By Stephen Burroughs and Andrew Appleby

Former Chicago Bears linebacker Hunter Hillenmeyer and former Indianapolis Colts center Jeff Saturday challenged the City of Cleveland’s application of the “games-played” apportionment method to their football salaries before the Ohio Board of Tax Appeals. During their careers, both players were nonresidents whose respective NFL teams traveled to the city to play the Browns. Cleveland ordinance provides a specific apportionment formula for professional athletes: (Games in Cleveland / Total Games) x Total Income earned in the taxable year. The players argued this formula taxes income earned from out-of-state services, in violation of Ohio law and the U.S. Constitution. Hillenmeyer’s contract required him to participate in the Bears’ official mandatory mini-camp(s), official preseason training camp, all Bears meetings and practice sessions. The games-played method excludes players’ non-game services from the apportionment calculation, which for Hillenmeyer, resulted in a 400% increase in income subject to tax in Cleveland (over the standard “duty days” method). The City argued that the result is correct under the apportionment ordinance because NFL players only receive a paycheck for each game played (and not throughout the year). Saturday’s contract contained similar language, but he was injured during the tax period in question and did not travel to the city. Cleveland’s apportionment ordinance specifically includes games “the athlete was excused from playing because of injury or illness.” Therefore, a portion of Saturday’s income was still subject to tax. In each case, the Board of Tax Appeals ruled in favor of the City, stating that the City’s adherence to the games-played ordinance was reasonable but acknowledged that the Board did not have authority to decide the players’ Commerce Clause and Equal Protection Clause constitutional challenges. Like many Browns opponents, the NFL players may have a fourth-quarter comeback left in them—Hillenmeyer recently sought review from the Ohio Supreme Court. Hillenmeyer v. City of Cleveland Bd. of Review, Case No. 14-0235.