JOSHUA SAMUDA, Employee/Respondent, v. MINN. VIKINGS FOOTBALL CLUB and GREAT DIVIDE INS. CO., Employer-Insurer/Appellants.

The employer and insurer appeal from the compensation judge’s determination of the employee’s weekly wage on the date of injury. We affirm as modified.

Joshua Samuda, the employee, was hired to play professional football by the Minnesota Vikings, the employer. His first season playing professional football was to have been the season beginning in the fall of 2014. The employee began preseason training camp in the spring of 2014. On April 15, 2014, the employee was injured and sustained a fractured right ankle which required surgery. The employer and insurer admitted the injury was work related and paid medical and rehabilitation expenses, as well as temporary total disability benefits from April 15, 2014, through October 5, 2015, based on a weekly wage of $700.00 per week.

On July 20, 2015, the employee claimed an underpayment of temporary total disability benefits, and the parties litigated the amount of the employee’s weekly wage by submitting stipulated facts to the compensation judge in April 2016. The parties stipulated that all players at the training camp, including the employee, received $700.00 per week during the preseason training camp and team activities. The parties also stipulated that the employee would be paid a yearly salary of $318,000.00 under a contract.^[1] The record on appeal at that time did not include a copy of the contract between the parties. In her initial Findings and Order served and filed May 25, 2016, the compensation judge found the employee’s weekly wage was $6,153.84, based on the amount the parties stipulated the employee would have received under the 2014 contract. The employer and insurer appealed. In our decision, which vacated the compensation judge’s decision and remanded this matter back to the compensation judge, we noted that there was no information as to any earnings the employee might have had as a professional football player in the year before his injury, which would be evidence of his loss of earning capacity as a football player.^[2]

On remand, the matter was again submitted to the compensation judge on revised stipulated facts. The parties stipulated the employee had not played professional football before the 2014 season and also included a copy of the employee’s National Football League (NFL) contract with the employer. The employee signed the contract with the Minnesota Vikings in January 2014 for the period of March 1, 2014, to February 28, 2015. In addition to covering the employee’s services playing in the 2014 season, the contract also obligated the employee to participate in other team-related activities, including “official preseason training camp.” The employee was also expected to participate in publicity activity and he assigned the rights to use his name, nickname, voice, picture, etc., to the NFL Players Association. The contract provided a yearly salary of $318,000.00 to the employee for the 2014 season, with payment of that amount to be made on a weekly basis over the course of the 17-week regular football season. Although the contract required the employee to participate in the training camp, there is no provision in the contract as to the amount of compensation he was to receive during the preseason. The contract states that the employer will pay for the employee’s traveling expenses to training camp, reasonable board and expenses during preseason training and during games, and additional compensation, benefits, and reimbursement as called for in any collective bargaining agreement in evidence during the term of the contract.

In Findings and Order on Remand served and filed April 21, 2017, the compensation judge again found the weekly wage on the date of injury to be $6,153.84. The employer and insurer appeal.

On appeal, the Workers’ Compensation Court of Appeals must determine whether “the findings of fact and order [are] clearly erroneous and unsupported by substantial evidence in view of the entire record as submitted.” Minn. Stat. § 176.421, subd. 1(3). Substantial evidence supports the findings if, in the context of the entire record, “they are supported by evidence that a reasonable mind might accept as adequate.” Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59, 37 W.C.D. 235, 239 (Minn. 1984). Where evidence conflicts or more than one inference may reasonably be drawn from the evidence, the findings are to be affirmed. Id. at 60, 37 W.C.D. at 240. Similarly, findings of fact should not be disturbed, even though the reviewing court might disagree with them, “unless they are clearly erroneous in the sense that they are manifestly contrary to the weight of evidence or not reasonably supported by the evidence as a whole.” Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975).

A decision which rests upon the application of a statute or rule to essentially undisputed facts generally involves a question of law which the Workers’ Compensation Court of Appeals may consider de novo. Krovchuk v. Koch Oil Refinery, 48 W.C.D. 607, 608 (W.C.C.A. 1993), summarily aff’d (Minn. June 3, 1993).

