IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON COURTNEY ROBINSON, Appellant,

v. DEPARTMENT OF LABOR & INDUSTRIES OF THE STATE OF WASHINGTON, and FOOTBALL NORTHWEST, LLC, Respondents. No. 69739-1-1 DIVISION ONE

PUBLISHED OPINION

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### Schindler, J. — For purposes ofthe Industrial Insurance Act, Title 51 RCW (IIA), 

### an employment relationship exists only where (1) the employer has the rightto control the employee's physical conduct in the performance of his duties and (2)there is mutual consentto an employment relationship. Because substantial evidence supports the determination that Courtney Robinson was not an employee ofthe Seattle Seahawks 

### when he injured his knee during an off-season minicamp tryout as a free agent, we conclude Robinson was not entitled to workers' compensation benefits underthe IIA, and affirm. FACTS 

### Courtney Robinson attended the University ofMassachusetts on a football scholarship and played defensive back and kick returner. Robinson participated in theNo. 69739-1-1/2 2009 draft butwas not selected by any ofthe 32 National Football League (NFL) teams. In April 2009, the Philadelphia Eagles entered into negotiations with Robinson, resulting inthe execution ofan NFLplayer contract. InAugust 2009, the Eagles released Robinson from his contract. As a free agent, Robinson could enter into an NFL contract with otherteams. In October 2009, Robinson tried out as a free agent with two other NFL teams, the Cincinnati Bengals and the Detroit Lions, but "was not signed" by eitherteam. In February 2010, sports agent and attorney Lyle Masnikoffbegan representing Robinson. In an effort to try and get Robinson "an opportunity" to sign an NFLcontract, Masnikoffcontacted a number of NFL team general managers. The Seattle Seahawks invited Robinson and 15 otherfree agents to attend a 

### three-day minicamp tryout fromApril 13 to 15. On April 7, Masnikoffsent an e-mail to 

### the Seahawks confirmingthe invitation to try out at the minicamp and describing Robinson's accomplishments. The Seahawks made the travel arrangements for Robinson to fly from Connecticutto Seattle to attend the minicamp. Seattle Seahawks Vice President of Football Administration John Idzik testified thatthe Seahawks held three minicamps in2010. Idzikdescribed a tryout as an 

### opportunity "to bring the player in, meetthe player, talk to him, give him a physical exam, ... run himthrough the paces and witness his movementfirsthand." Idzik said 

### players invited to a tryout are not "required to show up[.] There's nothing mandatory. It's purely voluntary on the part of the player." Idziktestified that prior to signing a 

### player to an NFL contract, the team can "ask them to go through a tryout, throughdrills.No. 69739-1-1/3 But ifthe player does not desire to do any ofthat, he does not have to. We can't mandate it. The only players that we can govern, with mandatory rules and discipline, would be players under contract." Idziktestified thatthe NFL rules prohibitthe use of pads and contact drills during

a minicamp, and the NFL monitors the "tempo" ofthe minicamps, "such that player safety is always kept in mind." Idziksaid drills during a minicamp are "significantly different" than a training camp practice or a game. Idziktestified, in pertinent part: So the type of drills that we're able to do in mini-camp versus the type of drills that you're able to do in a full-pads practice during training camp orthe type ofactivities a playergoes through on game day in live competition are significantly different. Q Okay. And this April 2010 was a mini-camp versus a training camp? A Itwas a mini-camp, yes. Q Okay. That means nobody was wearing pads? A We were allowed to wear helmets. But we were not allowed to wear shoulder pads or any ofthe customary pads that you see on game day. By - by [collective bargaining agreement] rules, they're allowed to wear elbow pads and knee pads and helmets. But they are not allowed to wear anything else. And we're not allowed to have live contact. Robinson arrived in Seattle on April 12. The Seahawks arranged transportation to the hotel and gave Robinson an itinerary for the three-day minicamp. The itinerary included orientation, meetings, workouts, drills, and meals at the Seahawks practice facility in Renton. NFLrules prohibit teams from compensating tryout players but permit payment oftravel and hotel expenses and meals. By contrast, Seahawks players under contractwho participate in a minicamp are entitled to a per diem. Idziktestified that the 

