Gary Leeman

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

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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.

Despite rough start, the Sharks ‘know we’re going to get better’

PITTSBURGH, PA - MAY 30:  Nick Bonino #13 of the Pittsburgh Penguins celebrates after scoring a third period goal against Martin Jones #31 of the San Jose Sharks in Game One of the 2016 NHL Stanley Cup Final at Consol Energy Center on May 30, 2016 in Pittsburgh, Pennsylvania.  (Photo by Bruce Bennett/Getty Images)
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PITTSBURGH — It’s only been one game of the Stanley Cup Final and the San Jose Sharks are already tired of hearing about the Pittsburgh Penguins’ speed.

“It’s an NHL team,” said defenseman Brent Burns. “They’re fast. So is St. Louis. It’s not like St. Louis has got boots on.”

“They’re a good rush team, they’ve got some speed, they make some plays,” captain Joe Pavelski grudgingly conceded. “I don’t know, those teams we’ve played before are pretty good. I think Nashville was probably one of the better rush teams that we saw.”

In other words, the Penguins’ speed was no big deal. Nothing new. Nothing to panic about. The Sharks can play better than they showed in Game 1, a 3-2 loss that wasn’t decided until the final few minutes.

“They definitely came out with some speed and were skating, created some chances,” said Pavelski. “But we helped that out along the way, too.”

After getting outshot 15-4 and outscored 2-0 in the first period, the Sharks fought back in the second. They cut down the turnovers, outshot the Penguins 13-8, and tied the game.

“They carried the first, obviously. We carried the second I think, and then the third was two good teams going at it,” said Burns, calling the opening 20 minutes a “Holy [expletive] we’re here” experience for a San Jose group that has never been this far in the playoffs.

“You make the Stanley Cup finals, you dream about it for a long time,” he said. “You probably used more energy the last couple of days thinking about it than playing in a game. … I think we’ll be better second game.”

Head coach Pete DeBoer agreed.

“They’re a fast team,” he said. “They dictated play in the first. I thought when we played our game in the second, they had trouble with us. It’s the first game of the series. It reminds me a lot of St. Louis Game 1. I know we’re going to get better. Our execution’s got to get better. Part of it was some of the pressure they put on, but part of it was self-inflicted.”

He added, “There’s nothing that I saw tonight that I’m going out of here thinking that we can’t come out and compete and play much better on our end.”

Sullivan calls it a ‘blindside hit to the head,’ but Marleau doesn’t think suspension’s coming

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PITTSBURGH — It didn’t take long for the first controversial incident of the Stanley Cup Final.

Patrick Marleau‘s illegal check to the head on Bryan Rust — one that earned Marleau a minor penalty, and forced Rust to exit the game — left Rust day-to-day with an upper-body injury, per Pens head coach Mike Sullivan.

When asked what he thought of the hit, Sullivan was blunt.

“It’s a blindside hit to the head,” he said. “[Marleau] gets a penalty and I’m sure the league will look at it.”

Marleau wasn’t saying much about the incident following the game, but did suggest he wasn’t expecting supplemental discipline:

“I just tried to keep everything down,” Marleau added. “I didn’t want to get too high on him.”

It’ll be interesting to see what transpires. There hasn’t been a suspension in the Stanley Cup Final since Vancouver’s Aaron Rome was given a four-game ban for his massive hit on Boston forward Nathan Horton.

Marleau has no history with the NHL’s Department of Player Safety.

It should be mentioned the DoPS has been fairly active this spring, handing down five suspensions, including a pair of three-gamers to Brooks Orpik and Brayden Schenn.

Bonino scores late, role guys star again as Pens take Game 1

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PITTSBURGH — If this playoff run has proven anything, it’s that the Penguins are more than Sidney Crosby and Evgeni Malkin.

Tonight only reaffirmed it.

Bryan Rust, Conor Sheary and Nick Bonino did all the scoring on Monday, with Bonino’s late marker the winner as Pittsburgh defeated San Jose 3-2 in Game 1 of the Stanley Cup Final.

Bonino’s goal, his fourth of the playoffs, came with just over two minutes remaining, capping off a quality opener in which both teams carried play for long stretches.

Rust and Sheary punctuated a dominant opening period for the Penguins — they out-shot the Sharks 15-4 — but the Sharks replied with a stellar second frame, equalizing on goals from Tomas Hertl and Patrick Marleau.

That set the stage for a dramatic third, and the Bonino goal.

That he, Rust and Sheary did the scoring for Pittsburgh was fitting. There’d been plenty of talk heading into this series about role players coming up large, to the point where the American Hockey League sent out a press release noting that 23 of 25 Penguins that’ve played in the playoffs thus far came through Wilkes-Barre/Scranton, highlighting this spring’s “big four” of Rust, Sheary, Tom Kuhnhackl and Matt Murray.

Rust etched himself into Pittsburgh lore in Game 7 of the Eastern Conference Final, scoring both goals in a 2-1 win over the Lightning.

Murray’s exploits are pretty well-known. The 22-year-old was remarkably solid after regaining the starter’s net from Marc-Andre Fleury in Game 6 of the ECF, stopping 44 of 47 shots over the final two games of the series.

He was good again on Monday, with 24 saves on 26 shots.

Sheary, the diminutive speedster, scored his third goal of the playoffs tonight. Kuhnhackl tied a team high with eight hits.

As such, Pittsburgh has to be thrilled about how tonight went. They held up home ice and got contributions from across the board — the only downer has to be the health of Rust, who twice exited the contest after taking a hit to the head from Marleau.

As for the Sharks… well, this one will sting a bit. The club did remarkably well to rally from a two-goal deficit and carried play in the second period, but can’t be pleased.

They were beaten in the possession game and out-shot badly (41-26), things head coach Peter DeBoer wanted to control against Pittsburgh, a team he considers the fastest in the league.

That said, there are positives moving forward. Martin Jones was outstanding in his Stanley Cup Final debut, with 38 saves on 41 shots, and there’s still a chance to get the split on Wednesday night.

Of course, to do that, the Sharks will have to figure out how to slow down Pittsburgh’s role players.

Video: Patrick Marleau gets minor penalty for hit on Bryan Rust

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Patrick Marleau made a big impact with the 2-2 goal in Game 1, yet a hit he delivered on Bryan Rust might draw more attention.

With the score tied 2-2, Marleau was whistled for a minor penalty for “illegal check to the head” on Rust. The Pittsburgh Penguins power play was not able to score on the San Jose Sharks during that two-minute power play.

Rust left the bench for a short period of time, yet he returned to action.

Some believe that Marleau deserves a look from the Department of Player Safety for the check. Others wonder if it should have been a penalty at all.

Watch the video above and check out the GIFs below to decide for yourself: