Roger writing the LAWmag
07
Oct 2009

Gretzky Law

Wayne Douglas Gretzky is a thin, wily ex-athlete, very wealthy and a wannabe elite. Forty years of adulation and million dollar contracts for a skill wholly comprised of skating with, and shooting a small black puck, will do that to you.

Where there is money, there are black-gowned penguins for hire to package the law like a hard snowball, and throw it at anyone who dares get in their client’s way.

They are called lawyers if you're an Oilers fan, or attorney if the Kings are your thing.

The Child-Client

Wayne started his fraternization with lawyers at a young age.

With 200-pound infantry-age men in padded, bright uniforms gunning for him in large, iced plexi-glass cages around Ontario, what was there to fear from dark oak paneled rooms filled with armed guards and baggy-eyed lawyers and judges in funeral colours?

But like an annoying mosquito to a young boy, something called law kept getting in the way of Wayne Gretzky wishes.

Gretzky jerseyIt is the rare child that gets direct exposure to the law and then mostly because his or her parents suddenly wail that they are separating. But Gretzky hired his first lawyer for career reasons.

For the 1975-1976 hockey season, the ice hockey prodigy wanted to play hockey for the top ranked team in Ontario, the Toronto Nationals. Given his scoring and passing prowess, the team was thrilled in spite of his age, signed him to a contract and he was assigned a ward or billet family, not just to give him a roof over his head, but also to establish a proximate residence and thus to meet the requirements of playing for the Nationals. This, even though his real home, mother and father and siblings, was a mere 25 miles away in Brampton, a 30 minute drive from Toronto; a suburb by most people, just on the other side of the Toronto Airport.

Adding more credibility to his residency in Toronto, Wayne was quietly enrolled in a Metro Toronto school.

But the Ontario Minor Hockey Association did not like the idea of such a young child declaring a suspect residence just for the purpose of playing ice hockey. To their credit, they took a stand and refused to let him play for the Nationals.

Gretzky, all of 14 at the time, retained William Pearce, Barrister & Solicitor and tried a the law's equivalent of a slapshot: an application for an injunction, in Ontario Supreme Court, Justice Southeby presiding.

Unfortunately for the child hockey prodigy, the law could not accommodate his child desires. Southeby denied Gretzky’s request to interfere:

"In my view, the Court in this case ought not to become involved in a minute legalistic analysis and interpretation of the rules of the Canadian Amateur Hockey Association (CAHA)."

The case became of interest to contract law as well as W. A. Pearce, Esquire, alternatively argued that the CAHA had contractual obligations towards his child-client. To this, the court went on to state the obvious to any lawyer versant in contract law:

"If there are contracts between the (14 year old) boys and the associations, they are voidable because of the ages of the boys...."

Greatski

A decade and thousands of sports headlines and two Stanley Cups later (check), Laurent Fortin quietly filed a small package of documents with the Registrar of Trace-Marks in Hull (now Gatineau), Quebec. The document contained the mundane technical writings customary to the paper-heavy field of intellectual property law. It was a simple application, unremarkable against the thousands the Canadian Intellectual Property Office receives every year. Fortin’s application was then summarized in a little-known trade publication. When it landed in the desk of one of Wayne Gretzky’s lawyers, those legal beagle eyes immediately widened.

Laurent Fortin wanted to trade-make "Greatski" as the name for his manually-propelled sports vehicle as the Greatski. Of course, Wayne Gretzky, like so many athletes before him had been taught to do by their lawyers, sought to assert ownership to the name "Gretzky", both as spelled and phonetic variations. So, through Gretzky contested the trade-mark application by filling what intellectual property lawyers know as an opposition, claiming that:

"... the (proposed) trade mark GREATSKI falsely suggests a connection with ... Wayne Gretzky and because it is confusing with ... the name of ... Wayne Gretzky which had been previously used in Canada to distinguish products and/or services by or connected in some other way with ... Wayne Gretzky."

Gretzky filed but a single piece of evidence: the affidavit of his agent, Michael Barnett which noted what every Canadian knew: that Wayne Gretzky was a hockey icon and that he had:

"... exploited his fame by entering into endorsement arrangements with a wide variety of companies."

Wayne Gretzky was in full swing in his first season with the Los Angeles Kings, and with a slapshot which stung Laurent Fortin, Greatski was rejected.

Why?

These decisions are often subjective but the trade-mark judge found a "... high degree of visual and phonetic resemblance" with Gretzky.

Frozen Boathouse

By 1998, Wayne Gretzky’s legal status changed; he had married the American actress Janet Jones. He was on the edge of retirement and he wanted a summer foothold in his native Canada.

When not wearing the New York Rangers jersey, Wayne and Mrs. Gretzky were shopping for a cottage in the Muskokas. They came across a FOR SALE on a lovely property; a main house, guest cabin and a two-level boat house.

In December 1997 and January 1998, offers and counter-offers were exchanged but none stuck.

On January 12, 1998, Ronald Fujikawa, a Los Angeles business and tax attorney for the Gretzkys, asked for an inspection of the property.

Fujikawa's website advertises this statement:

"Represented a sports icon in acquiring an equity interest in, and finalizing a multi-year contract to serve as Head Coach of, an NHL hockey team; in addition, have represented this same individual in dozens of endorsement/licensing arrangements with companies as varied as Anheuser-Busch, Ford, McDonald’s and Pepsi."

This was a normal request for any house purchase deal but Fujikawa also demanded that the boats be removed from the boat house.

It may have been 75º F in Los Angeles, where the sports icon called Gretzky was plying his craft with the Los Angeles Kings, but Lake Muskoka was frozen over.

It's the details that can kill you.

That one little change started a chain reaction that would cause the Gretzkys to lose their dream cottage.

The vendors then added a little something.

Fujiwaka struck again, refusing the vendor’s changes.

When the vendors finally backed out of the deal, the Gretzkys assertively demanded they be forced to complete the deal, a request known to contract law as specific performance, and hauled the vendors to court.

But in the end, the Gretzkys were denied. Justice Spiegel found that the contract was only half-baked. To be binding, and where a written contract is required, as is the case with real property sale agreements in most parts of Canada, including Ontario (Statute of Frauds), a contract:

"... must disclose, either expressly or by necessary inference, all the essential terms of a concluded contract, including any additional essential terms, if any, stipulated by the parties. A memorandum is insufficient if any material term agreed upon and not implied by law is omitted or misstated."

In Canadian courts, professional athletes are always so wonderfully introduced by their well-paid lawyers. The best athletes are the best paid and so when they are shopping for legal services, they tend to take the highest priced.

But when they get to court, even as their legal shepherd enthusiastically guides them, the fact that Lady Justice is blind to the headlines of The Hockey News often escapes them.

REFERENCES:

  • Duhaime, Lloyd, Contracts With Children
  • Gretzky v Fortin 24 CIPR 136; also published at 24 CPR 3d 283 (Trademarks Opposition Board, 1989)
  • Gretzky v. Ontario Minor Hockey Assn. 10 OR 2d 759; also published at 64 DLR 3d 467 or at 24 CPR 2d 275 (1975, Ontario Supreme Court)
  • Hunter v. Baluke 42 OR 3d 553 (1998)

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