By Gregory Korte
The Cincinnati Enquirer

Lawyers for Major League Baseball, the National Football League and their players unions lobbied Cincinnati City Council Tuesday not to apply the city's 2.1 percent earnings tax to visiting athletes and performers.

But despite their pleas - and those of smaller arts organizations who say the "jock tax" will also apply to actors, rock stars and classical violinists - supporters of the tax appear to have the five votes they need to enact it.

If passed, it could become a test case for Ohio's unique tax code, which allows cities to tax athletes and entertainers regardless of how many days they work in the city - even if they're on the disabled list, and even if they're only a coach, trainer or promoter.

"I can tell you this: There will be a challenge," said Stephen Kidder, a Boston lawyer for the football and baseball players unions. The so-called "jock tax" is an exception to the "itinerant worker rule." That rule, found in state law, says cities may not tax people who work in the city fewer than 12 days a year. The exception says professional athletes and entertainers - and only those workers - may be taxed from day one.

That's unfair, discriminatory and probably unconstitutional, the players say.

"Professional athletes pay taxes in more states than almost any other taxpayer, and for the most part, they don't complain about it," said Mr. Kidder. "The difference here is that you're proposing to tax only the athletes and entertainers."

But Councilman David Pepper, who's been the staunchest advocate for closing what he calls the "jock loophole," said athletes and performers are different. "It's a unique job. You come in on a one-time basis, or for several games, and make a lot more money than other jobs," he said.

And because athletes and performers often play in taxpayer-subsidized facilities such as Paul Brown Stadium, it's not unreasonable to ask them to pay their fair share, Mr. Pepper said.

Representatives from U.S. Bank Arena, Cincinnati Symphony Orchestra, Cincinnati Arts Association, Broadway Series and the Empire Theater said the tax would hurt their ability to attract top talent.

LaShawn Pettus-Brown, a Taft High graduate who plays professional basketball in Japan, could be a visiting athlete. He's also the owner of the Empire Theater, and he showed council members a standard contract "rider" that makes the venue owner responsible for all local taxes. In other words, local people will end up paying the tax one way or another, he said.

An analysis by the city Finance Department estimates that the city could raise $560,000 from athletes and $200,000 from other performers annually. That $760,000 - along with a $2 million increase when City Council cut the property tax rollback last month - could save valuable city programs as the city approaches a $35 million budget deficit, supporters argue.

Council members who support or are leaning toward the tax include Mr. Pepper, Minette Cooper, John Cranley, David Crowley and Jim Tarbell.

Councilman Pat DeWine said the tax is so broad it could apply to a magician or clown from the suburbs who comes into the city to work a 5-year-old's birthday party.

E-mail gkorte@enquirer.com