Gary Leeman

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


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.

Calder Cup standout Sedlak to make NHL debut for Jackets

COLUMBUS, OH - SEPTEMBER 20:  Lukas Sedlak #85 of the Columbus Blue Jackets waits for the pass during the game against the Winnipeg Jets on September 20, 2011 at Nationwide Arena in Columbus Ohio.  The Blue Jackets defeated the Jets 5-1.  (Photo by John Grieshop/Getty Images)
Leave a comment

Lukas Sedlak, the sixth-round pick that broke out during AHL Lake Erie’s Calder Cup championship run, will make his big-league debut tonight when Columbus hosts Chicago.

Sedlak, 23, spent three largely nondescript years with the Jackets’ minor-league club after turning pro in 2013, never scoring more than 18 points in a single season.

But in last year’s playoffs he caught fire, finishing second on the team in goals (nine) while tying playoff MVP Oliver Bjorkstrand in points (16).

And Sedlak did all that in just 17 games played.

“He filled the net in the playoffs and the last quarter of that year,” Columbus head coach John Tortorella said, per the Dispatch. “He deserves to be here. He’s had a good enough camp to be here.”

Tonight, Sedlak draws in for Sam Gagner as Columbus looks to avoid an 0-3 start to the year.

Avs expect to recall Mikko Rantanen from minors next week

DENVER, CO - OCTOBER 21:  Mikko Rantanen #96 of the Colorado Avalanche warms up prior to facing the Carolina Hurricanes at Pepsi Center on October 21, 2015 in Denver, Colorado. The Hurricanes defeated the Avalanche 1-0 in overtime.  (Photo by Doug Pensinger/Getty Images)
Leave a comment

The Colorado Avalanche are planning to recall forward Mikko Rantanen from the AHL next week, according to the Denver Post.

The 19-year-old was the team’s first round pick, 10th overall, in the 2015 NHL Entry Draft.

He failed to record a point in nine games last season, but had a strong campaign in the minors, as he scored 24 goals and 60 points in 52 games. Those are incredible numbers for a teenager getting his first taste of AHL action.

It looked like Rantanen would make the Avs out of training camp, but an ankle injury changed that.

After Saturday’s game against Florida, the Avalanche will have six days between games, which is why they’ll leave their top prospect in the minors for another week.

Both head coach Jared Bednar and GM Joe Sakic have stated that the young forward will have a top-six role with the club when he arrives.


PHT Morning Skate: Erik Karlsson’s awesome Halloween costume may give you nightmares

Melinda Currey on Instagram

PHT’s Morning Skate takes a look around the world of hockey to see what’s happening and what we’ll be talking about around the NHL world and beyond.

–Which of these four players will be able to sustain their hot starts? (Sportsnet)

–Caps forward Daniel Winnik lost a piece of his ear after blocking a shot last night. (Fox Sports)

–Bobby Orr still wants to see the return of the red line. (ESPN)

–Five General Managers that are on the hot seat. (The Hockey News)

–Watch as workers put together the rink at Investors Group Field for the Heritage Classic:

–Warning: You can’t unsee Erik Karlsson‘s black swan Halloween costume (if you can’t see it, click here):

I just want to be perfect. ⚫️🐦🙆🏻

A photo posted by melindacurrey (@melindacurrey) on

Ovechkin scored the winner against the Panthers, as the Capitals continued to roll

Washington Capitals left wing Alex Ovechkin (8), from Russia, celebrates his goal as center Marcus Johansson (90), from Sweden, comes to join him in the first period of an NHL hockey game against the New York Islanders, Tuesday, April 5, 2016, in Washington. (AP Photo/Alex Brandon)
Leave a comment

SUNRISE, Fla. (AP) The Washington Capitals are off to a fast start.

Alex Ovechkin scored the game-winning goal midway through the third period Thursday night to lift the Capitals over the Florida Panthers 4-2.

Ovechkin put the Capitals ahead 3-2 with 12:27 left in the third. His one-timer from the point got past Roberto Luongo, who was screened on the play.

The Capitals have earned at least a point in each of their four games.

“At the start of the season, it’s almost always important to take points,” Ovechkin said. “We didn’t lose the game and it’s a good sign. We just have to continue to collect the points and move forward.”

Marcus Johansson, Evgeny Kuznetsov and Justin Williams scored for the Capitals. Matt Niskanen recorded two assists and Braden Holtby made 26 saves.

“In the third, (we) responded really well and I thought in the third period they (Panthers) really didn’t have much,” Capitals coach Barry Trotz said. “They had one or two chances, but not much. We had the majority of them.”

Jaromir Jagr became the third player to score 750 goals. He is in third place all-time in the NHL, behind only Wayne Gretzky (894) and Gordie Howe (801). Michael Matheson also scored for the Panthers. Jagr’s goal was his first in 10 games, including one last season, six playoff games last season, and three this season.

“It’s always good to get the first one. A good play, a good pass, I was wide open in the slot,” Jagr said. “I had a lot of chances in the games before but I couldn’t put the puck in. I’m glad I did tonight.”

Luongo made 25 stops for the Panthers, who lost their second straight.

The Capitals surged in the third period with two goals on 13 shots. Johannson stretched the lead to 4-2 with an unassisted goal with 1:20 left.

“In the third we sat back a little bit or they pushed back a little bit.” Panthers coach Gerard Gallant said. “They took the chances to us. That third goal was sort of lucky, a bouncing puck from the blue line and changed direction. Tough to lose like that.”

Jagr’s power-play goal tied the game at 2 with 5:50 left in the second. Jagr took a pass in the slot from Aleksander Barkov from behind the goal line and beat Holtby. The power-play goal was the first in 11 opportunities for the Panthers this season.

The Panthers had an apparent power-play goal at 7:47 of the second waved off. Colton Sceviour swept in a loose puck sitting to the left of the crease but an early whistle killed the play.

“He (referee) said he wasn’t in position and thought the puck was covered. He made a mistake,” Gallant said.

Trailing 2-0, the Panthers closed to 2-1 on Matheson’s shot from the sideboards that snuck past Holtby on the stick side with 6:13 left in the first. The goal was Matheson’s second in two games.

The Capitals scored two goals less than two minutes apart in the first period. Williams took a pass from Nate Schmidt in front and poked in the puck on his second try to make it 1-0 at 8:25. The goal was Williams 250th in the NHL.

Washington stretched its lead to 2-0 when Kuznetsov deflected a shot from the point under Luongo’s glove at 10:21.