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Ask a Lawyer: Do the players suing the NHL over concussions have a case?

Dec 5, 2013, 1:12 PM EDT

Gary Leeman Getty Images

The NHL has been hit with its own NFL-style concussion lawsuit, with former NHL players alleging that the league should have done a better job safeguarding the brains of players. Here to answer some questions about the class-action lawsuit is Eric Macramalla, a sports legal analyst and partner at the law firm Gowlings.

Eric, what are the players accusing the league of doing?

The key issue is this: concealment. Former NHL players, including former 50-goal scorer Gary Leeman, are accusing the league of concealing information on the long-term neurological impact of repeated head shots. The players are saying that the NHL had its own evidence that head shots could result in irreversible brain damage, and that the league didn’t share that information with the players. The result is that the players couldn’t make informed decisions on how to manage their careers and some suffered irreversible neurological impairment. The players are also alleging the league should have known better, but that won’t be enough here to make substantial gains. It comes back to concealment.

Concealment. That’s sounds familiar.

It should. That was the central issue in the NFL concussion lawsuits filed by over 4,500 retired NFL players. That was the key allegation in that lawsuit and that’s the key allegation in this lawsuit.

Is concealment hard to show?

Yep. You need evidence showing that the league had the information and elected not to share it with the players. That may be difficult to find, assuming it even exists in the first instance. Frankly, it may not.

But didn’t the players mention a study that concluded concussions could be a big problem long-term?

Yes, you are correct. Here’s one excerpt from the Complaint (PDF): “In 1928, pathologist Harrison Martland described the clinical spectrum of abnormalities found in ‘almost 50 percent of [boxers] … if they ke[pt] at the game long enough.’ Martland’s study was the first to link sub-concussive blows and ‘mild concussions’ to degenerative brain disease.”

So…shouldn’t that help the players?

Not really. The issue with that study and the others in the lawsuit is that the information was publicly available. So this is not information that was concealed by the league. Everyone had access to it. The league will basically say, ‘We knew what you knew’. Remember, it’s not going to be enough for the players to show that the league ought to have known better; they will need something more. If that something more doesn’t exist, the players will ultimately have a tough time with their lawsuit.

Do you see any other challenges for the players in this lawsuit?

Yes – it’s called causation. This is a critical issue. The players will need to show that their brain damage was the result of playing in the NHL. For some players that is going to be a challenge. One of the plaintiffs, Morris Titanic, played just 19 games in the NHL, so how can he make a compelling argument that NHL hockey caused his irreversible brain damage? Another plaintiff, Wayne Holmes, played just 45 games in the NHL, with 737 games outside the NHL. With 95 percent of his games played in other leagues, Holmes may have difficulty proving that his brain damage was the result of playing NHL hockey. It’s a sliding scale for players with some having played more games in the NHL than elsewhere. Still, proving where the damage was caused and the extent of that damage is a challenge.

Anything else the NHL can argue?

Yes. The NHL has another argument to make here (as if concealment and causation weren’t enough). The NHL can head to court and ask a judge to kick the case out of court, since the collective bargaining agreement (CBA) provides that issues of player health and safety go to arbitration and not to court. The NHL will argue that this is precisely that type of case and it doesn’t belong in court.

Can the players respond to that argument?

The players will say that this case involves concealment and fraud. On that basis, the case should be allowed to stay in court. Which isn’t a bad argument.

Didn’t the NFL try and get the NFL concussion lawsuits sent to arbitration as well?

Yes, the NFL asked a judge to punt the cases out of court for that same reason. But the case settled before it got that far. However, U.S. District Judge Anita Brody cautioned both sides that neither would like her ruling so they had better get the case settled. Ultimately, it’s unclear how Judge Brody would have ruled, although it’s not out of the question that she may have let some cases proceed in court while barring other claims.

One more important on the NFL settlement: it’s not done. In that case, the sides settled for about $765 million. However, the settlement has not yet been approved by the Court. As well, any player has the option to opt out of the settlement if he doesn’t like it and file his own lawsuit.

