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.

Fore! NHL referee makes the cut at PGA Tour’s Canadian Open

OAKVILLE, ON - JULY 22: Garrett Rank hits his second shot on the 16th hole during the second round of the RBC Canadian Open at Glen Abbey Golf Club on July 22, 2016 in Oakville, Canada.  (Photo by Gregory Shamus/Getty Images)
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There has always seemed to be a connection between hockey players and the game of golf. Some are better than others when it comes to the links.

Take NHL referee Garrett Rank, for example.

Rank, also an amateur golfer, has made the cut at the 2016 Canadian Open at Glen Abbey Golf Club just south of Toronto. He’s currently tied for 36th at even par heading into the weekend. He also sits seven shots behind the leader, Dustin Johnson, the future son-in-law of The Great One, Wayne Gretzky.

Rank, who joined the NHL Officials Association in 2014, has split his time between officiating in the NHL and the American Hockey League. But, according to the PGA Tour website, he was hired as a full-time NHL ref the day before the opening round of this week’s Canadian Open.

“I’d be lying if I told you that I didn’t take my clubs with me when I was on the road,” he told the PGA Tour website. “I think it helps me and makes it a little easier for me because I know that this isn’t the end of the world, whether I shot 65 or 75.”

Rank, 28, is also a cancer survivor. He was diagnosed with testicular cancer in 2011, after initially feeling discomfort while officiating a game.

“When I got the news I tried to maintain a positive attitude,” he told the Toronto Sun. “And you know what, it’s kind of a blessing in disguise. You never want to have cancer wished upon someone but I think it gave me a little better outlook in terms of a bad call on the ice wasn’t as bad. Or hitting a bad shot on the golf course wasn’t the end of the world.

“It has allowed me to stay patient and be grateful for the opportunities and things I have in life.”

Related: PHT Morning Skate: James Wisniewski caddies for PGA Tour golfer Jason Day

Price’s previous injury ‘no longer a concern,’ says Habs goalie coach

Montreal Canadiens goalie Carey Price stops a shot during the second period of an NHL hockey game against the New York Islanders on Friday, Nov. 20, 2015, in New York  (AP Photo/Paul Bereswill)
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More good news when it comes to Carey Price.

After Price had said last month he was 100 per cent healthy following an MCL sprain that ultimately ended his season, Montreal Canadiens goalie coach Stephane Waite reaffirmed that earlier this week in an interview with RDS. That should provide Habs fans with at least a little bit of optimism when it comes to the goalie position after a rather tumultuous summer.

“I’m not a doctor, but all I know is that on the ice it was perfect,” Waite told RDS, as per The Hockey News. “It is 100 percent restored. We are happy and our medical staff did a great job with him to bring him to the top. It is no longer a concern, he is ready to go.”

Habs fans have had a difficult few months. With Price injured, the Canadiens quickly fell out of the playoff race. The off-season has ushered in tremendous change, with the additions of Andrew Shaw and Shea Weber, while the departure of P.K. Subban in that deal with Nashville remains probably the most contentious development in the NHL during the summer.

It is still reality right now that the Habs’ success is still dependent on their goalie Price.

The 28-year-old Price last played a game on Nov. 25, so it’s difficult to imagine there wouldn’t be some initial rust when it comes to getting acclimated once again to game action.

He is also among the three goalies named to Team Canada for the upcoming World Cup of Hockey, which starts Sept. 17. Braden Holtby and Corey Crawford were also named to the squad.

Price started and starred for Canada in its gold-medal win at the 2014 Sochi Olympics, while Holtby and Crawford are established and accomplished NHL goalies.

“It’s a long-ways off,” said Price earlier in the spring, as per NHL.com. “I know I’ll be prepared for that.”

Recently re-signed forward Callahan in tough to make Red Wings

MitchCallahan
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Mitch Callahan signed another one-year deal with the Detroit Red Wings on Thursday, and will look to once again make the jump to the NHL in the fall.

As per General Fanager, the deal pays $600,000 at the NHL level and $175,000 at the AHL.

A sixth-round pick of the Red Wings in 2009, Callahan, who turns 25 years old next month, has only one appearance in the NHL and that was two seasons ago. He’s spent five seasons with the Grand Rapids Griffins in the minors, where he’s posted decent numbers, offensively, with 19 goals and 32 points last season.

But he’s also dealt with injuries, such as a torn ACL in the 2014-15 season. Or a gory injury — 10 teeth plus a broken jaw — after taking a puck to the face in an AHL game in 2014. This past season, he took another puck to the face during practice, losing another tooth.

He’s made it clear in the past that he doesn’t want to be playing in the AHL, although competition for roster spots — Callahan would have to likely work his way into a bottom-six role — in Detroit will be stiff when the Red Wings open up training camp.

From the Detroit Free Press:

He’s almost certain to be exposed on waivers again, as the Wings have 13 active forwards signed to one-way contracts, plus Dylan Larkin and Andreas Athanasiou. And Anthony Mantha is expected to make a push for a spot.

Patrick Eaves bests big hockey names at Smashfest V

eavessmashbeardnhlpa
via NHLPA
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Ping Pong. Beards. Hockey players making funny faces in street clothes. And it’s all to benefit charitable organizations.

Dominic Moore‘s Smashfest V took place on Thursday, with Patrick Eaves and his freakish facial hair taking the top prize for the second year in a row.

Here’s a shot from the happy, bearded winner from the NHLPA:

(His loved ones must be thrilled that this isn’t merely a playoff look for Eaves, by the way.)

This shot of Jeff Skinner and his “most improved” award is just too fitting.

It’s not yet clear exactly how much money was raised for charity, but this is a sign that the event was probably … well, a smash success.

Good stuff. Here’s a random hodgepodge of other photos from the event.

Bonus points to Hall of Famer Eric Lindros for the “beer in other hand” form:

Alex Burrows fell to Eaves in the final round. Seems OK about it:

Antoine Roussel was probably not being a pest on this occasion. We can’t be totally certain, however.

Looks like it was a good time for all.