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B.C. exempts WHL teams, including Victoria, from paying minimum wage

The B.C.

The B.C. government has exempted the province’s six major junior hockey teams from having to pay their players minimum wage, after threats from the Western Hockey League that teams might not survive a class-action lawsuit on the issue unless the government quickly changed the law in their favour.

Freedom of Information documents reveal an intense behind-the-scenes lobbying effort from WHL officials on behalf of teams in Victoria, Vancouver, Kelowna, Kamloops, Cranbrook, and Prince George.

In letters to Premier Christy Clark and cabinet, as well as in emails to top-level bureaucrats, the league claimed the teams might have to close without government help, because of a class-action lawsuit by former players who have been demanding at least minimum wage pay rather than the existing small monthly stipend.

The class action lawsuit, filed in Toronto and Calgary, has yet to be certified in either location.

The premier’s cabinet moved quickly to exempt the league, internal records show, by passing a little-known cabinet order Feb. 16 that meant the Employment Standards Act “does not apply to a player on a major junior ice hockey team” and effectively frees them from the future risk of having to comply with rules on minimum wage, statutory holiday pay and set work hours.

Labour Minister Shirley Bond — whose riding is home to the WHL’s Prince George Cougars — defended the decision, saying it was not in response to any threat from the league but rather part of an internal policy debate over how to classify the players amid legal challenges and similar changes in other provinces.

“This discussion is about whether or not amateur hockey players, and in this case those who play major junior hockey, are employees,” she said Thursday.

“We consider them amateur athletes, but we have made it clear the WHL must provide a minimum standard of scholarship package for those players at the completion of their career.”

She argued that B.C. was able to enshrine in law that the WHL must give each player a one-year post-secondary school scholarship for every year played — though such a deal is already part of the league’s standard player agreement.

The lawsuits claim that players, aged 16 to 20, are employees and deserve better pay than the current $250 a month average reimbursement for travel and training expenses. They are seeking millions in damages.

The league and owners insist the players are amateur student athletes, exempt from pay rules, and that their organizations aren’t profitable enough to afford compensation beyond the stipend.

It could cost a B.C. team approximately $228,000 annually to pay a 24-player roster the province’s $10.85 an hour minimum wage, assuming a 35-hour work week during 25 weeks of the year.

The governments of Saskatchewan and Nova Scotia have also legally exempted players from employment law. Washington state passed a bill in 2015 to exempt its four WHL teams. Yet the Alberta government said Thursday it has no plans to follow B.C. in passing similar exemptions for its WHL franchises.

“In absence of this protection we’d not be in a position to ensure that our teams could continue to operate, because quite frankly if minimum wage was to be added to the wide range of benefits we offer players right now the majority of our teams would not be viable,” WHL commissioner Ron Robison said in an interview.

He applauded the B.C. government for its quick action to assist the league, saying it was “very evident from the outset that they were prepared to support us” and the certainty would help protect the economic benefits in host communities and the 350 players who receive scholarships.

The government move was a “pre-emptive strike” in case a future judge or tribunal rules that players are employees, said University of Victoria labour law professor Ken Thornicroft. By acting, the B.C. government has helped protect the league in case it has to fight a lengthy appeal against a court ruling, which could take up to seven or eight years, he said.

“Governments are always making policy choices, and they don’t necessarily want to leave it to the vagaries of the legal system,” said Thornicroft.

He said there are arguments on both sides of the issue, but he finds a more compelling case to be made that these are student athletes not subject to minimum wage regardless of government’s legal change.

Bond disputed that the government made the change quietly, noting she spoke to TV sports network TSN at the time and communicated the change to WHL families.

“We don’t do a press conference for every single exemption we make,” she said.

Several WHL owners are major donors to the governing B.C. Liberal Party, accounting for in excess of $300,000 in political donations in recent years. Bond bristled at any suggestion political donations factored into the decision.

“I do not make it a practice to ask who they make donations to or not,” she said.

NDP labour critic Shane Simpson, who was unaware of the cabinet order until Thursday, said the government shouldn’t exempt hockey teams from minimum labour requirements that are there to protect vulnerable young players.

The Canadian Hockey League Players’ Association — a proposed labour union seeking to represent major junior players — said in a statement it was “appalled by the under-handed actions of the B.C. government” to quietly change the labour code while a major court challenge was underway. It said B.C. made a “grave error in judgement” by not asking to see detailed financial records from the teams claiming to be unable to afford the minimum wage.

Bond admitted government did not see WHL financial records, because that is “proprietary” information. Thornicroft said it would have been reasonable for the government to ask for proof from the WHL of the financial hardship it claimed.

Commissioner Robison said only one of B.C.’s teams — Kelowna — is what he’d call in a “stable” financial position.

Vancouver Giants majority owner Ron Toigo said his team has lost on average between $300,000 and $400,000 each of the last four years. “Last year was significantly worse than that,” he said, noting the team moved from Vancouver’s Pacific Coliseum to the smaller Langley Events Centre to reduce costs.

“It’s not a viable business, per se, not from our perspective to make a living out of. But we’re fortunate we’ve had other careers to fund these things, and develop players and move on as good citizens,” said Toigo.