So, overall, do the players in the NHL lawsuit have a strong case?

Everything turns on the evidence. However, at this early stage, the players have challenges they must overcome, including proving concealment and causation, and whether their claims belong court in the first place. This isn’t an easy case for the players.

What’s next?

The lawyers for the plaintiffs will release the names of more plaintiffs over the next month or so. As for the NHL, it will fight the lawsuit and presumably at some point look to get it kicked out of court. The league may consider at a later date talking settlement, and if it agrees to pay anything likely frame it as an extension of current benefits. However, any potential settlement negotiations won’t happen for some time. This is just getting started and there is still a lot of ground to cover. We may have years of litigation ahead of us before this gets resolved.

Eric provides analysis on a wide variety of sports legal issues and is the host of Offside, on TSN Radio, covering the business and law of sports. You can follow Eric on Twitter at @EricOnSportsLaw.

  1. ibieiniid - Dec 5, 2013 at 1:34 PM

    this was a much-needed article on PHT. unless you’ve read MORE than this, if you don’t read this in it’s entirety, you have no room to speak on any article relating to this suit.

    and if I hear somebody else falsely say “they knew what they were getting themselves into,” I’m gonna flip. tell me that 20 years ago, you knew that things that happen on the ice could contribute to a player taking their own life. you can’t say that truthfully.

    anyway, “One of the plaintiffs, Morris Titanic, played just 19 games in the NHL, so how can he make a compelling argument that NHL hockey caused his irreversible brain damage?”
    Wasn’t the AHL almost always a farm league for the NHL? Titanic might have 19 games in the NHL, but he has a couple hundred as an employee of an NHL team. how come everybody forgets that in this argument? even the lawyer.

    • dallasstars9 - Dec 5, 2013 at 2:24 PM

      They knew what they were getting themselves into.

      • ibieiniid - Dec 5, 2013 at 2:32 PM

        by “flip,” I meant flip you the bird

    • ibieiniid - Dec 5, 2013 at 2:34 PM

      can this please not be another pertinent article about the lawsuit where everybody thinks strictly “do I like fighting or do I not like fighting?” then just thumbs up or downs everybody that agrees and disagrees with them without having any real debate?

      I made 3 different points, surely you can respond to one of them with your OWN opinion rather than just clicking the thumb down.

      • joey4id - Dec 5, 2013 at 3:34 PM

        Well! You know! Fighting has always been part of the game. So…….. :-)

      • ibieiniid - Dec 5, 2013 at 3:42 PM

        lol. also, men always owned their wives until we did away with that.

        I can’t say I’d like to do away with fighting, but I can’t believe so many people use that as their main argument. seeing as how you’re anti-fighting in hockey, I can see that being ridiculously annoying.

    • joey4id - Dec 5, 2013 at 3:27 PM

      In the case of Morris Titanic I can make a paralegal to some of the NFL players. He has to find evidence to prove that NHL hockey caused irreversible brain damage. One way to do that is through a player’s medical history/file in each of the leagues he played in. If any of the records clearly states he suffered head trauma followed by the typical symptoms associated with concussions, and he was sent back on the ice the next day, then that could be damaging. The book “League of Denial: The NFL, Concussions and the Battle for Truth does make a lot of references to medical records, and how they were used to understand a player past and current medical issues.

      • ibieiniid - Dec 5, 2013 at 3:35 PM

        “to prove that NHL hockey caused irreversible brain damage”

        am I correct in the fact that that also goes for AHL hockey (if not in Titanic’s case, some more current players on the suit)? that’s the one point I made there that I’m not entirely sure about.

        it’s ridiculous we had like 70 comments on an interconference game post, but potentially the biggest game changing (literally) story to the game of hockey gets almost none. this could result in some of the most extreme rule changes. I already think the league has done a LOT to protect themselves (and players) in the future. people that say “They knew what they were getting themselves into” are FAR more correct if they’re talking about active players, but back then, I think they knew very little. the lack of compassion for some of these former players is appalling. In the words of the great Charlie Kelly from Always Sunny, “It’s a sad, throw away culture we live in.”

