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.

Sens sign Smith to four-year, $13 million extension

Pittsburgh Penguins v Ottawa Senators
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Two weeks ago, we passed along word that Ottawa and Zack Smith had engaged in preliminary extension talks.

On Monday, the two sides wrapped ’em up.

Smith and the Sens have agreed to a four-year deal worth $13 million — an average annual cap hit of $3.25 million, as announced this afternoon. It’s a pretty nice pay bump for the 28-year-old, who’s in the final year of a deal that pays $1.88M.

Smith had a breakout performance last year, scoring a career-high 25 goals while averaging a healthy 15:24 TOI per night. This year he’s been equally effective offensively — 11 goals and 22 points in 43 games — and has thrived at times playing on a line with Derick Brassard and Mark Stone.

Smith also earned the praise of his coaching staff, particularly assistant bench boss Marc Crawford.

“He is so strong on the puck and he has got a very good shot,” Crawford explained, per the Citizen. “He’s fearless and he goes to the net.”

This new extension kicks in next season, and will keep Smith in the Canadian capital through 2021. The only players on the current roster locked in for that long are Dion Phaneuf and Bobby Ryan.

 

Pre-game reading: Remembering the ’74-75 Caps, who were just terrible

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— Up top, Rangers defenseman Ryan McDonagh recalls his high-school hockey days in Minnesota, where he won a state championship with Cretin-Derham Hall and received the 2007 Minnesota Mr. Hockey award.

— An enjoyable look back at the NHL’s worst-ever team, the 1974-75 Washington Capitals. “To date, no team has played at least 70 games while posting fewer points (21), wins (8) or road wins (1) than the 1974-75 Capitals. Nor has any mustered a lower points percentage (.131), allowed more total goals (446), or dropped more contests consecutively (17).” The expansion Caps lost 67 games that season, including ones by scores of 10-4, 11-1, 12-1, 10-0, 10-3, 12-1, and 10-2. Click here to see their entire season. (Sports Illustrated)

— Speaking of expansion teams, Sportsnet recently caught up with Vegas president Kerry Bubolz, who had the following to say about the Golden Knights’ unique market: “We are setting aside some of our ticket inventory for that convention or leisure traveler, but the vast majority of our inventory is going to be sold locally. The local who happens to be from another market, maybe their hometown is Philadelphia or Boston or Chicago… we’re going to be embracing the fact that they may be fans of another team. But we’re going to encourage them to join our team as well. You can only play those other teams once a year.” (Sportsnet)

— A touching tribute from Paul Holmgren to his late brother, Dave, who gave him a gift he’ll never forget. All these years later, Holmgren only wishes he’d made more of an effort to say thanks. “I don’t remember thanking him, even though my father had specifically told me to. And even if I did, I’m convinced that I didn’t thank him enough.” (Player’s Tribune)

— The Boston Globe remembers the last Bruins team to make the playoffs. “Tuukka Rask was doing his thing. Zdeno Chara and Dougie Hamilton formed an excellent top defensive pairing. Patrice Bergeron and Brad Marchand were emerging as the best 200-foot tandem in the league with Reilly Smith riding shotgun. Musclemen Milan Lucic and Jarome Iginla flanked David Krejci. Carl Soderberg and Loui Eriksson were chewing up bottom-six forwards and third pairings as third-line partners.” Indeed, it’s a different-looking group today, and management must accept much of the responsibility for what’s gone wrong. That doesn’t mean Claude Julien’s job is safe, but the Globe’s analysis is worth a read. (Boston Globe)

— The NHL has hired an artist to paint 100 portraits of the league’s 100 top players. It’s quite an undertaking for one artist, but for Tony Harris, it’s also “maybe the greatest job I could ever get.” (NHL.com)

Enjoy the games!

The goaltending market is going to be very interesting this summer

New York Islanders goalie Thomas Greiss makes a save during the third period of the NHL hockey game against the Philadelphia Flyers, Sunday, Jan. 22, 2017, in New York. The Flyers defeated the Islanders in overtime 3-2. (AP Photo/Seth Wenig)
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Thomas Greiss is the NHL’s second star of the week, and his New York Islanders suddenly have a flicker of hope.

Greiss went 2-0-1 with a .971 save percentage and two shutouts last week. Even the game he didn’t win was a good performance, as he made 44 stops in a 3-2 overtime loss to the Flyers on Sunday.

