CHLPA strikes out with Alberta labour board, now threatening to sue entire OHL

October 26, 2012 at 1:30 a.m.

Nothing like threatening litigation to throw some gas on the fire that is the saga of the proposoed Canadian Hockey League Players' Association.

Even by the sliding scale for surrealism used when the the CHLPA is involved, Thursday was one for the books. In the early evening, The Globe & Mail's James Mirtle reported that the self-appointed advocates for the junior hockey's serfs are threatening to sue the entire Ontario Hockey League over "blatant disregard for the bare minimum working standards that have been set for employees," even though whether OHL players count as employees does not appear to be settled law in Ontario. (Each team was copied on a six-page letter, although the first five pages are just names of owners and general managers.)

Positing that this is just the next foot-in-the-door tactic after this happened would be beyond the pale. The CHLPA had applied to the the Alberta Labour Relations Board to expedite the certification vote for the five Western Hockey League teams based in that province. Within a few hours of the Globe piece going online, the Edmonton Journal's Evan Daum tweeted a link to the decision, where the board found, "None of the arguments advanced by the CHLPA ... amount to compelling circumstances to waive the wait period."

But don't worry. Those are exclusive of each other. Linking them puts one and one together. You can't expect sports journalists who need to be spoon-fed everything to handle such advanced arithmetic.

Here's the gist of the Alberta labour board's decision. It speaks to the CHLPA's claims about intimidation of players, which haven't been refuted in at least (but perhaps no more than) one case, mind you.

[11] None of the arguments advanced by the CHLPA, in the Board's opinion, amount to compelling circumstances to waive the wait period in section 37(1)(a). In virtually every certification application the Board receives, the applicant union is concerned about the employer's knowledge of who is behind the certification drive. Further, many certification drives involve perceived disadvantaged individuals in need of representation and "protection" from the employer. These are not concerns unique to this application and do not present "compelling circumstances" that warrant the Board exercising its discretion to waive the 60 day waiting period.
[12] In short, there is no reason to waive the statutory minimum waiting period in this case. The Board therefore refuses to grant consent to the CHLPA to file its certification application(s) before the expiry of the statutorily mandated waiting period of 60 days. (Alberta Labour Relations Board)

In short, those claims of intimidation weren't enough to sway a lawyer who deals in this area of the law for a living, odd that. The earliest the CHLPA could hold a certification vote in Alberta would Dec. 4, for what it is worth.

At the same time, a lawsuit is attention-grabbing. It's not as if it can be dismissed entirely out of hand. It is one thing for a player agent to abide that major junior hockey is "a development league and I don't look at it as a money maker for clients," as adviser Rick Valette phrased it to Guy Flaming nearly two months ago. That's not the way it might look in the legal world, though, although you'd be advised to remember Charles Dickens' anatomical comparison for the law.

From Mirtle:

Among the charges made in the letter is that players are not paid minimum wage or given overtime or vacation pay as part of a series of allegations that junior hockey breaches the Employment Standards Act in Ontario.
Similar notices are going to be filed in Western Canada and Quebec on Friday.
According to Derek Clarke, a spokesman for the CHL Players' Association, the letters were sent after several players were intimidated by team staff for attending meetings or speaking positively about the fledgling union.
"This comes from the CHL's refusal to accept that there's something wrong with the picture here," Clarke said. (Globe & Mail)

Many people who think major junior hockey is a wonderful thing even with its warts (yes, the use-it-or-lose-it 18-month expiry date on education packages should be rectified) are at a loss to understand why there hasn't been some response from the CHL and Hockey Canada. Why have they not been more transparent? It would be understandable if Branch and the CHL, et al., have decided they will not play ball with the CHLPA until absolutely forced.

Ball in Branch's court

The problem with that is it allows one side to get all of its story into the mainstream, including the falsehood that Branch refused to meet with the CHLPA. Perhaps he has recently, but when he was asked on the record, he said he never got a response when he asked executive director George Laraques some very elemental questions about the group.

"Ninety-nine per cent of what we've learned has been through the media. We'd had no discussion with the CHLPA. We have learned, of course, that Mr. Laraque has been appointed executive director, asked for a meeting, and I went back to him and said, 'Before agreeing to meet, we would like to know: who you are? Who's your board? What is your constitution? What is your source of funding, et cetera, et cetera.' And I never heard back and that was three or four weeks ago. So we've had no information come to us, we have no knowledge as to what their program is or what they're contemplating at this particular time." (Sept. 19, OHL conference call, author's emphasis)

Well, now the CHL has a rough idea. No one knows what the endgame is for the CHLPA is, aside from playing the think-of-the-children card for fun and profit. No doubt it will take another stab at getting certified in Alberta, and so on. By sheer persistence and self-promotion, it's moved beyond being a joke, especially if it has the CHL on any legal points. It's also open to question whether they give half a puck that getting whatever it is asking for this week could make it impossible for 10, 20 or 30 major junior teams to stay in existence.

The CHL, going from a Twitter exchange I had Thursday night with law professor and Sports Illustrated contributor Michael McCann, probably needs to show that its current structure is a business necessity. The system creates competition — paying salaries and limiting the length of the workweek would wipe out small-market franchises, reduce the ability to travel and probably mean practice time would be capped. (If an eight-hour round trip to a road game counts as work time, when would there even be time to practise?) In the practical reality of a junior hockey player who's trying to get to the Show, that supersedes any unfairness to its teenaged labour pool.

The CHL has to make a case for itself. Ignoring a problem does not make it go away.

Neate Sager is a writer for Yahoo! Canada Sports. Contact him at neatesager@yahoo.ca and follow him on Twitter @neatebuzzthenet.