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.

Nugent-Hopkins trying to ignore trade rumors — ‘If it happens, it happens’

BOSTON, MA - DECEMBER 14:  Ryan Nugent-Hopkins #93 of the Edmonton Oilers skates against the Boston Bruins during the first period at TD Garden on December 14, 2015 in Boston, Massachusetts.  (Photo by Maddie Meyer/Getty Images)
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The Ryan Nugent-Hopkins trade speculation may have died down since it peaked at the draft in late June, but it’s not entirely dead.

The 23-year-old former first overall draft pick was asked to address the ongoing rumors Monday at an Oilers charity golf tournament.

“I try not to pay attention too much,” Nugent-Hopkins said, per the Edmonton Journal. “If it happens, it happens. I know it’s definitely a different group than the one we finished with last season.”

Indeed it is. Most notably, Taylor Hall is in New Jersey now, traded for defenseman Adam Larsson. The Oilers also signed Milan Lucic and drafted Jesse Puljujarvi.

What’s still lacking is an offensive defenseman who can run the power play, which is why the names Tyson Barrie (Avalanche) and Matt Dumba (Wild) have been floated as potential targets.

The Wild in particular could use a good, young center like Nugent-Hopkins, and the expansion draft is looming for a Minnesota club that already has defensemen Ryan Suter, Jared Spurgeon, Jonas Brodin, and Marco Scandella locked up in long-term contracts.

Barrie, meanwhile, has an arbitration hearing scheduled for Friday.

Blues d-man Kevin Shattenkirk is another name that’s come up; however, he can become an unrestricted free agent after next season, and whether he’d re-sign in Edmonton is in doubt.

Flyers reportedly avoid arbitration with Manning, sign him for two more years

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Chalk up another arbitration hearing that won’t be required. This time it’s Brandon Manning‘s. The 26-year-old defenseman has agreed on a two-year, $1.95 million deal with the Philadelphia Flyers, according to CSN Philly.

Manning’s hearing was scheduled for next Tuesday. He was the last restricted free agent on the Flyers, after Brayden Schenn re-signed Monday.

Sportsnet’s Elliotte Friedman was the first to report the Manning signing.

Manning played 56 games for the Flyers in 2015-16, his first full season in the NHL. He had one goal and six assists while logging an average ice time of 16:32.

Report: Blackhawks, Rundblad agree to terminate contract

DALLAS, TX - OCTOBER 09:  David Rundblad #5 of the Chicago Blackhawks in the second period at American Airlines Center on October 9, 2014 in Dallas, Texas.  (Photo by Ronald Martinez/Getty Images)
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The Chicago Blackhawks are reportedly parting ways with defenseman David Rundblad. The two sides have agreed to a contract termination, according to Mark Lazerus of the Chicago Sun-Times.

Rundblad, 25, was set to earn $1.1 million this season, per General Fanager. His cap hit was $1.05 million, meaning the ‘Hawks will gain $100,000 in cap space by not having to bury his contract in the AHL next season.

Rundblad was unlikely to make the Blackhawks in 2016-17 — not after the additions of Brian Campbell and Michal Kempny, and also the re-signing of Michal Rozsival.

It remains to be seen where Rundblad will end up. One possibility is back in Switzerland, where he spent part of last season before dressing three times for the ‘Hawks in the playoffs.

Sydor named assistant coach of Blues’ AHL affiliate

OTTAWA, CANADA - OCTOBER 11: Assistant coach Darryl Sydor of the Minnesota Wild looks up at the jumbotron during a video review in a game against the Ottawa Senators, during the NHL home opener to kick off the Senators' 20th anniversary at Scotiabank Place on October 11, 2011 in Ottawa, Ontario, Canada.  (Photo by Jana Chytilova/Freestyle Photography/Getty Images)
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Darryl Sydor, after being let go by the Minnesota Wild, has joined the Chicago Wolves as an assistant coach.

The St. Louis Blues, the parent club of the AHL Wolves, made the announcement Monday. It was also announced that former NHLer Daniel Tkaczuk would join Sydor as an assistant on new head coach Craig Berube’s staff.

Sydor, who won two Stanley Cups as a defenseman, spent five years as an assistant on Mike Yeo’s staff in Minnesota. His time with the Wild was marred by an arrest in 2015 for drunk driving. He was sentenced to 60 days in jail and sought treatment.

“I know now that alcoholism is a disease and I’m powerless over alcohol,” he told Kamloops This Week in January. “I can never have a drink again and I’m fine with that.”