The ongoing battle between athletes and their superiors involving those athletes’ classification and rights is one that has rattled many different sports at many levels. As seen in the recent NFL and NHL concussion lawsuits, professional athletes claim their well being has been exploited to benefit their respective leagues. In the case of O’Bannon v. NCAA, college athletes were seeking “pay-for-play” and compensation for using their names and identities to benefit their schools. But one struggle has somewhat flown under the radar that may have lasting consequences that could change the hockey world. This is the seemingly simple question of whether junior hockey players in Canada should be classified as “employees.”
Canadian Junior Hockey
Canadian major junior hockey, the “CHL”, is comprised of three leagues: the Western Hockey League (“WHL”), the Ontario Hockey League (“OHL”), and the Quebec Major Junior Hockey League (“QMJHL”). These three leagues are considered to be one of the, if not the, premier league to develop hockey players for the NHL. What is interesting is that the CHL seems to operate in form as a hybrid between amateur/developmental hockey and minor league professional hockey. Even though the CHL maintains that its players are amateur/student-athletes that cannot receive pay as a professional but simply receive a stipend, as will be discussed later in this article, there are many factors that point to the CHL being a professional league in which the players would be considered “employees.” Conversely, there are many factors that point to the CHL being considered an amatuer and developmental league in which the players would not be considered “employees.” It seems to be this hybrid status, mixed with issues mentioned below, that are fueling the fire of the ongoing debate regarding the players’ status in the CHL.
Here Comes the Heat
In October of 2014, a class action lawsuit was filed in Toronto alleging that the CHL, the OHL and the OHL’s teams “conspired and agreed together … to act in concert to demand or require that all players sign a contract which the defendants knew was unlawful.” Generally speaking, the lawsuit claimed that the CHL has been and continues to unrightfully and unlawfully treat the players as amateurs, similar to paid interns, versus employees under Canadian and United States law.
When a class action is filed, there has to be a representative for the class named in the lawsuit. In this case it was Sam Berg. His story is much like many others before and after him playing in the CHL. He signed with the OHL’s Niagara Ice Dogs in 2013 under a mandatory contract required to be approved by the league. Not including other paid expenses, his pay included $50 per week for roughly 30 to 45 hours of work per week. Also included in the contract was a tuition package that granted him a four-year scholarship to college once he played a single game. As alleged by Sam, after some time with the Ice Dogs, he was sent down to the Junior B level where he was injured and his career effectively ended. He later learned his contract was not forwarded to the league while he was playing for the Ice Dogs and was later approved but revised by the OHL to reduce the tuition package from four years to one-half of a year. The team and league argued that Sam actually breached the contract by not showing up to training camp in the fall. Who was right or wrong in the narrow focus of a possible breach of contract action is not the focus of this article, nor is it the focus of the class action lawsuit. It was just one example of the alleged bigger problem faced by players in the CHL today: the treatment of CHL players and their status in the eyes of the law and the league.
Much like the class action lawsuit in Ontario, similar suits were filed in Alberta against the CHL, the WHL, and the WHL’s teams and in Quebec against the CHL, the QMJHL, and the QMJHL’s teams.
Developments Over Time
Since 2014, new developments involving and related to this class action lawsuit have taken place. The Canadian province of British Columbia passed laws exempting major junior hockey players from being classified as employees in 2016. In addition, Saskatchewan, Manitoba, New Brunswick, Nova Scotia and Prince Edward Island in Canada as well as Washington and Michigan in the United States have enacted similar laws with Quebec looking to possibly do the same. UPDATE: Quebec did enact such laws in 2018 and lawmakers in Ontario may be looking to do the same. UPDATE: Every Canadian province having a CHL team passed similar legislation as of March of 2020. Barring some breach of a higher level of authority such as a breach of a state’s constitution in the United States, what these laws say goes, whether it’s morally right, wrong, or indifferent. However, action in the players’ favor has been prevalent as well.Earlier in 2018, the Portland Winterhawks attempted to urge the Oregon state legislature to pass a similar law exempting their players as employees. Not only did that bill die with overwhelming support by citizens, labor unions and various organizations, testimony from two former WHL players actually led to one Oregon State Senator stating how she was sorry she ever took her daughter to a Winterhawks game because she didn’t realize they were having fun at the exploitation of children.
As mentioned previously, in addition to the Ontario lawsuit, similar suits have been filed in Quebec and Alberta. Striking yet another blow to the CHL, the Alberta Court of Appeal dismissed actions brought by the WHL attempting to prevent that lawsuit from being certified as a class action. While the legal reasoning for why that class action suit is allowed to proceed is beyond the scope of this article, it seems to show that public and legal views on this issue with the CHL may be starting to favor the players.
