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.

‘We should be embarrassed’: Blashill rips Red Wings after latest loss

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The Detroit Red Wings got off to a terrific start in 2017-18, as they were able to collect victories in four of their first five games of the season.

What made their start even more impressive, is that four of their first five contests were played on the road. They opened the season with a home win against Minnesota, and then took home two points in Ottawa, Arizona and Vegas. Their lone loss came in Dallas.

That positive start seems like it was a lifetime ago. The Red Wings have now dropped four games in a row to Tampa Bay, Toronto, Washington and Vancouver.

After Sunday night’s loss to the Canucks, head coach Jeff Blashill had some choice words for his team’s lack of desire.

“It was a brutal effort,” Blashill said, per MLive.com. “I thought it was an embarrassing effort, not even close to the level of competitiveness you have to have. We should be embarrassed of ourselves, from me at the top all the way on down. We got out-competed, outworked, out-detailed.”

Detroit was outshot (37-21) and outchanced by a significant margin. And no disrespect to the Canucks, but they aren’t exactly a top team in the league.

(As you may have guessed, the Canucks are represented by the light blue line in hockeystats.ca’s possession chart).

Things aren’t going to get any easier for the Wings. They’re going to spend the week on the road (they’ll play three games in five days), as they’ll travel to Buffalo, Tampa Bay and Florida.

PHT Morning Skate: On David Booth escaping death last summer

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–The Flyers will be without Andrew MacDonald for a month. That might open the door for youngster Samuel Morin, who made the roster out of training camp. Morin’s NHL-ready, per the Flyers, so it’ll be interesting to see how he fits in. (Courier-Post)

–Team USA and Team Canada’s Women’s teams played the first game of the “The Time is Now Tour” in preparation for the 2018 Olympics. Team USA came out on top. (USA Hockey)

–The Score takes a look at three teams that made a big statement over the weekend. The Maple Leafs bandwagon has picked up a lot of steam since last season, but the Senators took care of them on Saturday night. (The Score)

–The Colorado Avalanche look better this year than they did all of last season, but they’ve been hit by injuries lately. Both Tyson Jost and J.T. Compher will miss an extended period of time. (Denver Post)

Riley Sheahan went 79 games without a goal last year, but the Penguins felt like a fresh start in a new city is exactly what he needed, so they went out and acquired him from Detroit over the weekend.  “It’s been a crazy last day, but I’m looking forward to the opportunity. I’m leaving behind a great organization and some great teammates, but I’m definitely excited for the change of scenery and to get started with such an awesome organization.” (Pittsburgh Tribune)

–David Booth, who is a trained pilot, had a scary experience last summer. After getting an invite to Ducks training camp at the last minute, he decided to fly to Anaheim on his own. Booth had some tense moments in the air after his engine failed. Thankfully, the story has a happy ending. (Sportsnet)

–Youngster Anthony Beauvillier has faced some adversity already this season. After a couple of mediocre performances, Beauvillier was made a healthy scratch. Now, he’s out to prove he belongs in the lineup every night. “You can always find positive things out of that but you never want to sit for a game,” Beauvillier said. “It’s kind of hard. You’ve just got to keep working hard when it does happen. You just have to go out there and make sure it doesn’t happen again.” (thesportsdaily.com)

–The Edmonton Oilers swapped Jordan Eberle to the Isles for Ryan Strome. Unfortunately for them, the deal hasn’t worked out so far, but there’s still plenty of time for Strome to figure things out. (Oilersnation.com)

–The Golden Knights have had some tough luck when it comes to keeping goalies healthy. Marc-Andre Fleury and Malcolm Subban are both out of the lineup right now. Don’t expect them to make a trade for a goalie because this season isn’t about wins and losses. It looks like Oscar Dansk will be their guy. (sinbin.vegas)

Niklas Kronwall, who played in his 800th game on Saturday night, has had plenty of issues with his left knee. In an attempt to get healthy, Kronwall admitted to trying stem cell therapy. “When you get to this point, you’re basically trying everything. That’s definitely something that’s out there and I think it’s becoming more and more, I don’t know if popular is the word.” (Detroit Free Press)

Max Pacioretty and the Montreal Canadiens are off to an awful start. As the losses continue to pile up, so does trade speculation. But Habs Eyes on the Prize believes that trading Pacioretty away would be a huge mistake. (Habs Eyes on the Prize)

–Speaking of the Habs, Andrew Shaw was accused of using a homophobic slur in Anaheim on Friday night, but the NHL looked into the matter and decided he didn’t do what he was accused of doing. As you may remember, Shaw was suspended one game for using a homophobic slur a couple of years ago. (TSN.ca)

Jack Hughes, 2019 NHL top prospect, scores brilliant solo goal (Video)

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USA Hockey’s National Team Development Program side is off to a great start in the United States Hockey League this season. They’ve won their first four games, are the highest scoring team in the league (27) and may have already locked up goal of the season.

Jack Hughes, a 2019 NHL draft prospect, made the Green Bay Gamblers defense look mighty silly during a 6-4 win on Sunday afternoon.

At first watch, if you’re strictly paying attention to Hughes, you might think Team USA is on a power play. But then you realize there are five skaters in black despite what seems like a lot of space for the 16-year-old to work with.

Hughes, who’s tied for second in league scoring with seven points, finished with three points on the afternoon and is already being dubbed the “Next One.” We’ll be hearing a lot of his name over the next year and a half as June 2019 approaches.

“He’s a special player,” said Barrie Colts head coach Dale Hawerchuk to the Toronto Sun’s Mike Traikos last spring. Hawerchuk had planned on taking Hughes No. 1 overall in last year’s OHL draft before he decided to go the NTDP route. “He’s so fast and a such a great skater. But he’s also got great instincts. He thinks the game on another level.”

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Sean Leahy is a writer for Pro Hockey Talk on NBC Sports. Drop him a line at phtblog@nbcsports.com or follow him on Twitter @Sean_Leahy.

The Buzzer: Canucks continue Red Wings’ slide

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Player of the Night: Sven Baertschi

Last season, Baertschi was a bright spot for a dismal Vancouver Canucks team, generating new career-highs in goals (18) and points (35) in 68 regular-season games.

The 25-year-old carried over some of that momentum early on, generating three points in seven games, but they were all assists. Sunday marked his best moment of 2017-18, as Baertschi scored his first two goals of the campaign (giving him five points in eight contests).

Bo Horvat is the honorable mention in the Canucks’ 4-1 win against the Detroit Red Wings, collecting his first two assists of the season. Jake Virtanen also found the net for his first goal of the season.

(As an aside, Derek Dorsett somehow has five goals already in 2017-18. Dorsett’s career-high is 12 goals, but he’s already in range of tying his second-best mark of seven.)

Highlight of the Night: Why not go with Baertschi’s two goals?

Factoid of the Night: This marks the fourth straight loss for the Red Wings, dropping them to 4-4-1 after a promising 4-1-0 start. But the hits could keep coming.

Beginning with Tuesday’s game against the Sabres in Buffalo, Detroit will play three straight road games and seven of their next eight away from home. The bright side is that they’ll enjoy a ton of contests at their expensive new pad starting in mid-November, but the next few weeks could really dim whatever optimism the Red Wings built up early on.

(For pro-tanking Red Wings fans, this might not be such a bad thing.)

Sunday’s lone score: Canucks 4, Red Wings 1