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DAILY DISH: Breaking Down the USPHL NCDC Player Agreement Junior Hockey News

Published: Wednesday, 11 Oct 2017  
By: Stephen Heisler, JuniorHockey.com


Once in a while I’m given information that needs to be closely evaluated before presenting an opinion.

Today we are going to take a relatively close look at the player agreement for United States Premier Hockey League’s National Collegiate Development Conference teams.

Because the USPHL is currently operating outside of the umbrella of USA Hockey, there is a clear need for the group to be able to have some type of hold on their players. This player agreement is likely one of the strictest I’ve personally ever seen when it comes to handcuffing an amateur athlete.

The agreement itself is in Bold Type while the comments from the panel are going to be in italics.

Aside from me, you will also see comments from two different anonymous legal experts. The first is from California and the other from the Rocky Mountains. Yes I know, that’s a bit vague, but Richard Gallant has a ton of money and is not going to like this one bit.

So let’s take a look.

 

THIS JUNIOR PLAYER CONTRACT (the “AGREEMENT”) is by and between the player identified on Schedule A attached hereto (“PLAYER”), and, if PLAYER is under 18 years of age, such PLAYER’S parent or legal guardian identified on Schedule A attached hereto (“PARENT”), and CLUB NAME HERE, a STATE HERE limited liability company (“CLUB”) with a principal business address at ADDRESS HERE, and a member in good standing of the UNITED STATES PREMIER HOCKEY LEAGUE, LLC, a Delaware limited liability company commonly known as the United States Premier Hockey League (“USPHL”).

This AGREEMENT is established for the purpose of defining the obligations of the CLUB, the PLAYER and the PARENT for the 2017-2018 Season.  As used herein, “Season” shall mean the period commencing with the CLUB’S first practice and concluding with the end of the CLUB’S final scheduled game, including all playoff games.

Stephen: Fairly standard wording here.

 

1.       Exclusive Play.  During the Season, the PLAYER hereby agrees to play amateur ice hockey exclusively for the CLUB.  During the Season, PLAYER shall not participate or play in any other ice hockey events (with the exception of his native national teams, select camps, or tournaments) without the express written consent of the CLUB which shall be reasonably granted whenever such outside participation is determined by the CLUB to not be in conflict with the interests of the CLUB. 

Stephen: The red flags come into play immediately. This agreement legally prohibits players from moving to other opportunities should the situation with the NCDC team not be what was anticipated.

Rocky Mountain Expert: For instance, if the player has the opportunity to play in the NAHL, or any other USA Hockey or Hockey Canada sanctioned team, he may not do so if the CLUB determines it is in conflict with the interests of the CLUB.  Interestingly, the term “conflict with the interests of the CLUB” is not defined in the Contract, so one would have to assume it is anything the CLUB determines is a conflict.  If the CLUB determines the “other ice hockey event” conflicts with the interests of the CLUB, it can preclude the Player from that activity.  If the Player/Parent wants to disregard this preclusion, the Parent/Player owes the CLUB no less than $5,000.00 and faces the possibility of an injunction that restricts the Player from playing hockey anywhere.  WOW!  We’re talking about amateur junior hockey players here folks.  BUYER BEWARE!!!!!

 

2.       Regular Attendance.  The PLAYER agrees that he shall attend all CLUB on-ice and off-ice sessions including, but not limited to games, practices, dry-land training, instructional sessions, team meetings and organized educational prep sessions, unless otherwise excused by the CLUB prior to such activity.

Stephen: Standard.

 

3.       Conduct.  The PLAYER agrees that he will conduct himself on and off the ice in accordance with the highest standard of honesty, citizenship and sportsmanship.  The PLAYER further agrees that he will not do anything that is materially detrimental or materially prejudicial to the best interests of the CLUB, recognizing that his behavior is representative of the CLUB at all times.  The PLAYER further understands that the CLUB may dismiss PLAYER at will for failure to: (a) uphold the CLUB’s BILLET POLICY incorporated herein by reference (if applicable), (b) comply with applicable laws at all times, whether on or off the ice, or (c) behave in a lawful, honest and sportsmanlike manner.  Any violation thereof shall, at the sole discretion of the CLUB, constitute a basis for suspension or termination of PLAYER and this AGREEMENT. 

Stephen: Standard.

California Expert: However, shouldn’t there be some reciprocity here? Section 6 says that the Club must be in compliance with USPHL Standards (more on that later), though the Club should be required to also act in the same manner as the Player. This obligation should also be expressly imposed on the management and the coaching staff. 

