Child Labour or a Privilege to Play? The CHL’s Class Action and Washington’s Legislated Exception

November 22, 2015

Children

By Richard Wong – Thompson Rivers University 2L JD Student

In October 2014, class actions were commenced against the leagues and teams that form the Canadian Hockey League (CHL). Players who entered into contracts with teams in the Western Hockey League (WHL), Ontario Hockey League (OHL) and Quebec Major Junior Hockey League (QMJHL) seek to recover back wages, vacation pay, holiday pay and overtime pay in accordance with applicable employment standards legislation. The plaintiffs allege that the standard form contracts signed by all players are employment contracts that contravene minimum wage standards within their respective jurisdictions. The Statement of Claim alleges that the average player only earns $35 – $50 per week for 35 – 40 hours of work.

In August 2015, Engrossed Senate Bill 5893 (the “Bill”) was passed in the state of Washington – home of the Seattle Thunderbirds, Everett Silvertips, Tri-City Americans and Spokane Chiefs of the WHL. Section 3(p) of the Bill explicitly excludes from the definition of employees: individuals between the ages of 16 – 20 “in his or her capacity as a player for a junior ice hockey team.” The Bill states the legislature clarified that junior ice hockey players are not employees in order to “assist the financial stability of public facilities districts and ensure the viability of junior hockey in the state.” The Bill also states that the legislators recognize that junior ice hockey teams provide “significant benefits to their players by teaching them valuable athletic skills and interpersonal life skills,” in addition to providing “significant financial support to their communities as tenants of arenas owned, operated, or managed by public facilities districts.”

Concerning this passing of legislation, it has been reported that a memo written by Assistant Attorney General of the state advised an investigator with the Labour and Industries Department that junior hockey players should be considered employees and be protected under minimum wage law. These views were considered by the investigator and reiterated in a report that advised colleagues that “players should be considered employees instead of trainees” because teams are receiving immediate benefits from their players. In addition, it was reported that players from outside the US obtain P-1 Visas which are required for internationally recognized athletes to “work.” The investigator used this as another example to support her recommendation that WHL players should be treated as employees and protected under child labour laws.

Considering the passing of the Bill, even against the recommendations of investigators and the Assistant Attorney General, it appears the legislators favoured the financial and social value these Washington teams bring to the state – over the interests of the athletes providing their services. Although I acknowledge that playing major junior hockey is a privilege, and agree that these teams provide their players with valuable skills, I cannot comprehend how these factors justify overriding child labour laws.

The justification as stated in the Bill is blatantly prejudicial. It seems to mean that even though there are child labour laws in place, and even though these athletes would otherwise be defined as employees in law, they should nonetheless be deprived of protection in order to sustain the financial viability of arena districts. This means that no matter how many hours these players are required to provide their services (because they have no choice to – either they agree to or do not play), they should be deprived of the legislated minimum wage because their services generate money for the state.

Passing of this Bill leaves one to wonder at what expense does the social or financial value of sport override the rights and interests of those who participate? Will legislatures from other states and provinces that have teams in the WHL, OHL or QMJHL follow Washington’s justification for making major junior hockey players the exception? Or will these jurisdictions recognize the backlash that this decision will bring and that minimum wages for these particular athletes is a cost that teams should pay? It will be interesting to see the developments in these class actions and if child labour rights continue to be recognized at law in this context. This will require careful deliberation of lawmakers in these jurisdictions. If the legislatures choose not to involve themselves in such a decision, it will be up to the judiciary to weigh the value of sport against the rights of its participants.

 

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