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Unpaid overtime

The QMJHL is celebrating its 50th season by fighting against current and former players demanding a minimum wage. The league's commissioner says they should just be grateful for the experience.

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Players or puppets? - HILA PELEG
  • HILA PELEG
  • Players or puppets?

This year, Halifax is alight with junior hockey excitement.

For the second time in the Halifax Mooseheads’ history, the Memorial Cup—Canada’s nationwide junior hockey championship—will be played right here, at the Scotiabank Centre in May. The team is also celebrating its 25th anniversary this season, as the Quebec Major Junior Hockey League commemorates its own 50th year.

Gilles Courteau, commissioner of the QMJHL, was in town this past Saturday to watch the Mooseheads sweep their rival Wildcats 5-1, and to celebrate the golden jubilee of Eastern Canada’s top amateur hockey league.

It’s the ninth stop on his celebratory tour across Quebec and the Maritimes; meeting with new and current players, hosting events and competitions, attending games and touring around with the Memorial and President’s cups.

At coffee on Saturday afternoon, he takes a call to cancel a game in Cape Breton—weather issues, thanks to the storm. Courteau is disappointed. He hates to cancel a game. The commissioner seems weary, but above all, he’s smiling. He’s excited to be in Halifax. In the QMJHL’s 50-year history, he says the biggest move they’ve made was expanding out of Quebec and into the Maritime provinces.

“We stepped up so much after we brought Halifax into the league,” he says, sincerely. “It’s been the biggest accomplishment that we’ve seen in the league.”

Marring the league’s excitement, however, is a labour controversy that’s had the QMJHL and Canada’s other two major junior leagues tied up in a legal battle since 2014. A class-action lawsuit signed by over 400 current and former players is demanding that it’s time for Canada’s top amateur hockey athletes to be recognized as employees and paid for their work.

Courts in Alberta and Ontario have already certified class actions against the Western and Ontario Hockey Leagues (an appeal of the OHL decision will be heard next week). A decision has yet to be made about the QMJHL. The Superior Court of Quebec heard arguments for authorizing the class action last month. Both sides are still waiting on a verdict.

The combined class action suits are potentially worth hundreds of millions of dollars in back pay for players who the leagues consider to be “amateur” athletes. Depending on the Quebec court ruling, it also threatens to turn the QMJHL’s celebratory year into the fight of its life.

Courteau has been commissioner of the Quebec Major Juniors for 33 of its 50 years. It was under his guidance that first the Mooseheads, then five other Maritime-based teams, were added to the league. Players are not employees, he maintains. It’s a fundamental that the league was founded on.

“The main reason of our existence—let’s go back 50 years ago—was to bring the best players in our league, develop them as the best hockey player, good student, good citizen and we’ll pay for everything,” says Courteau. “We don’t think a player should be considered as being an employee.”

PLAYER EXPERIENCE
At its core, the lawsuit being brought against the three major junior leagues (and the umbrella Canadian Hockey League they operate under) is simple. In the QMJHL’s 50-year history, players have been working full-time hours between travel, practices and games, eight to 10 months a year, all without being paid even a minimum wage. Instead, players are given what Courteau calls “pocket money.” An allowance of around $35 to $50 per week.

Those players are high school and university students, ages 16 to 20. Many live away from home with billet families, who take them in to provide room and board while they play. Often the young players will find themselves uprooted and transferred to a new town as owners trade, buy and sell their labour. Players of high-school age are expected to complete their education, and often work with study programs moulded to their practice and game schedules.

The goal for many of these players is to make it big. The CHL is the last rung on the junior hockey ladder before being drafted to professional leagues like the NHL. But that’s only a reality for a small fraction of players.

Most will leave their hockey careers after three or four years when they age out. Their time spent in the major juniors will amount to years of unpaid work, and the committed development of a skill many will one day leave behind.

Sam Berg is a former player for the Niagara IceDogs, son of the Maple Leafs’ Bill Berg and the face of the Ontario Hockey League class action. Berg played eight games with the IceDogs before he was traded down to a lower-level team and suffered an injury. That was the end of his hockey career.

“There’s a big negative culture surrounding junior hockey in Canada,” he told The New York Times four years ago. “It says you’ll play for free because of your love for the game.”

Lukas Walter, a 22-year-old living in Langley, BC, is a plaintiff in the class action case against the WHL. He told the courts in an affidavit that his first contract with the Tri-City Americans in Washington paid him a $200 monthly fee. He was told it was industry standard, and couldn’t be raised.

