By Sean O’Donnell

These blog posts are meant to provide educational content and are not to be taken as legal advice.

Previously published by The Lawyer’s Daily (www.thelawyersdaily.ca) a division of LexisNexis.

David Ayres, a 42 year old Zamboni Driver for the AHL’s Toronto Marlies, was called into action for the Carolina Hurricanes on Saturday February 22, 2020, in their 6-3 victory over the Toronto Maple Leafs at Scotiabank Arena. 

After Hurricanes goalies Petr Mrazek (who played 25 minutes, 9 seconds) and James Reimer (6:10) were injured, the team was forced to dress the now famous Ayres, who was the designated emergency backup goalie (“EBUG”) for both the Hurricanes and the Leafs. 

Ayres’ historic win as an EBUG has had the hockey community buzzing, with Ayres becoming the oldest goalie in NHL history to win his regular season debut. Stifling some of this ‘buzz’, however, is the NHL GMs’ meeting, which was held on March 2, 2020 in Boca Raton, Florida, calling into question the NHL’s relative to EBUGs. 

The 2019-20 NHL Official Rules state, in part, “In regular League and Playoff games, if both goalkeepers are incapacitated, that team shall be entitled to dress any available goalkeeper who is eligible”. The rule has generally restricted teams to using amateurs; team employees (i.e. former professional goalies turned goalie coaches) and former pros are not eligible to dress.

“It’s a complicated issue”, says NHL deputy commissioner Bill Daly, “there’s no easy fixes to it…We have to work with the [NHL] Players’ Association. Who’s a player? Who’s not a player? What qualifies all of that? But obviously we want what’s best for the game, and we want to make sure people aren’t putting themselves in danger by playing goal in a National Hockey League game…So that’s something we have to continue to work through”. Daly also told ‘NHL.com’ that the league had considered adding a non-roster goalie to a team’s traveling party, but noted that would come with its own host of problems.

Let’s be clear, the EBUG issue is rare, happening only two times since the league mandated that teams dress two goalies in the 1965-66 season, making it something that has happened in 0.004% of NHL games since 1965. While its rarity has made Ayres a media sensation, it has had some questioning the legal, and more specifically, the employment law implications.  

 

Would Ayres be considered an employee of the Leafs, or MLSE?

Here’s what we know. Ayres earned a mere $500 for his efforts. Win or lose, that’s the compensation. It has also been reported that Ayres likely signed the league’s Amateur Try-Out Agreement (“ATOA”), which states, “In consideration of the opportunity to play in the NHL, the Player (who is an amateur) agrees to present himself, upon the request of the Club to perform services as a Player on [Date] at [Location]”. The ATOA further states that the “agreement shall be valid for a term of one (1) day, and a Club shall only be permitted to enter into such an agreement when under emergency conditions as set forth Section 12.12(m)(ii) of the CBA”.

 

For the purposes of this article, let’s assume Ayres was an employee of MLSE. Could one argue that he breached his duty of loyalty to MLSE and the Leafs by playing for the Hurricanes (and beating the Leafs)?

Implied within employment agreements in Canada is a general duty of loyalty, also known the duty of good faith and fidelity. While it has long been settled than an employee has an implied obligation of loyalty, the practical difficulty is to determine exactly how far that duty extends. Ayres, if considered an employee, cannot compete against his employer. To many, it seemed strange to see Ayres wearing a Hurricanes jersey alongside his blue and white goalie pads and his Leafs’ designed goalie helmet. Part of Ayres ‘job’ with MLSE, outside of his Zamboni duties, is to practise with the Leafs, acting as an extra body for shooting practice. Ayres was seen in that exact role just days after his historic win against the very team he was helping to train. From a legal perspective, courts have ruled that not only is competing against one’s employer a breach of the implied contractual obligation of fidelity, so is planning to compete against an employer. [State Vacuum Stores Canada Ltd. v. Phillips, 1954 3 D.L.R. 621 B.C.C.A.]

What was stopping Ayres from blowing out the game? 

It appears an inherent conflict exists within the ATOA signed between EBUGs and their respective home team organizations when an EBUG is ‘called-up’ for the opposing team. A breach of the implied contractual obligation of good faith and fidelity (leaving wrongful dismissal considerations aside) is actionable in its own right. In other words, competing against one’s employer is cause for dismissal. The difficult question, of course, is whether Ayres was competing. Inherently, yes, he played for the other team. While the nature of the ATOA provides for that ability, the contract is between the EBUG and the home team’s organization, not its visitor. Trying to square this circle is something NHL GMs attempted in their latest meeting. 

Admittedly, the whole situation is quite peculiar and one-off, but the duty of loyalty, if it is assumed that Ayres is an employee, ought to apply. The solution to the EBUG dilemma appears to be an employment matter under contemplation by the league and 31 NHL teams. From the public’s perception, however, the Ayres story is nothing but a feel-good story straight out of a Hollywood film.