Kitchener Rangers v. The Michigan Daily

As I stated in the Introduction, I will occasionally discuss legal issues in hockey that are outside of the NHL. Today is one of those times.

As reported by Sunaya Sapurji of Yahoo! Sports Canada, the OHL’s Kitchener Rangers filed a statement of claim in Ontario Superior Court against University of Michigan student paper, The Michigan Daily, and reporter Matt Slovin (collectively, “TMD”).  The claim alleges that TMD defamed the Rangers by allegedly publishing a story stating that the Rangers offered player Jacob Trouba $200,000 in lieu of an education package to turn his back on his commitment to the University of Michigan and play for the Rangers. Trouba, who was drafted 9^th overall in the 2012 NHL Entry Draft by the Winnipeg Jets, was drafted by the Rangers in the third round of the 2010 OHL Entry draft but has spent the past two years playing on the US National Development team and has committed to the University of Michigan in the fall. The payment of $200,000 would be in contravention of the OHL’s rules regarding impermissible benefits to players.  The suit seeks $500,000 in general damages and an additional $500,000 in punitive damages.

There are three prominent legal issues that this lawsuit presents.  The first is whether the Rangers have properly alleged a claim for defamation. The second is whether the Ontario Superior Court will have jurisdiction over TMD. The third is whether t

While the answers to these questions seem fairly clear to me based on New York, and probably the rest of the United States, law, this case was brought in Canada, specifically in the province of Ontario.  Therefore, an examination of Ontario law is necessary.  With the limited resources available to me on Ontario law (basically what I can find on Google), I believe I have come up with the correct answers to both of these questions.  Fortunately, the rules regarding defamation are fairly similar to those with which I am accustomed.  However, I was very surprised to see how long-arm jurisdiction would likely be applied by the Ontario courts in this matter.

Defamation

My Black's Law Dictionary is probably in the same box as my Land Use Controls book, but I believe I can define defamation without it.  Defamation is a tort that involves a person’s reputation being harmed by a false statement being made to a third party.  A defamatory statement is a false statement made to a third party that damages the reputation of the person about whom the statement is made. Defamatory statements can be written or spoken. A written defamatory statement constitutes libel.  An oral defamatory statement constitutes slander.

In Ontario, defamatory statements are governed by the Libel and Slander Act (“LSA”).[1]  According to Section 2 of the LSA, “defamatory words in a newspaper or in a broadcast shall be deemed to be published and to constitute libel.”  This is just a restatement of the common law rule that libel applies to defamatory statements that are written. By contrast, slander applies to defamatory statements that are oral.  Because the allegedly defamatory statement was written, we will ignore slander and just focus on libel.

Generally, in America, for a plaintiff to have a viable claim for libel, the defendant must make a defamatory statement that specifically identifies the plaintiff in a publication. A “publication” only requires that the defendant reveal it to one person other than the plaintiff. The statement needs to be of the sort that will affect the plaintiff’s reputation. For libel, you do not need to prove actual damages. Specific jurisdictions within America might have slightly different rules, but generally, these are the rules in the majority of states. Based upon the research that I have done, Ontario law functions the same way as well, but with one very important difference, which I will discuss below.

There are four affirmative defenses to libel. They are 1) Truth, 2) Consent, 3) Qualified Privileges, and 4) Absolute Privileges. Truth means that if the defamatory statement is true, then plaintiff does not have a claim for libel.  Consent means that if the plaintiff gave the defendant express or implied consent to make the defamatory statement, then the plaintiff does not have a claim for libel. Qualified Privileges are reserved for circumstances where there is a public interest in promoting candor, for instance, a letter of recommendation or credit reporting. There are two requirements: 1) defendant must have a reasonable belief that the information is accurate, and 2) defendant must limit herself to things that are relevant. Absolute Privileges are granted based on the status of the defendant, i.e., spouses talking to each other, government officers in the course of their official duties.  Based on the facts available to us, only truth would be available for TMD as a defense, if and only if the statement can be shown by a preponderance of the evidence to be true.

Let’s apply all of this to the facts known to us about the lawsuit.  The Rangers allege that TMD made a statement that it offered a payment to Jacob Trouba that would be in contravention of the OHL’s rules, a statement that would tend to damage the Rangers’ reputation.  Furthermore, the statement specifically identified the Kitchener Rangers.  Finally, was published on TMD’s website, which was made available and accessed by third-parties.  Therefore, the Rangers have alleged a prima facie case of libel against TMD.

Long-arm Jurisdiction

However, there remains a pretty large procedural hurdle in the way of the Rangers. Specifically, they have to obtain jurisdiction over TMD in the Ontario court.  Because TMD resides outside of the province, they would have to be subject to Ontario’s long arm jurisdiction for the case to proceed in Ontario. 