At the time, Walter lived away from home with a billet family in Kennewick, Washington. He had already graduated from high school when he was drafted and didn’t work outside of hockey. He was dedicated to eventually snagging a coveted spot in the NHL.

In the affidavit, Walter describes taking on $4,000 of debt per season to his parents, who helped him with expenses the league couldn’t cover such as gas money, phone bills and extra food.

Eventually, he was traded to the SeaDogs in the QMJHL. There he made more money as a 20-year-old player than the younger students on his team but says he had fewer responsibilities.

“Many of the rookies, who were only 16 years old, had to work harder by helping load the buses for road trips and were forced to sleep on the floor of the bus on overnight bus trips,” Walter told the courts. “They did this additional work despite only being paid $50 or $60 per week.”

THE POLITICS
The lawsuit launched against all three branches of the CHL is asking for $180 million in back payments, overtime pay and punitive damages, as well as demanding the league recognize players as business employees.

The league, however, argues its players shouldn’t have to be paid minimum wage or be recognized as employees. They’re amateur athletes, argues the CHL’s representatives. The main focus of their development is to become well-rounded students, citizens and hockey players.

That’s the image of CHL players that the league, and commissioners such as Courteau, have been presenting as they lobby provincial governments across the country to exempt major junior players from employment law.

Nova Scotia’s government quietly amended its provincial labour standard code two years ago to exclude employed athletes from minimum wage, holiday, vacation pay, termination pay and defined hours of work. The decision came with no advance notice or public consultation. A government spokesperson quoted at the time said the call was made after CHL and local team owners approached the
province.

“Paying minimum wage for all the athletes’ time, including practice or travel, would make it difficult for teams to operate,” Halifax Mooseheads president Bobby Smith said in a statement at the time praising the government’s decision. “We want to ensure our athletes continue to have opportunities to develop athletically and play sports for Nova Scotia-based teams.”

Similar labour exemptions have been introduced for employment regulations in Saskatchewan and British Columbia. This past November, OHL commissioner and CHL president David Branch openly petitioned Ontario’s government to keep the league’s 425 players from being classified as employees.

In a quickly released public statement, Michael Tibollo, the Ford government’s minister of tourism, culture and sport, let Branch and the OHL know that “our government is behind you.”

Quebec Major Junior Hockey League commissioner Gilles Courteau. - VIA QMJHL
  • VIA QMJHL
  • Quebec Major Junior Hockey League commissioner Gilles Courteau.

TAKING CARE OF PLAYERS
Courteau’s main concern isn’t so much the money. At least, that’s what he says. He worries that calling players employees would mean saddling these young athletes with the extra responsibilities and pressures of having a job.

“There’s going to be only a few players that are going to be mature enough to deal with that.”

According to Courteau, there’s a big difference between your typical working high school student and a major junior hockey player. Notably, the team takes care of everything for its players.

As it stands now, each team in the league pays for its players’ equipment and billet homes. Teams also coordinate educational programs. As players age out of the league, they’re also entitled to “year played, year paid” scholarship benefits. The league covers a full year of post-secondary education for every year the player spent on the ice (provided they enter university within two years of leaving hockey).

“The thing people are going to have to realize is when a kid comes to play in the league, the team is going to take care of them for three to four years, and the league will take care of them for three years when he’s done,” says Courteau. “I don’t know any other business or any other sports where they do what we’ve been doing.”

Paying a regular, minimum-wage salary could, Corteau warns, threaten the players’ commitment to schooling.

“The kid could say at the age of 18, ‘Listen, I’m not going to school anymore because I’m earning money to play hockey. It’s my paycheque. I’m going to think about school when I’m done with my junior career,’” he says. “He’s going to be toast. He won’t go back to school.”

Andrew Montague-Reinholdt, an employment and labour lawyer who grew up playing hockey, says this argument doesn’t make much sense.

“We pay kids who work in grocery stores in high school,” he says. “We pay kids who work thousands and thousands of jobs and I don’t think kids earning minimum wage just go, ‘You know what, time to retire.’”

Determining whether or not players are employees comes down to a question of how much control the league has over the player, says Montague-Reinholdt. What Courteau thinks of as all-encompassing care, the players may find to be overbearing control.

Lukas Walter’s affidavit describes being constantly monitored during his time with the SeaDogs.

