The Cup is ours: a manifesto

The Stanley Cup belongs to Canada in a manner transcending book law

Paul Chiasson/CP Images

When the National Hockey League locked out its players for the entirety of the 2004-05 season, there was no competition held for the Stanley Cup. To this day, almost nobody ever talks about how bizarre this was—how bizarre, I mean, that the Canadian people and their officialdom stood for it. The precise legal status of the Stanley Cup is a lot like an unobserved particle in quantum physics: it is an unknowable, an existential question that has absolutely no good answer until and unless somebody with judicial authority chooses an arbitrary criterion and applies it. But as for moral ownership of the Stanley Cup… there cannot be any reasonable doubt about this, can there?

The Cup was originally a gift of the viceroy to the people of Canada. It is sacred to the people of Canada, and only to them. As the National Hockey League came to be recognized as the world’s supreme hockey competition in the 1920s, the people of Canada came to accept that the NHL’s champion, even when it was an American team, should receive the Cup. We have forgotten that this was a matter of generosity on our part: that the NHL does not own the Stanley Cup, but is suffered to award it only in exchange for operating the best continuing hockey competition for Canadian audiences.

It is astonishing that we should tolerate the use of our Stanley Cup as a hostage to one side in a labour negotiation. This happened once, and we regretted it passively, snivellingly, instead of demanding action. We can manage a half-decent riot when a Canadian team loses the Stanley Cup in a fair fight. But for some reason, when the Cup is openly confiscated by billionaires, dangled in front of young Canadian hockey players and mothballed when they refuse to give back a piece of their paycheques, we do nothing but mope.

And now it might happen again, you say? Nay, you say the NHL’s stewardship of our Stanley Cup is already being used implicitly as the nuclear option in another labour battle, exactly as if the Cup were a disposable tin plaything of the league’s owners? And no Canadian has heaved so much as a pebble at a window? No one is gathering feathers and boiling pitch? No one has even Occupied a team office and refused to break camp until the situation is put right?

My denunciation of our passivity is not wholly accurate, of course; the one group that had the wit to realize the absurdity of this state of affairs during the last lockout are those much-maligned intellectual astronauts, the lawyers. The NHL was sued by a couple of Toronto rec-league players, the so-called “Wednesday Nighters”, who hired Tim Gilbert of Gilberts LLP to challenge the league’s exclusive control of the Cup. In 1947, the trustees of the Cup, hockey oldtimers Philip D. Ross and Cooper Smeaton, had signed an agreement endowing the NHL with “full authority to determine and amend from time to time the conditions for competition of the Stanley Cup”. The hypothetical problems that the league faced in relying on this agreement are at least two in number, both quite huge:

1. A trustee isn’t free to arbitrarily transfer public or collective property in his care to a private interest. That’s why we call them “trustees”.

2. The agreement itself stipulates that it remains in force only “so long as the League continues to be the world’s leading professional hockey league as determined by its playing caliber, and in the event of dissolution or other termination of the National Hockey League, the Stanley Cup shall revert to the custody of the trustees.” If suspension of play for a full season doesn’t count as “other termination”, it’s hard to imagine what would. The League certainly cannot be the world’s leading professional hockey league at some particular moment if it is not having hockey games and has no intention of having any.

In order to have the 1947 agreement enforced, the NHL would have had to show both that the agreement itself was valid AND that its termination of the 2004-05 season did not annul the agreement, under its own terms. And one of the most respected lawyers in Ontario was on the other side of the lawsuit, preparing to beat them about the head and face with their own torn-off limbs.

They settled. This is a chronic problem with leaving these matters to the lawyers: just as no one loathes war like a soldier, no one avoids a courtroom like a lawyer. Before the arguments could be entertained, the NHL’s dispute with the Players’ Association was ended and the league got ready to resume play. The issue being litigated by the Wednesday Nighters was thus rendered moot—though only until now. Still more awkwardly, most of the terms of the Wednesday Nighters’ settlement with the league are covered by a confidentiality agreement, and if you ask Mr. Gilbert why confidentiality was necessary (I did), he’ll tell you that that’s part of the confidentiality agreement. Catch-22.

This does not seem, I have to say, like ultra-optimum protection of the country’s interest in the Stanley Cup. Gilbert hailed the settlement in the press as a triumph because the NHL did concede a point of principle, in the part of the deal that can be made public:

The current agreement…between the Trustees and NHL shall be amended to acknowledge that nothing therein precludes the Trustees from exercising their power to award the Stanley Cup to a non-NHL team in any year in which the NHL fails to organize a competition to determine a Stanley Cup winner.

So the NHL has formally accepted that the Stanley Cup can be awarded in the event of a lockout. But it’s not clear that they had any other choice; and all the foregoing sentence specifies is that nothing is stopping the Cup trustees from setting up or officially recognizing a separate competition, should they choose to do so.

The current trustees are former NHL vice-presidents Brian O’Neill and Scotty Morrison. If it is left up to them, they are about as likely to countenance alternative competition for the Cup as they are to get gay-married by Marilyn Manson at centre ice in the Air Canada Centre. O’Neill told the National Post‘s Jeremy Sandler in February 2006, after the lawsuit was settled:

If there is a hiatus with the league again, they would have to be worthy competitors. If they do not warrant that particular consideration by the trustees than there won’t be any competition that year. [But] we’re looking a long way down the line, at least past the expiration of the collective bargaining agreement.

