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.

Senators focus on MacArthur’s safety

EDMONTON, AB - NOVEMBER 13: Clarke MacArthur #16 of the Ottawa Senators in action against the Edmonton Oilers during an NHL game at Rexall Place on November 13, 2014 in Edmonton, Alberta, Canada. (Photo by Derek Leung/Getty Images)
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The Ottawa Senators were already trying to take a relatively safe approach with Clarke MacArthur, yet he suffered a concussion thanks to a Patrick Sieloff hit during a scrimmage.

It’s too early to say that MacArthur will be forced to retire after this latest injury. At the moment, the Senators were merely happy to see him at the rink receiving treatment, as Guy Boucher told reporters.

“At this point in time, it’s not about Clarke MacArthur the hockey player. It’s about Clarke MacArthur the person,” Mark Borowiecki said, according to the Ottawa Citizen’s Ken Warren.

It’s a thought echoed by Senators GM Pierre Dorion shortly after the check, noting that they’re most focused on MacArthur as a “human being.”

Many wonder if Sieloff will face repercussions – perhaps even being released – for delivering such a hit during a scrimmage, especially after just being acquired.

So far, it sounds like he isn’t getting much heat, at least beyond the initial reaction of players getting physical with him right after the check. Boucher said “we’re not pointing fingers at the young kid right now,” according to Warren.

Here’s video of that hit, by way of Silver Seven Sens:

Twitter has field day with Oilers’ dead-eyed mascot

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The Edmonton Oilers started a Photoshopping frenzy on Monday by unleashing their bizarre, dead-eyed mascot “Hunter” onto the Internet.

Give the team credit; the road to this mascot was paved with good intentions. Apparently thousands of Edmonton-area students aided in choosing “Hunter,” who is a tribute to the team’s original owner.

Here’s the introductory Tweet itself. Feel free to insert your own screaming noises.

Let’s bypass the Oilers’ more mundane release for a “bio” written in character by the, erm, “Canadian lynx” itself. Here’s a choice bit:

Like my lynx family and friends, I only come out at night to hunt, and on one of those nights I actually came across a bunch of kids playing hockey on an outdoor rink. One look at the game and I was hooked. The speed, the skill, the fun! I began climbing up the banks of the River Valley every night during the winter, catching shinny games with everyone wearing their Edmonton Oilers jerseys, both old and new! It didn’t take me long to become a hard core Oilers fan.

O…K.

Honestly, there are a lot of elements to unpack here. We almost don’t need people to bat this one around on social media, but then again, Hunter inspires references from “Too Many Cooks” to “Thundercats” and more.

Let’s gather some of the best bits.

Futility references

Hey, did you hear that the Oilers struggle to compete? The Internet sure did.

They sure did.

Pop culture references

More than one Thundercats reference.

Warning, if you’ve never watched “Too Many Cooks,” you might not want to go down that rabbit hole. (Either that, or you’ll feel like you REALLY missed out … there’s not a lot of room in between.)

Creepiness

Sensibly enough, most people hit the highest notes about how specifically terrifying that mascot is. Some of these mix in pop culture references too, but still:

All in all, it was quite a good time, right?

/Plans on sleeping with every light on.

Report: Gaborik (foot) to miss eight weeks

TORONTO, ON - SEPTEMBER 17: Marian Gaborik #12 of Team Europe celebrates his first period goal against Team USA during the World Cup of Hockey tournament at the Air Canada Centre on September 17, 2016 in Toronto, Canada.  (Photo by Bruce Bennett/Getty Images)
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Update: Yikes, the Los Angeles Kings announced that Marian Gaborik will be sidelined for eight weeks with a foot injury, according to the Los Angeles Times’ Helene Elliott.

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Some bad news for Team Europe and the Los Angeles Kings — Marian Gaborik, who was seen this morning on crutches, is reportedly out of the World Cup of Hockey final and may miss the beginning of the NHL campaign as well.

The news, first reported by Sportsnet, comes after Gaborik played 17:58 in Europe’s shock semifinal win over Sweden, scoring his team’s opening goal.

Gaborik took a puck to the foot during the second period, yet managed to finish the game.

The veteran Slovak had enjoyed a good tournament prior to getting hurt, scoring a pair of goals while getting healthy doses of ice time, including nearly 19 in a win over the Czechs in the group stage.

With Gaborik out, Mikkel Boedker will (presumably) make his tournament debut. Boedker has been a healthy scratch for the Europeans thus far, though it’s possible he could continue to sit if head coach Ralph Krueger elects to dress seven defensemen — Luca Sbisa would get the call — rather than plug in another forward.

As for the ramifications for L.A… well, this could be tough. Gaborik, signed through 2021 at $4.875M per, only scored 12 goals and 22 points in 54 games last season — missing extensive time with a lingering knee injury — and the Kings were hopeful he was in line for a bounce-back campaign, especially given how good he looked at the World Cup.

Sportsnet reports Gaborik is headed back to Los Angeles today.

‘Never say never,’ but Krueger’s commitment is to Southampton, not to making an NHL return

Southampton v Bayer Leverkusen - Pre Season Friendly
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Ralph Krueger spent one lockout-shortened season in charge of the Edmonton Oilers, before he was unceremoniously fired (via Skype) to make way for the hiring of Dallas Eakins.

But Krueger’s success at the World Cup, leading Team Europe into the best-of-three final against Team Canada, has a lot of people wondering if he might one day make an NHL return.

Krueger’s current full-time job is a big one — he’s chairman of Southampton Football Club in the English Premier League.

Suffice to say, it’s not a job one just leaves for anything.

“I came in here committed completely to Southampton Football Club and the future of that organization in my role,” Krueger said Sunday. “You can never say never, but at the moment I’m very proud to be back in hockey at this level and to be competing. We are just having so much fun in our room, the coaches, the players, the whole group is enjoying it, and I am, too. But my real life is my commitment to Southampton Football Club at the moment.”

Kreuger repeated his “never say never” line today, so it sounds like he’s at least open to the possibility. However, he insisted that he didn’t take the World Cup job with the goal of getting another job in hockey.

Related: Southampton smokes West Ham in London