      • joey4id - Dec 5, 2013 at 3:48 PM

        It could be very difficult to prove. Medical records would help. The results of the current cognitive tests can help, but without a well known baseline it will be extremely difficult to ascertain when the damage occurred. The first baseline tests were administered in 1993 at the Steelers training camp by a speech pathologist. Players agreed to this test after doctors guaranteed that the results would remain private. From the book “League of Denial”.

        I don’t believe the NHL has governance authority over the NHL. i.e. They have their own executive management team. However, NHL teams certainly have influence in the day to day medical operations of their affiliate teams. So, if you file a lawsuit against an NHL team, then I would assume that it also applies to the affiliate team, and the affiliate team would have to be named in the lawsuit.

    • joey4id - Dec 5, 2013 at 3:33 PM

      BtTW, I believe it was in 1997 that the NHL implemented it’s first concussion policy. And there was already evidence of brain damage caused by head blows. I’m sure the lawyers will be looking at the contents of the first policy to assess how good a job the NHL did. So, who knows what the NHL should have done before Mr. Titanic retired in 1980? Either this get thrown out of court, or they law suit is settled like it was in the NFL. I’m sure General Counsel from each league are meeting to discuss strategy.

  2. dallasstars9 - Dec 5, 2013 at 2:35 PM

    Stay classy. The point is they did know when they stepped on the ice that this was a dangerous sport with potential injury…. This a BS lawsuit and the only reason you are seeing this is because of the NFL giving in.

    • ibieiniid - Dec 5, 2013 at 2:49 PM

      ok. did they know that they’d be waking up nauseous for the rest of their lives from lacing up their skates? did they know that they would begin to go absolutely crazy from getting in a fight? did they know that they’d end their careers for coming back a week earlier than they should have for the start of playoffs?

      I know the question should actually be “did the teams know?,” but to say that these players knew that getting knocked around a bit would ruin the rest of their lives is small-minded.

      • ibieiniid - Dec 5, 2013 at 2:50 PM

        by the way, I’m not anti-fighting, I just don’t see how people can put this blame solely on the players when both players AND coaches/owners made the decisions for them to suit up. that’s ridiculous.

      • dallasstars9 - Dec 5, 2013 at 2:54 PM

        You don’t think that a hockey player wearing no helmet or mask thought anything about injury? Please. Any player that is going to sue the league for “not knowing” is a disrespect to the game and the league.

      • ibieiniid - Dec 5, 2013 at 2:57 PM

        thought about injury? yeah, they probably did. thought about being injured the rest of their life, but not being dead from it so that they have to suffer for another 40 years? no.

        and people get all worked up over the word “lawsuit” like it’s some money grab. most of these guys just want their medical bills paid for. any other employer would be required to cover that.

      • sdsabresfan - Dec 5, 2013 at 3:33 PM

        ibieiniid, you are making a strong argument that, at the time, the players did not know how significant their health would decline, in their later years, due to playing in the NHL. Although there was obvious risk of bodily injury, I doubt that these players knew the impact of traumatic brain injuries over time. That being said, however, the main premise of the lawsuit is that the NHL DID know AND intentionally hid the related information. The NFL case differs in that there was documented information that they consciously withheld.

      • ibieiniid - Dec 5, 2013 at 3:39 PM

        I’m not sure what the evidence was in the NFL’s case, but I think it’s only a matter of time until we see the documents this case is founded on. you don’t go public with a suit until you have at least SOME evidence. we’ll see though.

      • joey4id - Dec 5, 2013 at 4:10 PM

        One of the reasons why the “NFL settled was to avoid disclosing internal files about what it knew, and when, about concussion-linked brain problems. Lawyers had been eager to learn, for instance, about the workings of the league’s Mild Traumatic Brain Injury Committee, which was led for more than a decade by a rheumatologist.”

