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.

Ovechkin shrugs off Caps’ Game 1 loss in very Ovechkin way

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You know, it happens. Maybe not always in those exact words.

The Washington Capitals carried the play during portions of their 3-2 Game 1 loss to the Pittsburgh Penguins, and even down 1-0 in the series, just about every player seemed happy with their overall game.

(Granted, Braden Holtby picked apart two of the three goals he allowed, and so on.)

Still, Alex Ovechkin shrugged off the disappointment in a way that wasn’t quite Rated R, but probably ranks in the PG-13 range:

The penalty element is interesting, though.

When asked after the loss about the lack of power plays, Matt Niskanen merely offered a “no comment.”

The Penguins experienced some sprawling moments, yet they avoided taking a penalty each time. Often, when a team carries long sequences of play, they’ll go on the PP (especially with home-ice advantage) … but not the Capitals in Game 1.

via Natural Stat Trick

It’s a situation to watch as the Capitals hope to even the series against the Penguins with Game 2 coming on Saturday at 8 p.m. ET on NBC. (You can watch online, via the NBC Sports App and follow the livestream here).

Holtby takes blame for two big goals in Caps’ loss to Pens

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It’s just about a consensus that the Washington Capitals believed that they generally played a strong game despite falling 3-2 to the Pittsburgh Penguins.

Braden Holtby‘s teammates likely wouldn’t agree with his assessment that the Game 1 loss is on his shoulders, but the perennial Vezina candidate took the blame for Sidney Crosby‘s first goal of the night and Nick Bonino‘s game-winner.

Noting that the Penguins are a dangerous rush team – making them a different threat than the Toronto Maple Leafs – Holtby believes that he should have had his glove in position to stop the 1-0 goal. He said he’s capable of making such a stop and “will next time.” Check out Crosby’s two goals below, with Holtby having a beef with the first one:

It’s really difficult to place too much blame on Holtby for giving up Nick Bonino’s game-winner, as it seemed like a great rush play that few goalies would be able to stop.

Judge for yourself in the highlights:

The Penguins were ultimately able to take a 1-0 series lead, but the Capitals seem capable of shrugging off questions about frustrations, even with naysayers starting to gain confidence in claiming that there will be more than the same.

If Washington’s going to get over this big hurdle, Holtby is likely to be a big part in doing so.

Fleury, Penguins hang on for Game 1 win against Capitals

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The Pittsburgh Penguins pulled off a 3-2 Game 1 win against the Washington Capitals, but Thursday’s thriller probably prompted a sigh of relief.

(Washington, meanwhile, might have uttered a sigh at such unpleasantly familiar feelings.)

The first period ended 0-0 in part thanks to Jake Guentzel‘s sprawling “kick save.” Business really picked up in the second after Sidney Crosby raced off to two quick goals, only for Alex Ovechkin to give Washington a shot thanks to a booming goal and some physical play.

It sure felt like this one might head to overtime, especially after Evgeny Kuznetsov was tying things up and flapping his arms like wings. That was not to be, however, as Nick Bonino took advantage of a pretty area pass to beat Braden Holtby for the decisive tally.

Now, it was only decisive because Marc-Andre Fleury was at the top of his game. Oh, and also because the Penguins did a collective Guentzel impression in frantically denying a tying tally.

Makes you want to wipe some sweat from your brow, eh?

The Capitals dominated by just about every statistical measure … except, of course, goals on the scoreboard. Pittsburgh will gladly take that 1-0 series lead, then.

Expect a desperate Washington team in Game 2, which airs at 8 p.m. ET on Saturday. You can watch it online and via the NBC Sports App (click here for the livestream link).

Karlsson makes difference for Senators vs. Lundqvist, Rangers

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Swedish superstars Henrik Lundqvist and Erik Karlsson were both stupendous in Game 1 between the New York Rangers and Ottawa Senators.

Still, it was Karlsson’s game-winning goal (from a seemingly impossible angle) against Lundqvist that made the difference as the Senators beat the Rangers 2-1 on Thursday. With that, the Senators are up 1-0 in the series.

That Karlsson goal really deserves a special look.

Whether you blame that 2-1 tally on Lundqvist or not, the Rangers would be foolish to do anything but praise their red-hot franchise goalie. He stopped all 21 Senators shots in the first period and ultimately made 41 out of 43 stops in defeat.

Craig Anderson was strong in his own right, mind you, stopping 34 out of 35 shots (including all 28 at even-strength) to help Ottawa take that tight contest.

Anderson’s strong play highlights the fact that Rangers – Senators doesn’t merely come down to Lundqvist vs. Karlsson … but even so, both Swedish superstars really did stand out in this one.

Game 2 airs on NBC at 3 p.m. ET on Saturday. You can also watch online and via the NBC Sports App; click here for the livestream link.