This story originally aired on November 17, 2015.
Sports have such a powerful hold on our culture that lawmakers are often willing to take extraordinary steps to keep teams and fans happy. Even the U.S. Supreme Court exempted pro baseball from antitrust laws way back in 1922.
Here in Washington state, we have our own exception to the rule when it comes to sports.
Washington’s Minimum Wage Act defines who is an employer and who’s an employee, and that’s how the state determines who should get paid the minimum wage.
As of July, the law says “employee” does not include anyone who “is at least 16 years old but under 21 years old, in his or her capacity as a player for a junior ice hockey team that is a member of a regional, national, or international league and that contracts with an arena owned, operated, or managed by a public facilities district.”
In other words, guys who play in the Western Hockey League – meaning the Everett Silvertips, the Seattle Thunderbirds, the Spokane Chiefs and the Tri-City Americans – are not employees. They don’t qualify to get paid minimum wage and they also don’t fall under the state’s child labor laws.
The whole idea is that these young men are amateurs, not pros. But if you really look at it – are they? Even for fans going to the Everett Silvertips home opener, it’s kind of murky.
Amateur Or Pro?
I stopped fans as they headed into XFINITY Arena, many decked out in Silvertips jerseys, caps and sweatshirts, to ask whether it felt like they were going to see a professional team or an amateur team.
A couple of people answered “amateur,” but most said either “semi-professional” or “pro.”
It’s easy to see why – these games are a spectacle. The arena is crowded with raucous hockey fans, some of whom have paid as much as $40 for a seat. They wave green glow sticks and shake cow bells as each Silvertip player skates out onto the ice before the game, accompanied by a burst of fireworks. People stand in line to buy jerseys, and Fox Sports 1380 gives a live broadcast of the game, which is fast and physical.
What do you like about it? I asked Dave Sivewright before the game started. “The thrashing,” he said with a laugh. “It’s just non-stop.”
Exception To The Rule
Here’s how we got this kind of odd carve-out in our labor law for a group of hockey players.
About two years ago, a Canadian named Glenn Gumbley, who had been involved with an effort to unionize junior hockey league players, filed a complaint with Washington’s Department of Labor and Industries. He said Western Hockey League teams, which are for-profit businesses, were breaking state child labor and minimum wage laws. He said they were paying a stipend that worked out to about a dollar an hour.
The department started a child labor investigation. News of that was like a thunderbolt in the hockey world, and some lawmakers took notice, including Republican Rep. Drew MacEwen, who grew up playing hockey. He sponsored the House version of the bill.
“It was really to clarify our law to ensure that amateur players are not employees and not subject to minimum wage or other labor laws,” MacEwen said.
So his bill said state minimum wage law and child labor protections just don’t apply to these hockey players, who, according to the bill, are developing “valuable athletic skills and interpersonal life skills.”
The men running the teams trekked to Olympia to lobby for it, arguing that they would have a hard time functioning if the labor laws applied to their players.
“This issue is so significant that it would negatively impact our ability to stay and operate in the state of Washington,” said Everett Silvertips President Gary Gelinas. “It would force us to continue to look at our business practice and likely without this bill passing would have to evaluate whether or not we could continue to stay in the state of Washington.”
Sports Bridge The Political Divide
Republicans and Democrats in Olympia don’t agree on much these days, but it turns out there is one thing most of them can agree on – sports. The bill passed 47-1 in the Senate and 91-7 in the House.
“I support this bill and I’m sorry that my name isn’t on it,” Democratic Rep. Mia Gregerson said during a public hearing. “And go Thunderbirds!” Democratic State Sen. David Frockt was the lone vote in the Senate against.
"It's important to have sports. It's part of the culture and fabric of the community, which I totally agree with and support," Frockt said. "I just felt like the case wasn't fully made to me about why the players should be exempt from the labor laws.”
The bill became law July 24. Three weeks later, the Department of Labor and Industries closed its investigation because, according to a spokesman, the law clarified the issues in the complaint.
But if you look at the department’s investigation file (it’s almost 1,000 pages long), it’s apparent that while they were investigating, state officials didn’t think it was so clear-cut. Maybe the players should count as employees because, after all, the teams are for-profit.
One person who definitely thinks that is Lukas Walter from Langley, British Columbia, who started playing for the Tri-City Americans in 2011, when he was 18. He stayed with the team for two years and then moved to New Brunswick to play for the Saint John Sea Dogs.