### Seahawks players who attended the minicamp received a pro rata portion ofeither $825 perweek ifthey were a "rookie" or $1,000 perweek ifthey were a veteran player.No. 69739-1-1/4 Idzik said that atthe beginning oforientation for a minicamp tryout, the Seahawks go overthe "Free Agent TryoutWaiver and Release of Liability" with the free agent players. The Free Agent TryoutWaiver and Release of Liabilitystates thatthe free agent is "not an employee ofthe Seattle Seahawks," and the player agrees to release the Seahawks, its employees, as well as the NFL from any liability for injury. Idzik testified, in pertinent part: Well, the first thing we do, with all ofourtryouts coming to the Seahawks, is make them understand that we - we have them sign a waiver of liability 

### so they understand they're not an employee ofthe Seahawks, thatwe're granting them a tryout, thatduring the tryout they're inessence waiving liability ofthe Seahawks ifanything were to happen to them during the tryout. 

### And - you know, and we explain that verbally, too. So we - we give them the form and then run through - run through, you know, the

- basically the

- whatthe form says. And - and then at that point, ifthey're willing to go on, which most all ofthem are, we conductthe interviews, and we conductthe physical examinations and

- and eventually the tryout. 

### Robinson signed the Free Agent Tryout Waiver and Release ofLiability on April 12.1 Laterthat afternoon, a Seahawks team doctor examined Robinson. After passing 

### the physical examination, Robinson attended a meeting at the practice facility with other

1The Free Agent Tryout Waiver and Release ofLiability states, inpertinent part: Whereas, Courtney Robinson, (herein known as "Player")who is not an employee of the Seattle Seahawks (herein known as "Club"), has a desire to participate in various . exercises and workouts at the Seattle Seahawks' training facility, including but not limited to participation in workout and/or mini-campsessions from4/13/10 through 4/15/10 and; Whereas Playerfully understands the risks involved in that it is possible to sustain serious injury during the course of said exercises and workouts, and; Now,therefore, inconsideration of the opportunity to participate inthe aforementioned exercises and workouts, Playerfully covenants not to sue and forever discharges the Seattle Seahawks, its officers, coaches, scouts, athletic trainers, physicians, players, and employees as well as the National Football League (hereinknown as "Releasees")from any andall liability to the Player, his personal representativeassigns, heirs, and next of kin from any and all loss or damage, orclaim or demands therefore on account ofinjury to the person or property or resulting inthe death of the Player, whether caused by negligence of Releasees or otherwise.No. 69739-1-1/5 free agents, players under contract, and the coaches. Afterwards, Robinson metwith Seahawks defensive coordinator Paul Bradley. 

### The next day, Robinson returned to the Seahawks facility for breakfastfollowed by a meeting with otherfree agents, players under contract, and the coaches. The coaches conducted on-field drills after lunch. Seahawks Head Coach Pete Carroll lined up the defensive back players. Robinson testified that after signaling to 

### him "to go," Coach Carroll threw himthe ball. Robinson testified thatwhile he "was 

### back peddling, my foot got caught inthe ground, orwhatnot, but as Idove for the ball I
was injured, you know, on that current play." Robinson said he "knew something was 

### wrong because the knee started
. .. swelling up." The team trainerexamined Robinson and told him "itwasn't a torn ACL [(anteriorcruciate ligament)], but torn meniscus." 

### Robinson got ice for his knee and wentto a meeting for defensive backs, followed by dinner at the training facility. During dinner, a Seahawks employee told Robinson he

was booked on a return flight home that night. 

### On June 7, Robinson filed an application for benefits withthe State of 

### Washington Department of Labor and Industries (Department). Robinson asserted that
on April 13 he sustained an industrial injury during the course ofemploymentwith the Seahawks. The Departmentdenied the claim. Robinson filed an appeal with the State ofWashington Board of Industrial Insurance Appeals (BIIA). Robinson, his sport agent Masnikoff, and Seahawks defensive coordinator 

