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.

The Maple Leafs fell apart late (again)

OTTAWA, ON - FEBRUARY 6: Head coach Mike Babcock of the Toronto Maple Leafs looks on from the bench during an NHL game against the Ottawa Senators at Canadian Tire Centre on February 6, 2016 in Ottawa, Ontario, Canada.  (Photo by Jana Chytilova/Freestyle Photography/Getty Images)

No matter how much young talent the Toronto Maple Leafs have on their roster (and they have a lot) this was still always going to be another long season. The organization is on the right track, but it’s not where it needs to be just quite yet.

There will be flashes of brilliance and potential, but there are still going to be some pretty significant growing pains and a lot of frustration along the way.

Just five games into the season, they have already experienced plenty of the latter.

First there was rookie sensation Auston Matthews scoring four goals in his NHL debut and the team still finding a way to lose the game.

Then there was the game in Winnipeg where they jumped out to a 4-0 lead and then ended up losing in overtime. Earlier this week they let another third period lead slip away against Minnesota.

On Saturday, they added another one to the list in a 5-4 shootout loss to the Chicago Blackhawks.

For 57 minutes it looked as if the young Maple Leafs were going to add to the Blackhawks’ early season woes as they held a 4-2 lead and seemed to be in control of the game. The young players were scoring goals, they were the latest team to beat the Blackhawks’ shoddy penalty killing unit, and they seemed on their way to a big early season win on the road against a top team.

Then everything fell apart. Again.

Chicago’s Artem Anisimov scored with less than three minutes to play to cut the deficit to one.

Then just one minute later Richard Panik (former Toronto Maple Leaf Richard Panik) continued his early season goal scoring surge by netting his league leading sixth goal of the year to tie the game and send it to overtime.

After the two teams failed to score in the 3-on-3, it went to a shootout where Jonathan Toews and Artemi Panarin scored goals to help the Blackhawks get back into the win column and sent the Maple Leafs home with another tough loss.

If you’re an optimist in Toronto you have to look at the fact that this young, talented Maple Leafs team has at least earned a point in all but one of its first five games.

They are competing, they are showing signs of being an entertaining team with a strong foundation in place.

They have actually had the lead going into the third period of every game they have played.

Yet here they are, five games into the season, still sitting with only one win.

The Jimmy Vesey show leads Rangers over Capitals

NEW YORK, NY - OCTOBER 06: Jimmy Vesey #26 of the New York Rangers waits for the faceoff against the Philadelphia Flyers at Madison Square Garden on October 6, 2016 in New York City.  (Photo by Bruce Bennett/Getty Images)
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Washington Capitals forward Alex Ovechkin had the big highlight early in the game on Saturday night, but it was New York Rangers rookie Jimmy Vesey that ended up stealing the show.

Vesey scored a pair of goals for the Rangers — the first multi-goal game of his career —  to help lead his team to a 4-2 win in Washington.

Even though he had never played a game in the NHL before this season, Vesey was still one of the most sought after free agents this summer after he completed his college career at Harvard. He eventually signed an entry level deal with the Rangers, and given how much attention his free agency saga generated it seemed hard to believe that he could ever match the hype. Especially given the track record of players signed as free agents coming out of college (it’s not a great one).

It’s obviously still very early in his career, but so far Vesey has not disappointed in New York.

Saturday was by far his best performance of the season, scoring both of his goals just three minutes apart in the second period. The first goal tied the game at two to help erase a two-goal deficit, and then his second goal proved to be the game winner.

It was also a heck of a play.

Rick Nash would add an empty net goal late in the third period to put the game away for the Rangers while Henrik Lundqvist stopped 26 of the 28 shots he faced.

For Washington, the loss is its first regulation loss of the season and snaps what had been a three-game winning streak.

Video: Marc Staal was no match for Alex Ovechkin on this goal

WASHINGTON, DC - OCTOBER 15: Alex Ovechkin #8 of the Washington Capitals looks on against New York Islanders during the second period at Verizon Center on October 15, 2016 in Washington, DC. (Photo by Patrick Smith/Getty Images)
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After being held without a point in his first two games of the season, Washington Capitals forward Alex Ovechkin has now scored a goal in three consecutive games.

That includes his goal on Saturday night in the first period against the New York Rangers.

It’s one that will probably make the personal highlight reel for Ovechkin, but it certainly won’t make the highlight reel for Rangers defenseman Marc Staal.

To say that this head-to-head matchup turned out to be a mismatch would be … well … a bit of an understatement.

As Ovechkin crossed the blue line into the Rangers zone he started to toe-drag around Staal, only to stop midway through and just rip it from outside the circle, using Staal as a screen and beating Henrik Lundqvist for the goal.

It is probably not a good sign when the defenseman has his back to the shooter when the puck is released.

That goal gave the Capitals a 2-0 lead.

Red Wings’ Abdelkader out with lower body injury

PHILADELPHIA, PA - MARCH 15: Justin Abdelkader #8 of the Detroit Red Wings skates against the Philadelphia Flyers at the Wells Fargo Center on March 15, 2016 in Philadelphia, Pennsylvania. The Flyers defeated the Red Wings 4-3.  (Photo by Bruce Bennett/Getty Images)
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The Detroit Red Wings will be without veteran forward Justin Abdelkader on Saturday night when they host the San Jose Sharks.

The official word from the team is that he is sidelined with a lower body injury.

He will be replaced in the lineup by Andreas Athanasiou. Athanasiou has appeared in three games this season and yet to record a point.

He was not only in the lineup on Friday in the Red Wings in their 5-3 win over the Nashville Predators, but also scored his first goal of the season and played a season-high 17:55.

After scoring 19 goals and recording 23 assists in 82 games in 2015-16 the Red Wings signed a seven-year $29.7 million contract extension.

According to general manager Ken Holland (via Helene St. James) he is expected to be back in the lineup on Tuesday.