Are Junior Hockey Players Employees Like The Rest Of Us?

by John Bonn
Major Junior Hockey players on the ice

It is a cold January evening somewhere in Ontario. You are sitting in an arena with thousands of other fans. You have paid good money for tickets, for popcorn, hot dogs and maybe even a beer. A large number of the crowd bought and paid for sweaters, toques, ball caps, and scarves bearing the colours and logo of their chosen team. You (and the thousands of others) have paid a pretty penny, but it is all worth it - you get to see the fastest team sport on earth, the owners and coaches and other team staff are making a good living, and the players are living their dream and are surely earning a good wage – I mean we all know how much high-level athletes earn right?

That last part may be true at the highest levels of professional hockey but, in this scenario, you happen to be watching a game at the elite level of Junior Hockey in Ontario – one of the traditional stepping stones to pro hockey. There are millions of dollars being spent by the fans, so those young men, aged 16 to 20 must be sharing the wealth, right? Well, maybe not to the degree that you might think.

Are major Junior Hockey players entitled to the same rights as other young employees?

You might think to yourself “What's the big deal? The players go to school full time and this is like a part-time job is for other kids, only these kids get to do it in front of hundreds or thousands of screaming fans! So why should they complain if they are getting minimum wage for their work, right?” 

If only it were that simple.

If you assume that these players are protected by the Employment Standards Act (“ESA”) it might surprise you to know that in November, 2018 the Ontario government passed a regulation specifically excluding major junior hockey players from the application of the ESA. That regulation provides that the ESA does not apply to a player on a major junior ice hockey team if there is an agreement between the player and the team that provides that the player is entitled to receive a scholarship for a post secondary educational program for each hockey season the player plays, which may be conditional on the player meeting any eligibility criteria set out in the agreement. (O.Reg. 477/18)

So, the players aren't covered by the ESA but they are receiving scholarship money and that's not small potatoes. Here again you might wonder what the fuss is about. To pass such a regulation, the government must have been quite confident that junior hockey teams were looking after these young men and that they did not need to bother the teams with all the red tape involved with complying with employment standards legislation, right? And hey, the teams are giving the kids a free education aren't they?

That is one possible explanation, but you might change your mind if you knew that the regulation was passed approximately three years into a class-action lawsuit brought against the Ontario Hockey League (“OHL”) and its member teams on behalf of players who played in the OHL beginning October 17, 2012. That lawsuit began in October 2014, and was followed shortly afterwards by parallel lawsuits in provinces where teams operated in the Western Hockey League (“WHL”) and the Quebec Major Junior Hockey League (“QMJHL”). You might change your mind if you knew that the leagues had fought hard against players being considered employees for many years and had revised their standard player contracts to avoid the obligations of treating players like any other high school kids with jobs.

The Story: Samuel Berg vs. The OHL

In Ontario, the class of Plaintiffs was represented by a young man named Samuel Berg who played for the Niagara Ice Dogs in 2013. His allegations are set out in the Statement of Claim, which can be found at . In that document, he states that he had signed the OHL standard player agreement form and that this contract provided he would receive a weekly fee of $50 for three seasons, commencing August 31, 2013. The Statement of Claim continues:

25. During the months of September and October 2013 Sam played in a number of exhibition and league games. On average Sam devoted about six hours a day, seven days a week to providing services to the team in accordance with the contract. When the team travelled he would devote longer hours, up to 12 hours a day.

26. Sam’s hours varied but on average he supplied about thirty-two hours of services weekly and in some weeks over forty-four hours weekly.

27. Sam received $55 weekly by check less payroll deductions. Sam did not receive the minimum hourly wage governed by the ESA, nor vacation pay, holiday pay or overtime pay.

29. In or about October 2013, Sam was sent down to play Junior B hockey for the St. Catherine Falcons and later traded to the Thorold Blackhawks. Sam played eight games for the Falcons and four games for the Blackhawks. Sam was injured, took a medical leave and ultimately could not return to hockey.

30. Sam was not paid the $55 weekly fee while he was playing Junior B hockey.

31. Sam enrolled in University. Pursuant to the Contract signed August 31 2013, the team agreed in Schedule C to irrevocably guarantee funding for four years of a bachelor degree upon Sam playing at least one exhibition or regular-season game.

32. Unbeknownst to Sam, the team failed to forward the Contract to the OHL for approval as required by the terms of the Contract. The Contract was not approved by the OHL while Sam was playing hockey, although he believed that had to be approved in August 2013, having never heard anything to the contrary and having played in several games. The Contract expressly provides that a player cannot play in a game until the Contract is approved by the OHL.

33. In January 2014, the OHL required that the Contract be revised before it would be approved. Knowing that Sam was injured and could not play, the OHL approved the Contract but reduced his tuition package from four years to half a year.

These are some of the allegations made by Sam Berg. As the matter never did go to trial, none of the allegations were proven in court.

As relief, the Statement of Claim sought, among other things, a declaration that the players were employees within the meaning of the ESA, damages for outstanding wages including back pay, vacation pay, holiday pay, overtime pay, and applicable employer payroll contributions required by law.

The status of Junior Hockey players remains unclear. 

The status of junior hockey players has been the topic of discussion for many years. Are they amateur athletes competing for the love of sport? Are they employees, working to earn big money for the employers? Are they independent contractors free to play where they want and choosing their own fate? Many aspects of this discussion were resolved by the process that began with the class action. The litigation was hotly contested in the courts and in the media. The leagues wrote open letters in the press addressed to the government pleading for government support and talking about how a ruling that the players were employees would financially devastate many of the teams. The players responded in kind with their own open letter through their counsel. These letters are available for viewing at .

The Ontario government (following the lead of various other provincial governments) was obviously persuaded by the leagues and ultimately implemented the regulation excluding players from the protections of the ESA. This made much of the class action meaningless from that point forward.

After successful procedural rulings in favour of the plaintiff players, one of which resulted in a $1.2 million costs award in their favour, the parties agreed to hire a mediator to see if they could reach a resolution. Since the government had decreed that players were no not subject to the application of the ESA as of November 15, 2018, the need for a declaration as to their employment status was no longer necessary. The continuing litigation would essentially determine whether or not the leagues were liable for the relief sought up until that date.

The parties reached an agreement on March 31, 2020. Among other things, that agreement provided for the payment of $30 million to the players. A portion of that money would be used to cover their legal costs and the rest would be distributed amongst the members of the class (the players who signed up to join the lawsuit). That number was in excess of 400 players. The full settlement agreement is available at the above-noted website.

Although this was likely a reasonable resolution for all involved, it was somewhat dissatisfying in the sense that there has still not been a determination by the courts as to whether or not the players would have been considered employees and fall under the protections of the ESA. The government regulation that passed on November 15, 2018 took care of that. As is quite common when parties reach a settlement, the agreement contains provisions where the defendants admit no liability.

Despite the dissatisfying resolution, there are lessons to be learned. 

Hockey is big business in Canada, even at the junior level. This is not the first, nor is it likely to be the last time, that issues between teams and players come to light and are decided in the courts. Despite the ambiguous status of Junior Hockey players, some important lessons were learned from this litigation as well as the government's regulation. 

First of all, this case highlight the fact that sometimes litigation is necessary to bring important subjects to light for a broader discussion. The fact that the leagues (and their member teams) were prepared to pay $30 million to avoid going to trial suggests that they assessed their exposure as being very significant. Finally, while Major Junior Hockey players in Canada do not have the protection of provincial employment standards legislation, the publicity of this situation will no doubt provide some layer of protection to young people who are risking their health and education (undoubtedly pursuing their lifelong passion) while generating big money for the owners of the teams.