Accounting for Publicity: Scott Foster & Group Licensing Under Collective Bargaining

Guest Post by Michael B. Engle

On March 29, 2018, while preparing for a home game against the Winnipeg Jets, the Chicago Blackhawks suddenly found themselves without prospective starter Anton Forsberg, who was injured during his off-ice warmups. With nobody else available to back up now-starter-by-necessity Collin Delia (making his own NHL debut as a recent call up from AHL Rockford), the Blackhawks signed 36-year-old, former Western Michigan University goaltender Scott Foster to a one-day amateur tryout contract. The catch? Foster last played for the WMU Broncos in 2006 (for reference, Jonathan Toews’s freshman year at University of North Dakota) and is employed as an accountant for Golub Capital.

By now, the rest is history: with the Blackhawks up 6-2 over Winnipeg, and with Delia suddenly incapacitated with cramps with 14 minutes to go in the third period... who is this guy in the black Vaughns and the AC/DC mask?... let’s check the program for #90... he wouldn’t be in the program on such short notice... yep, there he is, emergency goaltender Scott Foster! Foster made seven saves on seven shots, preserving the win and earning a first star of the game and a story of a lifetime. In a rush to beat the April 17, 2018 filing deadline with the IRS capitalize on Foster’s (almost literally) fifteen minutes of fame, the Blackhawks put out this tweet in order to (sorry, can’t help it) hawk some merchandise:

A night that will forever be remembered! Scott Foster stopped all seven shots he faced as emergency goaltender. #FosterOfThePeople

Custom gear here: https://t.co/D3n9PXXbub pic.twitter.com/MCzWUExXkN

— NHL Shop (@NHL_Shop) March 30, 2018

What is wrong with this story, and why am I flagging the Chicago Blackhawks for an audit? Let’s open the books.

As stated earlier, Scott Foster was signed to an amateur tryout contract. All player contracts’ terms are governed by the NHL Collective Bargaining Agreement ("CBA")—a giant league wide contract that, by virtue of the National Labor Relations Act, binds the NHLPA and 31 management groups (who employ Commissioner Gary Bettman as their “face”) to a wide variety of rules. Aside from players’ contracts, the CBA covers almost every other working condition imaginable, including, but absolutely not limited to, days off per month (teams get four, with at least two at home), regulations on equipment (stick shafts can only be 63 inches tall, with 65 inch waivers available to players 6’6” or taller), and even how players get paid (the CBA guarantees the right for a player to receive a biweekly wire transfer).

Not all contracts are created equally. Specifically as to amateur tryout contracts, those terms are spelled out in the CBA [the conditions are in Section 13-13(m)(ii), and the ATO contract is seen at Exhibit 17]. In a nutshell, because each team is guaranteed two available healthy goalies, the Blackhawks had to prove that they only had Delia available and only then could they exercise their right to sign Foster, who was pre-registered as a local emergency backup goalie candidate. (Note: Each city has its own local goalies, hence how and why Philadelphia native Eric Semborski suited up for the Blackhawks in 2016... borrowing Corey Crawford’s #50 jersey! So, yes, in reverse, under different circumstances, Scott Foster could have been a Jet for a day.) In exchange for quick eligibility under narrow circumstances, ATO goalies are awarded no money for their stand-in efforts. With no money in the contract, there is also no opportunity for the ATO player to join the NHLPA, for that would allow for compensation that is explicitly barred by the ATO contract. Now we get to the problem with the Foster merchandise ad.

NHL CBA 25.5(b) states:

The Clubs acknowledge the existence of the NHLPA Group Licensing Program through which the Players exclusively authorize the NHLPA to use, license, and sub license the use of their name, signature, picture, biographical sketch, playing record, Player number and likeness in groups of three or more Players across the League on or in any one product or advertisement or series of products or advertisements.

Let’s translate that out of legal jargon. If the teams want to sell specific players’ jerseys in the gift shop, they have to go through the NHLPA. Players cannot make side deals to circumvent the NHLPA’s exclusive license. This, for example, is why a Marc-André Fleury Jersey costs the same price as a Ryan Reaves jersey, and each player collects the same royalty. Naturally, the popular players sell more jerseys and make more money in volume. Additionally, since the NHLPA will not cover a non-union member (even if he is momentarily famous), if Foster never got paid, the Blackhawks should not be able to directly sell Scott Foster merchandise.

Commemorative t-shirts with the whole roster printed out would not list Spencer, because he crossed the picket line and thus could not benefit from the MLBPA license. [Source]

Major League Baseball actually offers an instructive comparison, in order to see how group licenses work for unionized workers. After the 1994 strike, teams opened 1995 Spring Training with replacement players. Some of these “scabs” became permanent players whose names might be familiar, like Kevin Millar, Shane Spencer, Cory Lidle, and Damian Miller. They might have made the big leagues, but by rule, they never made it to the gift shop racks. Spencer, for example, was on three World Series champion New York Yankees teams, but look for yourself [see right].

Now, back to the Blackhawks. In theory, the Blackhawks might not be in violation of the CBA merely by “inviting customers to fill custom orders with last name Foster, number 90.” But for the same reason the Blackhawks do not directly sell Clark Griswold jerseys (though they are relatively easy to find online), the Blackhawks should not be able to facilitate (too much) Scott Foster jersey sales. I would hope that the NHLPA files a grievance here. As is cynically said about taxpayers, only the egregious and careless cheaters get audited, and this maxim seems to apply here.

To bury the hatchet and escape the highway to hell, the Blackhawks could potentially balance the books by donating “ill-gotten” Foster proceeds to a mutually agreed upon charity. If such an offer were accepted, it would be similar to how Chris Long, the Philadelphia Eagles, and the NFL resolved their recent Underdog t-shirt episode during the lead up to Super Bowl LII. And in this context, such a donation would literally be the least the Blackhawks could do in recognition of their famous temp employee—they probably won’t even have to send Foster a 1099 form!