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A Professional Football Player May Not Be a Seasonal Employee For Purposes of Calculating An Average Weekly Wage

November 17, 2021
January 31, 2020

In Pittsburgh Steelers Sports, Inc. v. WCAB (Trucks), 1257 C.D. 2018 (Pa. Cmwlth. 2003), the Commonwealth Court found, that for purposes of calculating the claimant’s average weekly wage, the claimant, who was employed as a professional football player for the Pittsburgh Steelers, was not a seasonal employee.  Unlike its determination in other cases, claimant, therefore, was entitled to workers’ compensation benefits based on a calculation under Section 309(c) of the Pennsylvania Workers’ Compensation Act, because the terms of his contract did not establish that claimant was an employee for a fixed or seasonal period of time.

In Trucks, the claimant entered into a contract with the Pittsburgh Steelers spanning two football seasons.  Under the contract, in addition to employment obligations during the regular football season, the claimant was required to attend camps, including pre-season training camp, off-season meetings, cooperate with news media and attend assigned events throughout the year.  The claimant was also prohibited from playing football or engaging in any football-related activities outside of his employment.  The claimant was paid his contracted salary in weekly or biweekly installments over the course of the regular season. The WCJ and WCAB concluded that claimant’s average weekly wage was properly calculated under Section 309(c).

On appeal to the Commonwealth Court, the court stated that seasonal occupations are “vocations which cannot … be continuous or carried on throughout the year, but only during fixed portions of it.” Am. Mut. Ins. Co. v. WCAB (Davenport & Nat. Marble & Onyx Co.), 530 A.2d 121 (Pa. Cmwlth 1987).  This inquiry focuses on the character of the work and not the period during which the business is open pursuant to Keenan v. WCAB, 1061 C.D. 2019 (Pa. Cmwlth 2015).  

The court then went on to distinguish two cases, Station v. WCAB (Pittsburgh Steelers Sports, Inc.), 608 A.2d 625 (Pa Cmwlth. 1992) and Ross v. WCAB (Arena Football League), 702 A.3d 1099 (Pa. Cmwlth. 1997), where it determined that both claimants were seasonable employees with an average weekly wage calculated pursuant to Section 309(e). The court concluded that in Station and Ross the claimants could only play football for fixed periods of time, the claimants were prohibited from engaging in football outside of the league during the regular and off-season, and the claimant’s began to receive compensation only after playing in the regular season game and, thereafter, were only compensated during the regular season, unlike Trucks, whose contractual provisions asserted control over claimant outside of the regular season, lacked seasonal limitations with respect to the performance of claimant’s job duties, and paid claimant throughout the year.

The court’s holding in Trucks turns on the details of the contractual provisions in the specific employee contract.  The fact that the claimant’s contract had more detailed obligations for the claimant outside of the regular season play, although not fixed, and the fact that he received payment for all employment obligations throughout the year, was enough to entitle him to an average weekly wage calculation under Section 309(c) of the Act, resulting in a higher average weekly wage.