### Bradley testified during the two-day hearing before the Board of Industrial Insurance 

### Appeals judge (IAJ). The IAJ also admitted intoevidence the deposition testimony of Seahawks Vice President of Football Administration John Idzik, the Free AgentTryoutNo. 69739-1-1/6 Waiver and Release of LiabilityRobinson signed, and a standard NFLplayer contract. The parties stipulated that the Seahawks paid Robinson's travel expenses inthe amount of $1,124.80 for airfare, and hotel expenses for two nights atthe Sheraton Hotel in the amount of $180.76. Robinson testified thatthe invitation to attend the Seahawks minicamp was an opportunity to "show [his] skills to the Seahawks" and "reestablish" himself. Robinson said that he was "hoping to sign [a] contract at the end ofthe mini camp." Robinson testified that playing as a defensive back and kickreturner "is very problematic to injuries." Sports agent Masnikofftestified that Robinson was a free agent when he 

### attended the minicamp, that NFLplayercontracts must be in writing, and that Robinson did not have a written contract with the Seahawks. Masnikoffadmitted that free agent 

### players invited to a minicamp tryout are not "guaranteed a position with the team," and the percentage ofplayers offered a contract is well below 50 percent. Seahawks defensive coordinator Paul Bradleytestified that he did not have the 

### authority to sign free agent players to the team. Bradley said that he makes a point of telling free agenttryout players thatthere are "no guarantees but. . . you have a chance to come in and compete .... You have a chance to show your skills and talents, and 

### what you have." Bradley testified that the Seahawks did not have a special or "out of the ordinary" need for a defensive back in2010. Idziktestified that his responsibilities included drafting contracts and signing 

### players. Idzik said thatwhen the Seahawks invite a free agent player to a tryout, theNo. 69739-1-1/7 free agent and his representation are informed thatthere is no guarantee the playerwill be offered a contract at the end ofthe tryout: We bring - and also Ishould say that it's - it's discussed with their representation, when you're setting up the tryout, so thatthey know - the player knows that we're bringing him in to acquaint ourselves with him, to try him out; and at the end, we'll make our evaluation. And atthat time, we'll decide whether or not to offer a contract. Idzik said that when the team extends an offer, it must to use the standard written 

### "National Football League Player Contract." Idziktestified there are "literallythousands" of highly qualified players inthe pool ofnoncontract players the Seahawks are able to recruit and sign. Idziksaid that in2010, the Seahawks had approximately 100 "tryouts and visits."2 Ofthe 69 "tryout" players the team was required to report to the NFL, the Seahawks signed 13 players "immediately afterthe tryout" and 9 others "at some 

### subsequent date." Idziktestified that of the 16 free agents who attended the minicamp 

### tryout inApril 2010, the Seahawks signed an NFL playercontractwith 5 players but only 2 of the 5 players made the finalteam roster. Under NFL rules, the Seahawks can have
a maximum of 80 contract players during the offseason but only 53 contract players on the rosterfor the regular season. 

### The IAJ issued a proposed decision and order. The IAJ concluded that because Robinson was not an employee ofthe Seahawks when he was injured during the minicamp tryout, he was not entitled to benefits underthe IIA. The IAJfound Robinson's participation inthe minicamp tryout was voluntary, 

### Robinson "did not receive any value from his attendance at the mini-camp," and the 

### Seahawks did not pay Robinson "any form ofwage or othercompensation." The IAJ

2Idzikexplained that"[a] visitwould be bringing someone in. You may conduct a physical exam, an interview, and not do any on-field work."No. 69739-1-1/8 also found that "the mini-camp was not merely a training he had to undergo to be qualified for the position." Rather, Robinson, like "everyone else at the mini-camp,... hoped he would be selected by the Seahawks." The proposed decision and order states, in pertinent part: There is no question that the Seahawks dictate the schedule to be followed for the mini-camp; however, Mr. Robinson's participation was completely voluntary and did not provide any benefitto the team. Mr. Robinson was not paid any form ofwage or other compensation. Further, just as with everyone else atthe mini-camp, Mr. Robinson hoped he would be selected by the Seahawks. However, the mini-camp was not merely a training he had to undergo to be qualified for the position. Finally, Mr. Robinson did not receive any value from his attendance atthe mini-camp. He did not learn any new skillthat could be transferred to anotherteam, or benefit him independent ofthe Seahawks. The BIIA denied Robinson's petition for review and adopted the proposed decision and order as its final order. Robinson filed an appeal ofthe BIIAfinal order in superior court. The superior court concluded Robinson was not an employee for purposes ofthe IIA when he was 

