employer or by a third party‑-

             (a) When they receive no compensation for playing the sport; or

             (b) When any compensation they receive will come solely from gate receipts after deducting expenses, with no guarantee of any payment?

             Once again, however, the question of coverage for this class of athletes involves numerous hypothetical factual situations so that no definite "yes" or "no" answer is possible.  We can, however, provide several generalizations.

             First, the "semipro" athlete who is an employee of the sponsor and also plays on the sponsor's team is, as a result a "worker."  There is a contractual relationship, and one of the duties of the worker is playing for the employer's team.  The general rules governing the "employer-worker" relationship would, therefore, apply in that situation.

             Likewise, even though the player is not otherwise employed by the sponsor, he or she is a "worker" for state industrial insurance system purposes if the player receives payment or has an expectation of payment from the sponsor‑-including a division of gate receipts.  The "minimal" compensation discussion in the previous portion of this opinion would also apply in this instance.

             Next, however, if the player has no other employment relationship with the sponsor of the team, receives no payment  [[Orig. Op. Page 6]] whatever for playing, and has no expectation of payment, there is no basis for coverage.  But in that instance, it will also be seen that the status of the player would appear to have changed, in any event, from "semipro" to strictly amateur.

             Finally, if the team is organized by the players themselves and none of those players are employed by any sponsor, the players would probably be deemed to be "self-employed" and, therefore, would not be workers‑-even though they might share in possible gate receipts.

             Each case involving a semipro athlete should thus be examined closely to ascertain the relevant facts.  Generally, however, if there is an employer or a sponsor who pays the player directly for playing, or otherwise employs the player who is then expected to, and does, play for the company's team that player would be a "worker" for purposes of the industrial insurance law.

             We trust that the foregoing will be of assistance to you.

 Very truly yours,
KENNETH O. EIKENBERRY
Attorney General

ROBERT SWENSON
Assistant Attorney General 

                                                         ***   FOOTNOTES   ***

 1/We do not here purport to analyze the question of how far an employer and its employees can go in thus stipulating where employment is principally localized.  See, however, RCW 51.12.120(4)(a).

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