As the NHL playoffs are in full swing, most of the talk in Canada is about the Ottawa Senators' surprising run to the Conference Finals. However, in Game 3 between the Pittsburgh Penguins and Washington Capitals in the previous round, Sidney Crosby suffered what might have been his fifth concussion and the hockey world collectively gasped.
Nashville Predators defenseman P.K. Subban (76) battles for the puck with Pittsburgh Penguins centre Sidney Crosby (87). (Photo: Charles LeClaire/USA TODAY Sports)
When he returned to play just a few days later, Dr. Willem Meeuwisse, a Calgary-based member of the NHL's Concussion Working Group, was quoted as saying:
"We all sit around and talk and talk about concussion management. Then it's the playoffs, someone suffers an obvious loss of consciousness and is back playing in less than 48 hours. As an employment lawyer, I began thinking about negligence and specifically:
- Whose decision was it for him to return to work?
- Was he properly advised of the risks of returning to work?"
40 Years since Michael Robitaille
I also thought about Michael Robitaille, a former professional hockey player employed by the Vancouver Canucks, who took a vicious body check on Jan. 19, 1977 that rendered him permanently disabled.
While body checks are a part of the game, it was the circumstances surrounding his injury that led to Robitaille successfully suing his former employer for $360,000 for loss of income, $40,000 for pain, suffering and loss of enjoyment of life, and $35,000 for exemplary and aggravated damages.
A few months prior to that body check, Robitaille suffered a shoulder injury and missed some time. However, in response, his coach and general manager publicly stated: "I don't know exactly how bad it is but I tell you he'd better start playing. If he doesn't, I'm going to have to consider suspending him."
Following that body check, and while Robitaille was in hospital, the Canucks unsuccessfully tried to trade him without disclosing the extent of his injury. They also stopped paying him, despite being permanently disabled. When he inquired as to the whereabouts of his paycheque, he was advised by his employer that "they had cheques only for guys who wanted to play hockey."
Robitaille's lawsuit was founded in negligence, namely, that his employer:
- Was under a duty to exercise reasonable care to ensure his safety, fitness and health; and
- Breached that duty by failing to keep him from playing on Jan. 19, 1977.
Derek Boogard (74) of the Minnesota Wild on Dec. 28, 2009 in Los Angeles, Cali. (Photo: Victor Decolongon/Getty Images)
The NHL today
Currently, there is a class-action lawsuit proceeding in the U.S. with around 200 former players who suffered concussions during their careers asserting that the league and its teams were negligent by failing to do enough to ensure their safety. The NHL is also currently facing a wrongful death lawsuit from the family of a former enforcer, Derek Boogard, who took his own life following a career in which he fought around 60 times and suffered numerous concussions.
Application to employment law
In Canada, since most major professional sports are unionized, the majority of sport-related employment issues are submitted to arbitration. However, the cases of Crosby and Robitaille highlight some key issues that are at the forefront of employment law.
(Photo: Magmost via Getty Images)
Suing your employer for a workplace injury
In Ontario, we currently have a "no-fault" system in place for many employees, depending on the type of work in which they are engaged (i.e. manufacturing, mining and construction), whereby if one is injured during the course of their employment, their primary recourse is to submit a claim to the Workplace Safety and Insurance Board ("WSIB").
While these employees can still sue their employer at common law (meaning their ability to sue is authorized by judges and not by a particular statute) for negligence (meaning as a result of a workplace injury caused by the employers' failure to do something that they reasonably should have done), it would likely be opposed on the basis that they are not entitled to do so because the injury is to be treated as an insurance claim. This concept is commonly known as the "historic trade-off" whereby workers have effectively traded in their right to sue (which could take years to resolve) for a guaranteed settlement (an amount that helps but is insufficient for a catastrophic injury).
However, for these workers, there are some exceptions to this rule. For example, if the injury was caused by a third party or occurred while at work but as a result of an incident unrelated to the worker's job, such as the commission of a tort (meaning that the injury resulted from an intentional harm, usually physical or sexual assault in this context), the worker may be able to successfully sue their employer and the potential damages would likely far exceed the WSIB entitlements. The tort argument is also an exception within unionized workplaces (think Todd Bertuzzi).
In Ontario, OHSA also affords most workers the right to refuse unsafe work.
Refusing unsafe work
One key difference between Robitaille and Crosby is their ability to refuse unsafe work. In the Robitaille case, he was given an ultimatum: play or face suspension. While Crosby, commonly regarded as the best player in the world, would never face such pressure. In Ontario, OHSA also affords most workers the right to refuse unsafe work. Certain workers, such as police officers and firefighters, do not have this right due to the nature of their job.
Upon reporting the unsafe work and explaining why it is unsafe, it triggers the employer's obligation to investigate. If after efforts by the employer to remedy the situation, the worker has reasonable belief that the workplace is still unsafe, the worker can continue to refuse and the Ministry of Labour must be notified.
While the hockey rink is a unique workplace, the governing principles, employer duties and rights of its workers transcend the sport. The purpose of this article is to highlight the importance of workplace safety, the duties of employers and the rights of workers. Whether one is seeking to hoist the Stanley Cup, build a house or facilitate any transaction, it must not be done at the expense of workplace safety.
David Master is an Associate at Rudner MacDonald LLP, a boutique law firm specializing in Canadian Employment Law. David is also passionate about sports, and volunteers as a panelist for sport-related disputes with the Sports Law and Strategy Group. When David is not making rulings on sports, he can usually be found playing hockey, softball, squash, tennis or golf.
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