### injured during the minicamp tryout. The superior court entered extensive "Findings of Fact and Conclusions of Law" affirming the decision ofthe BIIA. ANALYSIS Robinson contends the court erred in concluding he was not an employee ofthe Seattle Seahawks for purposes ofthe IIA when he was injured during the minicamp tryout. Standard of Review 

### The superiorcourt acts inan appellate capacity inan appeal from the BIIA decision and reviews the decision de novo. Ruse v. Dep't ofLabor & Indus., 138 Wn.2d

8No. 69739-1-1/9 1, 5-6, 977 P.2d 570 (1999). The BIIAdecision is prima facie correct, and the burden of 

### proof is on the party attacking the decision. RCW51.52.115;3 Ruse, 138 Wn.2d at 5. Our review ofthe superior court's decision is governed by RCW 51.52.140. RCW 51.52.140 states that an "[ajppeal shall lie from thejudgment ofthe superior court
as in other civilcases." Accordingly, the statutory scheme results in a different role for this courtthan is typical for appeals from administrative decisions. Rogers v. Dep't of Labor & Indus.. 151 Wn. App. 174, 180, 210 P.3d 355 (2009). We review only

" 'whether substantial evidence supports the trial court's factual findings and then review, de novo, whetherthe trial court's conclusions of law flow from the findings.'" Rogers. 151 Wn. App. at 180 (quoting Watson v. Dep't of Labor &Indus.. 133 Wn. App. 903, 909, 138 P.3d 177 (2006) (citing Ruse, 138 Wn.2d at 5)). We must review the 

### record inthe lightmostfavorable to the party who prevailed in superior court. Harrison Mem'l Hosp. v. Gaqnon, 110Wn. App. 475, 485, 40 P.3d 1221 (2002). We do not 

### weigh or balance the competing testimony and inferences, or apply anew the burden of persuasion. Gagnon, 110 Wn. App. at 485. Substantial evidence is evidence sufficient to persuade a fair-minded, rational person ofthe truth ofthe matterasserted. Ferencak

v. Dep't ofLabor &Indus.. 142 Wn. App. 713, 719-20, 175 P.3d 1109 (2008).

3 RCW 51.52.115 states, in pertinent part: The hearing in the superior court shall be de novo, but the court shall not receive evidence or testimony otherthan, or in addition to, that offered before the board or included in the record filed by the board in the superior court as provided in RCW 51.52.110. . . . In allcourt proceedings under or pursuantto this title the findings and decision of the board shall be prima facie correctand the burden of proof shall be upon the party attacking the same. Ifthe court shall determine that the board has acted within its power and has correctlyconstrued the law and found the facts, the decision of the board shall be confirmed.No. 69739-1-1/10 Employment Relationship under the IIA The right to workers' compensation is statutory. Ochoa v. Dep't of Labor & Indus.. 143 Wn.2d 422, 425, 20 P.3d 939 (2001). The IIA was designed to provide "sure and certain reliefto injured workers while limiting employer liability for industrial injuries. RCW 51.04.010; Dennis v. Dep't of Labor &Indus., 109 Wn.2d 467, 469-70, 745 P.2d 1295 (1987). When first enacted, the IIA provided reliefonly to workers injured while preforming "extra hazardous work." Laws of 1911, ch. 74, §§ 1-2. In 1971, the legislature amended the IIA to cover "all employments
... within the legislativejurisdiction ofthe state." Laws of 1971, 1st Ex. Sess., ch. 289, § 1. A workers' compensation claimant bears the burden ofestablishing eligibility for benefits. Ehman v. Dep't of Labor &Indus., 33 Wn.2d 584, 595, 206 P.2d 787 (1949); Jenkins v. Dep't of Labor &Indus.. 85 Wn. App. 7, 14, 931 P.2d 907 (1996). Inorderto receive workers' compensation benefits pursuantto the IIA, the claimant must prove he 

### is a "worker injured inthe course of his or her employment." RCW 51.32.010; AcklevBellv. Seattle Sch. Dist. No. 1. 87 Wn. App. 158, 165, 940 P.2d 685 (1997). "Worker" is 

