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.

Sens match season-high for goals, beat Dallas 7-4

Bobby Ryan, Antti Niemi
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DALLAS (AP) Jean-Gabriel Pageau scored two third-period goals and the Ottawa Senators held off the Dallas Stars for a 7-4 victory Tuesday night.

Ottawa was outshot 37-20 but scored three unassisted goals after takeaways, one on the power play and another short-handed, by Pageau.

Craig Anderson made 33 saves in his third straight win, including two shutouts. He had his scoreless streak snapped at 147:04, when Patrick Sharp scored in the second period.

Pageau scored on two breakaways, including his league-leading third short-handed, and added an assist. He has six goals this season.

Dallas goalies Antti Niemi and Kari Lehtonen combined to make only 13 saves.

The Senators’ Mike Hoffman also had two goals, one into an empty net. Mark Stone had a goal and two assists. Bobby Ryan and Milan Michalek also had goals.

NHL leader Jamie Benn scored his 15th and 16th goals for Dallas. Benn assisted on Tyler Seguin‘s goal.

The Senators are 4-0-2 in their last six games. Dallas’ loss ended the Stars’ five-game winning streak.

Ottawa didn’t have a shot on goal for the first 7:10, but its attempt went in for a 1-0 lead. Ryan took away the puck in the left faceoff circle, skated in front of Niemi and tucked the puck into the right corner.

Michalek scored at 18:49 of the first period for a 2-0 lead. Stone won a battle along the left-wing boards, and the puck went to Pageau. He passed to Michalek in the center of the left circle, and Michalek sent a wrist shot past Niemi into the upper right corner.

Sharp finally got to Anderson at 7:04 of the second. Cody Eakin tapped a pass ahead to Sharp, who sent a slap shot past the goalie.

The Senators regained a two-goal lead, when Stone intercepted a pass from the Stars’ Patrick Eaves at the blue line, stepped to the top of the slot and scored on a wrist shot at 12:33.

Lehtonen then replaced Niemi, who had allowed three goals in nine shots. The first shot Lehtonen faced was Hoffman’s goal from the top of the left circle on the power play.

Niemi re-entered the game at 1:05 of the third period, after Lehtonen made two saves. On the first shot Niemi faced, he allowed a short-handed breakaway goal by Pageau on a shot that trickled between the goalie’s legs.

Benn scored on a short-handed breakaway at 6:07. Just 1:57 later, Seguin scored from the right circle.

NOTES: Ryan has at least one point in nine straight games (4 goals, 7 assists, 11 points). … Anderson came into the game with two shutouts in a row after an overtime loss. … Dallas D Jason Demers (lower-body injury) was scratched from the lineup, but D Jordie Benn returned after missing Saturday’s game because of illness. … The Stars’ John Klingberg took the NHL lead with his 20th assist on Sharp’s goal. He and Ottawa’s Erik Karlsson, who assisted on Hoffman’s goal, are 1-2 in scoring among the league’s defensemen. . Dallas had won the previous seven games against the Senators.

Coyotes GM ‘called right away’ on Hamonic

Don Maloney
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You can add Arizona to the list of teams that tried to get in on the Travis Hamonic sweepstakes.

“[He’s] a talented player,” Coyotes GM Don Maloney said, per the Arizona Republic. “We certainly called right away, but we do not have a good fit for them right now.

“That’s the bottom line. They’re looking for a ready-made complement player.”

Hamonic, who requested a trade out of New York, is garnering plenty of interest across the league. TSN’s Darren Dreger reported five clubs — Winnipeg, Calgary, Edmonton, Colorado and Minnesota — were in the mix, with Sportsnet floating potential trade chips like the Jets’ Jacob Trouba, and the Flames’ T.J. Brodie.

It’s unsurprising the Coyotes didn’t have a fit for Isles GM Garth Snow.

It’s hard to imagine — nearly impossible, really — to think Oliver Ekman-Larsson would be on the move, and the rest of the Arizona defense is comprised of unheralded youngsters (Michael Stone, Connor Murphy) or grizzled vets (Nicklas Grossmann, Zbynek Michalek).

But Maloney’s remarks are still noteworthy, because he more we hear about the Hamonic situation, the clearer the asking price gets.

Related: Hamonic willing to finish season with Isles

Star struck: Sens chase Niemi after three goals on nine shots (Update: And now he’s back)

Milan Michalek, Antti Niemi
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Bet Antti Niemi misses playing Buffalo.

Niemi, who stopped 46 of 47 shots in back-to-back wins over the Sabres last week, was hooked during Tuesday’s game against the Senators after allowing three goals on nine shots.

In Niemi’s defense, tonight’s goals weren’t exactly his fault.

John Klingberg coughed up the puck badly on Bobby Ryan‘s opening tally…

And on Ottawa’s second goal, Jyrki Jokipakka lost a board battle moments before Milan Michalek snapped one home:

The Sens’ third marker also came on a turnover.

Update: Well, this is quite the night for Dallas netminders. Kari Lehtonen replaced Niemi, allowed a goal, then got hurt in this collision with Klingberg, which forced him from the game and Niemi back into action.

Foley aware of Seattle reports, but says Vegas is ‘proceeding as if we will play in 2017’

Gary Bettman, Bill Foley
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Bill Foley, the man behind Las Vegas’ prospective NHL expansion team, says he knows about reports claiming the league is keeping an eye on a proposed Seattle arena.

He also says he isn’t going to worry about things out of his control.

“I’m aware of what’s going on (in Seattle) but in my communication with the league, our situation isn’t dependent on third parties,” Foley said Tuesday, per the Las Vegas Review-Journal. “We believe we’re in good shape and we’re proceeding as if we will play in 2017.”

Over the weekend, a Seattle Times piece suggested the NHL had yet to award Vegas or Quebec City an expansion franchise because the league is “avoiding any expansion decision until after an upcoming Seattle City Council vote likely to decide the fate of Chris Han­sen’s proposed Sodo District arena.”

The piece also suggested Seattle could be granted an expansion club for the 2018-19 campaign.


That vote, on granting Hansen part of Occidental Avenue South for his arena, is expected by January. No one knows how it will go, only that the lead-up should be politically charged and fiercely contested.

But passing it — future legal appeals notwithstanding — paves the way for Hansen to obtain his Master Use Permit and have his arena “shovel ready” should he choose to build.

And that means, once a vote passes, it’s entirely possible the NHL could conditionally award Seattle an expansion team.

To his credit, Foley remains solely focused on his Vegas bid — not what potential rival bids could bring to the table. And while he confirmed he has yet to be invited to the Dec. 7 NHL Board of Governor’s meeting in Pebble Beach, he re-iterated his only objective is to strengthen Sin City’s case for a hockey team.

“I’m focused on trying to find a place to build our practice facility,” he said. “I’m focused on the new arena and our fans who’ve put down deposits on season tickets.”