The legal battle between Canada's major-junior hockey leagues and some of their former players has reached a critical phase and the man plotting the players' case is confident his clients are on firm legal ground.
On Thursday, Alberta Justice R.J. Hall ruled a class-action lawsuit that would allow current and former Western Hockey League players to collect a minimum wage will go ahead. However, the league's five U.S.-based teams will be exempt from the class action because they are outside of the court's jurisdiction.
Until now, WHL players have been paid modest sums and called "amateurs" by the clubs for which they play. Ted Charney, lead lawyer for the plaintiffs, contends his clients are grossly underpaid employees and should be subject to standard employment practices.
"I think it's very straightforward," said Charney, via telephone from Toronto on Friday afternoon. "I think it's been over-litigated and over-thought because the leagues have to try and paint this picture of (the dispute) being some kind of an amateurism spat in order to avoid the impact of employment law.
'There's all sorts of hallmarks of an employment relationship — the most obvious being that the leagues are making hundreds of millions of dollars off of the players. How do you make hundreds of millions of dollars off amateur players?' – Ted Charney, lead lawyer for the former junior hockey players
"But their standard player agreements, as they've been written for the last (number of) years, have characterized the players quite clearly as employees. It's only in 2014 that they decided to rewrite the standard player agreement and start calling them amateurs and that's because of this litigation. I mean, we have paycheques, records of employment, all sorts of payroll deductions. The players and teams called their cheque they got every two weeks a paycheque. I mean, there's all sorts of hallmarks of an employment relationship — the most obvious being that the leagues are making hundreds of millions of dollars off of the players. How do you make hundreds of millions of dollars off amateur players?"
The WHL has maintained from the outset that being compelled to pay a minimum wage to players would be devastating to many of the league's franchises. Manitoba's minimum wage is $11 per hour. Ontario's is $11.40, Saskatchewan's is $10.72. Alberta's is $12.20 and will rise to $13.60 on Oct 1. B.C.'s is $10.85.
"This was a procedural decision only and makes no determination regarding the merits of the claim and, in particular, the status of WHL players," WHL commissioner Ron Robson said in a statement posted on the league's website in response to Justice Hall's ruling. "The claim fundamentally misunderstands the nature of amateur sport, including major junior hockey. We believe players are not employees but amateur athletes, and we believe our case is strong."
Lukas Walter, Kyle O'Connor and Travis McEvoy are former WHLers who are named plaintiffs in the class action. But, as a result of certification, Charney's firm now represents all current and former players going back to 2012.
"The new players that come into the league are not in the class at this stage because of the way the judge has decided the class definition," said Charney. "There will be an opportunity for us to reapply to expand the class in a year from now or before the trial, whenever that is, to pick up those extra players."
Charney contends players in all three CHL-affiliated leagues are being paid amounts that haven't changed substantially in 40 years. Prior to 2014, WHL teams paid players between $35 and $55, the Ontario Hockey League paid $50 and the Quebec Major Hockey League paid $35 for a 40- to 65-hour work week.
In response to the threat of the class action, the WHL has sought, and received, some government protection.
"The provinces of Saskatchewan and British Columbia along with the State of Washington have adopted the exemptions to the employment standards acts clarifying that WHL players are amateur athletes," said Robson. "The WHL expects all other provincial and state jurisdictions will also pass similar exemptions in the near future."
This sort of legislation is only a partial roadblock for the players' class action.
"The provinces that have, for reasons which I don't agree with, passed legislation to exempt the players (but) did not do it retroactively," said Charney. "Those exemptions only apply going forward from the day they were passed — they don't go backwards. And so if Alberta and Manitoba were make the same mistakes as the legislatures in B.C. and Saskatchewan, it would only go forward."
'Saskatchewan and British Columbia along with the State of Washington have adopted the exemptions to the employment standards acts clarifying that WHL players are amateur athletes. The WHL expects all other provincial and state jurisdictions will also pass similar exemptions in the near future' – WHL commissioner Ron Robson
In Manitoba, which has only one major junior franchise — the Brandon Wheat Kings — there is no such protection for the WHL.
"The government is aware that there is variation in the way in which different jurisdictions currently address the issue of amateur athletes for employment standards purposes," said a spokesperson for the Manitoba government Friday. "Manitoba has not yet determined what, if any, changes to pursue."
Last year, CHL teams were compelled to provide financial records for examination, but these records are complex and can be difficult to decipher.
"The records they are keeping are not really instructive of what they are making," said Charney. "It's all accounting stuff. It's written for the reasons that they're trying to maintain their final status in a way where they don't have to pay as much tax -- to avoid paying taxes as much as they legally can.
"So, there's that. But if you look at the gross revenues, we have those figures, it's hundreds and hundreds of millions of dollars and the money's going somewhere and it's not going to the kids... it's going everywhere except to the players. Their whole financial harm argument has been called the Chicken Little defence by the judges."
Meanwhile, court certification for a class action against the QMJHL is still pending.