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.

PHT Morning Skate: Shea Weber’s shot has injured a lot of people

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–Blue Jackets assistant coach Brad Shaw took a risk by leaving the Blues organization after 10 years, but it appears to have paid off. He and the rest of the staff have found a way to make the Jackets a competitive team in 2016-17.(Ottawa Citizen

–The San Jose Sharks are giving away “Chia Jumbo Joe Thornton” on Saturday, and they made a pretty cheesy/funny commercial to promote the occasion. (Top)

–Canadiens goalie Al Montoya is the first player of Cuban heritage to play in an NHL game. He’s hoping that his journey to the NHL will inspire others like him to make the leap to the pro ranks. “To play this game from where I came from and my background, it’s who I am and what I’m made of,” said Montoya. “Without the sacrifices my family made to get to the United States and put me in hockey, I wouldn’t be here. The Cuban background is a huge part of what I am.” (NHL.com)

Ryan O'Reilly sat down for a Q&A with ESPN’s Pierre LeBrun. They discussed his new beard, what it was like to play with one of his favorite players, Joe Thornton and why he thinks the Sabres haven’t been very good this season. With Buffalo currently in last place in the East, O’Reilly admits that he could do a better job as one of the leaders on the team. (ESPN)

Shea Weber has one of the heaviest slap shots in the NHL and as you’d imagine, he’s caused a few injuries over the years. According to this list, Weber’s shot has injured 11 people since 2009, including his former GM David Poile and current teammate Max Pacioretty (twice). (BarDown)

–Sportsnet has a “ref cam” on some of their hockey broadcasts. It gives fans a different view of the game, which is pretty cool. Here’s a look at some of the best “ref cam” moments from Wednesday’s game between the Habs and Penguins.

Hitchcock believes Blues’ Allen is ‘locked up mentally’

NEW YORK, NY - DECEMBER 08: Jake Allen #34 of the St. Louis Blues makes the third period save against the New York Islanders at the Barclays Center on December 8, 2016 in the Brooklyn borough of New York City. (Photo by Bruce Bennett/Getty Images)
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Things were already rough for the St. Louis Blues and their goalies (particularly still-pretty-newly crowned No. 1 Jake Allen) heading into Thursday, but the Washington Capitals really highlighted those issues in a 7-3 thrashing.

Blues fans and management must be wondering, then: what’s wrong with their goalies, especially with Allen? Head coach Ken Hitchcock seems resigned to allowing him to fight through it, if nothing else.

“There’s a lot going on right now. … He’s kind of locked up mentally and he’s going to have to fight through this,” Hitchock said, according to Lou Korac of NHL.com. “What we see at practice, we like. That’s why we put him in quite frankly.”

Alex Pietrangelo did the typical deflecting thing, nothing that this is a “team” and that there are “no individuals.”

Still, Hitchcock’s longer press conference makes you wonder how much trust there is in Allen and Carter Hutton.

From Hitch’s perspective, it sure sounds like he believes that the Blues are over-correcting to try to limit “goals, shots.” By trying to do too much, they might be putting themselves in bad positions. And that might stem from a lack of confidence in the guys in net, or in the team’s work in their own zone overall.

Let’s be honest. As much as we can play chicken-or-the-egg as far as a defense’s impact on a goalie, it’s tough to explain away save percentages under .900 in the modern NHL. At some point, your team needs more stops.

With the races for the lower spots in the Western Conference’s playoff picture seemingly tightening up, the Blues don’t have a ton of time to figure this out.

Capitals shine glaring light on Blues’ goalie woes

ST LOUIS, MO - MAY 23:  Jake Allen #34 of the St. Louis Blues makes a save during the first period against the San Jose Sharks in Game Five of the Western Conference Final during the 2016 NHL Stanley Cup Playoffs at Scottrade Center on May 23, 2016 in St Louis, Missouri.  (Photo by Jamie Squire/Getty Images)
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If you’re reaction to the headline “Something is off about the St. Louis Blues” was “Yeah, their goaltending,” then Thursday only emboldened that opinion.

It wasn’t just that the Washington Capitals bombarded the Blues by a score of 7-3. It’s that they really didn’t need to fire a whole lot of shots on goal to get to seven.

Here’s a harsh rule of thumb: when both of your goalies play in a game and each one barely makes more saves than goals allowed, that’s an awful night. Take a look at what Jake Allen and Carter Hutton went through:

Allen: six saves, four goals allowed in 25:11 time on ice
Hutton: five saves, three goals allowed in 35:49

Allen got pulled from the contest twice, by the way. He’s been pulled from four games since Dec. 30. Woof.

Even before these horrendous performances, the Blues goalies have been shaky. Hutton came into tonight with an ugly .898 save percentage; Allen wasn’t much better with a .900 mark.

Those are the type of numbers that would make Dallas Stars fans cringe, or at least experience some uncomfortable familiarity.

Now, is it all on Hutton and Allen? Much like with the Stars’ embattled goalies, much of the struggles probably come down to a team struggling in front of them.

Even so, if you assign more of the blame to Allen and Hutton, nights like this Capitals thrashing definitely strengthen your argument. Yikes.

Rangers overwhelm Leafs, make life pretty easy for Lundqvist in win

TORONTO, ON - JANUARY 19:  Henrik Lundqvist #30 of the New York Rangers faces a shot in the warm-up prior to play against the Toronto Maple Leafs in an NHL game at the Air Canada Centre on January 19, 2017 in Toronto, Ontario, Canada. (Photo by Claus Andersen/Getty Images)
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Heading into Thursday, many were wondering how the New York Rangers will handle Henrik Lundqvist‘s struggles. Instead, the focus shifted to the Toronto Maple Leafs’ difficulties, perhaps specifically in dealing with Morgan Rielly‘s absence.

The Rangers handily won this one 5-2, at least giving Lundqvist the win. He wasn’t especially busy, stopping 23 out of 25 shots, so you can probably file his story under “To be continued.”

Lundqvist wasn’t oblivious to his team’s impressive overall play.

Really, it was all about the waves of attackers the Rangers can send at opponents and the trouble that caused for the Maple Leafs. It wasn’t the easiest night for Frank Corrado, in particular, who took a couple costly penalties.

The Rangers’ next two games come in a road contest vs. the Red Wings on Sunday and a home game against the Kings on Monday. Perhaps those matches will serve as a better barometer for where Lundqvist’s really at, as he passed tonight’s test … but it wasn’t a particularly difficult one.