Generally, for a court to have authority to adjudicate a case, it must have personal jurisdiction over the parties and subject matter jurisdiction over the dispute.  Generally a court has personal jurisdiction over a defendant when the action is properly filed, the defendant is properly served, and there is a proper basis of jurisdiction over the person or property in dispute.  The proper basis of jurisdiction over the person or property in dispute can be determined by any number of factors depending on the location of the lawsuit, including, but not limited to, presence in the jurisdiction, doing business in the jurisdiction, domicile in the jurisdiction, consent, non-resident motorist jurisdiction, and finally long-arm jurisdiction.  Because long-arm jurisdiction refers to personal jurisdiction, I will ignore subject matter jurisdiction.[2]

From what I understand, Ontarian long-arm jurisdiction had been fairly nebulous until just recently, when the Supreme Court of Canada issued decisions on three cases to clarify the test for determining long-arm jurisdiction. The Supreme Court of Canada limited the test to the following factors:

(a) the defendant is domiciled or resident in the province; 

(b) the defendant carries on business in the province; 

(c) the tort was committed in the province; or 

(d) a contract connected to the dispute was made in the province.[3]

We can quickly eliminate two of these factors. TMD is not domiciled or a resident of Ontario and the dispute does not arise out of a contract that was made in the province. 

Without having more information about TMD’s activities within Ontario as far as business operations, I cannot say conclusively whether TMD would be subject to jurisdiction within Ontario.  However, I believe it is a very fair assumption that TMD does not carry on any business within Ontario.  Perhaps the University of Michigan does, but it would very unlikely that its student newspaper does, and even less likely that a single reporter would as well.  Furthermore, the accessibility of the website in Canada would not be enough to establish carrying on of business. The Supreme Court of Canada stated that “the fact that a Web site can be accessed from the jurisdiction would not suffice to establish that the defendant is carrying on business there.”[4] So we can ignore this factor as well.

What the exercise of jurisdiction by Ontario Superior Court over TMD will hinge upon is whether the defamation was committed in the province.  The argument that will be made by the Rangers is that the web page upon which the defamatory statement was published was accessed by Ontarians, and as such, the tort was committed in the province.  In America, this argument would likely be unsuccessful, as we have what is referred to as the “single publication rule,” meaning that a website is only one publication and only in one location, not multiple publications whenever or wherever the website is accessed.

However, Canada seems to reject this rule.  While that appears to create a slippery slope under which a defendant can open himself up to liability everywhere,[5] an Ontario court has recently decided that it could assume jurisdiction over the plaintiff’s actions in libel against the foreign defendants who issued certain press releases and posted them on the foreign defendant company’s website.[6] The plaintiff, a former director of the defendant company, alleged that the press releases contained defamatory statements that were downloaded, read and republished in Ontario.[7]  Accordingly, it is likely that the Ontario Superior Court will exercise jurisdiction over the Rangers’ claim of defamation over TMD.

Would a Judgment Be Enforceable in the US?

Suppose the Rangers are successful in their lawsuit and obtain a judgment against TMD for defamation in Ontario. Would that judgment be enforceable where TMD are domiciled, presumably only in Michigan?

Only a short while ago, the answer would have probably been in the affirmative. However, in 2010, the US Congress passed a bill that President Obama signed into law called the Securing the Protection of Our Enduring and Established Constitutional Heritiage ("SPEECH") Act. The act was passed to counter what is known as "libel tourism." Basically, writers in the US, who have a broader right of free speech than pretty much any where else on the planet, were being sued in foreign jurisdictions with more stringent restrictions on speech. The most common example was the United Kingdom, where a suit for defamation requires that the defendant prove the statement made to be true, as opposed to in the United States, where the plaintiff carries the burden of proving the statement to be one that causes the reader to think that the declarant has a factual basis for the statement to be true. The SPEECH Act was specifically inspired by the case of the writer and academic, Rachel Ehrenfeld, who was sued by Khalid Bin Mahfouz in the United Kingdom over statements made in her 2003 book, Funding Evil. 

Remember earlier how I said US and Ontarian defamation law differed in one very important way? That difference comes when the defamatory statement is made about matters of public concern. United States law draws a distinction for matters of public concern. Two new elements are added to the proof of the defamation claim. First, the plaintiff must prove that the statement is actually false. Second, the plaintiff must prove that the statement was made with fault. Where the plaintiff is a public figure, the plaintiff must show the statements were made intentionally or recklessly. Where the plaintiff is a private figure, the plaintiff must show that the statement was made negligently.  The Kitchener Rangers would qualify as what is known as a "limited-purpose public-figure" because they have injected themselves into a particular public controversy, and as such, they would be held to the actual malice standard.

