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.

‘That’s definitely a huge option for us’: Brian Boyle wants to go back to Tampa

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Brian Boyle spent almost three full years with the Tampa Bay Lightning before being traded to the Toronto Maple Leafs at last March’s trade deadline.

The veteran center liked his stint in Tampa so much that he’s willing to go back there when he becomes a free agent in less than week.

“We love Tampa,” said Boyle, per the Tampa Bay Times. “If Tampa wanted to work out a deal, that’s definitely a huge option for us. That’s something that I’ve kind of always thought about. I haven’t closed the door on anything.”

Boyle enjoyed quite a bit of success with the Bolts. During his time there, he scored at least 13 goals in each of his three seasons, which isn’t bad considering he was more of a bottom-six player when he was there.

It’s unclear if the Bolts would be willing to take him back at this point, but a big factor will likely be his contract demands.

“(Tampa) is a great place to be, great place to start a family. And, honestly, we’ll see what they say. You want to be wanted. That’s the other part.”

The Lightning have just over $23 million in cap space right now. That seems like a good amount, but they still have to sign Tyler Johnson, Ondrej Palat and Andrej Sustr. It’s also pretty clear that they’re in the market for a top four defenseman, and that won’t come cheap. As of right now, they only have three blue liners on one-way contracts.

The 32-year-old is coming off a contract that paid him $2 million per season. He should be able to fetch a higher number if he hits the open market.

‘Canes re-sign Masterton Trophy finalist Derek Ryan to one-year deal

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The Carolina Hurricanes have reportedly taken care of some business on Monday morning, as they’ve re-signed forward Derek Ryan to a one-year deal worth $1.425 million, per TSN’s Frank Seravalli.

Update: The Hurricanes have confirmed the news.

The 30-year-old had 11 goals and 29 points in 67 games during his first full NHL season.

Ryan’s journey to the NHL is a great story.

He played three full seasons of junior hockey with the WHL’s Spokane Chiefs (2004-2007) before joining the University of Alberta hockey program for four years (2007-2011). Once he completed his Canadian University hockey eligibility, Ryan went on to play three seasons of pro hockey in the Austrian League and one year over in Sweden. He came back to North America for the 2015-16 season, where he played 70 games with AHL Charlotte and six games with the ‘Canes.

Ryan was a finalist for the Masterton Trophy, which is awarded to “the National Hockey League player who best exemplifies the qualities of perseverance, sportsmanship, and dedication to hockey.”

“I feel a little out of place,” Ryan told NHL.com during the 2017 NHL Awards. “A couple of years ago, I was battling my way through the European leagues and all of a sudden here I am at the NHL Awards and just kind of taking it all in.”

PHT Morning Skate: 6 teams that have work to do before the start of free agency

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–USA Today looks at six teams that have some work to do before the free-agent market opens on July 1st. The Coyotes are gonna need to find a new coach, Vegas will have to keep tweaking their roster and the New York Rangers still need that puck-moving defenseman. (USA Today)

–The Dallas Stars have been searching for a number one defenseman for a few years now. You have to believe they were excited to land Miro Heiskanen third overall on Friday. The Dallas Morning News shares five things you need to know about their new top prospect. Yea, he wasn’t even both when Dallas won the Stanley Cup in 1999. (Dallas Morning News)

–Does your team need a center? NHL.com compiled a list of the top free-agent centers that are scheduled to hit the open market on Saturday. If clubs are looking for size down the middle, they could do worse than Joe Thornton or Martin Hanzal. (NHL.com)

–If you’re a fan of great hair, you’ll enjoy this. The Score looks at the top 5 “flows” from the NHL Draft. Nico Hischier wasn’t only the top pick in the entry draft, he also found himself on the top of this list, too. (The Score)

–2017 Norris Trophy winner Brent Burns went to Disney World with his family during the off-season, and many of the children thought he was a pirate (I can’t really blame them). “I actually signed a couple of autographs in kids’ books because they thought I was a pirate. And I actually signed them.” (Sports Illustrated)

–Penguins forward Ryan Reaves didn’t believe the rumblings about him being traded on Friday night. His response was classic:

These 2017 NHL Draft picks lacked hype … but not swagger

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The interview process for draft prospects must be a real beating. Then again, it’s also an opportunity for hopefuls to push back.

In the case of two smaller prospects, it meant providing some swagger in their answers, possibly impressing their new teams. If nothing else, Kailer Yamamoto and Michael DiPietro generated some refreshingly confident quotes.

One would assume that the Edmonton Oilers picked Yamamoto with the 22nd choice for more than just a great answer alone … but still.

Nice, right?

Sportsnet’s Jeff Marek related a similar story about DiPietro, who the Vancouver Canucks nabbed with the 64th pick.

Funny story: When one team at the NHL told him “We don’t think you can play in the NHL with our team, you’re too small” at the combine, he fired back with “well, I guess you have a problem with winning, then.” How do you not like that?

If nothing else, those two aren’t shy.

As a bonus story, check out the bumpy path Will Reilly – aka the “Mr. Irrelevant” of the 2017 NHL Draft – took to being chosen last overall by the Pittsburgh Penguins, via Puck Daddy’s Sean Leahy. From the sound of things, there are worse feelings than going 217th.

The 2017 NHL Draft may have been “pumped down” from a hype perspective, yet it sounds like many of these prospects at least bring some moxie to the table.