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.

Eugene Melnyk’s Senators are kind of a mess right now

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As the Ottawa Senators prepare to head into their outdoor game against the Montreal Canadiens on Saturday night it is really difficult to imagine this is the same organization that was one game away from winning the entire Eastern Conference just seven months ago.

It’s taken a less than a year for all of the goodwill that improbable playoff run created among the team’s fan base to be almost completely wiped away.

And it’s not just because the product on the ice has badly regressed.

Actually, that is probably the least of their concerns at this point.

On a day that is supposed to be a celebration and a highlight of the team’s season — a home outdoor game against the Montreal Canadiens!– the fan base is instead staging a social media rebellion against team owner Eugene Melnyk with the #melnykout hashtag on Twitter.

[NHL On NBCSN: Senators, Canadiens Meet In NHL 100 Classic]

Pretty much every reply to every Tweet from the Senators’ social media team is being bombarded with that hashtag as fans voice their displeasure. On Saturday afternoon #melynkout was one of the top trending topics in all of Canada.

Just a quick recap of everything that has gone wrong in recent weeks to help get things to this boiling point.

  • Erik Karlsson, the team’s best player, a generational talent, and a superstar that has played the past few seasons on a below market contract made some comments that indicated he would not be willing to take another hometown discount when his contract expires after next season. Given the team’s financials it is pretty clear that he already has one foot out the door.
  • The team, struggling on the ice and apparently desperate to make a move, is reportedly fielding calls on every player on the roster, including Karlsson.
  • Kyle Turris, traded as part of the Matt Duchene trade, suggested the team’s front office wanted to re-sign him but ownership did not. Turris and his new team, the Nashville Predators, have been unstoppable since the trade while Duchene and the Senators have been stuck in neutral.
  • General manager Pierre Dorion denied that claim and said all hockey moves go through him, not the owner. That press conference from Dorion included the anecdote that Dorion’s own son said the team’s “level of suckage is high.”
  • Then, on Friday night, on the night before the team’s outdoor game, Melnyk poured a bucket of gasoline on the tire fire that is his team and made some ominous comments about the team’s financial situation and future in Ottawa.

Melnyk is no stranger to bringing some less than desirable attention to his team. The whole forensic investigation surrounding the Matt Cooke and Erik Karlsson incident; the way he lost his mind in the wake of the Sidney Crosby/Marc Methot incident. But to make comments like the ones he made on Friday, on the eve of a major NHL and team event, and given everything else surrounding the team and his ownership at the moment, is astonishing even for him.

Oh, and the team itself is still seven points out of a playoff spot and sitting in 15th place in the Eastern Conference.

Given all of that it is really difficult to imagine a bleaker long-term outlook for any fan base in the NHL. Which situation can possibly be worse?

The only one that really comes close at this point from is probably the Detroit Red Wings, and that is strictly from a hockey standpoint. The Red Wings are a sub-par team saddled with a ton of long-term contracts, little in the way of young, impact talent and are in dire need of a rebuild but seem reluctant to actually go through with it. It might be a long time before the Red Wings are a factor in the Eastern Conference again, but at least they are not in danger of moving (or at least having that threat thrown out there). They don’t have an owner that fans are openly revolting against.

Even the Buffalo Sabres and Arizona Coyotes have some reason to be hopeful from a hockey standpoint (Jack Eichel in Buffalo; Arizona is struggling, but they have a ton of young talent).

But the Senators? What is the reason for optimism here?

They have a generational superstar that might be one of the finest players to ever play his position and it is only a matter of when, and not if, he is playing for another team.

The owner, seemingly unwilling to sell the team, doesn’t seem to respect his own fan base and doesn’t seem to have the funds to consistently put a competitive product on the ice.

If you are Senators fan, what can you possibly have to look forward to right now, whether it be for the rest of this season or beyond?

It is a grim situation to be sure.

Adam Gretz is a writer for Pro Hockey Talk on NBC Sports. Drop him a line at phtblog@nbcsports.com or follow him on Twitter @AGretz.

NHL On NBCSN: Senators, Canadiens meet in NHL 100 Classic

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The first outdoor game of the 2017-18 season takes place on Saturday night in at Lansdowne Park in Ottawa when the Ottawa Senators host the Montreal Canadiens.

Both teams are looking for some kind of a spark to break out of their early season slumps that have them starting to get buried in the Eastern Conference standings. Even with those slow starts there remains plenty of intrigue with this game.

Let’s start with the fact that both teams — both of which were in the playoffs just last season — are absolutely desperate for points right now.

