Kitchener’s Lawsuit Could Put Whole System on Trial

It’s been two days since the Kitchener Rangers filed suit against The Michigan Daily and student reporter Matt Slovin, and other details continue to trickle out regarding the legal proceedings.

The Student Press Law Center recently reported on the latest, including the fact that a “John Doe” was also named in the suit by the Rangers, with John Doe being Slovin’s anonymous OHL source. This revelation is not much of a surprise as this suit, claiming in excess of $1 million in damages, has very little to do with money.

In addition to defending its reputation against the report, Kitchener undoubtedly wants John Doe revealed. Ryder Gilliland, the lawyer representing the Rangers in the suit told this to Sunaya Sapurji of Y! Sports Canada:

“When you’re dealing with sources one thing you have to be very careful about is relying on a source that has a bone to pick,” said Gilliland. “The Kitchener Rangers are very concerned – they don’t know who the source is – they’re concerned that… this was a source that was deliberately trying to cause harm to the Kitchener Rangers. Again, we don’t know if that’s the case, but that’s a very real concern.”

I’m unfamiliar with Canada’s laws in terms of the protection of anonymous sources, but it might not matter anyway.

According to Adam Goldstein, SPLC’s attorney advocate the suit isn’t likely to gain much traction. From the SPLC report:

He said that Canadian courts have in recent years increasingly dismissed attempts at “libel tourism” — the practice of pursuing a defamation case in a country like England or Canada, rather than the U.S.

While the standard to win a libel case is more relaxed in Canada — even true statements can be libelous — collecting damages from a U.S. citizen is challenging.

If a Canadian court were to find that the Daily had defamed the Rangers, a U.S. court would have to uphold that judgment for any damages to be collected, Goldstein said.

“Ordinarily speaking, a U.S. court will enforce a foreign judgment if it’s a valid judgment under foreign law, but the one exception comes when the judgment offends the First Amendment,” he said.

Goldstein is alluding to the SPEECH Act, which makes foreign judgments unenforceable in the United States unless the First Amendment’s comparatively strict standards are satisfied.

This also means The Michigan Daily‘s staff and Slovin could sit out the court proceedings all together in Canada, with minimal repercussions, allowing Kitchener a victory in Canada, but the inability to collect damages.

The SPLC’s report also informs that the Daily is being advised by Detroit-based attorney Herschel Fink, though he has not officially signed on to represent the student paper. Fink told SPLC reporter Seth Zweifler that the dollar amount requested by Kitchener is meaningless, which I think most of the followers of this case already figured.

While Kitchener has the right to go after a publication it feels has defamed them, this could end up being a gigantic waste of time, but what it may also do is put the entire system on trial, should this ever make it to court.

Tyler Dellow of mc79hockey.com had an incredibly interesting take that traveled further down the rabbit hole. First Dellow went into whether the Daily’s report could be considered defamatory, stating “There’s no shame in paying people for the value that they create for your business.”

We’ve seen many a debate about paying college athletes for helping generate mountains of value for their institutions. The same debate has been waged in Canada, though on a much smaller scale, in regards to the CHL’s profiting on the performance of teenagers without suitably compensating the players.

The OHL has rules against providing “inappropriate benefits,” which would include compensation over and above the weekly stipends players receive ($50 for those under 20 and up to $150 for over-age players) and the education packages allowed within the rules. That despite the fact that the players are typically the ones leading the charge in creating value for their clubs.

Dellow wondered if this trial could put the OHL’s rules against “inappropriate” benefits in question:

I’ll assume for the sake of discussion that Kitchener would be breaking the OHL rules. I’ve always wondered about the legality of rules like that. I’ve never practiced competition law but there was an interesting note on the Canadian Bar Association’s site a little while back, written by a guy named Mark Katz about hiring practices.

It strikes me that one plausible argument that could be raised by the defendants in this defamation action is whether or not the OHL’s restraints are legal under Canadian law. Restraints that are unilaterally imposed by teams and leagues do not have a good track record when they run into competition or anti-trust law in the United States, United Kingdom and Europe. It’s not something that’s arisen frequently in Canada – junior hockey and the CFL are about the only leagues we have that are ours or almost entirely ours. The CFL has a collective bargaining relationship with its players, pursuant to which there can be some agreement about limiting wages and such; junior hockey does not.

The CHL’s three member leagues by in large are doing pretty well financially. Profits are booming for many of the owners with television contracts, ticket sales and sponsorship packages providing loads of revenue. All that comes without the burden of paying player salaries, aside from that minimal weekly stipend and the education package, which gets used by less than half the players and has been under scrutiny for years despite being touted by CHL president David Branch as “the best in the world.”

Things are fine the way they are in the eyes of many of the Canadian Hockey League organizations. Their bottom lines are looking pretty good and the league is still developing players for the NHL at a rapid pace. So why, as a whole, would they endure a trial that could potentially bring about extra legal scrutiny that could lead to unwanted change?

Additionally, as one lawyer pointed out to me, while the Trouba accusations are the primary topic at hand, Kitchener’s prior negotiations with players — particularly those previously committed to NCAA programs — could potentially be admissible as circumstantial evidence. If it is admissible, Kitchener as a team that is often rumored to be and has been publicly accused of engaging in offering inappropriate benefits better make sure all of its ducks are in a row for a potential trial.

Kitchener has made its point by filing suit and has allowed the court of public opinion to choose who to believe, though that likely isn’t enough for the organization. The Daily, despite offering no public comment so far, still has not backed down from Slovin’s report, which remains online.

The Rangers will have to decide if their reputation was damaged enough to put the organization, their league and the entire system on trial. I’d allege it hasn’t.

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About Chris Peters

Editor of The United States of Hockey. Contributor to CBSSports.com, USA Hockey Magazine and more. Former USA Hockey PR guy. Current Iowan.
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