Gary Leeman

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

31 Comments

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.

Wild just wouldn’t stay down, edge Kings in OT

6 Comments

Don’t blame Ben Bishop if, deep down, he was glad that he didn’t make his Los Angeles Kings debut on Monday.

After seeing the kind of speed, drive and all-around electric play displayed by the Minnesota Wild, you can understand a goalie shuddering at the often wide-open action. Despite falling behind four times against the Kings, the Wild ultimately edged Los Angeles 5-4 in an overtime thriller.

Mikael Granlund‘s 20th goal of the season ended it in OT, and quickly. And it was beautiful:

…. Unless you’re Jonathan Quick and the Kings, that is.

Granlund is absolutely on fire right now.

Ryan White made a great first impression for the Wild, scoring a goal and an assist (while displaying great flow). Martin Hanzal wasn’t able to score, though he did make his presence felt with five hits. And, again, Bishop might have secretly been relieved to put his Kings debut on hold.

Marian Gaborik turned back the clock a bit to his Wild prime, scoring a goal and an assist. He generally made quite a bit happen for Los Angeles.

It was a tough one for Anze Kopitar, meanwhile, who was unable to generate offense and suffered a -3. He wasn’t able to stop Granlund in OT, though who could?

The Wild still must worry as mumps sidelined at least Zach Parise and Jason Pominville, but for now, they’re battling on. Just ask the Kings how resilient this group really is.

Sell this: Kucherov, Lightning put trades behind them, blast Senators

1 Comment

The Tampa Bay Lightning might be in sell mode, but that doesn’t mean their players are quitting on this season.

After shipping Ben Bishop and Brian Boyle out of town, they could have rolled over against a hungry Ottawa Senators team. Instead, they blew them out, winning 5-1 on Monday.

Nikita Kucherov was the biggest standout, collecting a natural hat trick, which you can watch above. (He also generated an assist.)

Jonathan Drouin had a big night in his own right, assisting on all three of Kucherov’s goals. Victor Hedman and Tyler Johnson generated two assists apiece, as well.

And, yes, Andrei Vasilevskiy inspired at least a few “Ben who?” jokes by making 39 out of 40 saves, including this beauty:

As you can see, Ottawa actually had a 1-0 lead at that point, so it could have been a different game if the agile goalie did do the splits there.

The Lightning are still five points out of the final wild card spot, trailing Boyle’s new team in the Toronto Maple Leafs. The Senators, meanwhile, find themselves slipping a bit out of the race to win the Atlantic Division, especially considering Montreal’s comeback win against New Jersey.

Tampa Bay may may not be done making moves and recognizing painful truth that the odds are against them rallying to a playoff spot. That said, nights like these make you wonder if a run is at least possible.

Canadiens’ big guns trigger comeback OT win against Devils

NEWARK, NJ - FEBRUARY 27:  Max Pacioretty #67 of the Montreal Canadiens celebrates the game winning power play goal by Alex Galchenyuk #27 at 2:54 of overtrime against the New Jersey Devils at the Prudential Center on February 27, 2017 in Newark, New Jersey.  The Canadiens defeated the Devils 4-3 in overtime.  (Photo by Bruce Bennett/Getty Images)
Getty
Leave a comment

Things were looking a little grim there for the Montreal Canadiens on Monday.

The New Jersey Devils had, at one point, a 2-0 lead. At least in some corners there were murmurs about a bad start for Claude Julien. Then their big guns swung the game.

The comeback started with Alex Radulov, though the drama was just beginning:

Travis Zajac made it 3-1 for the Devils on the power play, only for Radulov to assist on two Max Pacioretty goals to send the game to overtime.

From there, Alex Galchenyuk scored the overtime-winner for Montreal on the man advantage. Radulov got yet another secondary assist – he ended up with four points tonight – while Shea Weber nabbed the primary helpers on the last two tallies.

Long story short, the Canadiens biggest names came through, allowing Julien to maybe utther a sigh of relief.

 

Trade: Capitals go all in for Kevin Shattenkirk; Blues receive picks

17 Comments

If there was any doubt about the Washington Capitals going “all-in” to win a Stanley Cup, they erased it on Monday. They sent a pick-heavy package to the St. Louis Blues to land defenseman Kevin Shattenkirk.

Yes, that’s right; the top team in the NHL standings landed the biggest trade deadline target. They also edged other contenders hoping to land Shattenkirk, including the Pittsburgh Penguins and New York Rangers.

Here’s the official announcement, which clears up some of the finer details:

The conditional second-rounder might come in 2019, according to the St. Louis Post-Dispatch’s Jeremy Rutherford. The full conditions are … complex, so check out this thread from the Washington Post’s Isabelle Khurshudyan for the highly specific factors that could net more picks for the Blues.

***

To recap, the players involved go as follows: Brad Malone and Zach Sanford to St. Louis; goalie Pheonix Copley to Washington.

TSN’s Bob McKenzie reports that the Blues retained 39 percent of Shattenkirk’s salary in the deal.

***

Sanford, 22, was a second-round pick (61st overall) by the Caps in 2013. He has three points in 26 NHL games this season and also played 25 games (compiling 16 points) in the AHL.

Malone, 27, is a gritty player (30 points and 188 PIM in 176 games played) while Copley, 25, generated a nice .920 save percentage in 25 AHL games this season. He also struggled in his lone NHL appearance for St. Louis in 2016-17.

***

Almost exactly one year ago, Capitals GM Brian MacLellan said that he believed the team has a two-year window to win a Cup, or at least as their best opportunity to win it all. He’s backing up those words with this bold move.

(And maybe he was playing coy by stating that he was only looking to improve his team “on the fringes.”)