Auerbach Co. v. Industrial Commission , 113 Utah 347 ( 1948 )

I concur. However, I think that the prevailing opinion fails to give any consideration to the arguments advanced by counsel for the applicant. In view of the earnestness with which those arguments are urged upon us, and in view of the fact that we must set aside the award of the commission, I think that the contention of the applicant should be more fully treated.

The argument advanced in support of the commission's award is that Auerbach Company, as part of its internal organization, had a department 65 which was concerned wholly with athletic teams sponsored by the company; that the public relations officer was in charge of this department; that all expenses of the team were paid for by the company and that any receipts from the efforts of the athletic teams, such as gate receipts and prize money were paid into the company's general fund; that the company received valuable advertising and promoted the good will of the public by its athletic teams; in short, that the teams were an integral part of the Auerbach Company organization.

This argument finds support in the record. It seems clear that Auerbach Company enjoyed substantial benefits in the form of public good will, by reason of the public interest in the team. And counsel has cited to us cases where, under facts similar to those in the case at bar, compensation has been allowed. The strongest of these cases is Le Bar v. Ewald Bros. Dairy,217 Minn. 16, 13 N.W.2d 729; but see also Holst v. New York StockExchange, 252 A.D. 233, 299 N.Y.S. 255; Piusinski v.Transit Valley Country Club, 259 A.D. 765, 18 N.Y.S.2d 316;Dowen v. Saratoga Springs, Comm., 267 A.D. 928,46 N.Y.S.2d 822; Linderman v. Cownie Furs, 234 Iowa 708,13 N.W.2d 677; Fagen v. Albany Evening Union Co., 261 A.D. 861,24 N.Y.S.2d 779; and Scott v. Whitehouse Co.,255 A.D. 733, 6 N.Y.S.2d 916. These cases, in general, support the view that where the employee is engaged in social, athletic, or recreational activities sponsored by his employer, and the employer benefits, even indirectly, from such activities, and the employee is injured while engaging in such activities, or while traveling to or returning to his home from such activities, then he is entitled to compensation.

The fallacy of this view is that the test of the employer-employee relationship is not whether or not the purported employer is benefited by the actions of the purported employee. A person or business organization may be materially benefited by an independent contractor, or by a volunteer.

It is obvious that regardless of whether or not the prime motive in sponsoring a team is to reap the benefits of the advertising thereby attained, all sponsors will receive, either as a direct or incidental benefit, advertising benefits to the extent that games played by their teams are patronized by the "fans," and to the extent that results and reports of such games are publicized in the newspapers and on the radio. But whether the chief purpose of the sponsor is advertising, or some more philanthropic motive, I regard as immaterial here.

As noted in the prevailing opinion, the fundamental test of employer-employee relationship is right of control. And where the player plays voluntarily, of his own choice, during his off-duty hours, and is free to play or not to play as he determines of his own choice, it cannot be said that the sponsor has that right of control which makes it an employer and the player an employee, within the meaning of the Workmen's Compensation Act. And the result is not changed by the fact that the player is in the regular employ of the sponsor, and that he is occasionally excused from performing his regular duties in order to perform with the team. Nor is the result changed by the fact that the sponsor bears the expense of transporting the team, and other traveling expenses, when the team plays out of town.

To allow applicant compensation in this case would be to hold, in effect, that all amateur athletes, playing on any sponsored team, are employees of the sponsor, whether such sponsor be an industrial or commercial institution, a civic club, a church, or an educational institution such as a high school or university. Since most sports entail some risk of injury, it is likely that, in the event of such a holding, the support of many sponsors would be withdrawn, as they would be unable or unwilling to assume the financial burden of providing compensation insurance for their players. Thus many persons desirous of playing in organized leagues would be denied the opportunity to do so, and persons who derive their recreation from attending athletic games and matches would also be deprived of that source of entertainment. Players who participate in the games understand and willingly assume the risks. To throw the burden of such risks upon the sponsor would be, in effect, to destroy, or at best, to impair substantially the growth and development of amateur athletics. Such a result is not to be desired.

The average amateur player is not an employee of the sponsor of his team, within the meaning of the Workmen's Compensation Act. Measured by the oft repeated and now well established principle of "right of control," the sponsor-player relationship is not, in the ordinary instance, an employer-employee relationship.

I recognize that there are instances where a player of unusual ability is employed by a business organization, with the understanding, express or implied, that such player will play on the sponsor's team, and that he is being employed for the chief purpose of securing his athletic abilities to the employer, and not for the services he may render in furtherance of the employer's usual business. In fact, he may have only token duties outside of his duties as a player. In that situation the player may have, as his duties, the playing of the game, and he may be entitled to compensation for injuries received in connection with his athletic services. But that is not the situation here presented. It appears that plaintiff was employed by defendant as a cashier, and she was not required to play in order to hold her job. Her playing was wholly voluntary on her part, and completely separate from and independent of her duties as a cashier. She played because she wanted to, and not because she was required to. She had played as a member of Auerbach sponsored teams before she was ever employed by the company as a cashier. She continued as a member of the team when her employment terminated and she returned to school. And she was reinstated as an employee when she recovered from the injuries sustained in the automobile accident, although she was still incapacitated from playing. Not by any stretch of the imagination can she be deemed to have been engaged in the course of her employment during the time she was engaged in athletic activities, or traveling to or from the games.

LATIMER, J., concurs in the result.