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.

Sharks defeat Hurricanes, but Vlasic exits game with lower-body injury

Marc-Edouard Vlasic
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Talk about the ideal start.

Patrick Marleau scored just 12 seconds into the first period and the San Jose Sharks had a 2-1 lead before Saturday’s game against the Carolina Hurricanes was even four minutes old.

The Sharks held on for a 4-3 win over the Hurricanes, Kevin Labanc‘s goal late in the second period standing as the winner, as the two teams traded three goals in the span of just over three minutes.

It remains awfully crowded in the Pacific Division. The Flames lead with 34 points, while the Sharks, Ducks and Oilers are all one point back.

The victory came with bad news for the Sharks.

Defenseman Marc-Edouard Vlasic left the game in the second period and didn’t return. He’s now day-to-day with a lower-body injury, according to coach Pete DeBoer following the win.

Flames dominate the Jets to take over top spot in the Pacific Division

CALGARY, AB - DECEMBER 10: Dougie Hamilton #27 of the Calgary Flames celebrates after scoring his team's third goal against the Winnipeg Jets during an NHL game at Scotiabank Saddledome on December 10, 2016 in Calgary, Alberta, Canada. (Photo by Derek Leung/Getty Images)
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Is there a changing of the guard in the Pacific Division?

It’s the middle of December and the Calgary Flames, now with six straight wins, lead the same division dominated last season by the California powers in Anaheim, San Jose and L.A. The Edmonton Oilers have been inconsistent at times this season but they are right there, too, one point back. Same goes for the Ducks. The Sharks and Kings are definitely in contention.

There is plenty of hockey remaining in the season. Plenty of chances for change in the NHL’s division standings, including in the Pacific. But there’s no denying the Flames are on an impressive run.

Late last month, they had a particularly frustrating loss to Philadelphia and coach Glen Gulutzan voiced his displeasure about it. They followed that up the next day with an overtime loss to the Islanders. Prior to that weekend, there had been rumblings about the future of Gulutzan with the club, despite being only a few months into his tenure.

But since then, the Flames have yet to lose. They continued their winning streak with a convincing 6-2 victory over the visiting Jets on Saturday.

Dougie Hamilton — remember all that trade speculation surrounding the Flames defenseman and Brian Burke’s classic response? — had two goals for Calgary. Chad Johnson was solid in net again. It was a pretty dominant performance all around.

Frustrating night for the Jets and it showed when Dustin Byfuglien dropped the gloves with Garnet Hathaway late in the third period.

There are more difficult tests ahead for Calgary.

The Flames face the Tampa Bay Lightning on Wednesday and then the Columbus Blue Jackets on Friday.

In previous seasons, a Friday night game between the Flames and Blue Jackets in the middle of December might not garner much interest. But they are both among the hottest teams in the league right now and it’s likely not many would’ve predicted that a short time ago.

Video: Perlini’s first NHL goal helps lift Coyotes over Predators

GLENDALE, AZ - DECEMBER 10:  Brendan Perlini #29 of the Arizona Coyotes reacts alongside Calle Jarnkrok #19 of the Nashville Predators after Perlini scored his first career goal during the second period of the NHL game at Gila River Arena on December 10, 2016 in Glendale, Arizona.  (Photo by Christian Petersen/Getty Images)
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The Arizona Coyotes have moved out of last place in the NHL’s overall standings, courtesy a 4-1 win over the Nashville Predators on Saturday.

Minus forward Max Domi, placed on IR and expected to be out on a week-to-week basis, the Coyotes got a 44-save performance from goalie Mike Smith and recently recalled forward Brendan Perlini pitched in with his first career NHL goal.

That goal gave Arizona a 3-1 lead. Thanks to the play of Smith, the Coyotes wouldn’t relinquish the lead, snapping a six-game losing skid.

It wasn’t all good news for the Coyotes.

Defenseman Connor Murphy played only 4:12. He left the game with an upper-body injury and didn’t return. Per reports, Murphy is considered day-to-day at this point.

The Blue Jackets just keep on winning

COLUMBUS, OH - OCTOBER 15:  Zach Werenski #8 of the Columbus Blue Jackets is congratulated by Cam Atkinson #13 of the Columbus Blue Jackets after scoring his first career NHL goal during the third period of the game against the San Jose Sharks on October 15, 2016 at Nationwide Arena in Columbus, Ohio. San Jose defeated Columbus 3-2. (Photo by Kirk Irwin/Getty Images)
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COLUMBUS, Ohio (AP) Jack Johnson, Cam Atkinson and Seth Jones each had a goal and an assist as the Columbus Blue Jackets beat the New York Islanders 6-2 on Saturday night for their sixth straight win.

Josh Anderson, Brandon Saad and Lukas Sedlak also scored for Columbus and Sergei Bobrovsky had 25 saves.

Josh Bailey and John Tavares scored for New York, which had earned a point in a season-high five straight games (4-0-1). Jaroslav Halak made 32 saves until he was pulled after the Blue Jackets scored four consecutive goals in the third period.

Anderson put Columbus ahead 3-2 at 2:19 when he picked off a defensive pass and banged it in from the slot seconds after coming onto the ice for his shift.

Saad, Sedlak and Jones scored in a 5-minute span to make it 6-2 with 5:37 to go.

New York’s third-string goalie Jean-Francois Berube then replaced Halak and stopped the one shot he faced in his season debut.

The Islanders came out quick and it took Columbus a while to get going. New York took a 1-0 lead 5:59 in when a defensive pass by the Blue Jackets’ Sam Gagner at the boards was deflected by Bailey, and the popup was bobbled by Bobrovsky into the net. Bailey was given credit for an unassisted goal.

The Blue Jackets tied it up on a power play with 6:01 left in the first when Johnson wound up from just inside the neutral zone and fired a bullet past Halak. It was Johnson’s first goal of the season.

Columbus’ Brandon Dubinsky and New York’s Travis Harmonic went to the penalty box for 5 minutes each when both threw down the gloves and threw punches near the end of the first quarter.

Columbus took a 2-1 lead when a speeding Atkinson took a pass from Johnson in the neutral zone and beat Halak on the breakaway 10:16 into the second. New York tied with 7:28 left in the period when Tavares lifted the puck over Bobrovsky’s pad from in front of the net.

The Blue Jackets took off in the third period.

After Anderson gave Columbus the lead for good, Saad made it 4-2 on a wrister from the high slot at 9:23.

Sedlak, who scored his first NHL goal on Friday night, scored another when he tapped in a loose puck with 7:21 to go. Jones capped it with just over 5 1/2 minutes remaining.