A federal district court in Florida has already used the SPEECH Act to hold that an Ontarian judgment for defamation was not enforceable in the United States citing this exact distinction.  In Investorshub.com v. Mina Mar Group, Inc., the court found that Canadian law does not offer as much protection as the First Amendment. Specifically, the Court stated that 

For example, the First Amendment requires that a defamation plaintiff who is either a public official or public figure must prove that the defendant made the defamatory statement with actual malice, meaning that the defendant either knew the statement was false or acted with reckless disregard to the statement’s truth or falsity. See New York Times Co. v. Sullivan, 376 U.S. 254, 84 S. Ct. 710, 111 L. Ed. 2d 686 (1964); Curtis Publ’g Co. v. Butts, 388 U.S. 130, 87 S. Ct 1975, 18 L. Ed. 2d 1094 (1967). The Canadian Supreme Court has specifically refused to adopt the Sullivan actual malice standards for Canadian defamation actions. See Hill v. Church of Scientology, [1995] 2 S.C.R. 1130 (Can.) (stating that Court will not adopt Sullivan standard in Canada).

Therefore, absent a specific finding by the Ontarian Court that the statement was made with actual knowledge of falsity or with reckless disregard to the statement's truth or falsity, the judgment would not be enforceable in the United States.  Such a specific finding would be unlikely by the Ontarian court because it would be unnecessary for the purposes of reaching a verdict.  Finally, even if such a specific finding were made, it is unclear that the courts in the United States would still not recognize the judgment based upon the SPEECH Act.

The Verdict: The Kitchener Rangers may very well win their case in Ontario.  The problem is they probably won't have any remedy available to enforce the damage award in the United States. So unless The Michigan Daily or Matt Slovin have some property or assets in Canada, it will just be a Pyrrhic victory. The Kitchener Rangers, if they actually intended to recover money, should have filed suit in the United States.

So what do you think about all of this? What do you think about jurisdictional issues for defamation law. What do you think about the SPEECH Act? Do you think the Kitchener Rangers actually intended to collect any damages in their suit, and if not, what was their purpose for filing?

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[1] R.S.O. 1990, c. L.12. I apologize if my Canadian citation is incorrect, but I can only offer what I have found through my limited research. Speaking of which, most of the information I have found on the subjects of Ontarian defamation and long arm jurisdiction can be found at
Susan E. White, A Primer on the Law of Defamation in Ontario, 2007, Charity Law Bulletin No. 125, Carters Professional Corporation, http://www.carters.ca/pub/bulletin/charity/2007/chylb125.htm#end; and
Laura Stefan & Robert Wisner, Restraining the Long Arm of Ontario Courts: Supreme Court of Canada Clarifies Private International Law, 2012, http://www.mcmillan.ca/restraining-the-long-arm-of-Ontario-courts-Supreme-Court-of-Canada-clarifies-private-international-law.
[2] Without confirming by looking at Ontario court rules, I am fairly confident in saying that Ontario Superior Court has subject matter jurisdiction over this claim
[3] Club Resorts Ltd. v. Van Breda, 2012 SCC 17 (2012).
[4] Id.

[5] Perhaps it’s just my bias as an American, but I don’t like the Canadian rule.

[6] Black v. Breeden, 2010 ONCA 547 (2009).

[7] Id.

An Apology

Yesterday I promised a post on Nassau Coliseum, NIMBYs and the Homevoter Hypothesis. Well, in order to post that, I needed a book I have on Land Use Law.  When I sat down to write the post at 9:30, I discovered that I had already packed my book away and moved that box to my new apartment.  So I don't have the book I need to write that post.  Also, since it is already late and I have oral argument tomorrow morning for which I still have to prepare, I don't have enough time to switch gears and come up with a new topic.


Sorry for the growing pains of the blog. Please just bear with me as I figure out how to do this properly and better manage my time. Thanks, and I'm sorry.

Shane Doan: IT'S A TRAP! (Updated)

"IT'S A TRAP!"

Star Wars fans will immediately recognize those words as the declaration of Admiral Ackbar from Return of the Jedi.  However, any false sense of confidence regarding yesterday’s “deadline” regarding the Phoenix Coyotes should elicit a similar response. 

As has been reported by many different sources, yesterday was supposed to be the deadline by which taxpayers were required to submit their petition for a referendum to be placed on the November ballot for a vote on the City of Glendale’s lease and management deal with the group led by Greg Jamison.[1]  Hanging in the balance is not only the future of the Coyotes as a franchise, but also the face of the franchise, captain Shane Doan.  Through his agent, Terry Bross, Doan had placed a deadline of July 9, 2012 before listening to offers from other teams for his services. The clear intention was to wait and see if the petition seeking a referendum was filed.  If it was, then he would probably field offers due to the uncertainty surrounding the Coyotes’ ownership.  Without it, he appears to be positioned to resign in Phoenix. Looks like the sale to Jamison’s group, which is contingent upon the lease and arena management agreement, will be able to proceed and Doan can remain with the franchise. Coyotes fans rejoice!

If that’s what you think, then you have fallen into the trap.  There is still a laundry list of reasons why the deal to Jamison could fall through.

