Once in a while I’m
given information that needs to be closely evaluated before presenting an
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
So let’s take a look.
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”).
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.
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.
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.
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.
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.
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
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
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
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.
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.
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
The USPHL has standards?
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.
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.
Expert: No argument that the Club should be protected, similar to what a
college does with its student athletes. However, similar limitations should
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.
It’s not pay to play but player is liable for all costs, damages, and claims?
That’s an interesting concept.
Expert: There are other liability provisions in the Agreement, though why the
need to pile on?
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
Expert: Would that also be a breach of the Agreement by the Club? Is the Club
subject to damages for such a result?
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?
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.
So they want all their stuff back, fair enough.
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.
$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.
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.
Really, why is that?
Mountain Expert: Juries don’t like corporate bullies taking advantage of 17-20
year-olds and their families.
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
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
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
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.
Are you kidding me? The USPHL wants the right to get injunctive relief without
notice for any player they feel is “about to breach.”
Mountain Expert: Amazing.
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.
I’m looking forward to our legal expert’s opinion.
Expert: Very typical provision in a business contract, though again, is this
really a business contract? Apparently it is.
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.
What does this mean? The agreement really never expires?
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.
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.
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.
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.
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.
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.
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