Hot on the heels of the announcement of the recent MOL
enforcement blitz, a freshly filed statement of claim in a class
action lawsuit appears to combine two of the ongoing trends in
employment litigation: the crackdown on unpaid positions which
traditionally have not been subject to employment law and class
actions (see our previous blog posts on the recent MOL internship
here and the recent settlement of another employment class
The Toronto Star reports that a class action
lawsuit for $180 million was filed against the Canadian Hockey
League (the "CHL") on behalf of former and current
players. The CHL is the governing body for the three leagues
that constitute Major Junior hockey, the most elite tier of junior
hockey in Canada.
The lawsuit claims that the CHL's current players receive
between $50 and $120 per week for hours of practices, games,
traveling and training. The suit claims that the players are
employees, and are therefore subject to the minimum wage
requirements – which the stipends allegedly do not
meet. The suit suggests that players are required to
"work" up to 65 hours of per week with no provisions for
vacation pay, overtime or other statutory entitlements.
The lawsuit brings up numerous interesting employment law
points. For one, the initial hurdle is whether or not these
players are employees for the purposes of employment
legislation. Unfortunately, the Ontario Employment
Standards Act, 2000, does not define "employee" in
any helpful way.
We will be discussing the rise in employment law class actions,
among other current hot topics in labour and employment law, at our
28th Annual Employers' Conference.
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Given that teams, even below the Major Junior level, charge fans
for admission, there is an inherent logic to the argument that at
some point before a youth earns a place in the NHL his status could
shift from 'participant' to 'employee'. But
there is no clear demarcation in legislation or caselaw.
To make matters more complex, CHL teams are scattered
across all Canadian provinces except for Newfoundland. Each
province is subject to its own employment standards legislation,
which can vary in important ways. In fact, eight teams play
out of the United States but are subject to the CHL's rules and
conditions. This heterogeneity of claims could make it
difficult to secure permission from the court (called
"certification") to proceed as a class action (instead of
by individual claims).
Finally, the suit brings up interesting corollary questions:
If the players were ruled 'employees' for the purposes
of employment standards legislation, might this entitle them to
worker's compensation benefits after an injury?
Would a player cut by his junior team be entitled to employment
Would off-season training, with some players age 16 or younger,
be a tax-deductible business expense?
Could junior players unionize? The National Labour Relations
Board in the US found that student-athletes on Northwestern
University's football team could do just that.
What impact would the added costs and structural limitations
have on player recruitment and development?
Suffice it to say that the outcome of this suit could have an
impact on these other regimes in unanticipated, yet significant
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about your specific circumstances.
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