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.

Diaz could leave Rangers for Europe

Raphael Diaz, Mike Sislo
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Could Raphael Diaz be on his way back to Switzerland?

We’ll know in a month.

Diaz, who lost out on the Rangers’ final blueline spot in training camp, has reported to the club’s AHL affiliate in Hartford but doesn’t seem pleased with his current situation, per the Post:

The 29-year-old Diaz, who cleared waivers last Saturday after the Blueshirts opted to keep rookie Dylan McIlrath as the club’s seventh on the blue line, is interested in the European option if he is not in the NHL.

The Blueshirts have told Diaz they will revisit the situation at the end of October, but have not promised to release him or assign him to a European team at that point.

If Diaz, a Swiss native who represented Switzerland in the 2014 Olympics, does play in Europe during the season, he would have to go through waivers in order to return to the NHL.

Diaz’s agent, Ritch Winter, told the Post that Diaz signed a one-year, $700,000 deal with the Rangers “to play with the Rangers.”

And it’s understandable if Diaz — a journeyman offensive defenseman — isn’t happy with this situation.

While some believe McIlrath earned his roster spot on merit, some think it’s because of his contract status. McIlrath, who’s only 23 and a former first-round pick, would’ve needed to clear waivers to go back to Hartford, and it’s believed he would’ve been claimed by another club.

Canucks say Markstrom (hamstring) out another week — could it be longer?

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Bit of uncertainty out of Vancouver regarding the health of backup goalie Jacob Markstrom.

Markstrom, a late drop from the Canucks’ 5-1 opening-night win over Calgary, has suffered a hamstring injury that will keep him sidelined for another week, the club announced on Thursday.

With Markstrom out, backup duties will stay with AHL call-up Richard Bachman, who served as Ryan Miller‘s No. 2 on Wednesday.

Now, the focus turns to how long Bachman keeps those duties.

Per a Sportsnet report, Markstrom could miss up to three weeks of action with his injury. If that’s the case, Bachman will almost certainly be called into action; the Canucks will play eight games in 17 nights starting with Saturday’s home-opener against the Flames, which includes back-to-backs in Los Angeles and Anaheim on Oct. 12 and 13.

It would be asking a lot of the No. 1, 35-year-old Ryan Miller, to shoulder that entire load.

Bachman does have some NHL experience, with nearly 50 games to his credit. That includes a 3-2-0 record with the Oilers last year, in which he posted a 2.84 GAA and .911 save percentage.