Relying on the July 9 deadline passing? IT’S A TRAP! The referendum-seeking taxpayers, led by Ken Jones and Joe Cobb, believe that they actually have until July 15 to file their petition.  As Mr. Cobb explained in his interview with Puck and Gavel, he and his attorneys, the Goldwater Institute, believe that the deadline is July 15, because it was not until June 15 when they “actually were allowed to obtain blank petition forms by the court order overturning the claim of ‘emergency” status.’”[2] Coyotes fans should take some heart that the petition wasn’t filed yesterday. Certainly, if Cobb and Jones had sufficient signatures to file the petition, there would be no reason to gamble on the filing deadline for the sake of getting unnecessary additional signatures.  But if Cobb and Jones can get sufficient signatures before next Monday, expect the petition to be filed and cast the Coyotes’ future into doubt.

Relying on Cobb and Jones having to obtain 1,800 signatures? IT’S A TRAP!  In order for the petition to be successful, it must contain a number of signatures equal to 10% of the last vote.  The number often cited by Glendale is slightly more than 1,800, which is based on voter turnout of slightly more than 18,000 for a 2008 Mayoral election.  However, as was recently stated by Mr. Cobb in an interview with Mike Sunnucks of the Phoenix Business Journal, and later confirmed to Puck and Gavel, the total number of votes he belives that is required is much lower.  According to Mr. Cobb, the most recent election was in November 2010 for two city council seats, an election which totaled only 11,309 votes, ten percent of which would be only 1,131, less than 2/3ds of the 1,800 cited by Glendale.  According to Mr. Cobb, he was informed by Connie Wilhelm, a proponent of the recently submitted petition seeking to have a referendum on a proposed sales-tax increase placed on the November ballot, that the minimum signature requirement was only 1,131.[3] If Cobb and Jones come in with under 1,800 signatures, expect further litigation.

Let’s assume the petitions aren’t filed or that Glendale is successful in challenging their validity either because they are filed late or because they have an insufficient number of signatures.  Then everything will be sorted out, right?  IT’S A TRAP!  In his interview with Puck and Gavel  “[i]f the contract is signed, even in mid-November after an upholding Referendum vote, we would ask the courts to apply the Gift Clause prohibition to the subsidy.” In other words, the contracts can be signed, the team can be sold, Doan can resign…only to then have the lease and management agreement overturned as against the Arizona State Constitution.  Honestly, I can’t even begin to process the chaos that would ensue from invalidating the lease and management agreement overturned.

Let’s assume everything with Cobb and Jones’ petitions goes away, never to be heard from again. Surely then, everyone can relax. IT’S A TRAP! The recent submission of petitions to have a referendum on an ordinance approving a sales-tax increase placed on the November ballot could be a further complication to the approval of the lease and management agreement. It has been stated that the sales-tax increase is required in order to help finance the lease and management agreement. In other words, if the tax increase does not go through, then the sale to the Jamison group could be in jeopardy because Glendale will be without the money to help pay for the team.

Also, be careful not to miss the forest for the trees. The key issue not whether the Goldwater Institute is successful in having the referendum placed on the November ballot. It is also not whether the ballot is successful in having the ordinance overturned. Finally, it is not whether the ordinance is overturned in court as a violation of the Arizona Gift Clause.  It is just the specter of risk over the possibility of any one of these outcomes coming to fruition that casts the future of the Coyotes in doubt. We have seen a similar threat already kill a deal for the Coyotes, and it could do so again.

With the recent report from Dave Shoalts of the Globe & Mail that if they Coyotes sale does not go through, the team may be disbanded, it would behoove Shane Doan to at least consider leaving the Coyotes, even though no petition has been filed by the July 9 deadline.  Could you imagine signing a deal in warm, contending Phoenix, where you have built your life, only to then be picked up by wintry, fledgling Edmonton in a dispersal draft? I don’t mean to pick on Edmonton, but it and Phoenix could not be more different in climate -- both weather and hockey.  


The bottom line is that if certainty of ownership is important to Shane Doan, then he simply cannot sign with the Coyotes, as their ownership situation may not even be resolved by the end of this year, depending on the ballot and any legal challenges thereto. At least for right now, Doan has the right to choose his own destiny, even if the Coyotes may not be a choice he can safely make. Perhaps it's time for him to follow Admiral Ackbar's advice and take evasive action by finding the next best situation for him and his family, even if that situation is not with the Coyotes.

On a personal note, I am disappointed that I could not post this sooner as it seemed to be the topic du jour for many publications, and I wish I could have jumped out in front of it based upon my interview with Mr. Cobb. Unfortunately, actual lawyering got in the way. I am happy though that I got to post on something that focuses on actual hockey impact as opposed to just a purely legal issue.

Unfortunately, I only had time for one post today and I wanted to get this out there before it was too late.  That said, check back tomorrow for information on the upcoming Nassau Coliseum issues, discussed in the light of Land Use Law theories, which happens to be one of my absolute favorite topics of legal discussion.

Finally, check back later this week when I will have an interview with a representative of Glendale First!, a PAC formed in opposition to the Goldwater Institute’s efforts to stop the Jamison deal, as currently constructed.  

