A pair of lawyers, after success in rejiggering “jock taxes” charged to athletes in Tennessee and Ohio, are eyeing Pittsburgh as their next arena.

Jock taxes are the various state income taxes levied on professional athletes for games they play outside their home state.

Players from the National Hockey League, Major League Baseball and National Football League are suing Pittsburgh for what they claim is an illegally high tax on nonresident athletes who play in the city. They’re represented by Stephen Kidder and Ryan McManus of Boston-based Hemenway & Barnes LLP who have secured tax refunds and law changes for athletes in Cleveland and Tennessee in similar cases. Unlike those cases, which had to do with tax calculations and exceptions for athletes, the Pittsburgh lawsuit challenges the city for calling it a fee.

The lawsuit, filed Nov. 5 with the Court of Common Pleas of Allegheny County, challenges the city’s non-resident sports utility usage fee, which charges visiting athletes a 3% rate on their income for time spent performing in a publicly funded facility.

Although it uses the word tax in the language of the rule, Pittsburgh publicly describes the law as a usage fee on athletes.

“Pittsburgh is trying to say it’s a fee, not a tax,” said Ryan Losi, a financial adviser and executive vice president at PIASCIK, an accounting firm in Virginia."That wont fly.”

A representative for the U.S. Attorney’s Office for the Western District of Pennsylvania could not be reached for comment. Nov. 8.

States with jock tax laws are not permitted to tax athletes at a higher rate than other nonresidents. The fee Pittsburgh bills nonresident athletes is three times the 1% tax it charges nonresident workers who earn income in the city.

“I think it’s really important to note that athletes don’t object to paying taxes across the country,” Kidder said. “What athletes object to is when they are treated completely differently than every other taxpayer and that’s what we’re objecting to.”

Jock taxes, have existed since the early 90’s, when California billed Michael Jordan for his earnings in the Chicago Bulls’ NBA finals victory over the Los Angeles Lakers.

Work-related time athletes spend in another state with an income tax is known as a “duty day.” Those days are added up then divided by an athlete’s total work days from the start of training camp on. The appropriate tax for each state is then calculated based on time spent there.

Athletes Win Similar Suits

Kidder and McManus were succesful in both Tennessee and Cleveland. Both states rejiggered the way they tax athletes after the lawsuits.

“We’ve challenged jurisdictions when we think it’s unfair,” Kidder said.

In 2016 the two represented Players Associations for the NBA and NHL, won a settlement in a similar case in Tennessee.

Tennessee has no state income tax, yet its legislature passed a bill in 2009 charging athletes a jock tax of $2,500 per game.

They argued that the jock tax pro athletes paid for playing games in FedEx Forum (home to the Memphis Grizzlies) and Bridgestone Arena (home to the Nashville Predators) was unconstitutional because the rest of the state paid no income tax.

The players associations for both the NBA and NHL settled respective refund claims with the Tennessee Department of Revenue and the state no longer collects a jock tax.

In 2015 the Ohio Supreme Court ruled that Cleveland could not tax visiting athletes on a per games played method, another Kidder-McManus triumph for jock taxes.

In the case Hillenmeyer v. Cleveland, the court awarded former Chicago Bears linebacker Hunter Hillenmeyer refunds for his salary based on a duty-day calculation of his income. The court also maintained Cleveland should utilize the duty-days method to tax visiting athletes.

The case is Francoeur v. Pittsburgh, Pa. Ct. Com. Pl., No. GD-19-015542, 11/5/19.