Government Moves on WHL Exemption Questioned
Prince George, B.C. – The provincial NDP Labour critic is questioning why the BC Liberal government would exempt owners of the six BC-based WHL teams from wage provisions contained in the Employment Standards Act under claims of financial hardship without even asking for proof of possible hardship.
Former major junior hockey players in both Western and Eastern Canada have filed a class action lawsuit in Toronto and Calgary, which is still to be certified, demanding at least minimum wage pay instead of the current $250 per month average stipend for travel and other expenses. The suit, filed in 2014, demands millions of dollars in outstanding wages, overtime pay, holiday pay and vacation pay for both former and current players in the Canadian Hockey League.
In a statement issued on Oct 24, 2016 WHL Commissioner Ron Robison said “the WHL is a world leader in the area of skill development by providing the highest calibre of coaching and training facilities available to amateur hockey players.”
He continued “the WHL also offers our players one of the most comprehensive education and post-secondary scholarship programs in North America. What many fail to realize, however, is that our commitment to our players and their families goes much further. WHL clubs cover all the necessary expenses needed to compete at the highest level of the Canadian amateur hockey system – including top-of-the-line equipment, room and board and travel costs.”
A media release from the Prince George Cougars dated Nov. 3, 2016 states “Earlier today the Western Hockey League announced that 355 former WHL players are utilizing their WHL scholarships for post-secondary education purposes. Of those 355, the Prince George Cougars announce that 39 of our alumni are attending post-secondary institutions within Canada and the United States on WHL scholarships granted by the Cougars.”
“As part of the Western Hockey League’s Standard Player Agreement, each player who signs with the Prince George Cougars is provided with a free year of post-secondary education for each season that they are a part of the organization.” The release went on to list the 39 former players awarded WHL scholarships for the 2016-17 academic year.
Freedom of Information documents revealed that WHL officials lobbied the Clark government on behalf of teams in B.C., claiming the teams can’t afford to pay salaries and that financial hardship might threaten the economic sustainability of some of them.
Despite the lawsuit being before the courts, last February the provincial cabinet, by Order in Council, quietly exempted the six teams from having to pay their players minimum wage. The order meant that the Employment Standards Act does not apply to major junior hockey players.
However, the government did not compel the teams to provide documentation backing their claim that they are in such tight financial straits that they are unable to pay their players.
The lawsuit claims the players are employees while the WHL, owners and the government contend they are amateur athletes.
NDP Labour critic Shane Simpson says there are a couple of issues at hand. “One of them is, the courts will ultimately make whatever decisions they make in these couple of court cases that are going on. But when the government decides to provide an exemption without any kind of transparency, and it appears without having done the due diligence, so we’re looking at the financials of the six teams in B.C. and determining exactly what the challenge for them was, they made the exemption and they did this while they knew there’s a court case going on that will inevitably, whatever the ruling, affect what goes on in British Columbia.”
Simpson is curious as to why this Employment Standards exemption received little, if any, promotion. “As we know the government and Christy Clark certainly aren’t shy about photo opportunities and the opportunity to tell people when they do something that they’re proud of. Ah, they didn’t seem to want to put a press release out on this one back when they did it.”
“It’s not the right way to do business,” says Simpson “and you know in the State of Washington they did something similar, but there they had a debate in their state legislature, there was materials out, there was a discussion about this. I don’t know all the details but they took a decision that is not dissimilar to what British Columbia took but at least they did it in a pretty open and public way and the lawmakers were given an opportunity to talk about it and vote on it.”
The Employment Standards Act falls under the purview of Labour Minister Shirley Bond who, in an article in the Vancouver Sun on October 21, 2016 was reported saying the government did not see WHL financial records because that was “proprietary” information. Simpson says “that’s just absurd, I mean we have court of Alberta saying we’re going to look at it.” (Alberta Court of Queen’s Bench Justice R. J. Hall has subsequently ordered that Canadian and Western Hockey League teams must reveal their financial statements and tax returns from 2011 to now to support claims that they can’t afford to pay players).
“Also,” says Simpson “nobody is saying that minister Bond had to put the financials of these companies up on the web site. But she should have given assurance that senior officials who would know what they’re looking at in her ministry and in the Ministry of Finance saw the documentation, assessed it and were able to provide the minister with advice that, yes, this was warranted for these reasons or no, it wasn’t, without disclosing proprietary information that would of compromised any of these companies.”