***UPDATE*** 9:40 AM


Sarah McClellan of The Arizona Republic has posted a story regarding the passing of yesterday's Doan-imposed deadline. She notes that his agent, Terry Bross, does not feel any closer to a resolution following the passing of Monday without the filing of the petition. According to Ms. McClellan,

"Two Glendale residents have been collecting signatures in hopes of adding the lease agreement to the November ballot. The city said signatures were due Monday, 30 days after the Glendale City Council approved the lease agreement with Jamison.

But organizers said they should have until next Monday to turn in signatures, because that's a month after they received paperwork to begin their efforts.

The signatures were not submitted to the city on Monday, and one of the organizers, Ken Jones, said he plans to keep gathering signatures and won't turn them in until next Monday. If the city doesn't accept them at that time, Jones said he would consider a legal challenge.

The uncertainty that continues to surround Jamison's bid has paused the negotiation process for Doan, but that could change soon should he decide to explore other teams. Bross planned to talk with Doan on Monday night to see if Doan would like to proceed with that option."

The takeaway here is that Doan understands that this could drag out for a while. Whether that means he will field other offers or even act upon them remains to be seen.  Check back here for continuing analysis of the ongoing Coyotes ownership issues.

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[1] I’m a bit of a stickler for technicalities, so I have to point out that this is a bit of a misnomer. What would go on the ballot is Glendale’s ordinance which grants the City Manager and City Clerk the authority to enter into a 20 year lease and management agreement, not the agreement itself, which has not yet officially been made with the Jamison group.

[2] There has also been mention of July 12 as the deadline, as it is 30 days after Judge Fink’s order.

[3] In the interview with the Phoenix Business Journal, Cobb states that he already had the 1,131 necessary, but would not comment on the amount of signatures collected when asked by Puck and Gavel.

Puck and Gavel Interviews Joe Cobb

Joe Cobb is one of the two named plaintiffs in the recent court challenge to the City of Glendale's ordinance granting its City Manager and City Clerk the authority to enter into a 20 year lease and arena management agreement for the Jobing.com arena. Mr. Cobb graciously consented to an interview which has been conducted via e-mail over the past two days. Because the interview was conducted via e-mail, follow up questions were not posed until other series of questions were answered. With permission from Mr. Cobb, the order of the questions has been rearranged to accommodate a better flow in reading. Please note that the views expressed by Mr. Cobb are his own. Puck and Gavel takes no position with regard to any of the views expressed by Mr. Cobb.

P&G: Can you briefly tell me about yourself (where are you from, what do you do, etc.)?

JC: I am retired, age 68. Born at USMA West Point, New York, 1944. See http://joecobb.com/front-page/about-2/

P&G: Why did you seek to have the Glendale City Council's approval of the Jobing.com lease/management agreement declared invalid?

JC: I believe it is fundamentally immoral to take tax money (with the tool of coercion, compulsory exaction) and give the funds to a private, for-profit organization. The Arizona Constitution, Article 9, Section 7, http://goldwaterinstitute.org/sites/default/files/Regifting%20the%20Gift%20Clause.pdf, prohibits giving tax money to corporations:

[N]either the state, nor any county, city, town, municipality, or other subdivision of the state shall ever give or loan its credit in the aid of, or make any donation or grant, by subsidy or otherwise, to any individual, association, or corporation, or become a subscriber to, or a shareholder in, any company or corporation, or become a joint owner with any person, company, or corporation, except as to such ownerships as may accrue to the state by operation or provision of law or as authorized by law solely for investment of the monies in the various funds of the state.

So, as you can see, not only is my personal sense of Right vs. Wrong at issue here, I have our Constitution on my side.

More on my attorney's track record suing local governments that violate Arizona's Constitution, Art.9, Sec.7, "Gift Clause":

http://jaypgreene.com/2008/12/23/goldwater-institute-prevails-in-corporate-welfare-ruling/

We have a hammer and the smelly political insider cronyism of the Glendale government is an anvil.

P&G: It's interesting that you have cited Arizona's Gift Clause as the basis for your opposition, yet the complaint filed by you and Ken Jones on behalf of the taxpayers did not list a gift clause violation as part of the reason to invalidate the ordinance. Was there a reason that you and the Goldwater Institute chose to focus only on the grounds of the lease not being issued by proper ordinance or passed pursuant to the emergency clause, and the management agreement not being subject to competitive bidding, and not to focus on the state constitution issue that you just discussed?

JC: One files motions on the basis of the development of a case. The earlier Goldwater law suit, filed two years earlier as a Gift Clause action, is still active and in the Maricopa court, but the judge in that case was not available to hear the further – and new – arguments in this case. But this case has been joined with the older case and will next be heard in front of the original judge. The Gift Clause action will require the city “to sign” and then be ordered to defend its action; we cannot expect the court to issue a prior restraint. The Goldwater attorneys attempted a prior restraint before the city voted June 8 and the judge said he didn’t have the power to enjoin a legislative body not to vote. But everything goes back to the Gift Clause.

