Saturday, October 13, 2012

Lord Stanley's Legacy

NHL hockey fans are an anxious bunch these days. The lockout of the players by the owners is heading in its fourth week and the two sides have yet to seriously discuss any of the big economic issues dividing them. A single team's season's worth of games have already been laid waste and fans dread a second season of the last eight in which the NHL does not award the Stanley Cup.

As we ponder that, here's a simple question: why do we watch NHL hockey? We can claim it's because of the players' elite skill level or the thrill of watching the fastest game in the world at its top speed. Or maybe we watch because we have an unswerving loyalty to a particular team, honed since childhood. All of these things may be true, but when it comes right down to it, the main reason, and for some of us the sole reason, we watch NHL hockey is for the roller coaster of the Stanley Cup playoffs.

Every player who's made the post-season talks about how it's different hockey. It's passion, speed, emotion, desperation and heroism cranked up a notch because the playoffs mean something much bigger than the regular season. The 82 games preceding the post-season are just jockeying for position. The real stakes begin in April and every hockey fan knows it. The prize at the end of that annual two-month war of attrition is that beautiful silver cup. Players say it's the toughest trophy to win, and it symbolizes everything we treasure about the game of hockey. Another year without a Stanley Cup awarded to the top team in the NHL does not bear thinking about.

Well, friends and hockey fans, as it turns out, the NHL can go to hell.

After the last season-ending lockout in 2004-05, a couple of beer-league players in Toronto had had it with the big league's owners. They were particularly bitter about the cancellation of the playoffs, and that got them wondering whether the Cup actually belongs to the NHL at all. After all, Lord Stanley of Preston donated the Cup to the championship team of the Dominion of Canada. He meant it to be a challenge cup for hockey supremacy, and, accordingly, appointed two trustees who would oversee the governance of the trophy. They would set the rules for how the Cup would be decided and mediate any disputes. The beer-leaguers guessed, based on that premise that the Cup, in effect, belongs to the people and is merely under the protection of the trustees. So, they sent a letter to the trustees, requesting the right to challenge for the Cup. The trustees immediately turned them down, claiming they were not allowed to let teams other than those in the NHL play for the trophy. Not buying that, the two rec players decided to take the NHL to court. Tim Gilbert was their lawyer.

"We settled with the National Hockey League," Gilbert explains. "This followed the exchange of some affidavit material. We had a hockey historian weigh in, and we had experts from across Canada in trust law. We agreed with the NHL that the agreement between the trustees of the Cup and the NHL would reflect that, A, it is a trust, and B, that anybody can play for the Cup in a year in which the NHL doesn't frame a competition, subject to what the trustees decide."

It appeared at first as though the small-time challengers had won a big victory over the bureaucrats controlling the NHL. It didn't quite work out that way, however.

"You could say it was a draw, in that the trustees don't have  to award the Cup to a non-NHL team in a year in which there is a lockout," says Gilbert. "But they can't say, 'No we're not allowed to,' because of the agreement. The agreement does not preclude the trustees awarding the Cup to a non-NHL team."

The catch there is that it's up to the trustees to decide whether a challenge bid is acceptable. And, considering the fact that the two trustees, Brian O'Neill and Ian (Scotty) Morrison, are both former NHL vice-presidents with a long history of loyalty to the league, it doesn't seem likely they'd agree to let the Cup out of the NHL's hands.

O'Neill, when asked what he'd do with a challenge request if the current lockout cancels the playoffs replied:

"“It’s just not going to happen. The Stanley Cup should be awarded to the top National Hockey League team, which has been determined to be the top league in the world. Anything less than that would demean the trophy.”

Tim Gilbert isn't impressed with O'Neill's reasoning.

"I think it's unfortunate that they would say something and predetermine an issue before someone puts something before them that might have traction. I think it's an open question," he states. " Other types of leagues, should they be able to put something together, might be able to convince the trustees. The original object of the trust was to promote hockey. A lot of people feel with the lockout, it's all about money. A lot of people have tuned out of that dispute and don't even know what the real issues are, other than it's a dollar sign. It reflects negatively on the sport generally."

There are many who would agree with Gilbert. What, after all, demeans the trophy more: Having a passionate team of amateurs or semi-pros win it, or having two blank places on its side, reading only "season not played?" The Cup is a legend in itself, its history rife with weird, outrageous and entertaining stories. Awarding it to a team outside the NHL because hockey fans demanded it for the good of the sport would only add to that legend. Imagine the level of public interest if the Cup were to be disputed between local teams, rather than those in California or Florida. Picture the unbelievable joy of those who play for the Gander Flyers or the Montreal Stars,  seeing their names engraved on the Cup when they thought they had no chance because they didn't make the NHL, or are women.

Gilbert says there's plenty of legal room to challenge the right of the trustees to withhold the Cup.

"It's their (the trustees') decision, subject to living up to the object of the trust. The next stage is if the NHL can't pull its act together and should they cancel the season, then it's open for someone to argue that the trustees should be awarding that Cup and they're not living up to the original grant of the Cup," he warns. "That goes back to Lord Stanley himself. There's a letter of his, quite brief, that became evidence in our case. It says, paraphrasing, that it should be presented to the best team in the Dominion.  Those are the battle lines.  Last time, we came out in front. We remain interested. We did change the agreement, and we're prepared to help again if it makes sense."

So, there you have it. There's a legal case to be made, and lawyers willing to make it. If the NHL is stupid, greedy and stubborn enough to withhold the Cup for the second time in eight years, the door is open for some enterprising fans to force the trustees to give it back to the people. There wouldn't be a better way to stick it to the league who's been sticking it to them for years.