The question of whether WHL players are employees, says Simpson, will be decided by the courts. “First of all these are private companies, and that’s fine, but if you’re going to take the extraordinary step of exempting a company from minimum wage laws, you had better have done the due diligence ahead of time. On the question of whether they’re employees I think that matter is going to be resolved by the courts and that’s a good place for it to be resolved. And then after that is done the question is, do you pay them?”
“You should pay them if that’s what is deemed, unless you can find some compelling case and find a law that says you don’t have to. And I’m not sure you get to exempt people from one of the most fundamental parts of Employment Standards, the minimum wage, on a whim in a back room with the door closed.”
“The reality,” says Simpson “is you don’t get to make up new rules that are inconsistent with the rules of the province. You follow the rules that everybody else follows and if you want a change to that, or an exemption, you better do it in an open and transparent way with some documentation and evidence that makes your case. And none of that appears to have occurred in this case, so that’s really my argument.”
“You know, nobody wants any of the six teams in British Columbia to fail. Those teams are important in every community, including in Prince George, and you want them to be as successful as they can be and there has to be maybe a conversation about how that happens. But you don’t want to do this on the backs of a bunch of teenagers who are working for these teams.”
Simpson applauds the order of Justice Hall requiring the teams to reveal their finances and wonders why the Clark government would not require similar proof of hardship. “The courts have said, if there’s going to be an informed decision about this and if there’s a case for an extraordinary exemption you’d better provide all of the evidence necessary to make your case. The judge, and his financial advisers I assume, are going to get to look at this and he’s going to understand before anything goes to court exactly what the financial situation and implications are.”
As for government not asking for similar proof Simpson says “well if they didn’t it’s either stunning incompetence or its wilful neglect, and you have to ask yourself which.
Asked why the government did not ask the WHL for proof of teams facing financial hardship Minister Bond responded “We actually made sure that we discussed this issue around the issue of amateur status in British Columbia. First of all we are not the first jurisdiction to contemplate this issue. We looked at work done in other jurisdictions but the policy decision that our government made was based around the concept of amateur sports more broadly. We believe there is a role in British Columbia for amateur sports, as other jurisdictions have determined, so from our perspective we looked across the country, looked at other jurisdictions and we made our decision based on the fact that we believe there is an important role for amateur sports in our province.”
Bond says “the argument that he (WHL Commissioner Robison) made to me was around amateur sport status. Of course there are financial implications but our discussion was a broad policy discussion about the importance of having amateur sport opportunities for athletes in British Columbia, that’s how we made the decision.”
“The WHL came to us, talked to us about the training opportunities for young people as amateurs in British Columbia and across the country, that’s the argument we looked at.”
Asked whether she feels Western Hockey League players deserve to be paid a minimum wage Bond says “what I think is important is that young people have opportunities to be involved in top-notch training, to receive educational opportunities and we are the only jurisdiction that actually put in place a standard for the scholarship program that the WHL needs to meet in British Columbia.”
“So what I believe in is a system that includes a legitimate and top quality amateur sport program. You know if you start to look at the WHL and amateur status there, what’s next? What sporting organization that is currently at amateur status, which one is next? And we believe as a government that there needs to be a legitimate amateur sport program in our province like other jurisdictions have moved forward on.”
“So we should be clear,” says Bond “this is not unique in British Columbia, it is on the heels of several other jurisdictions making similar decisions. We went one step further, to protect our players and make sure there is a threshold of scholarship requirement that the WHL has to meet.”
When pointed out that a scholarship provision of one year post-secondary education for every year played is already included in the league’s standard player agreement, Bond says “we made it a legal requirement that there be a particular standard, a particular level, so we in fact enhanced the legal requirement for that to take place.”
Shane Simpson concludes by saying “what makes this more disturbing is that the only financial information that we’re assured of is the fact that some owners, either through their teams but mostly through their other interests, donated it appears now in excess of $300,000 to the BC Liberals.”
“Is this pay to play in order for you to be able to go and get the government to flip on the law, without any kind of a discussion or transparency? Is that what you do and is that ok when you do this because these people are important supporters of the Liberal Party? I don’t know, but it doesn’t look good.”
Asked whether any WHL owners have made donations to the New Democratic Party Simpson said “I’m not exactly sure, I think that they might have bought a couple of tickets, one or two of them (owners) and not from their WHL teams but the owners, through other businesses that they have, may have bought tickets to a couple of events. But we’re talking maybe a couple of thousand dollars in total, we’re not talking tens of thousands or hundreds of thousands.”