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.

Video: Flyers lose Schultz after big hit from McIlrath

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It looks like the injury bug has taken another chunk out of the Philadelphia Flyers.

The Flyers, who are already without Mark Streit, Ryan White and R.J. Umberger, have now lost Nick Schultz to injury.

Schultz left Saturday’s game against the Rangers in the first period after taking a hit from Rangers defenseman Dylan McIlrath.

Luke Schenn went after McIlrath right after he delivered the hit and both players dropped the gloves.

Schultz did not return.

You can watch the entire sequence by clicking on the video at the top of the page.

The 33-year-old has just one assist in 23 games, but he leads the Flyers in blocked shots with 54.

Goalie nods: Bernier has a ‘huge’ opportunity to prove himself vs. Caps

Jonathan Bernier
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Jonathan Bernier hasn’t been very good in ’15-16, but he’ll have a great opportunity to right the ship on Saturday night.

Facing the Washington Capitals is never an easy task if you’re a goaltender, of course, but Bernier can’t afford to be picky with his chances.

The 27-year-old is still looking for his first win of the season, as he has an overall record of 0-7-1. His 3.17 goals-against-average and a .895 save percentage are just as bad as his record.

Starter James Reimer is out tonight after suffering an injury in practice and although Bernier probably can’t win the starting job with just one good game, a solid performance would go a long way.

He’ll go head-to-head with Capitals goalie Braden Holtby.


Cory Schneider will face the Habs for the second time in two nights. The Canadiens are expected to go with Dustin Tokarski, but that hasn’t been confirmed. Montreal beat New Jersey, 3-2, in a shootout on Friday.

-The Islanders have yet to confirm a starter, but they’ll likely go up against Ben Bishop on Saturday night.

-Expect Linus Ullmark to go up against Pekka Rinne when the Sabres and Predators clash in Nashville. Rinne is on a season-high four-game losing streak.

-The Oilers may turn to Anders Nilsson against the Penguins. Pittsburgh will decide between giving Marc-Andre Fleury two starts in two nights or going with Jeff Zatkoff.

-The Stars, like Pittsburgh, will have to decide if they want to give Antti Niemi a second game in two nights. They will be going up against Devan Dubnyk and the Minnesota Wild on Saturday.

Sergei Bobrovsky will get the start in Saturday’s game against the St. Louis Blues. He was solid in a 2-1 OT win over the Penguins on Friday night. The Blues will counter with starter Jake Allen.

-The Jets have yet to confirm a starter in Denver. They’ll be going up against Semyon Varlamov, who was pulled in Wednesday’s game against Ottawa after he allowed three goals on 15 shots.

Craig Anderson will look to win his fifth straight game when the Senators take on Arizona. The ‘Yotes still haven’t named a starter.

Jonas Hiller is likely to get the start against San Jose, while the Sharks will definitely be countering with starter Martin Jones. The Sharks goaltender is coming off a loss to the ‘Hawks, but previously won five in a row.

Scott Darling will put his 2-2-1 record on the line against the Kings. Jonathan Quick will probably be between the pipes for the Kings. Quick has a 7-15-1 record against the ‘Hawks in his career.

The verdict is in: Dubinsky gets one game for cross-checking Crosby


Brandon Dubinsky has been suspended one game for his cross-check to the back of Sidney Crosby‘s neck.

The incident took place during the second period of Friday’s game.

Crosby did head to the locker room after the play, but he was able to return.

When deciding on the number of games to give Dubinsky, here’s what the NHL took into account:

  1. Dubinsky delivered a clear cross-check.
  2. Dubinsky has been fined before, but never suspended.
  3. Crosby wasn’t seriously injured on the play.

“In this case, while Dubinsky’s cross-check isn’t overly violent or forceful, it is an intentional strike to an opponent’s head using his stick,” the NHL said in their explanation of the play. “This is not a case where the head contact was caused by a sudden movement by Crosby or by a stick riding up a player’s back or shoulders and making subsequent contact with the head.”

Click on the video at the top of the page to watch the NHL’s full explanation.

The Blue Jackets take on the Blues in St. Louis tonight.

Ready to Roll: Oilers activate Schultz from IR, send down Reinhart

Justin Schultz
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The Edmonton Oilers activated defenseman Justin Schultz off injured reserve and assigned Griffin Reinhart to the minors.

Schultz has missed the last 14 games because of a back injury, but he’ll suit up in Saturday’s game against the Pittsburgh Penguins.

The 25-year-old has one assist and a minus-6 rating in nine games in ’15-16.

Here’s his interview with Oilers TV from earlier today:

Reinhart was acquired in an off-season trade with the New York Islanders this summer.

The former fourth overall pick has no points and a minus-1 rating in 12 games with the Oilers.