COLUMBUS, Ohio—Two former National Football League players have sued the city of Cleveland, claiming the city unconstitutionally charges visiting pro athletes higher municipal income taxes than other out-of-town workers.

One of the players, former Indianapolis Colts All-Pro center Jeff Saturday, is also balking at having to pay Cleveland income tax for a 2008 game against the Cleveland Browns, though he stayed in Indiana that day with an injury.

If the lawsuits are successful, Cleveland could stand to lose more than $1 million in revenue per year, according to a “conservative estimate” from the city’s tax department.

The suits, both of which are currently pending in the Ohio Board of Tax Appeals, challenge Cleveland’s uncommon method of assessing its 2-percent municipal income tax on visiting players – a so-called "jock tax."

Saturday and Hunter Hillenmeyer, a former linebacker with the Chicago Bears, allege in separate cases that Cleveland’s way of determining how much tax to charge players is unfair, because it taxes more of their income than non-athletes who temporarily work in the city.

City attorneys, meanwhile, have asserted in legal briefs that its tax system is reasonable and constitutional. The city of Cleveland's Board of Income Tax Review has previously ruled in the city's favor.

Debating the fair way to tax athletes

The lawsuits focus on the “games-played” method Cleveland uses to determine how much of a visiting athlete’s income can be taxed by the city.

Cleveland determines players' taxable income by taking the number of games their team played in the city that year while they were on the roster and dividing it by the total number of preseason, regular season, and playoff games they were available to play in.

In Hillenmeyer’s case, that means 1/20th of his income was taxed by the city in 2004 and 2006, as he played one game in Cleveland each year and was eligible to play in 20 total games, according to his appeal. In 2005, Hillenmeyer played one game in Cleveland Browns Stadium and was available to play in 21 Bears games, according to the document.

Hillenmeyer and Saturday claim that tying their income-tax liability to games played wrongly assumes they only worked on game days. During each of the three years in question, Hillenmeyer said in his brief, he worked at least 150 days, including practices, team meetings, and pre-season training camps.

Instead, the two players say, Cleveland should use a so-called “duty days” method to calculate how much they owe in taxes. Under that method, their tax liability would be determined by the number of days they worked in Cleveland divided by the total number of days they worked that year in any location.

For Cleveland, the stakes are fairly high. According to an analysis done in March by the city's tax office, a "conservative estimate" would set the city's losses at $1 million per year if it had to switch to a "duty days" method. That would include about $705,000 in lost revenue from NFL players, the city estimated.

For the players, meanwhile, the amount of money involved is relatively small. Hillenmeyer is seeking a total refund of $5,062, while Saturday is asking for $3,294.

During the three years Hillenmeyer paid Cleveland income tax, he reported earning a total of more than $4 million, according to his legal brief. Saturday's 2008 base salary was $3 million, according to the Indianapolis Star.

But the lawsuits are more about principle than about money, said Stephen Kidder, the NFL Players’ Association’s tax counsel who is representing both Hillenmeyer and Saturday in their lawsuits.

“It’s an attempt to right a wrong, frankly,” Kidder said. “Their method of taxation pulls into Cleveland income that is not earned in Cleveland. And that’s what no jurisdiction should be able to do. “

In addition, Kidder said, it’s “absolutely extraordinary” that Cleveland taxed Saturday for a Colts game in Cleveland on Nov. 30, 2008, when he was undergoing injury rehabilitation and had never set foot within city limits.

A city of Cleveland spokeswoman said she couldn’t comment on pending litigation or individual taxpayers. The city’s tax department didn’t respond to multiple phone calls seeking comment.

But in legal briefs filed in response to the lawsuits, city attorneys argue that even if the players don’t like the way Cleveland calculated their income tax, the system they use is fair.

“The ‘games-played’ method is certainly reasonable…since players are paid to do one thing – play in games,” city attorneys stated in a brief filed with the Board of Tax Appeals.

In Ohio, Columbus, Cincinnati, and Dayton each collect tax from visiting athletes using the “duty days” method, said Kent Scarrett of the Ohio Municipal League.

A number of other cities around the country with pro sports teams also impose a jock tax, including Detroit, Kansas City, Philadelphia, and Pittsburgh, according to a media report and examinations of city ordinances.

Since 2009, the state of Tennessee has charged professional basketball and hockey players a flat $2,500 fee for the first three games they play in the state.

Cleveland attorneys acknowledged in a different legal brief that other cities have switched from a “games-played” method to a “duty days” system.

“That shift, however, appears to have been largely orchestrated by the (NFL) Players Association who have threatened and strong-armed taxing jurisdictions to discard the games-played method,” the city argued.

A spokesman with the NFL Players Association didn’t respond to a request for comment about the allegation. Kidder said when professional athletes are being taxed multiple times on the same income, “they’re going to complain about it.”

Cleveland's attorneys also defended charging Saturday income tax for the 2008 Colts-Browns game, as city ordinance states that sick and injured players aren't exempt from the jock tax.

“When an employee takes a sick day, it would be an administrative burden to the taxing authority to determine where an employee is sick or injured,” the city’s brief stated. “It is, therefore, standard accepted practice to tax the employee where he or she would have worked if he were not sick or injured.”

Next steps still unclear

It’s still uncertain when the Ohio Board of Tax Appeals will issue decisions in the two cases.

Briefs in Hillenmeyer's case were filed last month. Both sides in Saturday’s case have agreed to submit written arguments next week and return responses by Dec. 6.

A.J. Groeber, the board’s executive director, said it could take some time for the three-member board to issue decisions, as the board doesn’t often hear municipal income tax cases and the issues involved are complex.

Kidder said if the board rules against Hillenmeyer and Saturday, they would look at appealing their cases to a state appeals court or the Ohio Supreme Court.

Alan Pogroszewski, an assistant professor of sports studies at St. John Fisher College in Pittsford, N.Y., said he believes Hillenmeyer and Saturday make solid arguments that Cleveland’s tax system violates their constitutional right to due process.

“I do think they have a very clear-cut case,” said Pogroszewski, who studies the issue of athlete taxation.

Ohio lawmakers have also been looking at getting involved with the issue. A municipal income tax reform bill introduced in the Ohio General Assembly earlier this year would have forced Cleveland to move to a "duty days" system.

But legislators removed that provision from a new version of the bill unveiled last month, saying they first wanted to see how the lawsuits played out.