Jul 7, 2020
NHLPA in court Tuesday to fight case filed by alleged whistleblower
Union wants Ontario judge to dismiss a lawsuit filed by a former union employee who alleges the NHLPA covered up a theft of more than $100,000 in union funds by one of its executives.
TSN Senior Correspondent
Lawyers for the NHL Players’ Association are scheduled to appear by video conference before an Ontario judge Tuesday in an effort to dismiss a lawsuit filed by a former union employee who alleges the NHLPA covered up a theft of more than $100,000 in union funds by one of its executives.
The allegation of a cover-up was included in an $8.7 million wrongful dismissal case filed Nov. 3 by Allan Etherington, a 50-year-old former technical support analyst who worked for the NHLPA from Sept. 10, 2008 until Feb. 13, 2019. Etherington has also accused the union of income tax and insurance fraud.
Etherington is seeking $4 million for general damages, $2.5 million in punitive damages, and additional damages for future income loss and earning capacity.
Union officials named as defendants in the case include Stephen Frank, the NHLPA’s former director of technology and security information technology; former NHL player Mathieu Schneider, who is now a special assistant to NHLPA executive director Donald Fehr; union lawyer Roman Stoykewych; chief financial officer Richard Smit; director of finance Stephen Sax; and chief of global business strategies Sandra Monteiro.
The NHLPA has denied Etherington’s claims and asked a judge to dismiss the case. The union’s lawyers wrote in a motion filed Feb. 10 in Ontario Superior Court in Toronto that Etherington’s claim “contains bare, unfounded and irrelevant allegations, including of criminal and/or illegal conduct, and is scandalous and inflammatory.”
In a statement emailed to TSN in December, NHLPA spokesman Jonathan Weatherdon wrote Etherington's claim contained numerous false statements and groundless and irrelevant allegations. In a July 5 email to TSN, Weatherdon said the NHLPA stands by its December statement.
Since Etherington filed his lawsuit, his attorney has filed additional material with the court, including tax records and internal NHLPA documents and emails.
Etherington has alleged in the claim that Frank, who left his position with the union in December 2018, was allowed to resign from the NHLPA with Fehr’s good wishes even after the union learned through an investigation conducted by two outside firms that Frank had used his own outside company, GeekFork Inc., to misappropriate money through the purchase of expensive computer equipment.
TSN has not been able to independently confirm the results of the NHLPA’s internal investigations. In a Nov. 12, 2018, email filed in court, Stoykewych wrote to Etherington’s lawyer that the union was “engaged in an inquiry” related to the allegations raised by the former NHLPA employee.
Etherington wrote in his claim that he had worries about Frank’s behaviour in early 2018 and discussed those concerns with Sax. Etherington allegedly told Sax at that time that Frank was allegedly making purchases on the NHLPA’s behalf that Etherington typically would have made.
In an Oct. 18, 2018, letter to Monteiro, a copy of which was filed in court, Etherington wrote that he was upset about a recent negative performance assessment he’d been given by Frank and detailed his concerns about Frank, alleging Frank had directed him to use NHLPA funds to pay for items that included Frank’s monthly Rogers cable TV bill.
“I spoke to Stephen Sax about my growing concerns,” Etherington’s 2018 letter to Monteiro says, “and I was subsequently advised that there were irregularities in Stephen’s credit card purchases for which he could not provide receipts for over $150,000 in purchases.”
Etherington’s statement of claim alleges that he was resolving a print server issue with a colleague on Oct. 9, 2018, when they discovered an email chain between Frank and Chris Patton, an executive with a cybersecurity company called Darktrace.
The NHLPA signed an agreement with Darktrace in March 2018 for the U.K.-based company to provide the union with an artificial intelligence-powered product that helped protect player information such as personal contacts and contract details.
The email Etherington said he discovered indicated Frank had allegedly negotiated a $50,000 purchase on behalf of the NHLPA with a surreptitious 35 per cent commission for Frank’s associate, Kristina Falcomer.
Frank directed a Darktrace employee to remove any references to Falcomer from NHLPA documents, the claim says. Emails from June 2018 filed in court purport to show how that deal was struck.
In a June 25, 2018, email to Patton, Frank allegedly asked for a quote for Darktrace’s Antigena software system, which the company says can distinguish malicious emails from legitimate ones.
“Can you let me know what Antigena would cost the NHLPA?” Frank’s email says. “I am hoping that it will represent a deep discount under the circumstances? Please let me know what percentage Kristina would receive…”
Patton responded the same day.
“… I’ve thought of something creative. If you wanted to sign up for Antigena, we could do it through Kristina and can give her a larger % than she would normally receive as a partner. I’d need to get my CCMO and COO to approve but I think I can get their approval. Thoughts?”
In another email sent June 25, 2018, Patton wrote Darktrace’s software would cost the NHLPA $1,000 per month.
“… With this being a deal specifically between the NHLPA and Darktrace there is obviously no language about Kristina’s percentage, therefore you can use this email, as I can confirm that Kristina Falcomer will receive 35% of the agreement. NHLPA will pay Darktrace and Darktrace will pay Kristina 35%. Please let me know if you have any questions!”
In November, Darktrace spokesperson Kaia Haney wrote in an email to TSN that the company would investigate the allegations. Haney did not respond to an email request for comment on the latest developments in the case.
Falcomer has denied Etherington's allegations.
After Etherington and an NHLPA colleague provided Sax with a copy of Frank’s email to Darktrace and other documents related to GeekFork, the NHLPA began an internal investigation and hired both Ernst & Young and the forensic auditing company CGI to scrutinize Frank’s activities, Etherington alleges.
He claims that during an internal investigation of Frank’s activities, Frank continued to work at the NHLPA’s offices and had full administrative access using office computers.
Amid the investigation and while Frank still worked in the NHLPA office, union staff discovered he was accessing NHLPA emails and documents about the probe from the union’s legal department through an unused computer in the office, the claim says.
When Stoykewych was advised by one of Etherington’s colleagues that Frank was inappropriately accessing NHLPA emails and documents about the investigation from the legal department, the employee who discovered his activity was admonished and told to stop all further monitoring of Frank’s activities, the statement of claim says.
Etherington also alleged the NHLPA in 2007 discovered that Frank and another union employee were discovered to have set up an unauthorized game server on the NHLPA server that was costing the NHLPA thousands of dollars per month in data bandwidth.
NHL players were not told about either alleged incident involving Frank, the statement of claim says.
After Etherington shared details of Frank’s alleged off-the-books deal to NHLPA officials, Stoykewych, a union lawyer, asked Etherington to keep that information confidential.
“We are reviewing the information and the documents included in your correspondence with counsel,” Stoykewych wrote. “We can assure you that we will be responding to your correspondence as soon as possible. In the interim, and in light of the highly confidential nature of the matters recently brought to our attention, we request that you refrain from discussing the subject matter of your correspondence with anyone other than confidential advisors and/or your legal representatives. As I am sure you can appreciate, the disclosure of certain of the confidential information either to other staff members or to third parties could be highly prejudicial to the NHLPA.”
In a Nov. 15, 2018, email to Etherington’s attorney, Stoykewych wrote that Etherington’s negative performance review would be removed from his employment record and that Etherington would be allowed to work a four-day work week, a request the union had previously rejected.
Etherington left the union in February 2019 after his attorney advised the NHLPA that he would be filing a constructive dismissal claim.