Who Really Owns the Stanley Cup?

As most of you remember, there was one year where the Stanley Cup was not awarded because of a labour dispute between the National Hockey League and its players.  This dispute resulted in the 2004-2005 lockout, as well as a lawsuit over the ownership of the Stanley Cup.

The dispute over ownership of the Stanley Cup turns on a unique blend of ancient doctrines and modern rules about property rights in both physical and intangible assets.

I’ve spoken about the Stanley Cup’s history, and the controversy over the NHL’s ownership claims, to the Research Centre for Sport in Canadian Society.  On the rare occasions when the National Hockey League season seems in jeopardy, I’m often asked for media comments on legal ownership of the Cup. I have written in detail about this issue with a particular focus on its value as a heuristic to teach property law.

Below is a glimpse into the history of Lord Stanley’s Cup. For more details, you’ll have to read the article like the rest of our law students.

The History of the Stanley Cup

Lord Stanley’s Gift

The story of the Stanley Cup has been told before, though never (as far as I know) from a lawyer’s perspective.[1] In 1888 Queen Victoria appointed Baron Frederick Arthur Stanley of Preston, the 16th Earl of Derby, to be the Governor General of Canada. Coming to Canada as an avid sportsman, (now Lord) Stanley quickly became enthralled with game of hockey. His family contributed to the development of amateur hockey from its formative stages. One son even helped to found the Rideau Rebels club and the Ontario Hockey Association.[2] Lord Stanley’s legacy lingers not only throughout the Vancouver park bearing his name, but throughout the entire country. Perhaps his greatest gift came when he set out to create a trophy for the leading hockey team in the Dominion. This trophy would help hockey evolve into the game it is today.

The creation of the Cup was announced at a banquet held for the Ottawa Hockey Club in 1892. Lord Stanley was unable to attend the event himself, but dictated a message to one of his aides, Lord Kilcoursie, explaining his rationale and wishes for the Cup. The message read:

I have for sometime past been thinking that it would be a good thing if there were a challenge cup which should be held from year to year by the championship hockey team in the Dominion. 

There does not appear to be any such outward and visible sign of championship at present, and considering the general interest which the matches now elicit, and the importance of having the game played fairly and under rules generally recognized, I am willing to give a cup which shall be held from year to year by the winning team.

I am not quite certain that the present regulations governing the arrangement of matches give entire satisfaction and it would be worth considering whether they could not be arranged so that each team would play once at home and once at the place where their opponents hail from.[3]

He directed his Military Secretary and aide, Captain Colville, to use the best silversmith in England to construct the silver cup with a gold finish interior and an ebony base. The bowl was made in Sheffield and purchased from a retailer on Regent Street in London.[4] It cost 10 Guineas, or just under C$50 at the time.[5]

The Stanley Cup Trust

Lord Stanley specified the conditions under which a hockey team could vie for the Cup, and those conditions were recorded in the Montreal Gazette.[6] This created a constitution of sorts, which laid the foundation for the administration of hockey and the Cup.[7] Lord Stanley’s “conditions” were as follows:

the winners to give bond for the return of the Cup in good order, when required by the trustees for the purpose of being handed over to any other team that may in turn win;

each winning team to have at their own charge, engraved on a silver ring, fitted on the Cup for that purpose, the name of the team and the year won;

the Cup shall remain a challenge cup, and will not become the property of any team, even if won more than once;

in case of any doubt as to the title of any club to claim the position of champions, the Cup shall be held or awarded by the trustees as they might think right, their decisions being absolute; and

should either trustee resign or otherwise drop out, the remaining trustee shall nominate a substitute.[8]

Lord Stanley also appointed Philip Dansken Ross and Sheriff John Sweetland, both of Ottawa, as trustees to help set terms to govern the awarding and administration of the Cup.[9] Ross and Sweetland arbitrated nearly all aspects of Cup challenges, ranging from the types of series to be played, to the referees, to the awarding of the Cup itself.[10] The trustees’ early actions echoed the intentions originally indicated by Lord Stanley, especially that the Cup remain a challenge cup in the Dominion, that control over the Cup rest with the trustees and that no single entity ever own it.[11] Any organized hockey club anywhere, with the permission of the trustees, could request a chance to play for the Cup.