        **************************************************************************************
        from cnn.com
        By not going to trial, the league does not have to face the discovery and deposition process and therefore leaves many questions unanswered.

        If this had gone to trial, the NFL would have opened itself up to an extended run of bad PR, potentially billions of dollars in damages, and would have been forced to hand over sensitive internal archives.

        The NFL could have been required to produce documents, such as e-mails. E-mails are currently at the center of another lawsuit in which a group of former college players led by Adrian Arrington is seeking class action status, challenging the NCAA’s handling of head injuries. The NCAA has until September 13 to respond to the motion to certify the case. However, this lawsuit may also be headed toward a settlement. Just ten days before the NFL settlement was announced, the NCAA agreed to mediation.

  3. endusersolutions2013 - Dec 5, 2013 at 3:40 PM

    To me, any proving of concealment would most likely have to be done in regards to individual cases (key guy with the season on the line was rushed back too soon with the team doc saying everything was OK, and it was not).

    But the boxing thing is a non-comparison. You’re talking blow to to head after blow to the head by guys who are professional fighters.

    • endusersolutions2013 - Dec 5, 2013 at 3:41 PM

      And something hat the defense could use in an individual player’s case is if that player started fights. Was it the result of checks, or fights you chose to have.

      • ibieiniid - Dec 5, 2013 at 3:47 PM

        I’m sure joey’s got more quotes than the one used in the article, but there were way more studies done before the NHL took some cautionary measures. again, I don’t know if they absolutely KNEW what they were doing to these players, but I think they had an idea.

    • joey4id - Dec 5, 2013 at 4:17 PM

      Hmm! I don’t think this is black or white comparison. DP was first discovered in the 20s and found in 50% of the boxers. So, it’s relatively easy for those in the medical field to conclude that repeated blows to the head can cause DP in other contact sports. Why didn’t every boxer show signs of DP? I guess for the same reason that some die very young of lung cancer caused by tobacco, whereas some who have smoked cigarettes all their lives can live past their 80s or 90s, and not dying from cancer related to tobacco.

  4. sdsabresfan - Dec 5, 2013 at 3:54 PM

    To sum it up, contrary to what the National Institute for Occupational Safety and Health (NIOSH) and many neurologists reported about the relationship between NFL players and chronic brain injury, the NFL, led by an appointed rheumatologist, disagreed. The players had a case because they could argue the NFL knew the risk and negligently withheld such info. As far as I know, that type of research was never conducted by the NHL, and thus, couldn’t be withheld. As far as lawsuits with no merit, I’d argue that they actually outnumber legitimate cases in contemporary society.

    • ibieiniid - Dec 5, 2013 at 4:23 PM

      I can’t think of one from the top of my head, but i’m 90% sure there must have been an overlap somewhere. At some point throughout the years, an owner of an NFL team probably owned all or part of an NHL team. That may play into this as well. A report that an NFL owner was aware of doesn’t always stop in the NFL. I’ll keep thinking if I know any NFL/NHL owners. Didn’t Leonsis once own part of the Skins, or was that just the Wizards/Bullets?

      • ibieiniid - Dec 5, 2013 at 4:27 PM

        Stan Kroenke. and that’s just within a few mins of looking. I don’t think that concussion info was isolated to the NFL and the NFL only.

    • joey4id - Dec 5, 2013 at 4:46 PM

      The NFL’s MTBI Committee published medical papers in renowned medical journals (Neurosurgery). One such paper stated that the NFL didn’t have a concussion problem. They also wrote in the same journal that “the league looked at how quickly players went back back on the field and concluded that they were are no greater risk than if they had never been concussed at all.” Previous studies before this paper was published “had shown that one concussion left the brain vulnerable to another concussion if the brain wasn’t given enough time to heal.” Many of these papers were sent around by the editor for peer reviews. Despite comments from renowned neurologists clearly expressing their concerns about the accuracy of the information, the editor published the papers. BTW, the editor in chief of Neurosurgery was also an NFL consultant. So, the NFL’s MTBIC was headed by a rheumatologist who was publishing medical papers in a medical journal that had an NFL consultant as the editor in chief. Wow!