Oh, how far off the autumn of 2012 seemed then; how little could its lineaments be perceived! And yet here we are. I shouldn’t assume that O’Neill and Morrison don’t take their jobs as trustees of the Cup seriously: after all, they may understand, better than Messrs. Ross and Smeaton did, that a trustee must reject all considerations, connections, and interests not germane to the trust placed in his hands. Although they have worked for the National Hockey League for most of their adult lives, they must not allow the bargaining position of the NHL to determine what they do with the Stanley Cup; they must do what is right for Canada. It is not likely to be natural for them. We have all been encouraged to think of the NHL as substantially equivalent to and interchangeable with the game of hockey. That the right thing to do with respect to the Cup may not be the best thing for the owners of the NHL’s clubs is not as obvious as it should be, even to you and me.

Yet it is so; and the germane facts should be pointed out while there is still time to act upon them. If the NHL suspends play again, will that leave the world without “worthy competitors” for the emblem of hockey supremacy? There are dozens of professional hockey clubs in Europe that would love a one-time crack at it: if we are willing to tolerate the existence of the words “Tampa Bay Lightning” on the Cup, there is no reason on earth we should balk at a much more estimable name like Dynamo Moscow or Jokerit.

But, of course, our own players won’t be burning their equipment and going to work at 7-Eleven in the event of a lockout. The mere fact of a labour squabble obviously wouldn’t make Sidney Crosby or Jonathan Toews or Drew Doughty unworthy competitors for the Stanley Cup, should they decide to form their own pickup teams for the purpose. (O’Neill and Morrison could not reasonably exclude them by any objective standard if they were managing the trust properly. Their names are already on the Cup!) I suppose there is probably some real or imagined legal reason the NHLPA chose en masse to flee to Europe and accept modest salaries during the last lockout, when Sid’s Kids and Toews’ Waves could have been barnstorming Saskatoon and Hamilton and Quebec City on pay-per-view and keeping most of the cash for themselves.

But if such a thing is possible, it is obviously what they ought to do, starting in about November. After all, if players can’t put together a first-class hockey game in Canada without the resources of the NHL, why should they get even half of the NHL’s revenues from hockey?

These are details. Even the complex legal status of the Cup proper is a detail. What’s not a detail is that the Stanley Cup belongs to Canada in a manner transcending book law. And every profession in Canada that might possibly have done something about that failed, miserably, in 2004-05. The lawyers did the most, but let us down a little, in a way that is painfully apparent now. The hockey press, conscious that it would want its press-box snacks and its locker-room interviews when the labour rumpus was over, failed utterly to discuss the possible shape, conduct, and personae of an alternative Stanley Cup competition, even though the topic is inherently fascinating and would have engaged readers like nothing else ever.

Only one “political” personage put forward an idea for non-NHL Cup competition; that was Adrienne Clarkson, and the idea wasn’t great, but at least she had one. This reminds us that the Stanley Cup could probably be retrieved from legal limbo in a trice by Parliament. I’m not generally a fan of confiscating or nationalizing property by statute, but if ever there were a case for it, this seems like one: the Cup is an asset whose original connection with the public interest of the Dominion is indisputable, but which has been unjustly converted to narrow, ugly commercial purposes by a business cartel. Surely it would be two weeks’ work to retrieve it from the bramble of estate law and make loose provisions for it, after some consultation with independent hockey experts.

If I were a supporter of the NDP I would recognize this as the biggest chance of the century to show how a party of the left can stand up for a legitimate, literal common interest. (As a bonus, you get to help out a labour union, guys!) If I were a supporter of the Conservatives I would look at my party’s recent rehabilitation of historic national symbols, symbols that when thrown together and added up mean roughly 1% to us what the Stanley Cup does, and connect some freaking dots already.

But this is a plea for action on all fronts at once, well in advance of the immediate danger of a season-long lockout. (There probably won’t be one this time, but waiting around left us helpless in 2005 when the matter was finally decided.) If the current Governor-General thinks that the threatened mothballing of the Stanley Cup is wrong, there is no reason he should remain silent. As much as the Cup is an appropriate province for emergency Parliamentary action, it is also, as perhaps the closest thing Canada has to distinct national regalia, a suitable subject for the use of the G-G’s power to advise and admonish in respect of non-partisan matters.

Journalists and bloggers who think my half-baked notions of how the Stanley Cup might be played for during a lockout should fire back with better ones. Canadians who are capable of outrage, if there are any, should make their views known to the League, to the trustees, to the front offices of their local NHL clubs, to their cousin who plays on the fourth line of the Preds, to their MP and their Senators, to their local newspaper, to their barroom buddies… in short, they should make nuisances of themselves. And lawyers, who excel at making nuisances of themselves, should follow Tim Gilbert’s example and think about what they could do to free the Cup from its fetters. There must be a half-dozen future Orders of Canada in such a project.

Are we the doormat of nations? Let us at least begin to murmur angrily. The Cup is ours. When we say “Not again” as the NHL’s negotiations with its players bog down, let our tone be wrathful, poisonous, rather than despairing.

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