When the classes were certified by the courts, the teams based in the United States were not included as defendants to the actions. Only the CHL, OHL, WHL, QMJHL and their Canadian teams were included.
Significance of Being an “Employee”
So why is it a big deal that the players actually be considered “employees”? Being considered an “employee” to these players is more than just having a certain title, it is a legal status that provides the individual with certain rights and benefits under both Canadian and U.S. law. Some of the biggest benefits include minimum wage, disability and unemployment pay, overtime and vacation pay, and potentially insurance and retirement benefits not available to non-employees. In addition, an “employee” may have a stronger ability to bring a legal action against the employer in many events such as wrongful termination, workplace injury, or denial of benefits. Lastly, as seen in many professional sports including the NHL, employees have the ability to unionize to not only enforce their rights as employees, but to enhance and strengthen those rights against the team owners and the league.
So Which is It?
Generally, to make the argument for whether CHL players should be considered employees requires an analysis that first figures out how the relevant law defines an employee and then applying that definition to see if the characteristics of this situation fit it or not. Sometimes U.S. state or Canadian provincial law specifically says “x is an employee, y is not an employee” as was done in British Columbia, Saskatchewan, Manitoba, New Brunswick, Nova Scotia and Prince Edward Island in Canada and Washington and Michigan in the United States. (Based on the UPDATE every province in Canada as of March 2020). In such a situation the analysis is over and that is the law until the legislature repeals and replaces it or a court deems it unconstitutional. However, when the state or provincial law does not specifically define an employee, arguments are made in court using multiple sources and factors to back those arguments and the judge decides. This is what is happening in Ontario, Alberta, and Quebec (assuming they do not pass their own legislation).
There are many reasons and factors that could lead to the conclusion that CHL players should be considered employees more than simply because “it’s the right thing to do” (even though there could be policy argument to be made as well). There are also reasons and factors to lead to the conclusion that the players are not employees.
Comparison with Other Leagues
One way to analyze and argue this question is to compare and contrast some of the main aspects of the CHL with leagues such as the NHL (where it is 100% clear the players are employees) and leagues such as the NCAA (where it is clear the players are not employees).Like the NHL, the CHL has drafts for its respective leagues to which teams have the ability to obtain the rights to individual players. Once drafted, the player can then choose whether to sign with that team or go a different route as long as not with another team in that league (play in Europe, go to college, etc.). If a player is not drafted, he can sign as a free agent with another team. Likewise, players drafted to the NHL have the choice to sign with that team or go a different route as long as they do not sign with another team in the NHL until the team that drafted them loses the rights to that player. Also like the NHL, players sign contracts, get paid (whether directly or through the providing of housing, food, equipment, travel etc.), and play before spectators who pay money to see them play for entertainment. It is important to note that the fact that spectators pay money to see them play is not a crucial factor as college sporting events also generally require payment to watch. However, the fact that the money paid ends up in some fashion being used to pay the players (albeit a small amount) may be a factor that swings this in favor of the argument for employee status. In addition, the players and the teams enter into a standard, league mandated contract that stipulates play and payment much like the NHL and unlike the NCAA.
One argument presented by the CHL is that the league is truly a developmental league and the premier source for young hockey players to make it to the NHL. While this factor may have some teeth to it, there are some aspects that weaken it. One is that while it is true the CHL is the premier league for providing young players to the NHL, it is different from many development leagues that require the player to pay to play versus being paid to play by the team. There is also something to be said about how players reaching the CHL are likely to devote all, or a high majority of their time, to playing hockey with the intention of making the NHL. There are education opportunities with the CHL but, as seen above, it may not always be guaranteed or clear as to what a player may receive. For those that make it to the NHL, eh…who cares right? But for the rest of the players, their argument is that they really have been used by the league and the teams with the hope of making it to the NHL as the motivator to stick with it. It is hard to imagine that education is a bigger focus for these players than hockey at 18, 19, or 20 years old.
On the other hand, the NCAA is a league to which the NHL draws players from and those players are clearly not employees. But the very nature of college sports (which has come under challenge lately) is that the athletes are amateurs. They are considered “student-athletes” …… student coming first (or at least in theory). There is a clear expectation going in that the player is not going to be an employee of the university but is a student who happens to play a sport maybe on a scholarship. There are benefits given such as living and food stipends but there is not direct cash paid to the athletes. In addition, they are working to getting an education in addition to possibly making it pro in hockey. The CHL is different in that the players get pulled in through the draft much like the NHL and actually get paid in cash among other things. While a college athlete is considered a “student-athlete,” it is at least arguable that junior hockey players are more of “athlete-students.” The expectation of what their true status is does not seem as clear because of the hybrid nature of the CHL.
