David Branch (Tara Walton/Toronto Star via Getty Images)
OHL commissioner David Branch said the decision to suspend Flint Firebirds owner Rolf Nilsen for five years was solely his decision and that if Nilsen wants to appeal, he'll have to take his case to the board of governors.
The five-year suspension levied to Flint Firebirds owner Rolf Nilsen by the Ontario League does not include off-ice activities, nor will it prevent Nilsen from participating in board of governors’ meetings or conducting league business, thn.com has learned.
And that’s a very important aspect of the suspension. Because the OHL is not denying Nilsen the opportunity to run his business and make a living from his hockey team, the suspension would have a far better opportunity of surviving a court challenge, should Nilsen choose to go that route. Nilsen has not declared his intentions and several calls to Patrick Ducharme, Nilsen’s Windsor-based lawyer, were not returned.
In a wide-ranging interview on the suspension with thn.com, OHL commissioner David Branch made it clear that Nilsen’s suspension pertains only to his involvement in hockey matters. “In terms of the business side of operations, (Nilsen) can be as involved as he wishes because he remains the owner of the team,” Branch said. “He’ll be invited to attend to attend board of governor meetings, but if there should ever be a vote to come forward dealing with hockey operations and the like, he will have to have someone else sit in his place.”
Joe Birch, the OHL’s senior director of hockey development, will continue to serve as director of operations for the Firebirds and Branch said that under provisions of the suspension, Nilsen will meet with him yearly to set a budget for hockey operations and establish the salaries of the GM, coach and hockey staff.
Some of the other points of the suspension include:
* Nilsen’s first avenue of appeal will be to the league’s board of governors. “The sanctions came under the powers of the commissioner,” Branch said. “As commissioner, I was solely responsible for the sanctions. The governors were not involved and nothing was discussed with them in advance.”
* The agreement that Branch and Nilsen entered into on Nov. 11, 2015 set out the parameters of Nilsen’s involvement with the hockey operations. The agreement simply acknowledged that Nilsen would not become involved in hockey operations for the balance of this season and if he had any question or issue, that he would come to the commissioner for advice on how to proceed.
Another important factor here. Nilsen could theoretically argue that he fired his coaches the second time because the Firebirds were underperforming and were the third-worst team in the league, that the firing had nothing to do with the playing time that his son Hakon, a defenseman with the Firebirds was receiving. But it’s important to note that the suspension was issued because he did not consult with Branch before making the move, not necessarily because the move was made. Branch did acknowledge, though, that no potential sanctions for violating the agreement would be were discussed with Nilsen in November. “I think it’s implied that the league would take whatever action it deemed necessary if, in fact, there was a violation.”
* Branch would not provide thn.com with a copy of the OHL’s constitution, but said it does include a conduct clause for owners to comply with the rules of the league. “It’s nothing really elaborate other than what you would term, in my view, common sense,” Branch said.
According to a legal expert interviewed by thn.com who requested anonymity, the fact that the investigation leading up to the suspension was conducted by Toronto lawyer Terrence O’Sullivan will give it an enormous amount of credence. “Terry O’Sullivan is one of Ontario’s top litigators and he’s a top-drawer guy,” he said. “He’s the kind of guy who could be asked to become a court of appeal judge. He’s beyond reproach and he’s a very sophisticated commercial litigator. So let me put it this way. He’s not going to mess up on jurisdiction and stuff like that. I wouldn’t expect to see weak spots from him.”
Where things might get dicey is the fact that the third overall pick in Saturday’s draft was taken away from the Firebirds. That creates a sense of urgency because if Nilsen feels he has grounds for appeal, it’s imperative that he’s heard before the draft. To that end, he could ask for an emergency meeting of the board of governors to hear his appeal and, if that can’t be arranged in a timely manner, ask a court to decide.
“I think that would meet the test for irreparable harm,” the lawyer said. “I wouldn’t be surprised if people aren’t going to be in court on Friday. Think about it, how do you undo a draft?”
Our legal expert said it’s impossible to know where this case is going to go without knowing exactly what is in the OHL constitution. “A lot of leagues are renowned for forgetting what their powers are,” he said. “It wouldn’t surprise me to find something in their constitution that says, ‘How do you get rid of a member?’ And that might be why they’ve suspended him for five years because a termination has to go to a majority vote of the owners. If I were handling the case I might argue that this is so close to just kicking him out that it offends their own constitution.”