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.

The Coyotes are going in a ‘new direction,’ and that’s an understatement

SCOTTSDALE, AZ - JULY 08:  (L-R) Head coach Dave Tippett and Assistant General Manager/Analytics John Chayka of the Arizona Coyotes watch the prospect development camp at the Ice Den on July 8, 2015 in Scottsdale, Arizona.  (Photo by Christian Petersen/Getty Images)
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At the very least, the Arizona Coyotes aren’t afraid to try new things.

Today, they officially named a 26-year-old, John Chayka, as their new general manager.

And that wasn’t all.

The Coyotes also unveiled a new, flatter management hierarchy that will see Chayka working alongside head coach Dave Tippett on player-personnel decisions. Tippett has added the title of Executive Vice President of Hockey Operations. He’s also agreed to a new, five-year contract.

In addition to those changes, one of the Coyotes’ co-owners, Gary Drummond, will now serve as Director of Hockey Operations.

It was reported yesterday that Chayka would replace Don Maloney as GM. The Coyotes fired Maloney in April, citing a desire to go in a “new direction.”

Chayka sure represents that.

“John is among the best and brightest minds in hockey,” Drummond said in a statement. “He is knowledgeable and driven and has an incredible passion for the game. He brings an innovative approach to assessing talent and looking at player development and combined with his strong analytics expertise, we feel that he’s the right choice for the direction we want to go with our franchise.”

Chayka told reporters today at a press conference that he’s open to using “any and all tools” to help turn the Coyotes into a sustainable winner, from traditional scouting methods to statistical analysis to psychological profiling.

And though some may be skeptical about his age, he insisted he won’t be going at it alone. 

“I’m excited to partner with Dave Tippett on this venture,” said Chayka. “I appreciate the experience and knowledge that he brings to the game.”

To aid Chayka and Tippett, the Coyotes intend to hire a “very seasoned” assistant general manager.

The way Chayka explains it, the idea is that all voices will be heard, and all opinions will be considered.

“At the end of the day, the buck stops with me in terms of player-personnel decisions,” he said. “But certainly I’m not someone who’s going to be authoritarian in my views. I’m going to be very open. … The key for me is the best idea wins.”

Suffice to say, it will be interesting to see how all this plays out. There’s always skepticism when a team tries something new, and this is definitely unique:

Chayka, however, believes the Coyotes’ future has never been brighter.

“The positives are endless with respect to the vision and direction of our ownership group, to the influx of young, talented players that are going to excite our fans for years to come, ” he said.

“We’ll have challenges along the way as we continue to grow, but we’ll rely on our increased communication, collaboration and innovation to overcome these issues and achieve our goals.”

Not done yet: Jagr signs one-year extension with Florida

Florida Panthers right wing Jaromir Jagr (68) celebrates his second goal against the Winnipeg Jets during the third period of an NHL hockey game, Saturday, Feb. 20, 2016, in Sunrise, Fla. The Panthers won 3-1. (AP Photo/Alan Diaz)
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Jaromir Jagr‘s assault on the NHL record books will continue.

Jagr, who moved into third all-time in points this season, has signed a one-year extension with the Florida Panthers, the club announced on Thursday.

Per Sportsnet, it’s a $4 million base salary next year, with $1.5M in potential bonuses.

“Jaromir has had a tremendous influence on our younger players and has been a key offensive contributor on our team,” Panthers head coach Gerard Gallant said in a release. “We are happy to have him back as we look to build off this year’s playoff appearance.”

It’s little surprise Jagr came back for another year. At 44, he led the Panthers in scoring, with 66 points in 79 games, and was named a captain at this year’s All-Star Game in Nashville.

Though his playoff performance left something to be desired — no goals and just two points in a six-game loss to the Isles — Jagr’s overall impact on the club goes well beyond the stat sheet.

He’s been credited with mentoring two of the club’s brightest young talents at forward, linemates Jonathan Huberdeau and Aleksander Barkov. Jagr, the NHL’s oldest active player, has also been praised for his work ethic and remarkable physical conditioning, which will (presumably) allow him to play at age 45 next season.