### defined as "every person in this state who is engaged inthe employment of an employer underthis title, whether by way ofmanual labor or otherwise inthe course of his or her 

### employment." RCW 51.08.180; Acklev-Bell. 87 Wn. App. at 165. Under RCW 51.08.013(1), an individual is "acting inthe course ofemployment" when their actions
are atthe employer's direction or inthe furtherance ofthe employer's business. Therefore, a workers' compensation claimant must prove the existence ofan 

### employment relationship inorderto establish the claimant is entitled to benefits.

10No. 69739-1-1/11 Although we liberally construe the IIA "infavor ofpersons who come within the act's terms," the IIA liberal construction "does not apply to defining who those persons might be." Berry v. Dep't of Labor &Indus.. 45 Wn. App. 883, 884, 729 P.2d 63 (1986). Instead, persons who claim rights underthe IIA are held "to strict proofoftheir right to receive the benefits provided by the act." Olvmpia Brewing Co. v. Dep't ofLabor & Indus.. 34 Wn.2d 498, 505, 208 P.2d 1181 (1949), overruled on other grounds by Windust v. Dep't of Labor & Indus., 52 Wn.2d 33, 323 P.2d 241 (1958). In Clausen v. Department of Labor & Industries. 15 Wn.2d 62, 69, 129 P.2d 777 

### (1942), the Washington Supreme Court held common law rules apply to determine 

### whether an employment relationship exists, but "[i]t is impossible to lay down a rule by which the status of a person performing a service foranother can be definitely fixed as
an employee. Ordinarily no single feature ofthe relation is determinative, but all must 

### be considered together." Clausen. 15Wn.2d at 69 (citing 1 W. Schneider, Workmen's CompensationText § 220, at 575 (Perm. Ed. 1941)). Nonetheless, the court identified factors to consider, such as "the right of control and discharge, payment ofwages, and the contractual relationship, whetherexpress or implied." Clausen. 15 Wn.2d at 69 (citing 1 Schneider, Workmen's Compensation Text, at 575). In Novenson v. Spokane Culvert & Fabricating Co.. 91 Wn.2d 550, 588 P.2d 

### 1174 (1979), the Washington State Supreme Court adopted a two-prong testfor determining whether an employee-employer relationship exists forpurposes of the IIA. The court held that "[f]or purposes ofworkmen's compensation, an employment 

### relationship exists only when: (1) the employer has the right to control the servant's 

### physical conduct in the performance of his duties, and (2)there is consentby the

11No. 69739-1-1/12 employee to this relationship." Novenson. 91 Wn.2d at 553. The court clarified that unlike the common law, "[t]he right ofcontrol is notthe single determinative factor." Novenson, 91 Wn.2d at 553. Rather, a "mutual agreement must exist between the employee and employerto establish an employee-employer relationship." Novenson, 91 Wn.2d at 553. Whetherthe two-prong test of Novenson is proved is a question of fact. Smick v. Burnup &Sims. 35 Wn. App. 276, 279, 666 P.2d 926 (1983). Robinson concedes he did not have an express contractual agreement with the Seahawks. Robinson claims the high degree ofcontrol the Seahawks exercised over him during the minicamp tryout and payment of his travel expenses, hotel expenses, and meals establishes an implied employment agreement. Robinson asserts the facts
are strikingly similarto the facts in BIIA significant decision In re Kimberly J. Bemis, No. 90 5522, 1992 WL 160668, at *1 (Wash. Bd. of Indus. Ins. Appeals May 1, 1992). We 

### disagree.4 In Bemis. the BIIA considered whetherthe claimant Kimberly J. Bemis was an 

### employee ofAlaska Airlines and, ifso, whether she suffered an industrial injury during the course ofemployment. Bemis. 1992 WL 160668, at *1. 

