56109/160
Decided by the Board June 20, 1942.
Contract laborer — Professional hockey player — Incidental employment.
A professional hockey player who has been offered incidental employment in the United States at a golf course in a supervisory capacity is not inadmissible as a contract laborer.
EXCLUDED BY BOARD OF SPECIAL INQUIRY:
Act of 1917 — Alien contract laborer.
Mr. J.H. Krug, Board attorney-examiner.
STATEMENT OF THE CASE: On May 23, 1942, the appellant applied for admission for permanent residence at Montreal, Canada. A board of special inquiry excluded him on the ground stated above and he appeals.
DISCUSSION: The appellant is a native and citizen of Canada, 20 years of age, single. He desires admission for permanent residence and presents a valid Canadian passport and a section 4 (c) immigration visa issued at Montreal on May 23, 1942.
The appellant was in the United States between November 1941 and April 1942 as a hockey player for the Washington Eagles, a member of the Eastern Amateur Hockey League. Attached to the visa is a letter to the American consul from S.G. Leoffler who controls the hockey team. The letter, which is sworn to by Mr. Leoffler, tells of the appellant's employment as a hockey player during the past season and continues:
We are desirous of having him in Washington during the entire year so that he will be available promptly and without question to play as a member of the Washington Eagles during the season of 1942-43, which begins in November. With this in view, we will guarantee him a position at a minimum salary of $1,630 a year, to be paid to him at the rate of $40 a week during the winter season and $25 a week during the balance of the year. We further guarantee that he will never become a public charge as long as he may remain in the United States.
The appellant testifies that on his admission he intends to work for Mr. Leoffler, until the hockey season opens, at a Washington, D.C., golf course.
When questioned as to the kind of work at the golf course he replied, "I will be in the clubhouse looking after the clubs and in charge of the caddies." He also testifies that the position offered by Mr. Leoffler is his principle inducement for entering the United States.
The board of special inquiry excluded the appellant under section 3 of the act of 1917, which declares that the following are inadmissible:
persons hereinafter called contract laborers, who have been induced, assisted, encouraged, or solicited to migrate to this country by offers or promises of employment * * * or in consequence of agreements * * * express or implied, to perform labor in this country of any kind, skilled or unskilled;
The courts have considered the meaning of this clause, and the following appears in Ex parte Gouthro, 296 F. 506, 509 (E.D. Mich. 1924), affirmed, United States v. Gouthro, 8 F. 2d 1023 (C.C.A. 6th, 1925):
It must now be regarded as settled that the purpose of Congress in enacting this so-called "contract labor" legislation was to prevent the importation into this country of an ignorant, servile class of foreign laborers, to work at a low rate of wages, and thus reduce other laborers engaged in like occupation to the level of the assisted immigrants, and this provision of the statute does not refer nor apply to persons whose work requires mental, rather than merely manual, effort as its dominant element.See also Ex parte Aird, 276 F. 954, 957 (E.D. Penn. 1921). In keeping with these court decisions the immigration authorities ruled that the contract-labor law does not apply to the following: professional tennis, football, baseball, hockey, and soccer players, and boxers. (Circular No. 95, April 6, 1937; Circular No. 134, July 12, 1937.) In addition, the following are considered to be exempt from the contract-labor provision: A skiing instructor, H---- S---- (56062/120) [ see page 196, this volume]; a skating instructor, E---- W---- (56036/369); a racehorse jockey (55828/393); a racetrack starter, horse grooms and trainers (Central Office Circular Letter No. 55772/845A, March 2, 1936).
If the appellant sought admission solely for the purpose of playing hockey he would not be a contract laborer. We do not believe he is inadmissible merely because of the duties he expects to perform at the golf course until the hockey season opens. The evidence does not show that he will perform any manual labor at this job, and the position appears to be a supervisory or administrative one. But in addition, it appears that the promise of employment was made to the appellant as a hockey player and not as an employee at the golf course. He is of value to Mr. Leoffler only as a hockey player, and Mr. Leoffler wishes him to enter the United States in order to have assurances that the appellant will be available when the hockey season opens in November. He proposes to pay the appellant at a higher rate during the hockey season when the appellant will be contributing the services for which he is fitted by his special training and skill. According to Mr. Leoffler's letter, the appellant will be paid $880 for 22 weeks of the hockey season and $750 for the 30 weeks during which the appellant will presumably be employed at the golf course. The golf-course position is clearly incidental to the primary purpose of the appellant in applying for admission, namely, to play hockey.
The statute defines a contract laborer as a person "induced * * * to migrate to this country * * * in consequence of agreements * * * to perform labor." When a person is induced to come to the United States pursuant to an agreement to play hockey, he is not subject to this provision. Here the offer or promise of employment and the agreement to perform labor were made because of the appellant's special abilities as a hockey player. We believe that the contract-labor law does not apply to the appellant.
FINDINGS OF FACT: Upon the basis of all the evidence adduced at the hearing, it is found:
(1) That the appellant is an alien, a native and citizen of Canada;
(2) That the appellant desires admission for permanent residence and presents the necessary documents;
(3) That the appellant is coming to the United States pursuant to an offer of employment as a professional hockey player, and as an incident to this employment he has been offered a position at a lesser salary, until the hockey season opens, as an employee at a golf course with supervisory or administrative duties.
CONCLUSION OF LAW: Upon the basis of the foregoing findings of fact, it is concluded:
That under section 3 of the act of 1917 the appellant is not inadmissible on the ground that he is a contract laborer.
OTHER FACTORS: There are no other factors.
ORDER: It is ordered that the appeal be sustained and the appellant be admitted for permanent residence.