Under the provisions of the Minnesota Workers’ Compensation Act, an employee’s weekly wage, upon which the compensation rate is based, is calculated by determining the employee’s daily wage. Minn. Stat. § 176.011, subd. 18. The statutory definition of daily wage sets out a number of ways to determine daily wage if the “daily wage received or to be received by the employee in the employment engaged in at the time of injury was irregular or difficult to determine.” Minn. Stat. § 176.011, subd. 8a. The question of the employee’s wage in the present case is not answered by the statutory language.

In the absence of statutory language, we turn to case law, keeping in mind that the object of wage determination is to “arrive at a fair approximation of the [employee’s] probable future earning power which has been impaired or destroyed because of the injury.” Knotz v. Viking Carpet, 361 N.W.2d 872, 874, 37 W.C.D. 452, 455 (Minn. 1985) (quoting Sawczuk v. Special Sch. Dist. No. 1, 312 N.W.2d 435, 437-38, 34 W.C.D. 282, 287 (Minn. 1981) which cited Johnson v. D.B. Rosenblatt, Inc., 265 Minn. 427, 430, 122 N.W.2d 31, 33, 22 W.C.D. 468, 472 (1963)). The issue of an appropriate weekly wage for a sports player has arisen in other cases before this court. Often, the issue is the difference between the salary listed in the contract and the wage actually received or earned by the employee at the time of the injury.

In Senser v. Minn. Vikings Football Club, 42 W.C.D. 688 (W.C.C.A. 1989), summarily aff’d (Minn. Feb. 9, 1990), where the employee was injured during the regular football season, the employee argued the amount he was to be paid under his contract should be divided by the number of weeks in the regular season to arrive at a weekly wage. The compensation judge, finding that the employee had obligations under the contract for the entire year, divided the amount paid under the contract for the year by 52 weeks. This court affirmed the compensation judge, noting that basing the employee’s weekly wage on 16 weeks would not result in a fair approximation of the employee’s probable loss of earning power under Knotz.

More recently, in Baker v. Minn. Vikings Football Club, 76 W.C.D. 865 (W.C.C.A. 2016), we affirmed a compensation judge’s determination of weekly wage for a professional football player which included a contract amount from the year before the injury and preseason payments. In that case, the employee entered into a two-year contract with the employer in 2013 where he would be paid $470,000.00 for the first year and $570,000.00 for the second year. He was on the team roster during the 2013 season and was injured during the 2014 preseason mini-camp. The employee argued that the contract amount for the 2014 season should have been used instead of the 2013 amount. This court affirmed the compensation judge’s use of the 2013 earnings instead of the 2014 earnings, determining the “approach taken by the judge reasonable in this case and in light of the evidence submitted.” Id. at 874.

The situation in this case is different from Senser and Baker in that the employee was a new player at the time of his injury during preseason training and therefore had no prior contract or earnings as a professional football player. The appellants argue that the actual earnings of the employee must be used to determine his weekly wage on the date of injury, citing Jellum v. McGough Constr. Co., Inc., 479 N.W.2d 718, 46 W.C.D. 182 (Minn. 1992) (the employee’s weekly wage determined by using her earnings as a temporary laborer at the time of injury, not her theoretical earnings as a teacher in her planned future occupation). The appellants characterize the $700.00 per week received by the employee while in training camp as the “actual earnings” in this case. We find no evidence, however, that this payment was meant to be wages paid to the employee.

