By Jon Heshka, Associate Professor at Thompson Rivers University
The hits just keep on coming for the Canadian Hockey League (CHL). Still reeling after agreeing to settle for $30 million a class action lawsuit which claimed its underage players are employees and entitled to statutory minimum wages plus back pay, overtime pay and vacation pay, it is now facing another class action lawsuit.
On June 18, 2020, former NHL player and Stanley Cup winner Daniel Carcillo and former WHL player Garrett Taylor filed a class-action lawsuit against the CHL and its leagues on behalf of underage players who have suffered from physical and sexual assault, and sexual trauma while playing Major Junior Hockey.
The CHL is made up of the Western Hockey League (WHL), the Ontario Hockey League (OHL) and the Quebec Major Junior Hockey League (QMJHL) and is comprised of 1,400 players competing on 52 Canadian teams and eight US-based teams.
A statement from Koskie Minsky LLP, the plaintiff’s law firm, said the action “is on behalf of children aged 15-17 who were sexually and physically assaulted, hazed and otherwise abused while away from home and playing for CHL teams.” Notwithstanding that the age of majority is 19 in British Columbia, New Brunswick and Nova Scotia where 10 teams are based, the claim will no doubt be amended to account for this discrepancy.
Regardless, the class action alleges that the leagues and the teams were entrusted with the care of these minors and were negligent, breached their contracts and breached fiduciary duties owed to them.
The statement of claim lists disturbing allegations of abuse which include: players being subjected to repeated racist, sexist and homophobic slurs; players being forced to consume large quantities of alcohol and illicit drugs; rookies being required to sit in the middle of the shower room naked while older players urinated and spat saliva and tobacco chew on them; rookies being repetitively hit on their bare buttocks with a sawed off goalie stick, developing large welts and open sores so bad they couldn’t sit down, even while attending high school classes; players being forced to masturbate in front of teammates and coaches; and players being forced to consume the urine, saliva, semen or feces of teammates.
Liability will be informed by the extent of the duty owed by the leagues, clubs, coaches, and affiliated staff to the minors and the degree to which, if at all, the minors consented — appreciating that consent is affected unconscionability meaning it arises from situations of unequal bargaining power or a power imbalance, duress and coercion — to the hazing.
Hazing is repeatedly listed in the list of offenses in the complaint but is left undefined. Hazing is “[a]ny potentially humiliating, degrading, abusive, or dangerous activity expected of a junior-ranking athlete by a more senior teammate, which does not contribute to either athletes’ positive development, but is required to be accepted as part of a team, regardless of the junior-ranking athlete’s willingness to participate.”[12]
It is not an understatement to say that the amount of hazing in sport is alarming and that its prevalence suggests it is still, sadly, firmly entrenched in the culture of sport. Studies have estimated the percentage of students hazed in collegiate sport being as high as three-quarters in the United States[13] and one-half in Canada.[14]
It is alleged that the defendants breached the standard of care by not adequately supervising and training players, subjecting players to abuse from club coaches and staff, failing to ensure the safety and well-being of players, failing to have adequate policies, failing to enforce existing policies, failing to have adequate reporting measures, and failing to respond adequately to complaints.
It is highly probable that the court will find that the leagues and clubs owed some sort of duty, rooted in either in loco parentis or another special relationship, to take reasonable care of the minors under their charge and, if the allegations are proven, that the minors did not consent to the types of harm suffered.
The plaintiffs’ also claim that the defendants misled players with respect to the protections they would provide and the oversight they would offer. The statement of claim notes that players sign a Standard Player Agreement (SPA) which says that teams are required to provide “training, education, supervision and character development.” It is alleged that the defendants breached this term of their contracts by allowing the abuse to happen.
A 2013 WHL SPA obtained by the author says that “the Club covenants and agrees to cause the Club’s representatives to conduct themselves, at all times, both on and off the ice, in a manner consistent with good standards of honesty, decency, morality and fair play.” Considering the alleged pervasive and pernicious abuse, such terms in the SPA serve to strengthen the plaintiffs’ position.
Accusing the CHL of willful ignorance and systemic negligence, James Sayce, the lead lawyer for the plaintiffs, told The Hockey News, “There has been a good deal of knowledge in the hockey world that abuses are taking place. And to this day, we have the leagues being very slow to respond to these types of abuse.”
This is, after all, the same league that produced Graham James — named Man of the Year by The Hockey News in 1989 after he won the first of two WHL championships — who plead guilty in 2012 to sexually assaulting two teenage boys hundreds of times while they were players on teams he coached and who had previously been convicted of sexual assault in 1971 and was also sentenced to three-and-a-half years in 1997 for sexually assaulting two other minor players more than 350 times over 10 years. Neither in 1997 nor in 2012 was there any real interest or inclination to investigate how these kinds of serial abuses could have happened under their watch and to prevent them from occurring again.
This is the same league that denied and downplayed its concussion crisis in the early 2000s while its players were suffering more brain injuries than NHL players; they have since taken measures to reduce hockey concussions. The CHL, WHL, OHL, and QMJHL are also facing a concussion lawsuit launched by former Kelowna Rocket captain James McEwan last year.
As a league, the CHL has often been slow to reform, finding itself behind the eight-ball of change.
As former NHL player Sheldon Kennedy, one of Graham James’ early victims said about this latest lawsuit, “Sadly, none of that stuff is shocking.”[15] With the appointment by the CHL of an independent panel to review its current policies and practices that relate to hazing, abuse, harassment, bullying and reporting, the league has taken steps in the right direction.
The case has not been certified as a class action and none of the charges have been proven in court.
[12] Eric MacIntosh E. (2018). “Creating an anti-hazing value system: Changing the culture of sport and entertainment” Sport and Entertainment Review 4:1, 14.
[13] Ibid.
[14] Johnson J. and Guerrero M.D. (2018). “An Examination of Hazing in Canadian Intercollegiate Sports” Journal of Clinical Sport Psychology 12:2, 144-159.
[15] Allingham, J. (July 4, 2020) CBC News https://www.cbc.ca/news/canada/british-columbia/fleury-kennedy-carcillo-abuse-lawsuit-1.5635559