[Live Stream: Montreal Canadiens vs. Ottawa Senators]

The Senators, who were just one shot away from being in the Stanley Cup Final a season ago, have won just two of their past 14 games and find themselves in 15th place in the East, 10 points out of a Wild Card spot and seven points behind the Boston Bruins for the third spot in the Atlantic Division.

As if the problems on the ice are not bad enough, there is plenty of off-ice drama surrounding them. And it seems to keep getting worse.

The long-term future of their only superstar, defenseman Erik Karlsson, remains in doubt and with each passing day it seems as if his time in Canada’s capital city is coming closer and closer to ending. A free agent after next season, Karlsson has made it clear he is not looking to take a discount on his next contract. Then came the report that he was one of the many Senators that was asked to give his no-trade list.

As if all of that wasn’t ominous enough, team owner Eugene Melnyk spoke publicly on Friday, the day before what should be one of the highlights of the team’s 2017-18 season, and played the relocation card.

Other than all of that, everything is going wonderfully for the Senators.

On the other side of the ice we have the Montreal Canadiens.

The Canadiens enter play on Saturday sitting just two points back of the Bruins for the third playoff spot in the Atlantic Division, but have also played three additional games.

The Canadiens have been a difficult team to get a grasp on this season because they keep running so hot and cold.

After starting the season on a 1-6-1 run, they followed that up by going 7-3 over their next 10. Then they lost five in a row. Then they won five in a row. Which was then followed by a three-game losing streak. You never know which Canadiens team you are going to get on a given night or over a given period of time. The only thing consistent about them this season has been their inconsistency.

Now they enter play on Saturday night against a struggling Senators team that is dealing with plenty of drama off the ice.

Outdoor games always have a little extra appeal to them, but this one is especially big given how much the two teams need the points.

Adam Gretz is a writer for Pro Hockey Talk on NBC Sports. Drop him a line at phtblog@nbcsports.com or follow him on Twitter @AGretz.

Canada beats US 3-1 in women’s hockey Olympic tuneup

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SAN JOSE, Calif. (AP) — Haley Irwin and Sarah Nurse scored in the second period, sending Canada to a 3-1 victory over the United States on Friday night in the latest Olympic tuneup between the world’s top powers in women’s hockey.

Marie-Philip Poulin also scored for Canada, and Ann-Renee Desbiens made 25 saves.

Brianna Decker opened the scoring for the U.S. with a power-play goal early in the second. Alex Rigsby stopped 33 shots in defeat.

Poulin made it 3-1 with her goal 55 seconds into the third.

It was the fifth of six meetings between the rivals as they prepare for the 2018 Winter Games in South Korea. They play again Sunday night in Edmonton, Alberta.

Canada has won four of the five recent matchups, after the Americans took the series opener Oct. 22 in Quebec City.

”We just have to be better in the red zones – that’s the difference between winning and losing,” United States coach Robb Stauber said. ”We’ll give some focus and energy to some things we think we can do better, and we’re going to go into Edmonton and see what that end result looks like.”

The last four Olympic gold medals in women’s hockey have gone to Canada, but the U.S. has won seven of the past eight world championships.

The Buzzer: Eichel hat trick, Schneider robbery, Gaborik’s 1,000th game

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Players of the Night: 

Jack Eichel, Buffalo Sabres: Eichel ended a four-game goal-less drought with some authority on Friday. After scoring in the first period, Eichel watched as his Sabres blew a 2-1 lead to trail 4-2 with 10 minutes to go. Eichel then turned on overdrive, scoring twice in 10 seconds to tie the game and force overtime. Sadly, his efforts were in vain as the Carolina Hurricanes got the winner 2:15 into the extra frame. It’s Eichel’s first career NHL hat trick.

Brian Boyle, New Jersey Devils: What an inspirational story Boyle has been this year. On Friday, Boyle scored twice, including the game winner, to bring his goal total to eight on the season. His second of the night was also his 100th of his career.

Highlights of the Night:

Eichel showed a good bit of patience on his hat trick goal:

Cory Schneider committed robbery on this save:

Sam Gagner scored on a pretty backhand deke to give the Vancouver Canucks the win in overtime, ending a four-game losing streak:

Factoid of the Night: 

MISC: 

Scores: 

Hurricanes 5, Sabres 4 (OT)

Devils 5, Stars 2

Rangers 4, Kings 2

Red Wings 3, Maple Leafs 1

Canucks 4, Sharks 3 (OT)


Scott Billeck is a writer for Pro Hockey Talk on NBC Sports. Drop him a line at phtblog@nbcsports.com or follow him on Twitter @scottbilleck