### Bemis was injured during a five-week flightattendanttraining program conducted 

### by Alaska Airlines. Bemis. 1992 WL 160668, at *2. Federal regulations require flight attendants on commercial flights to be Federal Aviation Administration (FAA) certified. Bemis, 1992 WL 160668, at *7. Alaska Airlines designed the five-week training 

### program to satisfy the requirements of the FAAfor certification offlight attendants and

4While decisions of the BIIA are not binding on this court, we accord substantial weight to the Department's interpretation of regulationswithin itsarea of expertise. Postemav. Pollution Control Hearings Bd.. 142 Wn.2d 68, 77, 11 P.3d 726 (2000). 12No. 69739-1-1/13
to meet specific company needs. Bemis. 1992 WL 160668, at *8. Alaska Airlines 

### assumed the cost ofthe training. In addition, each participant received an $8 per diem. Bemis. 1992 WL 160668, at *2. Attendance during the 8-hour-a-day training program was mandatory and "[a]bsence from any portion ofthe training disqualified a trainee from completing the course." Bemis. 1992 WL 160668, at *5, *2. Alaska Airlines had the right to discharge trainees and preclude future employmentwithAlaska Airlines. Bemis. 1992WL 160668, at *5. But successful completion ofthe training program guaranteed future employmentwith Alaska Airlines. Bemis. 1992 WL 160668, at *5. 

### The BIIA concluded that the guarantee of a job "upon successful completion of 

### the training course" and "the control the airline exercised overthe trainees' attendance 

### at the training program, the right to discharge them from the course at any time, and the consideration paid to the trainees inthe form ofper diem and free training," created "an 

### impliedcontract ofemployment at the onsetof training." Bemis. No. 1992 WL 160668,
at*6. 

### Unlike in Bemis. the findings do not supportthe existence of an implied contract 

### ofemploymentbetween Robinson and the Seahawks. First, substantial evidence 

### supports the findings that show the Seahawks did not have the "rightto control" Robinson's "physical conduct in the performance of his duties." Novenson. 91 Wn.2d at 553. The superior court's Findings of Fact state, inpertinent part: 

### 5. The purpose ofthe mini-camp was forthe Seahawks to see Mr. Robinson and fifteen others perform before proceeding with any offer 

### ofemployment; the mini-camp also gave Mr. Robinson and others an opportunity to meet Seahawks personnel and view Seahawks 

### procedures before considering whetherthey wished to be employed with the Seahawks.

13No. 69739-1-1/14

7. Mr. Robinson accepted the invitation to the Seahawks mini-camp with the understanding and knowledge that his participation was voluntary and he could have gone home anytime, as he did not have a contract with the Seahawks. The record makes clearthat participation in the minicamp was voluntary and the on-field drills atthe minicamp were "significantly different" from preseason training or a game. Unlike in Bemis. the Seahawks did not control Robinson's conduct during the minicamp tryout, and Robinson did not attend the minicamp tryout to learn new skills. Attendance at the three-day minicamp was solely for the purpose of giving Robinson and the otherfree agents the opportunity to try out. As Robinson acknowledged, the 

### minicamp was an opportunity for him to "show [his] skills" and "reestablish" himselfin the hopes thatthe Seahawks would offer him a contract. Robinson also admits he did not "come to Seattle to learn how to play football." Further, the record also establishes 

### successful completion ofthe minicamp tryout did not guarantee employmentwith the
Seahawks. While the Seahawks provided Robinson with an itinerary to follow during the 

### minicamp, substantial evidence shows the Seahawks did not have the authority to discharge or discipline Robinson foreither notfollowing the itinerary or not participating inthe scheduled activities. Bycontrast, Seahawks players under contract are subjectto 

### "mandatory rules and discipline."5

5For the first time in his replybrief, Robinson cites Bolin v. KitsapCounty, 114Wn.2d 70, 785 P.2d 805 (1990),to argue the Seahawks' rightto controlestablishes an employmentrelationship. Bolin is distinguishable. In Bolin. because a juror's "entire service was involuntary," the court held that the Novenson two-prong testdid not apply. Bolin, 114 Wn.2d at 73-77. 14No. 69739-1-1/15 Second, substantial evidence supports the determination thatthere was no mutual agreement to an employment relationship between Robinson and the Seahawks, and no objective evidence supports the reasonable beliefthat Robinson was
an employee. Although an employee's subjective beliefas to the existence of an employer-employee relationship is material, "[a] worker's bare assertion ofbeliefthat he
or she worked for this or that employerdoes not establish an employment relationship." Rideau v. Cort Furniture Rental. 110 Wn. App 301, 307, 39 P.3d 1006 (2002); Jackson

v. Harvey. 72 Wn. App. 507, 519, 864 P.2d 975 (1994). The court must determine whetherthe claimant's beliefis objectively reasonable. Jackson, 72 Wn. App. at 519. The court's Findings of Fact state, in pertinent part: 8. Mr. Robinson tried out for at least two other teams before the Seahawks mini-camp but had not been offered employment. 9. On April 30, 2009, a year before the Seahawks mini-camp, Mr. Robinson had tried outfor the Philadelphia Eagles, an offer of 