Early Challenges

Lord Stanley’s intention was that the first holder of the Cup was to be Ottawa, which in his view, was at the time the leading club in Canada.[12] However, though Ottawa was champion of the Ontario Hockey Association in 1892, the trustees demanded there be a playoff against Toronto’s Osgoode team for the right to become the first Stanley Cup winner and to have their names engraved on the trophy.[13] The Ottawa Club was adamant that they would not travel to Toronto, and resigned from membership in the Ontario Hockey Association.[14] The trustees stood firm, and one year later, in March 1893, Ross and Sweetland decided that the Stanley Cup would first pass into the hands of the Montréal Amateur Athletic Association.[15]

Early on, the trophy was awarded only to men’s amateur hockey teams, although there were often disputes over players’ status and eligibility.[16] Since about 1910, it has gone only to professional teams consisting of paid players. For a number of years after that, professional teams from the National Hockey Association, the Pacific Coast Hockey Association and the Western Canada Hockey League held the Stanley Cup. In 1917, it went south of the Canadian border for the first time, when the Seattle Metropolitans defeated the Montréal Canadiens. That same year, the NHA became the NHL, and since 1927, the Stanley Cup has been awarded only to NHL teams. Once, in 1932, the American Hockey League attempted to challenge for the cup, but the trustees didn’t press the matter when NHL president Frank Calder refused to allow a series to be played by what he called a league of rebel outlaws.

The Cup has been awarded to someone every year since 1893, with only 2 exceptions. In 1919, play was suspended because of a flu pandemic that spread through the Montréal team. And famously, in 2005, a labour dispute disrupted the entire NHL season, including the Stanley Cup playoffs. Note that a threatened strike in 1925 did not stop the Cup from being awarded following a 2-game playoff.[17]

[1] See generally Andrew Podnieks, Lord Stanley’s Cup (Bolton, Ontario: Fenn Publishing, 2004); R. Gruneau and D. Whitson, Hockey Night in Canada: Sport, Identities and Cultural Politics (Toronto: Garamond Press, 1993); P. Drackett, “Lord Stanley and Sons” in D. Diamond (ed.), The Official National Hockey League Stanley Cup Centennial Book (Toronto: McClelland & Stewart Inc., 1992); William Houston, Pride and Glory 100 Years of the Stanley Cup (Toronto: McGraw-Hill Ryerson, 1992); Brian McFarlane, The Stanley Cup: The story of the men and the teams who for over three-quarters of a century have fought for hockey’s most prized trophy (Toronto: Pagurian Press, 1971); and Henry Roxborough, The Stanley Cup Story (Toronto: Ryerson Press, 1964). 

[2] Roxborough, supra note 6 at 9-17.

[3] Lord Stanley’s letter was reproduced in two Ottawa newspaper articles: see “Stars of the Ice: The Dinner to the Ottawa Hockey Team” The Evening Journal (March 19, 1892); “The Champions Dined: The Governor General’s Prize” Ottawa Citizen (March 19, 1892). Some authors present a slightly different account of Lord Stanley’s letter, but there are no major differences. See e.g. Roxborough, supra note 6 at 12.

[4] Burt and Shelley v. O’Neill et. al., 05-CV-287601PD3 (Ont. S.C.J.), Affidavit of Paul Kitchen.

[5] Andrew Podnieks, Lord Stanley’s Cup (Bolton, Ontario: Fenn Publishing, 2004) at 3; and McFarlane, supra note 6 at 19. The Stanley Cup is now considered the most reconfigured sports trophy.  The Cup was redesigned in the late 1940’s as it became too unmanageable because of its size, as ring after ring could not be added to the original Cup. It was redesigned to its present form with the oldest part dating back to 1956: see Andrew Podnieks, Silverware: Hockey Hall of Fame (Bolton, Ontario: Fenn Publishing, 2005).

[6] “For Championship Hockey: Conditions Governing the Governor-General’s Cup” Montreal Gazette (May 1, 1893).

[7] Podnieks, supra note 4 at 5.

[8] Roxborough, supra note 6 at 13.

[9] Charles Coleman, The Trail of the Stanley Cup, Vol. 1, 1893-1926 inc. (Dubuque, Iowa: Kendall/Hunt Publishing, 1964) at 19. 

[10] Podnieks, supra note 11 at 6.

[11] Richard Foot, The NHL’s dubious custody deal (September 27, 2003) The Ottawa Citizen.  

[12] Roxborough, supra note 6 at 14.

[13] Ibid

[14] Ibid

[15] Roxborough, supra note 6 at 14; McFarlane, supra note 6 at 22.

[16] Podnieks, supra note 11 at 6.

[17] Houston, supra note 6 at 15. 

The Stanley Cup Case Study: Changes in the Practice and Pedagogy of Property Law by jeremydebeer