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.

Looking to make the leap: Travis Sanheim

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This post is part of Flyers Day on PHT…

There appears to be a competition brewing for a spot on the Flyers blue line this upcoming season and 21-year-old Travis Sanheim is keen to throw his name into the mix.

Taken 17th overall in the 2014 NHL Draft, Sanheim has seen a rise in his offensive production, capping off his junior career in 2016 with 15 goals and 68 points, averaging well over a point per game in the WHL. He made the jump full-time to the professional ranks last season and provided more optimism for a Flyers franchise that has built a solid prospect pool.

In 76 games with the AHL’s Lehigh Valley Phantoms, Sanheim reached 10 goals and 37 points, finishing second in scoring among defensemen on that team. According to numerous reports, he followed that up with a strong showing at development camp earlier this summer, too.

Now, the goal is to come to training camp next month and earn a spot on the NHL club.

From CSN Philly:

Under general manager Ron Hextall’s philosophy of earn what you get, Sanheim will have his chance. But is there room? The Flyers are at a numbers crunch on the blue line. There is expected to be two spots open, presumably for Robert Hagg and Sam Morin, both of whom acquitted themselves well during their April NHL debuts.

“It’s going to come down to camp,” Sanheim told reporters in the summer. “I feel like I’m ready. I’m going to compete for a spot and until somebody tells me differently, that’s my goal. I’m coming to make the Flyers.

“It doesn’t matter what team you’re playing on. You have to work your way up the lineup. It’s just like me this year. I had to work my way up the lineup in the AHL just to start playing more and more minutes, and getting power play time and (penalty kill) time. It’s going to be the same thing. Nobody said it was going to be easy and I was going to be slotted into the first pairing.”

The Flyers took defensemen in the first rounds of three consecutive drafts, from 2013 to 2015, with Sanheim’s selection sandwiched in the middle. In 2015, Philly took Ivan Provorov at seventh overall. At just 20 years old, the Russian blue liner wasted little time in making an impact on the NHL roster, playing in all 82 games last season, scoring six goals and 30 points.

Morin and Sanheim have each had time to develop in the minors, with the former spending the past two seasons in the AHL, which should prove beneficial to the growth in their games heading into September.

“Whenever you play in the American League you get a leg up because you’ve been playing at a higher level of competition for a full year,” Hextall said, per the Courier-Post.

“You expect those guys to come in and be a little more NHL ready than a kid that’s coming right out of junior, but the players are gonna dictate who’s on our team. We’ll see how it goes.”

Poll: Will the Flyers make the playoffs?

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This post is part of Flyers Day on PHT…

The Philadelphia Flyers missed the playoffs by seven points last season, but that doesn’t take away from the fact that their future looks bright.

Many experts believe that they have the best group of prospects in the NHL. This summer, they added Nolan Patrick to the fold by selecting him second overall in the 2017 Entry Draft. If Patrick could stay healthy, he could provide the Flyers with a nice offensive boost next season.

Philadelphia can use all the help they can get up front, as they ranked 20th in goals for in 2016-17. The most disappointing Flyer in terms of offensive production had to be Claude Giroux. The captain managed to put up a respectable 58 points in 82 games, but he only found the back of the net 14 times (his lowest total since he scored 13 goals in 48 games during the lockout shortened season in 2012-13).

They have other quality forwards on the roster. Wayne Simmonds and Jakub Voracek are still around, Travis Konecny has a year under his belt, but there are some serious question marks surrounding the supporting cast.

Brayden Schenn, who finished second on the team in goals with 25, was traded to St. Louis in the off-season. The Flyers received a package that included Jori Lehtera, who had struggles of his own last year. Lehtera, Valtteri Filppula, Matt Read and the rest of the forwards will have to step up.

On defense, they’re blessed with some talented options. Shayne Gostisbehere struggled in his second year, but still managed to put up 39 points. If he can play like he did during his rookie campaign, that will help his team tremendously.

Ivan Provorov, who played his first full season last year, was impressive. The 20-year-old had 30 points in 82 games, and he should be even better now that he’s going into his second year.

Andrew MacDonald, Radko Gudas and Brandon Manning are also expected to round out the blue line in 2017-18.

Youngsters like Samuel Morin, Travis Sanheim, Philippe Myers and Robert Hagg are all close to contributing with the big club in the near future.

Between the pipes, they went out and signed Michal Neuvirth to an extension and they added Brian Elliott in free agency. That still doesn’t give them a clear number one goalie, so it’s difficult to see envision how that’ll all work out. We’ll see where Anthony Stolarz fits into the equation.

Last season, the Capitals, Penguins, Blue Jackets grabbed the top three spots in the Metropolitan Division, while the Rangers and Maple Leafs earned the Wild Card spots. The Islanders and Lightning both finished ahead of the Flyers in the race for the final playoff spots in the East.

If the Flyers do earn s postseason berth, it’ll be interesting to see which one of those teams won’t be qualifying for playoffs.

Will Philadelphia make the playoffs? You can have your say by voting in the poll below. Also, feel free to leave your opinion in the comments section.

It’s Philadelphia Flyers day at PHT

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The Philadelphia Flyers missed the playoffs last season, but the disappointment probably didn’t last too long after the events of the draft lottery a few weeks later.

The Flyers entered the lottery with a 2.2 per cent chance of landing the No. 1 overall pick. That selection eluded them, but they still moved up to the second overall pick in June’s Entry Draft. The Devils decided to take Nico Hischier first, leaving Philly to select fellow top prospect Nolan Patrick.

Philly has since signed Patrick to his entry-level contract. The biggest question for Patrick is his health, following a 2016-17 WHL season interrupted by injury. His aim was to resume skating in the middle of July.

Philly traded forward Nick Cousins to Arizona prior to the expansion draft. But the biggest shake-up this offseason in Philly was a draft-day trade that sent Brayden Schenn to St. Louis in exchange for Jori Lehtera, the 27th overall pick in this year’s draft and a conditional first-round pick in 2018.

Philly didn’t bring back goalie Steve Mason, who has signed with the Winnipeg Jets. The Flyers’ goaltending duo heading into next season has Michal Neuvirth alongside Brian Elliott, who left Calgary and signed for two years at $5.5 million in Philadelphia.

After three years with the Flyers, defenseman Michael Del Zotto has moved on to the Canucks, while Roman Lyubimov has returned to the KHL.

Today at PHT, we’ll discuss the key storylines facing the Flyers heading into next season.

Report: Red Wings RFA Athanasiou could sign in Russia

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With training camp approaching, Andreas Athanasiou is still without a contract for the upcoming season.

The 23-year-old forward and restricted free agent posted 18 goals and 29 points in 64 games for the Detroit Red Wings last season in the final year of his entry-level contract with an annual average value of $902,500.

Based on a report Tuesday afternoon, traveling overseas to play next season could be an option for Athanasiou, one of the bright young forwards in the Red Wings organization.

Earlier this month, Red Wings general manager Ken Holland said the organization has made a “number of offers” to Athanasiou.

One of the issues facing Detroit right now is the salary cap, which the Red Wings are currently over by almost $4 million, according to CapFriendly.