GUIDE SHEET 9

PROFESSIONAL ATHLETES
BETWEEN SEASONS

The Federal Unemployment Tax Act, Section 3304(a)(13), requires that compensation shall not be payable to any individual on the basis of services, substantially all(1) of which consist of participating in sports or athletic events, or training or preparing to participate, for any week between two successive sports seasons, if the individual performed services in the first season (or similar period), and there is a reasonable assurance that the individual will perform services in the second season (or similar period).

The intent is to deny benefits to professional athletes on the basis of all of their athletic wages and other services during the off season when their attachment to athletic employment appears to be continuing. An athlete may, if otherwise eligible, receive compensation during the regular playing season.

The SESA is responsible for determining whether the claimant has reasonable assurance of performing services in the next ensuing athletic season or similar period. To determine if there is reasonable assurance that the individual will be playing the next season or in a similar period, the SESA must establish if:

States have the option of broadening the definition of an athlete to include ancillary personnel involved with the team or professional event. This may include managers, coaches, and trainers employed by professional teams, or referees and umpires employed by professional leagues or associations. Denial of benefits to these groups is a State option. State law and policy must clearly identify those individuals subject to disqualification under its "professional athlete" provisions.



BASIC QUESTIONS AND FACTORS TO CONSIDER

A. IS THE CLAIMANT "BETWEEN SUCCESSIVE SPORTS SEASONS?"

It is not required that the individual perform the services for the same professional athletic organization to be considered "between successive sports seasons."

1. Determine the type of sport in which the claimant participated and the official beginning and ending dates for that sports season.

2. Review dates to determine if the period of benefits claimed are prior to, during, or subsequent to the official sports season. If the claim for benefits falls between the official season or period and the claimant does not have reasonable assurance of performing such services in the next season or similar period, benefits may be payable.

B. WERE SUBSTANTIALLY ALL (90% or as defined by State law) OF THE CLAIMANT'S SERVICES PERFORMED DURING THE BASE PERIOD IN A PROFESSIONAL SPORT?

The fact to be established is whether the claimant actually was employed as a professional athlete during the base period.

1. If substantially all services during the base period were performed as a professional athlete, then NONE of the base period wage credits can be used to establish monetary eligibility for any weeks that begin during a period between sports seasons or similar periods.

2. If, however, less than 90% (or the amount determined by State law) of the claimant's services were performed in professional sports, then ALL the claimant's base period wages may be used to establish monetary eligibility for any weeks that begin during a period between sports seasons or similar periods.

C. DOES THE CLAIMANT HAVE REASONABLE ASSURANCE OF PERFORMING THE SAME OR SIMILAR SERVICES DURING THE NEXT SEASON OR SIMILAR PERIOD?

It is not required that the individual perform the services for the same professional athletic organization for reasonable assurance to exist.

1. The claimant's continuing employment relationship with a professional sports team, league or association must be clearly established. It is possible that the claimant decided not to return to work or was released by the employer which would raise a separation issue.

2. If there is no separation issue, information from the claimant should address his/her understanding about returning to work for the employer during the next sports season, who provided the claimant with assurance of returning the next season and was that individual authorized to do so.

3. It is possible that the individual only had a one year contract and was released. If, however, the individual is free to negotiate with others for his services, then reasonable assurance is evident if the claimant asserts that he/she is focused on pursuing employment as a professional athlete for the next season or similar period.

4. If it is clearly established that the individual has withdrawn from professional athletics at the expiration of his/her contract, then reasonable assurance is not present. There is no need to probe further.

Factfinding

A. "BETWEEN SUCCESSIVE SPORTS SEASONS"?

B. SUBSTANTIALLY ALL SERVICES PERFORMED DURING BASE PERIOD IN A PROFESSIONAL SPORT?

HINT: All States were required to apply the "substantially all" criteria to base period wages. Most States opted to use the 90% amount as defined by Supplement #1 -- Questions and Answers -- which supplemented Draft Language and Commentary to Implement the Unemployment Compensation Amendments of 1976-P.L.-566. A State can choose to be more stringent in defining "substantially all". All evaluators should be aware of the definition before reviewing the case.



C. REASONABLE ASSURANCE

Written multi-year contract

Year-to-year contract; no indication of release

No contract, but employer affirms intent to recall

Free to negotiate with other employers

Authorized employer representative confirms athlete being considered for next season

Withdrawal from professional athletics at the expiration of his/her contract

Asserts she/he has withdrawn from professional sports

Withdrawal confirmed with employer

If claimant states that he/she has withdrawn from professional athletics, then reasonable assurance is not present. The SESA must determine if the claimant is otherwise eligible.

HINT: If substantially all of the base period wages were earned as an athlete (or, if the State has broadened the definition, it could include any employee of an athletic organization or sports event), and the athlete is between seasons, do not penalize the adjudicator for not investigating reasonable assurance. Reasonable assurance would be moot as none of the base period wages (including those earned in regular employment) could be used to establish monetary eligibility.



HINT: If claimant's employment is automatic because the individual has a multi-year contract, there is no question that there is a reasonable assurance of performing services during the following season.



 


1. The term "substantially all" has been interpreted to mean 90% or more of the claimant's services in the base period were performed as an athlete.