Speaking of next season, there will be huge focus on Jagr’s chase of Mark Messier for second all-time in NHL scoring. Jagr needs just 20 points to pass Messier, and trail only Wayne Gretzky as the most prolific point-getter in league history.

One of the two? Sens will interview Boudreau on Friday

Bruce Boudreau
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Ottawa’s search for a new head coach is moving along quickly.

Just one day after owner Eugene Melnyk said the Sens would be down to a two-person shortlist by Friday, the Ottawa Sun reported that Bruce Boudreau would interview for the bench boss gig tomorrow.

Tomorrow… which is Friday.

Boudreau’s the latest in a long line of coaching prospects brought in GM Pierre Dorion. Others include Mike Yeo, Marc Crawford, Guy Boucher, Randy Carlyle and Kevin Dineen.

Boudreau, fired by the Ducks last week, is in hot demand. Bleacher Report’s Adrian Dater reported Calgary has already made an offer, and it’s believed the Minnesota Wild have also reached out, though GM Chuck Fletcher remains unclear what he plans to do with interim bench boss John Torchetti.

As for the Senators, there could be one more coach in the running to crack said shortlist:

Bob Hartley.

Dismissed by Calgary earlier this week, Hartley is seen as a good fit for the Sens gig. He speaks French, which is a bonus for a bi-lingual city like Ottawa, and has ties to player development coach Shean Donovan (Hartley coached Donovan in both Colorado and Atlanta)

Hartley’s also liked by former GM and current special advisor Bryan Murray, who nearly hired Hartley back in 2008 — but instead opted for Craig Hartsburg.

From the Globe:

[Murray] narrowed his search to Hartsburg, former Colorado Avalanche Stanley Cup championship coach Bob Hartley and highly regarded junior coach Peter DeBoer of the Kitchener Rangers. DeBoer beat Hartsburg in the OHL Western Conference final this season, 4-1. They emerged as the two finalists for the job.

Both met earlier this week with Senators owner Eugene Melnyk, who said he wanted to become familiar with both as well as “have a couple of beers and pizza.” The final decision was up to Murray, and Hartsburg became the man.

“I was impressed with all of them,” Murray said. “[Hartley’s]presentation was excellent and I can see why he’s had success.

Other candidates believed to be in the running for the Ottawa job are Kings assistant John Stevens, and Blues assistant Brad Shaw.

If the Stars don’t get some better goaltending, their GM will have some explaining to do

Dallas Stars goalie Antti Niemi (31) subs in for goalie Kari Lehtonen (32) during the third period of an NHL hockey game, Tuesday, Dec. 8, 2015, in Dallas. The Stars won 6-5. (AP Photo/LM Otero)
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Kari Lehtonen was reportedly the first Stars goalie off the ice this morning, meaning he’s your likely starter tonight in St. Louis.

The decision by coach Lindy Ruff to go back to Lehtonen is no surprise after Antti Niemi started Game 3 and didn’t even last half of it. This is the way the Stars have rolled all season — back and forth between their two veteran netminders.

Yesterday, Ruff reiterated his frustration at having to constantly explain the two-goalie system.

“I’m just trying to stay consistent with what we have done all year,” Ruff told reporters. “I know that’s hard for you guys to buy into, because this two-goalie thing is new to you guys and you’d rather just ask me about one goalie, but we’ve had two goalies that have played really well that have got us to where we are.”

Ruff’s frustration is understandable, but then, so are the constant questions from reporters. Because if the Stars don’t get some better goaltending soon, they’ll be out of the playoffs and GM Jim Nill will be left to justify the $10.4 million in cap space he’s got tied up in Lehtonen and Niemi through 2017-18.

No other team has that much cap space allocated to a pair of goalies.

Now, was it all Niemi’s fault that the Stars lost Game 3? Of course it wasn’t. The Blues were the better team.

But the fact remains, Lehtonen and Niemi have combined to give Dallas an .892 save percentage in the playoffs, and that’s not even close to good enough.

Nill said going into the season that the Stars had “two No. 1 goalies.”

Right now, they don’t even have one.

If they did, he’d be playing all the time, and the coach wouldn’t have to explain a thing.