The parties entered into a multi-page contract with numerous provisions as to the obligations of the parties. The compensation judge found that the employee, in addition to contracting to play in the 2014 season, had “various contractual obligations throughout the entire year of the contract, including attending the training camp where he was injured.” (Finding 2.) The only provision in the contract concerning the compensation to be paid to the employee is in Section 5, which provides for a yearly salary of $318,000.00. While the contract requires the employee to participate in training camp, there is no provision for the amount of compensation the employee is to receive for doing so. Instead, that section provides for the employee’s travel expenses to training camp as well as his “reasonable board and lodging expenses.” (Ex. A. at 3.) Nowhere is there any reference to the employee receiving a wage while in training camp and nowhere in the contract is the figure of $700.00 even mentioned.

The appellants also contend that the wage found by the compensation judge is speculative. Given the evidence in this case, we do not agree. The parties stipulated to the facts and gave the compensation judge an either/or choice in their arguments, that the employee’s weekly wage was either the $700.00 per week the employee received during training camp for expenses, or was based on the amount set out in the contract for the employee’s compensation. As noted by the compensation judge, a $700.00 weekly wage would result in a yearly wage of $36,400.00 for the employee, an amount the judge concluded did not represent an accurate reflection of the earning capacity of a professional football player in the NFL and was not a fair approximation of the employee’s probable future earning power which had been impaired or destroyed because of the injury. (Finding 4.) The compensation judge could reasonably conclude that the only evidence of the employee’s compensation for his work for the employer, the current contract amount, is a fairer approximation of the employee’s loss of earning power from his work-related injury than the $700.00 paid weekly during training. We conclude that substantial evidence supports the compensation judge’s determination that the employee’s wage on the date of injury was the contract amount of $318,000.00 divided by 52 weeks.

The $6,153.84 weekly wage found by the compensation judge was based on the parties’ initial stipulation of facts stating that the employee’s annual payment under his contract was $320,000.00. On remand, the parties corrected this amount to $318.000.00 as stated in the contract exhibit submitted to the compensation judge. We therefore modify the compensation judge’s decision to find the employee’s weekly wage to be $6,115.38. The decision of the compensation judge is affirmed as modified.

I concur with the conclusions reached by the majority, but offer an alternative analysis.

The evidence submitted to the compensation judge on remand was the employee’s contract with the Vikings for the 2014-15 season and the parties’ stipulated facts. Briefs were submitted without a formal hearing.

The appellants claim the evidence submitted does not support the compensation judge’s finding that the employee’s weekly wage was $6,115.38. The appellants claim there is no evidence on “probable future earning power”^[3] under what they argue is a conditional contract, the condition being the employee would only be paid the contract amount “during the regular season.”^[4] Following the appellants’ interpretation of the contract, this condition could not be met after the employee’s injury unless an assumption is made that the employee would have made the team for the regular season if he had not been injured, and therefore a wage determination based on such an assumption is speculative.

The appellants’ argument is contrary to the NFL Player Contract.^[5] We need look no further than the plain language of the contract on the issue of weekly wage. The contract submitted into evidence is unique. It is a yearly contract with the contractual compensation paid out over a 17-week period. The plain language of the contract speaks for itself and is explicitly determinative regarding the issue of the employee’s salary if injured during the year-long term of the agreement. It is not necessary to determine “probable future earning power” for the 2014-15 season because the contract resolves the issue.

No one disputes the injury was sustained in the performance of the employee’s services under the contract, and Section 9 of the contract states that if the player “is injured in the performance of his services under this contract,”^[6] the player “will continue to receive his yearly salary for so long, during the season of injury only and for no subsequent period covered by this contract, as Player is physically unable to perform the services required of him by this contract because of such injury.”^[7]

Section 5 of the contract states, “For performance of Player’s services and all other promises of Player, Club will pay Player a yearly salary as follows: $318,000.00 for the 2014 season.”^[8] There is nothing in sections 5 or 9 that states the employee does not receive his full yearly salary if he does not make the team during the regular season because of any injury. There is nothing in the contract that allows the employer to terminate the contract based on injury. We are not aware of any evidence that the employer terminated the contract. Therefore, the plain language of the contract is conclusive as to the weekly wage.

I concur in the majority opinion that the employee’s weekly wage is $6,115.38 for the reasons stated above.