“I was required to follow all requests, directions or, in effect, orders from various staff members of the team including the head coaches, general managers, assistant coaches and the assistant general managers,” says Walter’s statement. “If I did not, I would risk being dismissed from the team.”

Walter says when he played for the SeaDogs, he committed an average of 41 hours a week providing his services. If there were road trips, it would be as much as 70. At promotional events, he was told to stay and interact with fans until the managers let him leave. His teammates were subjected to random drug tests. Walter also describes signing away the rights to his image, which would later be used in an EA Sports video game.

“Despite my image being used in the video game, I did not receive any remuneration for the use of my image and in fact had to pay $69.99 for the video games myself.”

THE MONEY
Key to this whole question of paying players is the CHL’s argument that there just isn’t enough money to afford it.

According to the league’s defence, the educational, equipment and housing benefits players receive from the CHL outweigh the benefits of being an employee, and paying athletes minimum wage could threaten both those benefits and the survival of the league’s franchises.

“These lawsuits, if they proceed, threaten those benefits. Breaking even is what most teams hope to achieve,” reads a letter the CHL sent to athletes’ parents. “The significant player experience, not to mention the scholarship and other benefit programs, cost a lot of money.”

In early 2017, the OHL and WHL were asked to reveal just what this kind of all-encompassing care costs. Both leagues responded to a court order to release financial statements for all 42 member teams from 2012 to 2016. The profits or losses for each team, it would appear, vary wildly. In the 2016 fiscal year the London Knights were the highest earners with $6.2 million in revenue and a net profit of $1.9 million, while the Victoria Royals drew in $3.1 million in revenue but reported a net loss of $1.5 million.

A report from the league’s accountants concluded that teams lost an average of approximately $75,000 a year during the five-year period. But the accuracy of those reports has been contested. Some of the teams prepared their books without any outside auditing, while others failed to include expense accounts or detailed financial statements. The IceDogs, for instance, didn’t include even a salary breakdown.

Al Rosen, a Toronto-based forensic accountant who examined the CHL teams’ financials for the media, called the documents “grossly deficient.”

“Without an audit, it’s impossible for these teams to rely on these statements as evidence that they can’t pay players,” Rosen told CBC two years ago. “There’s no way to tell where any of the money is going.”

On average, it would cost each CHL team around $300,000 per season to pay its 25 players minimum wage. But it’s not a question of whether or not the teams have the money to pay players, Montague-Reinholdt says. It’s a question of how the money is currently being spent.

“These are not ma-and-pa organizations,” he says. “These are organizations with large staff; large scouting and recruitment staff. That the idea that having to pay some of their employees would put them out of business is, I just don’t think true.”

The QMJHL has not yet been ordered to open its books, but likely will have to should the class action be certified. Corteau says the league hasn’t yet looked into the specific finances involved with paying its players, but will if they are asked to by the courts.

But he fears paying for those salaries would mean the loss of other valuable benefits, like the scholarship program. How beneficial that program is could be contested, however. Court statements from the commissioners of both the OHL and WHL report that only about half of ex-players use the scholarships. In 2016, the OHL spent $2.9 million on its scholarship fund, while the WHL spent $2.1 million.

Still, Montague-Reinholdt says the league has no excuse to shrug off the responsibility to pay its employees. Lots of companies offer employees benefits. They still have to pay a minimum wage.

“We all agreed a long time ago that if you don’t pay your employees then you probably shouldn’t be in business.”

Whether the players are employees or not, there’s no debating amateur hockey is big business. Teams, the vast majority private companies with closed books, make money off ticket sales, television rights, sponsorship deals, advertising, merchandise, food and beverage sales and even video game licensing. The league also has a lucrative deal with the NHL, where each CHL team is paid $60,000 for any player signed to a National Hockey League contract ($75,000 for a goalie).

That’s a lot of money on the line when it comes to these class action cases. At the end of the day, though, Montague-Reinholdt says it’s important to remember that the players are still young; still vulnerable to exploitation.

“We think of these as being peak athletes,” he says. “I think it’s important to just
recognize that these are kids, and it’s a bunch of millionaires litigating against them.”


***
Julia-Simone Rutgers is in her final year of journalism at King’s College. She grew up playing shinny on ponds in the prairies and spent many weekend nights at the Saddledome cheering on her hometown junior team, the Calgary Hitmen.

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