      • ibieiniid - Dec 5, 2013 at 4:55 PM

        so basically, between that and the fact that NFL owners and NHL owners aren’t completely separated….. it’s only a matter of time til the NHL settles as well? I would think so. Bettman, no doubt, doesn’t want people sneaking around his emails.

      • ibieiniid - Dec 5, 2013 at 4:56 PM

        well, not sneaking around….. having court-ordered access to*

  5. muckleflugga - Dec 5, 2013 at 4:22 PM

    of course concealment to gain material advantage is fraud, but fraud has many heads

    sending a player over the boards for the express purpose of attacking an opponent with violence that might include punishing hitting and fighting, while possessed of knowledge that behaviour invariably produces injury, is implicitly fraudulent…

    whether the player is himself aware of risk and hazard is immaterial

    the league and its agents bear the same burden for creating and maintaing a safe workplace as is imposed on any employer in north america. arguing the league is a corporate entity existing external of the rule of normal society is specious at best, but will in the final analysis define the degree of denial to which the league will aspire

    the fact of the matter is, coaches are mentors. the role of mentor implies a paternal interest for care of players; the transaction constitutes trust between employer and employee, trust that player safety and health are paramount

    using advantage of trust, with attendant authority and control afforded the role of coach to impose a burden of duty on a player wherein that duty will likely cause injury, is coercion; do what you’re directed to do or ride the pine then, look forward to a stay in the minors to get your head straight

    coercion is the chief element in constructive fraud, fashioning a set of circumstances to induce a desired behaviour as it were. so, how can you prove coercion in behaviour typically ordered through verbal exchange…?

    corroboration:

    players who witnessed or overheard coercive behaviour in practice, in game or in the locker room can easily support each other’s testimony. so, how many of the players in the class action came from the same team or club system, and how many are willing to get on board in support of old friends equally afflicted…this while remembering the tough guys and the enforcers are likely to bear the biggest hurt and the biggest grudges, making less money and being generally abused in their role as players

    and, page upon page of statistical and player movement information in a sport where every player transaction on ice and through the club and league is examined and chronicled in detail defines behaviour not articulated verbally…why were these toughs put on the ice when the opposing coach iced his group of toughs would be my first question

    and, mile upon mile of in-game video showing game conditions precipitating violent play and fighting support any claims aggrieved player may make…conditions evolving under auspices of a league endorsing violent play and a system of rules distorted and bent according to mood and whim of in-game officials and the league’s farcical system of discipline itself

    of course players are coerced into violent play and fighting…

    if players refuse to embrace a coach’s wishes, they’re no longer employed…what greater inducement to come into line is there…?

    • ibieiniid - Dec 5, 2013 at 4:42 PM

      great points, muckle.

  6. blomfeld - Dec 5, 2013 at 8:50 PM

    RATTUS ADVOCATUS

    There’s no comparison between the unrelenting ‘brute force’ violence of the NFL and that of the NHL … that’s almost like comparing Fort Ticonderoga to some sand castle. Yet regardless of whatever level of violence each game entails, the bottom line remains that these players were/are all ‘willing’ participants. And with that willingness to participate, these players have acknowledged ‘personal culpability’ for any injuries that might arise from playing the game they purport to love. This is no different than a surfer who accepts the perils of the sea as he dives ‘gleefully’ into the water … or even a hiker like me, who accepts the dangers of a steep incline as part of the price for being rewarded with a spectacular view at the top. I hate to say it friends, but I see this as nothing more than a pure ‘money grab’ which is obviously being promoted by the ones who stand to benefit the most, regardless of the eventual outcome … lawyers !

    ps: here everyone’s going on about hockey violence and banning fighting etc … yet that MMA garbage is bigger than ever ?

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