Skip to content

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.

Latest Posts
  1. Jackets reveal Johansen offers — including an eight year, $46M deal

    Sep 17, 2014, 1:34 PM EDT

    Columbus Blue Jackets  v Pittsburgh Penguins - Game Two Getty Images

    “We’ve been told if we don’t give them what they want, they’ll be leaving town.”

  2. Sens angry with Methot’s agent for leaking ‘false’ contract details

    Sep 17, 2014, 12:07 PM EDT

    MarcMethot Getty Images

    “I’ve been with the team for eight years, and I don’t know if I’ve been more disappointed about anything that’s been written,” said Pierre Dorion.

  3. Hiller: Final months with Ducks were ‘frustrating’

    Sep 17, 2014, 11:41 AM EDT

    Anaheim Ducks goalie Jonas Hiller, of the Czech Republic, gets water after giving up a goal to Colorado Avalanche left wing Jamie McGinn in the second period of an NHL hockey game in Denver on Friday, March 14, 2014. (AP Photo/David Zalubowski) AP

    “I actually thought I had a great year up to the Olympic break and even after.”

  4. Agent: Staal, Rangers making progress towards contract extension

    Sep 17, 2014, 11:03 AM EDT

    Jussi Jokinen, Marc Staal AP

    “The tenor of the talks has been good, so we’ll keep going and keep working on it.”

  5. Report: Ryan turned down Sens’ seven-year, $49M offer

    Sep 17, 2014, 10:38 AM EDT

    TORONTO, ON - FEBRUARY 1: Bobby Ryan #6 of the Ottawa Senators skates in the warm-up prior to playing against the Toronto Maple Leafs during an NHL game at the Air Canada Centre on February 1, 2014 in Toronto, Ontario, Canada. The Leafs defeated the Senators 6-3. (Photo by Claus Andersen/Getty Images) Getty Images

    Yet he says his contract status won’t be an issue this season.

  6. Gunnarsson hopes to be ready for opening night

    Sep 17, 2014, 10:00 AM EDT

    Carl Gunnarsson

    The Blues acquired him from Toronto.

  7. Columbus Blue Jackets win 2014 Traverse City tournament

    Sep 17, 2014, 9:02 AM EDT

    Josh Anderson Getty Images

    Those prospects could get longer looks if Ryan Johansen misses the preseason.

  8. Hard-luck Hillen ‘100 percent’ after staph infection

    Sep 16, 2014, 9:22 PM EDT

    hillenhelpedoffgetty Getty Images

    Caps blueliner has had bad luck in the health department.

  9. Forsberg named rookie tourney MVP, Ekblad all-tournament

    Sep 16, 2014, 8:21 PM EDT

    Filip Forsberg Getty Images

    Florida’s youngsters stole the show overall.

  10. Advantage Kuemper? Harding on crutches after ankle injury

    Sep 16, 2014, 7:18 PM EDT

    Josh Harding Josh Harding

    And he’ll reportedly miss part of Minnesota’s training camp.

  11. Sens bringing ex-Devils Mills, Palmieri to camp

    Sep 16, 2014, 7:01 PM EDT

    New Jersey Devils v Boston Bruins New Jersey Devils v Boston Bruins

    The former appeared in three games for Chicago last year; the latter played in Germany.

  12. Ducks score another nice deal, ink Smith-Pelly for two years, $1.6M

    Sep 16, 2014, 4:33 PM EDT

    Phoenix Coyotes v Anaheim Ducks Getty Images

    Just one month after re-signing Jakob Silfverberg on the cheap.

Sign up for Fantasy hockey

Top 10 NHL Player Searches
  1. S. Crosby (1382)
  2. S. Bennett (1331)
  3. J. Quick (1330)
  4. P. Rinne (1247)
  5. K. Timonen (1205)