 

4.       No Guaranty of Playing Time.  The PLAYER acknowledges and agrees that this AGREEMENT does NOT constitute a guarantee of playing time, or of equal playing time, for the PLAYER and that all decisions regarding playing time shall be determined solely by the CLUB as it sees fit.  PLAYER understands he will continually compete for a playing position, and that the CLUB makes no representation regarding the total number of players that the CLUB will carry at the PLAYER’S position.  Skill and effectiveness in both practice and games are critical factors to playing time, which shall be determined in the CLUB’S sole discretion.  PLAYER and PARENT understand that part of the player development process may include placement on any appropriate team operated by CLUB.  All such teams are operated under the same rules and guidelines set forth by this AGREEMENT.  In addition, PLAYER hereby agrees to ANY re-assignment from CLUB to another team within the organization, based on PLAYER’S performance.

Stephen: Here’s the bait and switch. As far as the NCDC is concerned, I’m fine with the playing time decisions, players should have to earn that. What is also dead wrong is the wording that can force players to other teams within the club’s structure. This is one of the exact reasons we do not recommend the NCDC as an option.

Rocky Mountain Expert: For example, if the CLUB determines that you do not fit into their NCDC team, the CLUB can demote you to “any appropriate team operated by the CLUB.”  Since that phrase is not defined, one can only assume the CLUB means any of their affiliate USPHL Teams.  If the Player does not agree with being demoted to the CLUB’s affiliate teams and wants to go elsewhere, say a USA Hockey or Canada Hockey sanctioned program, think again as you are likely in breach or “about to breach the Contract. (See Paragraph 1, “Exclusive Play,” Paragraph 8 “No Pay to Play,” Paragraph 13 “Value of Agreement; Breach,” and Paragraph 14 “Injunctive Relief.)  Don’t want that demotion?  The Player/Parent now owes the CLUB no less than $5,000.00 and an injunction to preclude the Player from playing hockey elsewhere, regardless of the league….beer league included.  WOW again.

 

5.       No Guaranty of Improvement.  The CLUB expressly does NOT guarantee or in any way promise or assure that it can improve the college or professional hockey potential of the PLAYER. 

Stephen: This is kind of funny, so all that baloney about development is just that…baloney. “We can get you to NCAA Div. I hockey,” is the common recruiting line from almost all these clubs, but the contract says otherwise.

California Expert: At a minimum there should be some type of “best efforts” provision so there is some obligation imposed on the Club to advance the player.  

 

6.       Applicable Rules.  During the Season the CLUB will follow USPHL rules, including without limitation those pertaining to game and practice guidelines, ice availability, apparel, equipment, transportation and housing.  The CLUB is in compliance with all USPHL standards. 

Stephen: The USPHL has standards?

California Expert: What are those rules & standards? What are the rules and standards of the Club? What are the obligations of the Club owed to the Player? 

 

7.       CLUB Activities.  The CLUB shall be the sole beneficiary of ticket sales, donations, tuition fees, advertising and other revenues and assets of any kind that the PLAYER may generate, and the PLAYER shall not receive or be due any monetary or material compensation of any kind, except as set forth herein.  The CLUB has the right to use any photograph, image or likeness of the PLAYER for promotional or instructional activity without compensation to PLAYER.  PLAYER and PARENT (if applicable) expressly waive any/all right to compensation, monetary or otherwise, for use of PLAYER’S photograph, image, or likeness (regardless of the media used in connection therewith), and hereby authorize CLUB to use same as the CLUB sees fit.

Stephen: I’m not excited about this at all. What prevents the club from selling a player’s likeliness for another commercial benefit? What is the time period for such free use? Why no scope of use limitations? The scope should be limited to club related promotion, not open sale to anybody with a checkbook.

California Expert: No argument that the Club should be protected, similar to what a college does with its student athletes. However, similar limitations should apply.

 

8.       No Pay to Play.  No tuition or fees shall be payable by PLAYER or PARENT for PLAYER’S right to play for the CLUB; provided, however, that PLAYER and PARENT (if applicable) shall be liable for all costs, damages and claims in accordance herewith. 

Stephen: It’s not pay to play but player is liable for all costs, damages, and claims? That’s an interesting concept.

California Expert: There are other liability provisions in the Agreement, though why the need to pile on?

Stephen: Here is when things get confusing. So if an NCDC player gets reassigned to the pay to play Premier or Elite level teams, he does not have to pay? Is that NOT considered an improper financial benefit? Could such an action jeopardize NCAA eligibility?