Walter is now suing the Western Hockey League, alleging the league broke minimum wage laws in Canada and the U.S.
WHL Response
“In terms of the lawsuit, given that it is ongoing, we will not be commenting specifically on it other than to say we are vigorously defending the League and our player experience,” said Ron Robison, commissioner of the WHL, in an emailed statement. He said that player experience includes a “comprehensive education program and post-secondary scholarship” and the “highest caliber coaching.”
The WHL said in a recent statement that a total of 337 former WHL players have been awarded scholarships for the 2015-16 academic year, the highest total for the fall academic season in the league's history.
Walter says he got $70 a week his first season with the Americans and $85 a week in his second. If you divide that by the hours he spent on the ice and in buses, it works out to $1 to $2 an hour. He says when he found out that was how much he’d get, he was surprised.
“I thought, `Whoa, I need to take a loan from my parents,’” he said. “It’s not a whole lot, right?”
And being involved with hockey 40 to even 65 hours a week doesn’t exactly leave much time for a part-time job.
Like Walter, most of the players are from Canada. They range in age from 16 to 20 and they stay with host families. Guys who haven’t graduated yet go to high school. The teams pay for their food and their travel, and promise to pay for at least some college tuition after the guys leave the league if they don’t go pro.
Jerseys, Cards, Video Games
But under agreements the players sign, they don’t make money from things like jerseys with their names on them or trading cards or even video games. Walter discovered he was in some games.
“I at least thought, `Wow, we should at least get a free copy of this game if they’re putting us in it, right?’” he said.
The very best players in the Western Hockey League get drafted into the National Hockey League. It’s not a formal farm system like minor league baseball is, but Sportspress Northwest commentator Art Thiel says it’s similar enough that the junior hockey players should be considered pros, just like minor league baseball players.
Even the NCAA considers WHL players to be professionals.
`Hosed’
“The WHL kids, despite their youth and despite this antiquated notion of amateurism, are being hosed,” Thiel said. “They deserve a salary; maybe it’s going to be a minimal one, whether it’s $15 an hour or whatever; they deserve to be treated as professionals, because this is a professional organization; it’s designed to create professional players.”
Seattle Thunderbirds General Manager Russ Farwell said it’s true the league is trying to develop professional players.
Farwell said the whole goal is to help the guys get good enough to make the NHL draft, but he said his players are amateurs and they’re not employees. He said that the money the players get is just reimbursement for travel and training expenses.
“It’s not a wage,” he said. “It’s not calculated on time or anything.”
Child Labor Law
The biggest issue, he said, is not so much minimum wage but child labor laws. If his players were subject to those, it’d be hard to have 16- and 17-year-olds on his team. That would mean the Thunderbirds and other Washington teams would lose out on the most talented young players, making the teams less and less competitive.
“They couldn’t work after 10 p.m. and they can’t travel,” Farwell said. “If you viewed them as employees, then they couldn’t play hockey here.”
Former Thunderbird forward Regan Mueller agrees. He played for the team in the 1990s and had dreams of getting into the NHL, but discovered he had a heart murmur. So he hung up his skates and went to the University of Washington instead. The Thunderbirds gave him a scholarship, and he went on to pursue a career in finance.
Mueller said he doesn’t understand the minimum wage argument. He said that just like high school football players, he pushed himself and can’t imagine having to clock in and out for that.
Clocking In To Do Sit-Ups?
“You go and voluntarily get up in the morning and you do pushups and you do sit-ups; and I would voluntarily go to the rink during the day and I would skate for two hours; and I would voluntarily go to the workout facility and work out; and I would voluntarily spend my summers doing two-a-days. I would get up in the morning and work out and get up in the afternoon, because that’s what you have to do to excel at any sport in the world,” Mueller said.
Still, the difference is that high school football players play for a school, and players in the Western Hockey League play for for-profit businesses. But Mueller says the teams are not making giant profits, and he says players get a lot – the promise of college tuition, room and board, expensive skates and sticks.
“At the end of the day, I think those kids are more than compensated for what they do and what they get from it,” he said.
Still, outside XFINITY Arena in Everett, Silvertips fans are torn. Some say the players don’t need to get paid, because they’re definitely amateurs. But I was surprised by how many said, “Heck yeah, pay them.”
“I hope they would make a wage and I hope it wouldn’t be minimum wage. I feel they should make more,” said Heather Monson. “They’re very dedicated.”
“I think it should probably be a little more than minimum wage with the beating they take,” said Dave Sivewright.
