COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 74633 PAUL V. FARREN, et al : : ACCELERATED DOCKET Plaintiff-appellants: : JOURNAL ENTRY vs. : and : OPINION BALTIMORE RAVENS, INC. : : PER CURIAM Defendant-appellee : : : DATE OF ANNOUNCEMENT OF DECISION : NOVEMBER 12, 1998 CHARACTER OF PROCEEDING : Civil appeal from : Court of Common Pleas : Case No. 333,224 JUDGMENT : REVERSED. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellants: ROBERT S. GURWIN Cornrich, Katz & Cornrich 55 Public Square, #1808 Cleveland, Ohio 44113-1901 For defendant-appellee IRWIN DINN Baltimore Ravens, Inc. : Attorney at Law 5885 Landerbrook Drive, #205 Cleveland, Ohio 44124 (Cont.) APPEARANCES (Continued): For defendant-appellee LAUREL BLUM MAZOROW James Conrad, Administrator: Assistant Attorney General State Office Building, 12th Floor 615 W. Superior Avenue Cleveland, Ohio 44113-1899 -2- For defendant-appellee ROBERT P. LUCARELLI Cleveland Browns, Inc. : Attorney at Law 5885 Landerbrook Drive, #205 Cleveland, Ohio 44124 -3- PER CURIAM: This cause came on to be heard upon the accelerated calendar pursuant to App.R. 11.1 and Loc.R. 25, the records from the Cuya- hoga County Court of Common Pleas, the briefs and the oral arguments of counsel. Appellant appeals the trial court's decision granting summary judgment in appellee's favor. Since the record indicates the trial court erred in its conclusion, we reverse. On August 23, 1994, appellant Paul V. Farren filed an application with the Ohio Bureau of Workers' Compensation seeking compensation for injuries he incurred on May 6, 1992. The appli- cation was denied following a formal hearing before the District Hearing Officer of the Industrial Commission. Appellant appealed that decision. Appellant's claim was eventually allowed by a Staff Hearing Officer, who determined that appellant's injuries arose during the course of and arising from his employment with appellee. Appellee subsequently filed an appeal with the Industrial Commission; that appeal was denied. Appellee thereafter filed an appeal with the Cuyahoga County Court of Common Pleas. Appellee filed a motion for summary judgment in the lower court on the grounds that appellant was not an employee at the time he sustained his injury. The lower court granted appellee's motion. The relevant facts are as follows. Appellant was selected by appellee Baltimore Ravens, Inc., fka Cleveland Browns, Inc. ( the -4- team ), in the 1983 National Football League (NFL) draft. Appellant was injured on May 6, 1992 while performing weightlifting exercises during off-season conditioning at appellee's training facility. Appellant had previously signed contracts for each season that he played with the team. Relevant to the instant appeal, on August 28, 1990, appellant signed a contract that provides, at paragraph one: TERM. This contract covers one football sea- son, and will begin on the date of execution or February 1, 1991, whichever is later, and end on February 1, 1992, unless extended, terminated, or renewed as specified elsewhere in this contract. The contract provided for an annual salary of $425,000.00. On April 2, 1992, appellee offered appellant a contract for the 1992 NFL season at 100% of his 1991 salary if appellant signed the contract within fifteen days after April 15, 1992. Appellant did not sign within fifteen days of April 15; he testified that no players do because they want to negotiate and try to get better contracts. Appellant eventually signed his contract for the 1992 season on August 9, 1992. The term of this contract also covered one football season, beginning on the date of execution or February 1, 1992, whichever is later, and terminating on February 1, 1993. Appellant's salary was $340,000.00.1 1 Appellant's salary for the 1992-1993 season was subject to adjustments as provided in paragraph 24 of the contract. -5- Appellee contends that since appellant was not covered by a contract at the time of his injury, he was not an employee. In support, appellee submits the affidavit of James N. Bailey, Executive Vice President and General Counsel for appellee. Mr. Bailey stated that appellant became a free agent upon the expiration of his contract on February 1, 1992. He also stated that the team conducted formalized elective off-season conditioning in accordance with a signed standard NFL player contract, or a special agreement of hire, referred to as a Participation Agree- ment. 2 It is undisputed that appellant did not sign his NFL contract until August 9, 1992. Moreover, there is no evidence to indicate appellant either was presented with or signed a Participa- tion Agreement. Additionally,according to Mr. Bailey, only those players who had signed either an NFL contract or a Participation Agreement were paid for participating in off-season conditioning. Otherwise, an individual working out at the facility in anticipation of being signed to a player contract, or for any other reason, *** did so at his own risk and peril. The record indicates that appellant was invited to attend a football mini camp in June 1992, for which he received the sum of $214.20 for his attendance. Appellant was not otherwise paid for 2 The Participation Agreement sets forth [the team's] under- standing regarding [the player's] participation in Club's off- season physical conditioning program during the 1992 off-season. The Agreement also provides that the player will be regarded as an employee of the Club but allows that the player may still be entitled to continue to pursue any and all rights [he] may have as a veteran free agent. -6- his participation in off-season conditioning. Other than the money he received for mini camp, appellant received remuneration only for three weeks of pre-season pay for the period of August 9-August 30, 1992 and contract pay for the period from September 1-December 31, 1992 per his contract of hire. In spite of the terms of the contract, appellant testified at his deposition that he believed that he was under contract with