Greiss, 30, is a pending unrestricted free agent. And given his numbers over the last two seasons combined (35-18-7, .928), he’s got every right to seek out a significant raise from his current cap hit with the Isles of just $1.5 million.

For that matter, so does Scott Darling, who’s been so good as Chicago’s backup behind Corey Crawford. Ditto for Buffalo’s Anders Nilsson, New Jersey’s Keith Kinkaid, Ottawa’s Mike Condon and Calgary’s Chad Johnson. All are pending UFAs. And all are enjoying good to great seasons.

Another pending UFA who’s playing well is Vancouver’s Ryan Miller. Granted, his situation is a bit different in that he’s 36 years old and proven as an NHL starter.

Read more: What does the future hold for Ryan Miller?

But all these goalies playing well, and none of them with contracts beyond the current season, could sure make for an interesting summer — and that goes double for a summer that will start off with an expansion draft.

As you surely know by now, each team is only allowed to protect one goalie. It’s already created quite the debate in places like Pittsburgh, where the youngster, Matt Murray, has outplayed the veteran, Marc-Andre Fleury.

Meanwhile, goalies like Brian Elliott, Ben Bishop, Steve Mason, and Michal Neuvirth have hurt their value. Each had an excellent 2015-16 campaign. Alas, they’ve all struggled quite badly this season, to the point any GM would have to think long and hard about signing one to a big-money, long-term contract. All four are — yep, you got it — pending UFAs.

With almost half a season, plus the playoffs, to go, there’s still plenty of time for goalies to make their cases, or lose them. We’ll have to wait and see how the market looks come July 1.

But it’s going to be interesting to watch. Goaltending is inherently unpredictable. There will probably be a surprise or two more.

Related: Anton Khudobin hasn’t solved the Bruins’ backup goalie problem

Goalie nods: Days after debuting against the Sharks, Martin gets second career start… against the Sharks

SAN JOSE, CA - JANUARY 21:  Spencer Martin #30 of the Colorado Avalanche plays in goal against the San Jose Sharks at SAP Center on January 21, 2017 in San Jose, California. This is Martin's first NHL game.  (Photo by Ezra Shaw/Getty Images)
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Haven’t run this one through the folks at Elias yet, but Avs goalie Spencer Martin might be on the verge of history.

Martin, who made his NHL debut in Saturday’s OT loss in San Jose, will be right back in goal as the two teams flip venues — Colorado hosts the Sharks tonight at the Pepsi Center.

So Martin — a 21-year-old rookie — first makes his big-league debut, then gets a second consecutive start, all against the same opponent. Can’t imagine that’s happened too many times.

There’s an interesting dynamic at play beyond the historical stuff, too.

Last week, the Avs shut down Semyon Varlamov until after the All-Star break so he could deal with a lingering, troublesome groin injury. Around the same time, Sportsnet’s Elliotte Friedman speculated that Colorado might look to change its situation in goal, writing “I’m not sure Colorado is too secure in what they have.”

Given this season is toast, it would appear the Avs are analyzing what they’ve got in Martin. He does have some pedigree — the 63rd overall selection in 2013 — and has played reasonably well for AHL San Antonio this year. Of course, gauging Martin will be tough. He’s playing behind one of the worst teams in the league, and is still really inexperienced. In fact, he’s the second-youngest goalie to appear in an NHL game this season.

For the Sharks, Martin Jones is in goal.

Elsewhere…

Henrik Lundqvist, fresh off a 21-save shutout of Detroit on Sunday, will go back-to-back when the Rangers host the Kings at MSG. No word yet on who starts for L.A.

— Carolina gave Cam Ward a rare night off on Saturday, as Michael Leighton was in for a loss to Columbus. Ward returns to the starter’s crease tonight in Washington, where he’ll face Braden Holtby.

Brian Elliott, who came on in relief of Chad Johnson in Saturday’s blowout loss to the Oilers, gets the start for Calgary in Toronto. The Leafs will counter with Frederik Andersen.

— Ondrej Pavelec looks for his third straight win since being recalled as the Jets host the Ducks. Jonathan Bernier, who came on in relief of the injured John Gibson on Saturday, appears to be in for Anaheim.

Mike Smith, who made 45 saves in a win over Tampa Bay this past weekend, goes for the Coyotes. No word yet on who starts for the visiting Panthers.