Coleman v. Western Michigan University

• Decision Date: 06 July 1983
• Docket Number: Docket No. 61388
• Parties: Willie S. COLEMAN, Plaintiff-Appellant, v. WESTERN MICHIGAN UNIVERSITY, Defendant-Appellee. 125 Mich.App. 35, 336 N.W.2d 224, 12 Ed. Law Rep. 541
• Court: Court of Appeal of Michigan — District of US

Page 224

336 N.W.2d 224

Willie S. COLEMAN, Plaintiff-Appellant, v. WESTERN MICHIGAN UNIVERSITY, Defendant-Appellee.

Docket No. 61388.

125 Mich.App. 35, 336 N.W.2d 224, 12 Ed. Law Rep. 541

Court of Appeals of Michigan.

Submitted Jan. 10, 1983.

Decided April 19, 1983.

Released for Publication July 6, 1983.

[125 MICHAPP 36] Marston, Sachs, Nunn, Kates, Kadushin & O'Hare, P.C. by Granner S. Ries, Detroit, for plaintiff-appellant.

Cholette, Perkins & Buchanan by Edward D. Wells, Grand Rapids, for defendant-appellee.

Before HOLBROOK, P.J., and CYNAR and MOES, ^* JJ.

PER CURIAM.

Plaintiff, a former Western Michigan University scholarship football player, appeals by leave of this Court the WCAB's decision denying him compensation for an injury received during the course of football practice. We affirm.

The WCAB found the following facts, which are undisputed on appeal:

"A talented high school athlete, plaintiff was contacted by defendant and offered an annual, renewable scholarship if he could make the football team. The scholarship consisted of full tuition, room and board and books for the school year. Plaintiff accepted and played football for two seasons in 1972 and 1973. He held no part-time job for defendant while going to classes, studying and attending football practices and games. After his 1974 injury, he continued to receive his scholarship in full for the remainder of that school year. The following fall, however, that scholarship was reduced due to cutbacks in the university's scholarship program and due to team contribution. Plaintiff had to [125 MICHAPP 37] leave the university because he could not financially afford to continue there."

It is undisputed that plaintiff was injured and that his injury was disabling, in that he was thereafter no longer able to play football. The parties stipulated that, if plaintiff were entitled to compensation, it would be limited to four semesters, the remainder of his college tenure at the time of the injury. In a decision issued April 17, 1979, the hearing referee denied compensation, finding that plaintiff "was not an employee of defendant" but rather "a scholarship-student athlete". On November 4, 1981, the WCAB affirmed based on its application of the "economic reality" test for determining the existence of an employer-employee relationship, Askew v. Macomber, 398 Mich. 212, 247 N.W.2d 288 (1976); McKissic v. Bodine, 42 Mich.App. 203, 201 N.W.2d 333 (1972), lv. den. 388 Mich. 780 (1972). The WCAB found no employment relationship between the parties.

The question before this Court is whether plaintiff, a student athlete, was an "employee" within the meaning of the Worker's Disability Compensation Act, which defines "employee" as follows:

"(1) As used in this act, 'employee' means: * * *

"(b) Every person in the service of another, under any contract of hire, express or implied * * *." M.C.L. Sec. 418.161(1)(b); M.S.A. Sec. 17.237(161)(1)(b).

The case requires application of the "economic reality" test for determining the existence of an employment relationship. Askew v. Macomber, supra. Askew set forth certain factors which this Court must consider in determining whether there existed an "expressed or implied contract for hire" within the meaning of the foregoing provision. [125 MICHAPP 38] These factors include: (1) the proposed employer's right to control or dictate the activities of the proposed employee; (2) the proposed employer's right to discipline or fire the proposed employee; (3) the payment of "wages" and, particularly, the extent to which the proposed employee is dependent upon the payment of wages or other benefits for his daily living expenses; and (4) whether the task performed by the proposed employee was "an integral part" of the proposed employer's business. See Askew, supra, 398 Mich. at pp. 217-218, 247 N.W.2d 288. None of the foregoing factors is by itself dispositive. Each factor must be considered in turn, and all of them then taken into account in determining the existence of an employment relationship.