Another argument is that everyone else who works with the team, including the concession stand workers, are considered employees while the players are not. This may be a decent argument, and may be better served as a policy argument, but also could be attacked on the grounds that again, in the NCAA, players play with no pay and everyone at the facility or involved with the team would be considered an employee. Again, it’s slightly distinguishable as their status is “student-athlete” while someone who works at the concession stand is truly just an employee that may or may not be a student. Being a student is not required for that type of job.
Immigration Law
Shifting gears, an interesting factor that may be used to argue for the players’ status as employees is that United States immigration laws seem to already categorize them as such. The availability of work visas to Canadian or other international players playing for CHL teams in the United States is limited to one type of visa known as a H-2B visa because of the legal definition to which they fall into. This legal definition categorizes them as professionals and seems to make them employees of the teams they play for. United States law then requires such teams to pay them at least minimum wage as individuals on a work visa. In addition, unfair business practice and discriminatory laws require those teams to pay the U.S. citizens on an equal basis to the players with work visas. Assuming there are no loopholes are exceptions, these federal laws could essentially render U.S. state laws ineffective. It will be interesting to see if any arguments or claims are made in the lawsuits mentioned above that utilize this factor.
Policy
A final look at this employee versus amateur argument is one out of policy. This could swing either way depending on which “policy” you have in mind. I will first start with the league’s policy interest and argument. The league and team owners would argue that this is truly a developmental league, providing an avenue for young hockey players to make it to the NHL and receive a solid education along the way. The teams are not profitable and requiring them to pay the players as employees by providing minimum wage, overtime pay, and unemployment and insurance benefits would cripple many teams to the point that those teams would cease to exist. So basically there is a policy interest in keeping the CHL available so that both young players have a great avenue to the NHL and the NHL has a premier place to pluck young players from. U.S. states and Canadian provinces likewise may have an economic interest to keep these CHL teams in their locales. However, the fact that the NHL is so intertwined and dependent on this league makes it questionable whether it would in fact just allow the CHL to fold or even weaken. It is also questionable how “unprofitable” these teams truly are. As these lawsuits have progressed more information regarding the CHL’s finances and operations has been released publicly. For example, as was reported by forensic accountant Ronald Smith for the plaintiffs in the action against the WHL, from their own financial report, the Red Deer Rebels reported that they paid out $1.49 million in “management fees” in 2016 compared to $725,000 in 2015 and less in previous years. Smith reported that this would appear to show a large portion of that increase in management fees is a portion of team profit. While this may not be indicative of every team, it, along with possible other similar reports, would weaken the lack of money argument that could be made by the league. In addition, if money is an argument, as was mentioned in the O’bannon v. NCAA case, an argument could be made that there are less restrictive ways for the CHL to save money and provide competitive junior hockey than refusing the players’ status as employees.
On the other side of the policy argument is the argument for the health and well-being of the players as individuals. Not getting an education or suffering through some pain may be worth it if it leads to an NHL contract. But what about the rest of the players that never make it? We have again found ourselves in a seemingly battle of the individual (who is almost powerless alone) versus “the man.” Much like the NHL concussion lawsuits, players in the CHL seem to be wanting to pressure the league through numbers. As was seen in the Oregon state legislature debacle mentioned above, much of the public may be at the least empathetic with the players’ cause. While there are inherent risks assumed by the players playing in the CHL, and those players truly do want to play, the big question falls onto whether the league is truly exploiting the players for financial gain. This is the big policy argument to be made by the players. All the policy factors can be argued to point to the fact that legally the players should be classified as employees, but the argument will also fall onto why they should be classified as employees. As a judge, and further as a governing body responsible for lawmaking, it may simply come down to a battle over which policy interest is going to prevail: that of the league’s sustainability or that of the protection and welfare of the players.
Conclusion
It seems very possible that the courts will agree with the players in this issue. There seems to be a lot of factors favoring employee status for the players, questionable evidence supporting the “sustainability” argument made by the CHL, and a growing public perception favoring protection of the welfare of players. It will not only be interesting to see what the courts decide on this matter but also the aftermath of such decision. Should the players win, it is possible that state or provincial legislatures come in and enact laws that basically reverse such rulings, or it is possible that other states or provincial legislatures repeal previously enacted laws supporting the CHL. Or maybe none of that will happen and the judge’s ruling will be final. These state and provincial decisions limit the uniformity of the CHL’s operations across its leagues so there too might be a reaction from them. Even though the question of whether a CHL player should be considered an “employee” seems simple, this could have lasting effects through not only the CHL but other junior leagues and the NHL. So what is it, are these players employees of the teams they play for or not and, if so, should they be?
Post image attribution: By: Temescal, [CC BY-SA 3.0 (https://creativecommons.org/licenses/by-sa/3.0) or
GFDL (http://www.gnu.org/copyleft/fdl.html)], from Wikimedia Commons