California Expert: Would that also be a breach of the Agreement by the Club? Is the Club subject to damages for such a result?

Rocky Mountain Expert: This is a very deceiving clause when read on its own.  Paragraph 8 leaves the reader with the impression the Parent and Player will not incur any costs to play for the CLUB.  What is interesting though is that Paragraph 8 goes on to state “provided, however, that PLAYER and PARENT (if applicable) shall be liable for all costs, damages and claims in accordance herewith.”  What does that mean? 

“[L]iable for all costs, damages and claims in accordance herewith” seems to refer to Paragraph 13, Value of Agreement; Breach and Paragraph 14, Injunctive Relief.  Paragraph 13 basically states that if the Player or Parent does not adhere to any paragraph of the Contract, that Player/Parents agrees that they have damaged the CLUB in an amount of no less than $5,000.00 (maybe more).  Further, Paragraph 14 states if the CLUB even thinks the Player/Parent is not going to abide by the Contract, the CLUB, without notice to the Player/Parent, can obtain an injunction that precludes the Player from playing hockey on any team in any league. Seriously? One word.  Unconscionable.

 

9.       Equipment Use and Return.  The CLUB shall provide PLAYER with all practice and game-equipment, uniforms and apparel, and sticks with the club’s vendor, except for skates and inside protective gear (collectively, “Equipment”).  All Equipment worn by PLAYER (whether or not furnished by the CLUB) must be in compliance with USPHL regulations, and PLAYER shall be responsible for keeping all Equipment in compliance therewith.  PLAYER hereby agrees to maintain all Equipment in clean and usable condition, ordinary wear and tear excepted.  PLAYER hereby agrees to return all Equipment to CLUB upon PLAYER’S suspension or termination, or upon PLAYER’S resignation from the CLUB, or at the end of the Season.  PLAYER and PARENT (if applicable) shall be liable to CLUB for all lost, stolen or non-returned Equipment, and for Equipment which is prematurely worn or broken due to abuse or neglect, at replacement cost.

Stephen: So they want all their stuff back, fair enough.

California Expert: Make it clear that does not include the Player’s personal gear, which is included the definition of Equipment.

 

10.      USPHL Membership Registration.  All Players participating in the USPHL are required to register on line with the league.   Please go to www.usphl.com and complete the player registration process and pay the associated fee to become eligible to play in 2017/2018.

Stephen: $400 for NCDC players, $250 more if dropped to Premier?

 

11.      Governing Law.  This AGREEMENT shall be governed and construed in accordance with the laws of the state in which the CLUB is located (the “State”), without regard to its choice of law principles.  The parties hereto agree that any dispute concerning or arising from this AGREEMENT shall be heard in any Federal or state court of competent jurisdiction in the State.  The PLAYER and PARENT agree to reimburse the CLUB for its reasonable attorneys’ fees and costs in the event that the CLUB is substantially the prevailing party in any action between the parties hereto.

Stephen: Now the strings.

California Expert: No reciprocity? What happens if the Player has to sue and wins?

 

12.      Waiver of Trial by Jury.  THE PARTIES HERETO HEREBY WAIVE ANY RIGHT TO A TRIAL BY JURY.

Stephen: Really, why is that?

Rocky Mountain Expert: Juries don’t like corporate bullies taking advantage of 17-20 year-olds and their families.

California Expert: Fairly standard in most business contracts these days. Oh yeah… in “business contracts”. So, this is more about the business than it is the Player?

  

13.      Value of Agreement; Breach.  The parties hereto acknowledge and agree that the minimum value of the practice time, playing time, advice, game experience, and Equipment which the CLUB expects to provide to the PLAYER is not less than $5,000.00 (the “Minimum Value”).  The parties hereto further acknowledge and agree that despite such acknowledgment, the Minimum Value shall not constitute a limitation on damages which the CLUB may suffer if PLAYER commits a breach of this Agreement.  If PLAYER commits a breach of this Agreement, the CLUB shall be entitled to monetary damages against the PLAYER and PARENT and, in addition, may seek any other damages available, whether at law or in equity.

Stephen: If player is unhappy with situation for any reason other than practice time, playing time, advice, game experience, and equipment he can expect to face a legal challenge if he leaves. Now here is the tricky part; do you see anything in this section that penalizes the team for a breach? Neither do I.

California Expert: Player should be given the right to leave and pursue other opportunities. What do other leagues do?

Rocky Mountain Expert: We covered this earlier.

