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WHL Penalizes Portland Winterhawks

06 December 2012


On Wednesday 28 November 2012, the Western Hockey League (WHL) announced severe sanctions against the Portland Winterhawks and General Manager Mike Johnston for unspecified offences related to paying player benefits contrary to league regulations.  The Winterhawks then announced what the offences were.  Neither the WHL nor the Winterhawks seem to have any disagreement over the list or the fact that the total monetary value was approximately $25,000 over five years and largely pertained to enabling parents to watch their sons play, providing the team Captain with a cel phone and paying for some summer training.  There appears to be no disagreement between the Winterhawks and the WHL that rules were broken and what constituted the infractions.  In the face of such facts, the Commissioner rendered the verdict and decided the penalty.  We do not have any information on what informed his decision regarding the penalty or if the penalty itself was according to any guidelines developed by the WHL.


The WHL Commissioner's response to the breach of the rules was to levy a $200,000 fine, suspend the GM for the remainder of the season and cancel participation of the Winterhawks in 9 rounds of future Bantam Drafts (barred from the first 5 rounds in 2013 and from the first round in each of 2014, 2015, 2016 and 2017).  The WHL Commissioner response has successfully conveyed that the WHL believes that a severe response was required.  It has equally received a forceful and opposite response from fans of the Winterhawks, and others, who view the violations as basically humanitarian in nature and deserving of a lesser penalty.  The penalties have also given rise to serious and justifiable concerns that they could melt existing progress on improving the Winterhawks ice facility and cripple or destroy the Winterhawks itself as an entity.

So, if there is a disagreement over the basic and fundamental fairness of the WHL decision and penalties, is there a way to have an impartial, sober second look at the fairness of the decision and the penalties?

The WHL is a private, self-governing organization.  It is not a public body or arm of government.  In the absence of breaking a law, it is not certain that a court would review it's decisions.  There are a few exceptions.  In BC, if there were evidence of a Human Rights Act or an Employment Standards Act violation, a Human Rights Tribunal or Supreme Court might provide an avenue for reviewing a decision.  On the surface, the Winterhawks affair does not appear to fall into either of those categories.

The decision-making process might itself be so patently unfair that a court might agree to review it.  The Winterhawk affair was investigated by an independent and respected organization, PricewaterhouseCoopers and the Winterhawks co-operated with the investigation and do not deny, in fact have admitted, that they committed the infractions listed in the auditor's report.  That does not sound like the process leading up to making the decision was viewed as unfair, merely the resulting penalties.

The WHL apparently has no formal mechanism for appealing decisions of the Commissioner although the Winterhawks have indicated they will appeal to the board of governors of the league and the Commissioner has indicated he expects the board to discuss it.  Assuming the board of governors reviews the decision and makes no significant change to the penalty, would the Winterhawks have recourse outside the WHL for further review, or would the principles of fundamental justice have been served by the independent audit, decision, penalty and internal review?

According to John Barnes (The Law of Hockey, p. 98) "A court will consider whether [the WHL] exceeded its powers, deviated from its rules, acted oppressively or in bad faith, committed fraud on a minority or based its decision on irrelevant or extraneous considerations", it is necessary to get both law and fairness right.  In looking at law and fairness, a court would look both at whether or not rules and procedures were followed, but also at whether or not rules and procedures are reasonable.  If the decision of the WHL is the product of a system seen to be fair and unbiased, the Winterhawks will have a more difficult time being heard.  The fact that the Winterhawks acceded to the process does not automatically mean they agreed that it was fair and unbiased, but it makes it more difficult for them to argue otherwise.

While there appears to be no disagreement that rules were broken, which rules and how many times, we do not yet know if there is agreement on whether or not the penalty issued was itself within the Commissioner's authority.  It is in this area that there are technicalities (were proper deadlines  and notices observed, do the rules permit the sanction that was given) as well as softer issues (is the sanction comparable to other similar situations).  It is not just the Winterhawks that must act within parameters laid down by the organization, the Commissioner must do so as well.

The short answer then, is there may be recourse to the courts, but it is not a sure thing.  If the process was fair, unbiased and within organizational rules, the Winterhawks will have a difficult time making out their case.  But, there is risk here for the WHL.  If the Winterhawks were to file an action against the WHL in Canada, and a judge were to think it worth hearing, the scope of the judge's attention could extend beyond the fairness of the penalties at issue and to the reasonableness of the broken rules themselves.  So before the WHL governors turn a deaf ear to the Winterhawks and any appeal they may mount, the WHL may want to consider whether it thinks its player benefit rules will withstand that kind of judicial scrutiny and if it wants the courts making those kinds of rules on its behalf.

This article seeks merely to highlight complex issues; it is not intended to provide legal advice.  For legal advice, it is necessary to consult privately with a lawyer and provide full access to the relevant facts.  Disclosure of the relevant facts will affect and could change the advice given.


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