### employment had been made, the parties had negotiated the particulars ofemployment and ultimately the parties had executed a standard National Football League player contractform which created 

### an employment relationship and contained the particulars thereof. 10. Priorto attendance at the Seahawks mini-camp in April, 2010, Mr. Robinson knew that attendance at such mini-camp did not create an 

### employment relationship between prospective players such as himself and National Football League teams. 11. Priorto attendance atthe Seahawks mini-camp in April, 2010, Mr. Robinson knew that the National Football League and the Seahawks had well established and formalized employment procedures in place, 

### and that pursuantto such procedures, an employment relationship was not created between prospective players and teams untilan offer 

### ofemploymentwas made, complete employment particulars were negotiated and agreed, and both the prospective player and the team had executed a standard National Football League player contract form creating an employment relationship and containing the particulars thereof. 

### 21. Ofthe sixteen persons (including Mr. Robinson) who attended the Seahawks mini-camp inApril, 2010, five were approached with 

### employment offers from the Seahawks which led to execution of a

15No. 69739-1-1/16 standard National Football League playercontract and creation of employment relationships between the Seahawks and those players; Mr. Robinson was not one ofthose five players. The Seahawks expressly informed Robinson and his agent that attendance at the minicamp did not guarantee a place on the team or create an employment relationship. At orientation, the Seahawks reiterated that attending the minicamp tryout did not mean Robinson was "an employee ofthe Seahawks." Further, substantial evidence shows that the successful completion of a minicamp tryout did not guarantee future employment with the Seahawks. Ofthe 16 tryout players atthe minicamp 

### Robinson attended, only 5 were offered contracts, and only 2 eventually made the final
53-man roster. Substantial evidence supports the finding that Robinson knew an employment 

### relationship with an NFLteam did not exist unless the team made an offer and the parties executed a standard NFLplayer contractform. There is no dispute Robinson 

### signed a contractwiththe Philadelphia Eagles NFL team in2009 before becoming a free agent, and he previously attended a tryout with two other NFL teams that did not
offer him a contract. 

### Robinson also argues that paymentfortransportation, lodging, and meals 

### constitutes "wages" under RCW 51.08.178. Cockle v. Departmentof Labor & Industries. 142 Wn.2d 801, 16 P.3d 583 (2001), does not support his argument. Cockle addresses whetherthe value ofemployer-provided health care coverage should be 

### included inthe calculation ofcompensation payments under RCW 51.08.178. Cockle.
142Wn.2dat805.

16No. 69739-1-1/17 RCW 51.08.178(1)(g) states that" 'wages' shall include the reasonable value of board, housing, fuel, or other consideration of like nature received from the employer as part ofthe contract of hire." Because RCW 51.08.178 wage calculation applies to 

### workers covered by the IIA, the statute is "notapplicable to the facts in this case."6 Here, unlike in Bemis where the claimant received the value of a training course in addition to a per diem, the Seahawks did not pay Robinson wages or a per diem, and Robinson concedes he "did not gain any benefit or value by
... participating inthe tryout during the mini-camp." Substantial evidence supports the conclusion thatthe 

### statute defining "wages," RCW51.08.178, "is not applicable to the facts of this case."7 Relying heavily on the decision in Bemis, Robinson asserts that indetermining whether an employment relationship exists, we should considerthe exposure to risk and whetherthe activity provides a benefitto the employer. Bemis does not support his argument. The BIIA in Bemis did not rely on exposure to risk or benefitto the employerto determine whetherthere was an employment relationship. In Bemis. the BIIA 

### considered two separate issues. First, whetherthe claimantwas an employee and second, whetherthe claimant suffered an industrial injuryduring the course of 

