If the NHL won’t use the Stanley Cup, can Canada have its trophy back?

If the NHL’s latest labour dispute wipes out the entire season, a man responsible for guarding the Stanley Cup says he would be free to deliver the trophy to the winner of another competition.

It’s a scenario that might tickle the imagination of some Canadian hockey fans while appearing blasphemous to others — the idea that an amateur contest, junior league or international tournament might vie for that piece of the national heritage.

But long before the NHL, and even longer before the league’s labour wars and myriad attempts to save its struggling sunbelt franchises, the trophy was intended as a gift to be presented to the top hockey team in the Dominion of Canada.

Unlike during the season-killing 2004-05 lockout, which saw the Cup shelved for a year, the legal door is open this time for the trustees to allow non-NHL teams compete to slurp bubbly from Lord Stanley’s Mug.
Just don’t hold your breath.

The Cup trustees have the power to make it happen but don’t want to go there, one said in an interview.
“It’s just not going to happen,” Brian O’Neill, a Stanley Cup trustee and former NHL vice-president, told The Canadian Press.

“The Stanley Cup should be awarded to the top National Hockey League team, which has been determined to be the top league in the world…

“Anything less than that would demean the trophy.”

The Stanley Cup does not belong to the NHL.

Created in Sheffield, England, the Cup was originally presented to the Canadian people in 1892 as a gift from then-governor general Lord Stanley — the representative to this country of Queen Victoria.

Control of the Cup was eventually handed over to the NHL under a 1947 agreement between trustees and the league, which was revised in 2000. It declared the trophy could not be awarded to a non-NHL team in the event of a lost season.

A couple of hockey fans launched a legal challenge during the 2004-05 lockout to amend this aspect of the agreement between trustees and the NHL, leading to an out-of-court settlement a year later.

The two Toronto beer-league hockey players didn’t want to see the Cup gather dust due to the squabbles of millionaires.

The settlement says nothing prevents trustees from awarding the trophy to a non-NHL team in a year the league fails to hold a competition to determine a winner. There are no obligations, however, placed on trustees to share the prize.

“Any year in which the NHL fails to field a competition… it’s open to the trustees to award the Cup to a non-NHL team,” said Toronto lawyer Tim Gilbert, who argued the case on behalf of the pickup hockey players.

O’Neill, who shares responsibility of the trophy with fellow trustee Ian (Scotty) Morrison, said despite changes to the agreement, nobody outside the NHL will raise the Cup.

“A National Hockey League winner will win the Stanley Cup, there’s nobody else that’s going to get it,” said the Hall of Famer, adding the NHL also remains free to give the trophy back.

“The league can give up the trophy any time they want. That’s all part of the agreement, too. And turn it back over to the trustees.”

That, however, is unlikely to happen.

One expert, who has studied the Stanley Cup in the realm of property law, says the NHL will do what it can to keep its hands on the trophy.

“The NHL is going to use everything in its power to maintain control over one of (its most powerful), if not its most powerful, assets,” said Jeremy de Beer, an associate law professor at the University of Ottawa.

He said the league also has a trademark on the image and name of the trophy, but he believes those could be taken away.

“That could be challenged on the grounds that the Stanley Cup is affiliated with the office of the Governor General of Canada,” he said.

“It’s conceivable that you could actually invalidate the NHL’s trademarks.”

Angered over the prospect of another lengthy lockout, some diehards have made rumblings online about launching legal action against the NHL to take back the trophy. If the NHL doesn’t have a season, they want to see someone else win the Stanley Cup.

Since 1893, only two situations have prevented the Cup from being awarded: the lockout in 2005 and the Spanish flu outbreak in 1919.

“NHL: Do the right thing and make the Stanley Cup a ‘challenge cup’ again,” wrote one Twitter user, Ian McGrath. “You’re clearly incompetent.”

Advocates of the idea say an open challenge could be held for the Cup similar to those of the late 1800s and early 1900s, when amateur teams from across the country battled it out.

But not all fans were on board with the idea of awarding the trophy to a non-NHL team.

With the season still a few weeks away, there’s hope NHL teams will vie for the Stanley Cup during the 2012-13 season.

“There’s so much tradition with the Cup I don’t think it’s worth starting another championship or something like that,” said longtime hockey fan Steve Araki, after buying Montreal Canadiens gear recently at the team’s boutique.

For his part, de Beer wouldn’t be surprised to see another legal challenge if the lockout continues for any considerable length of time.

“If only because there is so much resentment or frustration on behalf of the fans,” he said.

“It’s one of the few ways the Canadian public can try and exercise some control or some influence over what’s happening.”