Major junior hockey is under siege. There are several class action lawsuits against the Canadian Hockey League (CHL), a unionizing effort by Canadian union Unifor, and an ongoing child labor investigation of the Western Hockey League (WHL) by the Washington State Department of Labor & Industry (L&I). Though details vary from case to case, they all center on one fundamental question: whether or not junior hockey players should be seen as employees and thus paid at least minimum wage.
If Washington State legislators get their way, the answer to that question will be a resounding no. A bill is currently circulating through the legislature that would classify players from the four WHL teams in Washington—the Everett Silvertips, Seattle Thunderbirds, Spokane Chiefs. and Tri-City Americans—as "non-employees" exempt from the Minimum Wage Act, Industrial Welfare Act, and Washington Industrial Safety and Health Act.
The bill is, in part, a response to the L&I investigation into whether or not the teams are violating child labor laws. Minors in Washington can only work 16 hours per week on school weeks and 40 per week on non-school weeks. The teams regularly require 35 hours or more from players. The outcome could result in back wages owed, fines, and the possibility that 16- and 17-year-old players might not be able to play full schedules. L&I spokesman Matthew Erlich explains that the bill won't nullify the findings of their investigation, but it will exempt the teams moving forward.
"I wanted to bring this bill forward to start the conversation about the amateur status of these athletes," Sen. Fain, the bill's primary sponsor and representative for the district in which the Thunderbirds play, testified at a Feb. 18 Senate Commerce & Labor Committee hearing. "This is a great program that does a lot of good things for the athletes involved in it … this [legislation] is designed to make sure they are able to continue operating and continue providing those opportunities to kids in the state."
But as the lawsuits, union drive, and child labor investigation might indicate, that amateur status is not nearly as cut and dried as Fain suggests.
The CHL consists of 60 teams in the Western Hockey League (WHL), Ontario Hockey League (OHL), and Quebec Major Junior Hockey League (QMJHL). Major junior is the highest level of junior hockey in Canada and is one of the established routes young players can take to the NHL. Of the 211 spots available in the 2013 NHL draft, 47.8 percent went to CHL players. But with an average team roster of around 24 players, that means only about seven percent of players in the CHL make it to The Show.
CHL teams are made up of 16-20 year olds who play upwards of 70 games each six-month regular season. Players typically spend 35-40 hours a week—and sometimes up to 65 hours—practicing, playing games, traveling, and doing promotional events. In exchange for their labor, they live with host families, get free equipment, earn a $50-100 weekly stipend, and accrue a year of college scholarship money for every year they play in the league.
Unlike the scholastic teams they compare themselves to, the CHL teams are for-profit businesses. They sell tickets to games at arenas that hold 5,000-11,000 people, have corporate sponsorship, do merchandising, and sell TV rights in Canada.
Ted Charney is a Toronto lawyer representing former CHL players Lukas Walter and Sam Berg in class action lawsuits. He submitted a letter to the Washington Senate Commerce and Labor Committee urging them not to pass Fain's bill.
"Why should the business of operating a hockey team in the WHL be exempt from paying minimum wages to kids?" Charney wrote. "We oppose any Bill that will have the effect of excluding or exempting the teams from their obligations (if any) to pay wages in accordance with the minimum wage legislation of Washington State."
The four Washington WHL team managers and CHL commissioner Ron Robison joined Fain at the Feb. 18 committee meeting to make the case for their labor law exemption.
"We strongly support this bill because we are now being examined as if our players should be considered employees rather than amateur hockey players," said Thunderbirds' general manager Russ Farwell. "We register with both Hockey Canada and USA Hockey which are the governing bodies for amateur hockey in all of North America. "
Farwell's assertion of their affiliation with Hockey Canada and USA Hockey was called into question after the hearing. USA Hockey's junior council chair John Vanbiesbrouck told the Toronto Star, "We have had no communication with any CHL teams nor do I know of them being members … their team at the junior level is not registered with USA Hockey."
Hockey Canada media relations manager Francis Dupont refuted Vanbiesbrouck's statement in an interview. He says, "Hockey Canada considers the CHL to be an amateur league and CHL teams to offer the highest level of non-professional hockey competition in Canada, administrated as a development program under the auspices of Hockey Canada."
Dupont provided a letter from USA Hockey executive director Dave Ogrean that says, "all U.S.-based teams and players that compete in the Canadian Hockey League are members of USA Hockey." Ogrean continues, "John [Vanbiesbrouck] is a volunteer in the capacity as chair of our Junior Council. He was understandably not aware of the details of this issue as it falls operationally in international hockey."
In the Feb. 18 Commerce and Labor Committee meeting, committee chair Sen. Michael Baumgartner, who represents the Spokane Chiefs' Eastern Washington district, asked, "Are we at risk of losing top flight amateur hockey in this state if we don't pass this bill or is that too dramatic a statement?"
"I think that's fair for sure," replied Chiefs manager Tim Speltz. "When we look at it for 16-17-year-old players, they wouldn't be able to play. That would change the whole dynamic of the operation."
Everett Silvertips General Manager Garry Davidson echoed the sentiment in his testimony. "The issue is so significant that if the bill is not passed, it could negatively impact our ability to operate and force us to move or not operate in the state."
This kind of crying is not a new tactic for employers looking to keep labor costs down. The 1938 Fair Labor Standards Act (FLSA) created the 40-hour workweek, minimum wage, and banned most forms of child labor. When it was introduced, Georgia Congressman Edward Cox said it would "destroy small industry." When the FLSA was up for amendment in 1989, Illinois Congressman Harris Fawell said, "Economists from all persuasions agree that increasing the minimum wage will mean lost jobs and it will mean inflation."
It turns out that's not the case. A recent report from the Center for Economic and Policy Research found that, "the weight of that evidence points to little or no employment response to modest increases in the minimum wage."
Of course a retailer having to pay employees slightly more is not the same as Washington's four WHL teams having to pay 100 players something instead of nothing. But as noted above, child labor and minimum wage laws are not exactly new. Regardless, Fain and his senate colleagues clearly think the WHL teams are too valuable to risk losing. The bill passed unanimously in the Senate on March 3. It is now waiting for consideration in the House.
Charney agrees that the teams have great value to all involved, but he points out that "the success that they have had in doing both should not blind the owners, the legislature, the public, and the players themselves from the fact that there are labor standards which must be respected and adhered to."