 

14.      Injunctive Relief.  The PLAYER and PARENT acknowledge that any breach of Section 1, 2, 3, 6, 7, 8 or 9 is likely to result in immediate, irreparable harm to the CLUB, for which damages are not reasonably ascertainable.  Therefore, the PLAYER and PARENT agree that upon a showing that the PLAYER or PARENT is about to breach, or has breached, any such Section, the CLUB shall be entitled to a preliminary injunction and other equitable relief as necessary to enjoin the PLAYER or PARENT from threatened, further or continuing breaches thereof.  The PLAYER and PARENT agree to waive notice of such preliminary injunction hearing, and understand that ex parte relief may be sought by the CLUB.  In no event shall the CLUB be liable for consequential, punitive, or damages other than actual damages, whether in contract or tort, for any breach of this AGREEMENT.

Stephen: Are you kidding me? The USPHL wants the right to get injunctive relief without notice for any player they feel is “about to breach.”

Rocky Mountain Expert: Amazing.

California Expert: This is broad even for a business agreement. And, why is there a limitation on the liability of the Club (see the last sentence) and no similar limitation on the Player’s liability?

 

15.      Severability.  If any provision of this AGREEMENT shall be invalid or unenforceable under any applicable law, such provisions shall not apply in such instance but the remaining provisions shall be given their full effect in accordance with their terms.

Stephen: I’m looking forward to our legal expert’s opinion.

California Expert: Very typical provision in a business contract, though again, is this really a business contract? Apparently it is.

 

16.      Survival.  The provisions of Sections 1, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16 and 19 shall survive the termination of this AGREEMENT.

Stephen: What does this mean? The agreement really never expires?

California Expert: The Agreement for the Player to play expires after one year, though the referenced Sections continue to apply. Meaning, the club can bring legal action even after the end of the season.

 

17.      No Waiver.  The waiver by a party hereto of any term, provision or condition hereof shall not be construed as a waiver of any other term, provision or condition, nor shall such waiver be deemed a waiver of any subsequent breach of said term, condition or provision.

Stephen: Interesting.

 

18.      Execution.  This AGREEMENT may be signed by ‘pdf’ or facsimile and in counterparts.

19.      Amendments.  This AGREEMENT may be amended or modified only by written instrument executed by each of the parties hereto.

20.      Headings.  The headings and subheadings of Sections of this AGREEMENT and/or any schedule or exhibit attached hereto are for convenience of reference only and shall not constitute part of or define or limit any of the provisions of this AGREEMENT or such schedule or exhibit. 

21.      Entire Agreement.  This AGREEMENT (together with schedules and exhibits attached hereto) constitutes the entire agreement between the parties hereto and can only be modified by a written agreement signed by the PLAYER, PARENT (if applicable), and the CLUB.  All prior or contemporaneous oral representations are of no force or effect.  All schedules and exhibits attached hereto are incorporated herein by reference.

Stephen: This basically says the club can promise the moon and deliver a pile of poop.

 

22.      Not an Offer.  The tendering by the CLUB of this AGREEMENT to the PLAYER or to PARENT shall not constitute an offer to said PLAYER, it being expressly understood that until the CLUB’s Director of Hockey Operations countersigns this AGREEMENT, the terms herein are of no force or effect.

 

Stephen: Now that my blood pressure is lowering a bit, I have to ask one serious question. Why in the heck would any parent or player sign such an incredibly one-sided agreement? Not my kids.

California Expert: As a father, I wouldn’t let my son sign that Agreement. As an attorney, I wouldn’t let my client sign that Agreement. If it’s a “business”, then be up front about it, treat as a “business agreement”, and tell me what you’re going to, as the Club, as “consideration” for my son playing for you. It’s clearly not about the development of my son.



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Stephen Heisler has spent a lifetime in the game of hockey. Stephen is also working with individual teams, coaches, and players as a director with the Heisler Hockey Group. Stephen and his family spend most of their time in Florida.


Author: Stephen Heisler from JuniorHockey.com
Stephen Heisler has spent a lifetime in the game of hockey. Stephen is also working with individual teams, coaches, and players as a director with Victorious Hockey Company. Stephen, his wife Deysi, and four children reside in Orlando, Florida.


* Disclaimer: This site may contain advice, opinions and statements from various authors and information providers. Views expressed in this article reflect the personal opinion of the author, Stephen Heisler, and not necessarily the views of JuniorHockey.com. JuniorHockey.com does not represent or endorse the accuracy or reliability of any advice, opinion, statement or other info provided in the article, or from any other member of this site.
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