Concerning the first two Askew factors, i.e., the employer's right to control the activities of the employee and to discipline the employee for unsatisfactory performance, the WCAB observed:

"Although defendant did direct plaintiff in the performance of his football activities and had the right to discipline or suspend him from the team, it could not then revoke his scholarship. Per testimony provided by both plaintiff and defendant's athletic director, even had plaintiff been removed from the team early on in the school year, his scholarship would continue until the end of that school year."

In reaching the conclusion that defendant's right to "discipline" plaintiff was limited, the WCAB properly noted evidence in the record which reveals that, even if defendant decided to remove plaintiff from the football team during a particular academic year, defendant could not revoke plaintiff's scholarship aid for that year. Instead, each time a scholarship was granted, it was effective for [125 MICHAPP 39] an entire academic year, regardless of plaintiff's performance during the football season.

As to the limits on defendant's "right to control" plaintiff's activities, plaintiff suggests that defendant had a great deal of control over plaintiff's activities as a football player. It is observed, however, that such control applied to the sports activity whether or not an athlete had the benefit of a scholarship. Plaintiff's scholarship did not subject him to any extraordinary degree of control over his academic activities. The degree of defendant's control over this aspect of plaintiff's activities was no greater than that over any other student. Moreover, the record suggests that the parties contemplated a primary role for plaintiff's academic activities and only a secondary role for plaintiff's activities as a football player. Plaintiff recognized that "you are a student first, athlete second".

We agree with plaintiff that, under the third Askew factor, the scholarship constituted "wages" within the meaning of Morgan v. Win Schuler's Restaurant, 64 Mich.App. 37, 234 N.W.2d 885 (1975), defining wages as items of compensation which are measurable in money or which confer an economic gain upon the employee. In return for his services as a football player, plaintiff received certain items of compensation which are measurable in money, including room and board, tuition and books. Plaintiff was in fact dependent on the payment of these benefits for his living expenses. See McKissic v. Bodine, supra. Plaintiff testified directly that he could not have met all of his expenses without scholarship aid. When his scholarship was not renewed, plaintiff pursued his education elsewhere. The "payment of wages" factor weighs in favor of the finding of an employment relationship.

We finally consider the fourth factor of the [125 MICHAPP 40] "economic reality test", namely, whether the task performed by the proposed employee is an integral part of the proposed employer's business. In its opinion, the WCAB emphasized its factual finding that the primary function of the defendant university was to provide academic education rather than conduct a football program:

"We do not find that any express or implied contract existed between plaintiff and defendant University so as to bring plaintiff's claim within the Act. Per plaintiff's testimony, his purpose at the university was to further his education. In order to be able to financially accomplish this, he played football under defendant's athletic program. He testified that he had never entertained the hope of becoming a professional athlete. It was understood that, in order to have his scholarship renewed each year, plaintiff had to attend practices and games and otherwise fulfill the requirements of a university football player. The record just does not support the inference that plaintiff considered himself an 'employee' for defendant university.

* * *

"Neither can we find that the 'work performed,' (playing football), was an integral part of defendant's 'business,' (education). Defendant, per testimony provided by Mr. Hoy, also offered scholarships to other students for participation in the band and debating team. Not all of the players on defendant's football team received a full scholarship such as plaintiff had." (Emphasis added.)

The term "integral" suggests that the task performed by the employee is one upon which the proposed employer depends in order to successfully carry out its operations. Plaintiff misplaces his reliance on Moore v. Fleischman Yeast Co., 268 Mich. 668, 256 N.W. 589 (1934) (janitor employee of sales office); Glick v. H.A. Montgomery Co., 22 Mich.App. 678, 177 N.W.2d 724 (1970), lv. den. 383 Mich. [125 MICHAPP 41] 788 (1970) (part-time electrician employee of chemical manufacturer); Rys v. A.S.D. Parishes Credit Union, 1973 WCABO 3091 (mason employee of credit union). Each of these cases is distinguishable from this case because each employee in question performed a function essential to the operations of the employer. The mason, the janitor or the electrician who builds, cleans or maintains an employer's factory or office performs a function essential to the smooth and efficient operation of that employer's business. In this case, however, plaintiff's football playing was not essential to the business of the defendant...