Judge Fink ruled (1) this is not an “emergency” law, thus it cannot take effect (the contract cannot be signed) until the period allowed by law for a Referendum petition has run, or a Referendum election has given approval; and (2) the court will not substitute its opinion/judgment over the claim by the city that “professional services” – which are exceptions to the city charter requirement for competitive bidding – does include “hockey arena management” in the same category as physician, attorney, architect, et al. services. The judge had asked the city attorneys whether a high-rise window washing company was an exempt professional service, too, but did not take that obvious play on the concept of “professional service” into his final order.

P&G: Hypothetically, if the management agreement alone, not including the lease, had been subject to competitive bidding, would you still have sought to oppose it?

JC: We would have sued after the fact on the grounds of Gift Clause violation. The city has never attempted to defend itself against the charges of gift violation, but has instead refused to release documents from the closed-door negotiations with team buyers.

P&G: While Judge Fink's opinion denied the relief you and Ken Jones sought in your complaint on behalf of the taxpayers against Glendale to invalidate the ordinance granting the City Manager and City Clerk the authority to enter into a 20 year lease agreement for the Jobing.com arena, the taxpayers were still free to collect signatures to refer the ordinance to the ballot via public referendum. How many signatures do you require, and how is that number calculated? When must you have the signatures by and how is that date calculated?

JC: 10% of the city vote for Council on November 2, 2010, which is 11,309 voters is needed as signatures on our Referendum petitions. The deadline is 30 days from (1) June 8 – city’s view; or (2) June 15 – our attorneys’ view. The later date is when we actually were allowed to obtain blank petition forms by the court order overturning the claim of “emergency” status.

P&G: Assuming the city's view is correct, the deadline would be July 8, which is a Sunday. Would the deadline be extended to Monday, July 9 as a result?

JC: That is common practice: “next possible business day.”

P&G: Do you think there will be legal action brought by Glendale over the filing date of your petition if it is filed after the July 9 date?

JC: Certainly. They fight hard.

P&G: I have seen Glendale state previously that the number of signatures required would be around 1800. Where did you get your number from, and what do you think forms the basis for the discrepancy in those numbers?

JC: Pam Hanna, city clerk, told us we had to use the voter turnout from the 2008 mayoral election, which is the number in the media you cite. She has been corrected, as we know when the anti-sales tax initiative was turned in on July 5 by a different group of Glendale taxpayers. The correct voter turnout is that of November 2, 2010 = 11,309.

P&G: How many signatures do you currently have?

JC: No comment.

P&G: Timing is often the best weapon in legal challenges such as this. If you are successful in getting the referendum on the November ballot, it could likely scuttle the proposed deal to the Jamison group without it ever being voted upon. Is there any provision in Arizona for a special election to have the voters decide sooner?

JC: No.

P&G: Let's assume that you are successful in getting a referendum on the Glendale City Council ordinance on the November ballot, that the Jamison group does not pull out prior to the vote, and the vote goes in favor of Glendale. What would be your next course of action?

JC: If the contract is signed, even in mid-November after an upholding Referendum vote, we would ask the courts to apply the Gift Clause prohibition to the subsidy. Arizona was set up as a republic in 1912 with many rights retained by citizens that under other U.S. state and federal constitutions are wrapped into the hands of government. Among them is the right not to have taxpayer’s money given to private parties as “gifts,” even if a majority did vote for it. A majority cannot vote away certain rights.

Labor Negotiations 2012

The NHL and NHLPA met on Thursday, marking the second formal bargaining session between the sides as we approach the expiration of the current collective bargaining agreement ("CBA"). Katie Strang of ESPNNew York waited patiently outside of NHL HQ in New York during the two hour, forty minute session. 

Donald Fehr represented the NHLPA along with John Tavares, Matt Moulson, Rick DiPietro, Manny Malhotra, Ruslan Fedotenko, Kevin Westgarth, Ron Hainsey and B.J. Crombeen.[1] I'm sure there were also several lawyers present, but I can't say how many. There was no word who was there on behalf of the NHL, but we can presume Gary Bettman was among them.

The two sides met formally for the first time last Friday. Reports from that meeting suggest that the NHL made its initial presentation about what has happened during the current CBA. It is being presumed that today, the NHLPA made its initial presentation.

The big quotes from the day came from Donald Fehr, as reported by Katie Strang,

"We had a constructive meeting…"

"When you're beginning negotiations, you need to have dialogue. You need to see what you have a common understanding about, what you need to flesh out, what you need to discuss further. We did some of that today. We still have groups meeting now, and we're going to reconvene tomorrow morning. That's about all I can say about it…"

"It is a business-like start. There's no other way to put it. The problem is, you hope for the best and you do what you've got to do to try and make an agreement if you can, but I've been out of the predictions business for a very long time.”

Fehr wisely declined to say more, as it would be very counterproductive to the negotiation process.

The two sides are scheduled to meet again on Friday.

There are many issues that will be at the heart of this negotiation, including, but not limited to, player/owner percentage, revenue sharing, cap floor/ceiling, rollbacks, Olympic participation, realignment, contract term, front loading contract, burying contracts, and actual revenue/losses, which to me, could be the key issue in the negotiations. I plan on giving several of these their own posts to discuss at length, as the issues are so deep that to give them a brief snippet here would not do them justice.

Instead, I want to briefly discuss the upcoming process as well as share a personal anecdote.

The current CBA expires on September 15, 2012. At that point there are three options:

1) Agree to a new CBA;

2) Work stoppage; or
3) NHL and NHLPA agree to play current season under expired CBA while continuing to negotiate a new CBA.

Everybody is hoping for #1, but the likelihood of this happening prior to the season is looking slim, given the large number of issues to discuss and how complex some of those issues are.

There have been three past work stoppages in the NHL. There was one strike, and two lock outs.

The only time the NHLPA has instituted a strike was in 1992. It lasted for ten days. It ended with a pretty huge win for the players.

The NHL has locked out the players twice. The first lockout cost the league half a season in 1994-1995 and ended with a pretty significant victory for the players, leading directly to the second lockout in 2004-2005, which cost the league the entire season. However, that lockout ended with a pretty huge victory for the owners.

It could be that we are facing a third lockout. The last lockout was caused because many owners were losing money hand over fist. However, this time, it appears that a lockout may be caused by the greed of the owners, which is why I think it will end more quickly than the previous two.

I think our best hope as hockey fans will be that the two sides continue to negotiate past the expiration of the CBA, and either the season begins with both sides operating under the current CBA, or, in the alternative, the season starts some time around Thanksgiving with a new CBA in place. Call it a hunch, but I don’t foresee a prolonged lockout or the two sides reaching an agreement by September 15. Fortunately, Donald Fehr is quick to point out that the season could continue without a new CBA in place. As hockey fans, we can all only hope that the season starts on time.

On a personal note, in the first season after the lockout, I met Gary Bettman. It is frequently said that he is the smartest guy in the room. Well, I can personally confirm that. In a conference full of lawyers and law students, his wit was the sharpest and his words were the fastest. I left very impressed by the way he side-stepped my question about fighting and any other question he didn’t deem palatable, and fully understanding how he managed to thoroughly defeat the somewhat overwhelmed Bob Goodenow.

This time around, he faces a much more worthy adversary in Donald Fehr. While I don’t view Gary Bettman as a guy who likes to lose, I also think he understands that he has the weaker bargaining position this time around and that he is facing a much better organized and led union than he did seven years ago. I think this gets resolved relatively quickly, with both sides claiming victory in the issues that are most important to their respective constituencies.

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[1] I have to say that I like how involved John Tavares is in the player's association at such a young age.

Uncommon Law: An Editorial Review of the NHL Supplemental Discipline Legal System

“How is that not a suspension when our guy was suspended for the exact same thing!”

            Many of us have been there.  In the days immediately following what we perceive to be an illegal hit that goes without any supplemental discipline, we are left in a state of confusion.  We have spent the past twelve hours breaking the hit down frame by frame, comparing it to other hits that received/did not receive any supplemental discipline, as well as the perpetrators of those blows.  We have convinced ourselves that there has been a precedent set by prior rulings and we figure out what this particular hit should merit based on those precedents.  But then, when the moment finally comes, the decision is just completely at odds with what we have decided it should be.

            The most infamous example of this was Shea Weber “turnbuckling”[1]Henrik Zetterberg at the conclusion of Game 1 of the Western Conference Quarterfinals.  Everybody knew he would get suspended for that.  It was violent.  It was deliberate.  It was to the head.  Weber is a repeat offender.  Seemingly, all of the pieces were there not only for a suspension, but a fairly hefty one at that.  The next day, judgment came down from Brendan Shanahan, Senior VP of the NHL’s Department of Player Safety,[2] giving Weber the maximum allowable, slap on the wrist, fine of $2,500, with no games lost.  Meanwhile, many other players were being suspended/not being suspended for lesser/more severe infractions.  What gives?[3]

            The reaction that most of us have is to compare an incident to the rulings on past similar or analogous incidents.  This is natural to us here in most of the United States and Canada.  The state of Louisiana and the province of Quebec notwithstanding[4], the legal systems of the US and Canada are what are known as "Common Law" systems.  This type of legal system derives from our British ancestry.  In a common law system, emphasis is placed on past case rulings, from which principles are derived and applied to future cases, under a legal principle known as "Stare Decisis."  In other words, past case rulings create binding precedent upon future rulings, until those rules are changed, either by statute or by a reversal from a higher court.  The rationale behind this is that it would be unjust to decide similar incidents differently on separate occasions.  It creates a guiding set of principles that allow for a consistency in ruling.  This type of legal system is present predominantly in the countries which were touched by the British empire.

            By contrast, a “Civil Law” system is one in which individual case decisions are less important than a judge’s interpretation of the laws and rules that govern a dispute, giving each case its own individual ruling.  That is not to say there isn’t any consistency.  Civil law systems follow the legal principle known as “Jurisprudence Constante.”  The chief distinction between stare decisis and jurisprudence constante is that a single case affords sufficient foundation for stare decisis, while a series of adjudicated cases, all in accord, form the basis for jurisprudence constante.[5]  This is the predominant legal system in the world, forming the basis of all of Europe’s legal systems outside of the United Kingdom, as well as most of Asia, South America, and Africa.

            The NHL’s supplemental discipline process is a civil law system.  Brendan Shanahan has established a series of rules and principles, starting with the NHL rule book, and then expanding to other specific factors, such as principle point of contact, leaving their feet, consideration of injury,[6] hitting from behind, position of player getting hit, and movement of the players in the moments preceding the hit.  Shanahan applies these rules to each incident individually.  While he has admitted in an interview that he will look at prior hits for some guidance, in the end, each case is judged on its own merits.  Sometimes we agree with his decisions, sometimes we don’t.  But regardless, his rulings should be critiqued individually, and not in conjunction with each other because he is not operating as a common law system, but rather as a civil law system.

            Let’s revisit the Weber incident from the playoffs.  When you view supplemental discipline as a common law process, Weber’s punishment is not only a bad decision, but makes all other decisions look bad in relative comparison to Weber.  However, if you look at Weber’s supplemental discipline on its own, unaffected by and not affecting the other supplemental discipline decisions/non-decisions, Weber’s decision still looks terrible, but makes the other decisions less baffling, not counting those which were baffling on their own.[7]

           

            So in the future, don’t bother analyzing hits and suspension by comparing them to previous rulings by Shanahan.  Just look at each offense’s own merit based upon the sometimes nebulous criteria set forth by the league and the Department of Player Safety.

            But what do you think?  Should each case get its own special consideration based upon the rules, or should a body of case law be built based on prior precedents to determine the outcome of future incidents?

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[1] The old-school WWF fan in me absolutely loves this term, but the hockey fan in me is embarrassed that it could be used to describe something that actually happened in our game.

[2] Editorial forthcoming on the real purpose of this department. Spoiler, it is NOT player safety.

[3] In the comments section, feel free to vent about some of your most unexplainable suspensions/non-suspensions.

[4] Louisiana and Quebec have hybrid systems. Louisiana is much closer to a pure civil law system than Quebec.

[5] Willis-Knighton Med. Center v. Caddo-Shreveport Sales and Use Tax Comm., 903 So.2d 1071 (La. 2004)

[6] Future rant forthcoming because it makes no sense in determining illegality, and should only go to weight of discipline

[7] No supplemental discipline for Alexander Ovechkin leaving his feet and headshotting Dan Girardi? Really?

Introduction

Welcome to Puck and Gavel!

This is a blog that will focus on the law and its interaction with hockey.  The analysis will mostly focus on issues that affect the National Hockey League, but will also address those affecting other leagues as they make the news.  Some examples of issues that I will be discussing here are:

1) Coyotes sale;
2) Labor negotiations (and probable lockout);
3) Probable Devils’ bankruptcy;
4) Steve Moore trial;
5) Supplemental discipline process and revisions;
6) Flyers Winter Classic class action suit;
7) Intellectual property/licensing issues; and

8) My own editorials on various topics as I think of them.

Seeing as how some of these issues already have extensive histories and I have limited time due to my job, moving, and impending birth of my first child, I will not be back-filling my posts with the full history of each issue.  Instead, I will just be analyzing the recent news as it arises.  

I will be maintaining a legal dictionary that defines legal terms as I use them.  Whenever I use a term that can be found in the dictionary, I will link to the dictionary so you can look them up before continuing with the rest of the post. 

I hope that the discussion in the comments section of each post will be lively and enlightening, while still remaining civil.  If you want to reach me directly, you can either e-mail me at puckandgavel@gmail.com. Also, don't forget to follow me and tweet me @puckandgavel.  I will respond to any and all direct communications that I receive.

I want to give some special thanks to a few people who have inspired me to create this blog.  First is Rick Carpiniello of The Journal News.  His Rangers Report blog is where I have spent a very significant portion of every hockey season and made me realize how a great community can be created and maintained on the internet. Next are Jeff Marek of SportsNet and Greg Wyshynski of Yahoo! Sports, hosts of the Marek vs. Wyshynski podcast.  They inspired me to actually pursue the creation of my own blog.  Finally, I have to thank my wife, who has provided me with nothing but love and support... OK, she may have also called me a dork, but in a loving and supportive way.

Finally, I have to give very special thanks to Chris Susalis, for taking his own personal time to help me get the layout I was looking for and to design the snazzy logo up top. Truly generous and excellent work.

With that, welcome to Puck and Gavel.  I hope we can learn from each other and have a good time while doing so.