In re the Claim of Rivera

— Appeal from a decision of the Unemployment Insurance Appeal Board, filed January 27, 1983, which ruled that claimant was entitled to receive benefits. The sole issue on this appeal is whether there is substantial evidence in the record to support the Unemployment Insurance Appeal Board’s finding that claimant was not disqualified from receiving benefits for losing his employment through misconduct in connection therewith (see Labor Law, § 593, subd 3). Claimant was discharged for assaulting an umpire during the course of a softball game on the employer’s premises. The teams were composed entirely of employees and were part of a company intramural league. The employer provided the field and contributed some money toward equipment. The umpires were obtained through an umpires’ association and were paid by the employer. The employees purchased their own uniforms and also paid a fee which was used to purchase additional equipment. Participation in the league was purely voluntary and the games were played after regular working hours. The employees who participated received no additional compensation or other consideration from the employer. Not every discharge for cause constitutes misconduct within the meaning of subdivision 3 of section 593 of the Labor Law (Matter ofHulse [Levine], 41 NY2d 813, 814). Thus, although an employer has the right to discharge an employee, whether the employee’s acts amount to “misconduct” is always reviewable (Matter of Guilizia [Ross], 72 AD2d 868). Here, the board determined that claimant’s assault of the umpire was not misconduct in connection with his employment. In view of the proof that participation in the softball games, which had no relation to the actual work performed by the employees, was purely voluntary and occurred after regular working hours, there is substantial evidence to support this determination, despite the fact that the games were played on the employer’s premises. The board’s decision must, therefore, be affirmed. Decision affirmed, without costs. Mahoney, P. J., Sweeney, Kane and Casey, JJ., concur.