### employment. Bemis. 1992WL 160668, at *1. After concluding Bemis established an impliedcontract ofemploymentwithAlaska Airlines based on the guarantee of employment, the high degree of control, includingthe right to discharge, and the 6Further, reimbursement for incidental expenses like travel and food is not sufficient to transform that individual into an employee forpurposes of the IIA. See Dotyv. Town of S. Prairie, 155Wn.2d 527, 542-45, 120 P.3d 941 (2005) (holding the stipend paid to volunteerfirefighters constituted reimbursement forexpenses incurred in performingassigned duties and did notrender a volunteer an employee under the IIA).7Finding of Fact 16 states, "TheSeahawks did not pay Mr. Robinsonwages or per diem, but they paid for his air-fare, transportation, lodging and providedhim food whileat the tryoutduring the mini camp." Conclusions of Law5 states, "RCW51.08.178 is not applicable to the facts in this case." 17No. 69739-1-1/18 payment of a per diem, the BIIAthen addressed whether Bemis met her burden of proving the injury occurred "inthe course ofher employment." Bemis. 1992WL 160668, at *5-6. The BIIA cites the undisputed evidence that Bemis "undertookflight 

### attendant training at the direction ofAlaska Airlines" to conclude the injuryoccurred during the course ofemployment. Bemis. 1992 WL 160668, at *6. As further support forthe conclusion thatthe injuryoccurred inthe course ofemployment, the BIIA cites two out-of-state cases addressing "the question ofworkers injured during 'tryout' 

### periods," Smith v. Venezian Lamp Co.. 168 N.Y.S.2d 764 (N.Y. App. Div. 1957), and Laeng v. Workmen's Compensation Appeals Board. 494 P.2d 1 (Cal. 1972), noting that those cases considerthe risks to which the applicant was exposed and the benefitto 

### the employerto determine whether an "injuryto a worker who is being trained but has not yet begun performing the full duties of the intendedjob" is covered. Bemis. 1992 WL 160668, at *6-7.8 

### Alternatively, Robinson urges us to adopt an exception to the requirement in Novenson thatthe claimant must establish a mutual agreementto an employment 

### relationship for a minicamp tryout. We cannot ignore the well-established and binding

8In Smith, the claimantapplied for a job as a lamp polisher. Neither wages nor hours were discussed but a manager said that "he would tryhim out." Smith, 168 N.Y.S.2d at 765-66. The claimant was injured while polishing a lamp. Afterthe accident, the employeradmitted "that itwas theemployer, that claimant was employed as a polisher, and that claimant was being given a trial to test experience to establish base pay." Smith, 168 N.Y.S.2d at 765-66. The court held that where the undisputedfacts show "a tryoutinvolves an operation thatwould be ordinarily viewed as hazardous," underNewYork law, an employment relationship exists. Smith, 168 N.Y.S.2d at 766. InLaenq, the claimant was injured during a physicalagility testthat was part of a tryout for the position of refuse crew workerwith the city. Laenq, 494 P.2d at 2. UnderCalifornia law, "employee" is defined as" 'every person in the service of an employer under any appointment or contract ofhire or apprenticeship, express orimplied, oral orwritten.'" Laenq, 494 P.2d at 4 (quoting Cal. Labor Code, § 3351). "'Any personrendering service for another, other than as an independentcontractor, or unless expresslyexcluded herein, is presumed to be an employee.'" Laenq, 494 P.2d at 4 (quoting Cal. Labor Code, § 3357). The courtconcluded that theclaimantwasentitledtoworkers' compensation because his injurywas incurred in theperformance of a "potentially hazardous" taskin the serviceof, andforthe benefit of, the employer. Laenq, 494 P.2d at 9. 18No. 69739-1-1/19 

### Washington Supreme Court precedentthat requires a claimantto establish mutual consent to an employment relationship for purposes ofthe IIA. 1000 Virginia Ltd. P'ship

v. Vertecs Corp.. 158 Wn.2d 566, 578, 146 P.3d 423 (2006). Because substantial evidence supports the superior courtfindings and those 

### findings supportthe conclusion that Robinson was not an employee of the Seahawks forpurposes ofthe IIA, we affirm denial ofworkers' compensation benefits. 

# %(hAM^

WE CONCUR: 

# Cc^J

19