appellee year-round. Appellant claimed that it was made clear to him that his position was a year round job, and you're paid for year round work, and no longer can you go home and work out on your own, they want you to work out in the facilities. Appellant believed that off-season work-outs were mandatory because he was not a starting player and he could not dictate his every whim. Appellant also testified that he did not believe that he was a free agent and that he was not sure what becoming a free agent entailed. Appellant's sole assignment or error contends the trial court erred in granting summary judgment to appellee. Civ.R. 56 provides that summary judgment is appropriate when (1) there is no genuine issue of material fact, (2) the moving party is entitled to judgment as a matter of law, and (3) reason- able minds can come to but one conclusion and that conclusion is adverse to the nonmoving party, said party being entitled to have the evidence construed most strongly in his favor. Zivich v. Mentor Soccer Club Inc. (1998), 82 Ohio St.3d 367, 369-370, citing Horton v. Harwick Chem. Corp. (1995), 73 Ohio St.3d 679, paragraph -7- three of the syllabus. The party moving for summary judgment bears the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Zivich, supra, citing Dresher v. Burt (1996), 75 Ohio St.3d 280, 292-293. A reviewing court assesses the lower court's ruling on a motion for summary judgment de novo. See e.g., Adelman v. Timman (1997), 117 Ohio App.3d 544. Thus, this court must now determine whether reasonable minds could differ as to whether appellant was an employee at the time he allegedly sustained his injury. It is appellant's position that his seven-year career with the team and participation in off-season training at appellee's exclusive facility create an issue of material fact that could allow a rea- sonable person to conclude appellant was an employee of appellee at the time he sustained his injury. For purposes of the Workers' Compensation Act, the term employee is defined by two different sections. R.C. 4123.01(A)(4) defines employee as: *** every person who may be required or directed by any employer, in consideration of direct or indirect gain or profit, to engage in any employment, or to go, or work, or be at any time in any place of employment. R.C. 4123.03(A)(1)(b) defines an employee as: *** [e]very person in the service of any person, firm, or private corporation, includ- ing 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, ***. -8- It is well settled that the statutes must be liberally construed in favor of employees. R.C. 4123.95. The language in the contracts is clear. The contract for the 1991 season terminated on February 1, 1992. The contract for the 1992 season commenced on August 9, 1992, i.e. the latter of either February 1, 1992 or the signing date. Thus, when appellant was injured on May 6, 1992, he was not covered by any express, written contract with appellee. However, appellant testified that he believed off-season conditioning was mandatory and that [t]hey wanted everyone there. He also stated that he was told that his position was a year round job. This court recognizes that the work required to maintain the physical condition necessary to perform as a profes- sional athlete is a year-round proposition. Moreover, appellee's actions indicated they considered appel- lant to be a team member. Appellant had played for the team for seven consecutive seasons. Appellee paid appellant for his parti- cipation in a mini camp in June 1992; a time period between the expiration of the 1991 agreement yet before the signing of the 1992 agreement. Additionally in the record is a letter written to appellant that informs him that, as of February 2, 1992, he is an uncondi- tional free agent. However, the letter continues: *** [b]eginning on that date and continuing through April 1, 1992, you have the right to negotiate and sign a contract with any other NFL club, with the Cleveland Browns maintain- ing no right of first refusal or compensation. If you do not sign a contract with another NFL -9- club during that period, the Cleveland Browns may choose to maintain its contract rights to you by tendering a one-year contract (with no option) to you at no less than 100% of the salary which you received under your last con- tract. (Emphasis added.) At the time appellant was injured, April 1, 1992 had passed, appellant had not signed with another team, and appellee had tendered a one-year contract to appellant.3 There is sufficient evidence in the record to allow reasonable minds to conclude that appellant was directed by appellee to par- ticipate in off-season conditioning in expectation of appellant playing on appellee's team during the 1992 season. Moreover, there is also evidence to support the conclusion that an implied contract may have existed. Appellant had not signed with another team as of April 1, 1992, he had received notification from appellee on April 2, 1992 that they wished to re-sign him, and he was invited to partake in, and was compensated for, his attendance at a mini camp in June 1992. When construing the evidence most strongly in appellant's favor, reasonable minds may conclude that appellant was an employee at the time of his injury. This court's review of the record and relevant case law indicates the trial court erred when it granted summary judgment for appellee. The decision of the trial court is reversed. 3 Admittedly, appellant had not yet signed the new contract on the date he sustained his injury. -10- This cause is reversed. It is ordered that appellants recover of appellee their 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 Cuyahoga County Court of Common Pleas 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. __________________________________ KENNETH A. ROCCO, PRESIDING JUDGE __________________________________ JAMES D. SWEENEY, JUDGE __________________________________ MICHAEL J. CORRIGAN, JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .