Many arguments have been made and had over the issue of whether or not Major Junior or CHL players are, or should be considered Professional athletes.
Major Junior Hockey Players are professional athletes. Make no mistake about it, and the Canadian Hockey League knows this is a fact. They know its a fact because they were well aware of a Law being enacted to make that determination in 2006.
Provinces, and some States are enacting, or trying to enact laws to avoid that determination legally, or to avoid regional labor laws regarding wages, vacation time and benefits.
The problem with these arguments continuing is that the determination, in the United States at least, has already been made. The argument, or discussion was actually resolved by the United States Congress on behalf of the QMJHL after events transpiring in 2003 with the then Lewiston Maineiacs.
In 2003, the Maineiacs were beginning their inaugural season in the QMJHL. If you look back, because of WORK VISA issues the Maineiacs were forced to spend its first three weeks of the season in Canada. That is the key, and that is where the legal precedent resides.
There are multiple work visas available to athletes, yet, because of the LEGAL DEFINITION, the Major Junior players only fell into one Visa category.
Enter the local member of United States Congress, and a Bill proposal, that was later enacted into Law.
Legislation was introduced to change the United States Work Visa process for Major Junior Players in the United States. This legislation, Public Law 109-463, Creating Opportunities for Minor League Professional, Entertainers, and Teams through Legal Entry Act of 2006, was passed by Congress and signed into law on December 22, 2006.
This Law and its making was covered by the national press in USA Today, and the Washington Post among other outlets. It became known as the “MAINEiacs amendment”.
There is no disputing that the Law was enacted, or that it is still a controlling factor in how Visa’s are distributed among all professional sports.
Looking further, under Federal Law, a worker’s wage cannot be less than the highest of the applicable state or Federal minimum wage or the wage promised to a non-immigrant worker on an H-2B visa. In the United States, for Professional Hockey Players, the lowest Minimum Wage TJHN has been able to find is $350 per week.
States, by law, both Federal and State, do not have the legal authority to decrease anyone’s level of pay under a United States Working Visa. States only have authority to enact laws that effect its citizens. Since H2B non immigrant temporary workers are not Citizens in any legal sense, the States do not have any authority to enact laws that would effect their level of pay.
Following the same train of thought, it would be an unfair business practice and discriminatory action if H2B temporary workers were paid minimum wage and United States Citizens were not paid the same minimum wage.
The Laws, recently enacted in Washington State are contrary to existing Federal Immigration Laws and therefor should be struck down as invalid.
Laws in Michigan and Pennsylvania would also prohibit these unfair labor practices. Michigan in particular, as a State that borders Canada and has a very active border patrol and immigration service, could become a powder keg for this issue.
Michigan Governor Rick Snyder, who encourages immigration, has proposed legislation to the United States government to increase Work Visa’s. Snyder however wants immigration to improve the economy, and paying less than minimum wage will not accomplish that goal.
Beyond the violations on how much they are paid, the fact is, Major Junior players are paid. Beyond what is referred to as a “stipend” they receive money for training costs in the summer, as well as monetary awards for future use when enrolling in a University.
All of those items by definition are income, and taxable. The “taxable” issue, based on our research has never been addressed. Are players paying taxes on that “education money” they receive later? Are teams using those education monies as “business expenses”?
While during their Major Junior careers in the United States, players will not likely earn the minimum amount required by the IRS to file a tax return in the United States, the second they receive economic benefits such as an education stipend and reach the income threshold those dollars must be claimed.
These athletes under this Visa are by United States Congressional act of Law, determined to be Professional Athletes.
Because they are here on a work visa, United States Employment Law is the governing authority, and all athletes would be required to be paid under Federal minimum standards.
Everyone knows this too be true and the athletes themselves have these Visa’s stapled into their Passports. There is no confusion on the issue other than what some people want to put into the Press.
The question then turns to, “What about import athletes playing in Canada?” Unfortunately no one is willing to answer that question either.
Easy research makes it clear that non Canadian persons must have work visa’s in order to work, or receive any payment from an entity in Canada. Fairly self explanatory.
Are non Canadian athletes being compensated by Canadian based business operations? Yes. That is not in dispute, and the Major Junior leagues freely admit to that fact.
Are non Canadian players filing tax returns? No one wants to answer that question and the Canada Revenue Agency can not answer the question for a multitude of legal reasons.
There are a few reasons why I have written this fact based piece. Primarily it is to get to the real heart of the discussion, because in the end there shouldn’t be any further discussion in the United States. Congress took care of that discussion for everyone in the United States at least.
Second, is in the hope that someone in the State of Washington who is hopping to avoid Federal Law in enacting new State Labor Law will be held to the standards of the laws that already exist and merely need to be enforced. While they may improperly change labor laws to suit their constituents, they do not have the authority to change or bypass an act of Congress as it regards immigration or the hiring of non immigrant workers.
Third would be to provoke a new discussion.
In theory, lets assume that all I have said here is legally binding. In that assumption, lets go further and assume that eventually all “import players” will eventually be removed from Major Junior Hockey on both sides of the border. Because we know, teams do not want to pay a “living wage” that would be required by law.
What happens to Major Junior hockey then? Only United States born players on US based teams, and only Canadian on Canadian teams. No Europeans at all. What then would Major Junior hockey look like?
If you think such a thing is not possible, think again.
As one Law Professor responded to me;
“There are reasons for enacting Law, and reasons for changing Law. When the public finds something to be illegal, Law is enacted to protect the entire public. These Laws may later become unneeded or antiquated and yet remain on the legal books while going unprosecuted when broken. Law is changed, most often, when it is not politically expedient for the law to remain as it was enacted.
When looking at the information, actions and basis for what is taking place in this particular situation there is really only one reason for Law to be changed. It has become politically expedient for someone to have the Law changed. It is important to remember that in the United States, we elect our Law Makers to act on behalf of the many and not the few. In this particular situation, its abundantly clear that some people are seeking to change the Law in order to protect such an isolated few as to insult the many.
Common sense, which in theory is the basis for Law, is offended by these actions taken by Law Makers. The arguments presented that a paid person is not a professional in their chosen line of work is offensive to even the least educated persons, therefor exhibiting no basis in commonality or common sense.
The continued argument and statements that these professionals are not entitled to be paid at minimum Federal or State Wage standards is insulting to all sensibility. When we as a people do not expect fast food workers to do their jobs for three or four dollars an hour, how does anyone in good conscience expect or ask any person in any profession to do just that?”
There is only one clear conclusion. The United States government has determined by Law that every Major Junior Player in the United States is a Professional Athlete. Therefor every player must be paid according to United States Labor and Immigration Law.
There is simply no debate that the laws exist, or that the standards are clear. There is also no debate that States can not enact Law that would undermine the Law of the United States.
Joseph Kolodziej – Publisher
