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.

Mario Lemieux is ‘fine’ with Josh Ho-Sang wearing number 66

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Believe it or not, many people have an issue with Islanders rookie Josh Ho-Sang wearing number 66, but it sounds like former Penguins great Mario Lemieux isn’t one of them.

On Thursday, Lemieux made it clear that Ho-Sang using his number wasn’t an issue.

“I’m fine with it,” Lemieux said via a spokesperson, per the Pittsburgh Post-Gazette. “It’s just a number. Number 4 and number 9 were worn by great players (Bobby Orr and Gordie Howe, respectively), and they are not retired forever. Players can choose whatever number they want.”

 Unlike the number 99, the NHL hasn’t retired 66, which means any player can still use it.

Some see it as a sign of disrespect, but Ho-Sang has made it clear that that’s the last thing on his mind when he decided he wanted to wear Lemieux’s old number.

“It’s honoring [Lemieux] and just, I think a lot more people remember who he is now because they’re yelling at me about wearing the number, right? I think that’s cool too,” he told Newsday earlier this month. “There’s a lot of light being shined on an amazing player. By no means am I trying to be better than or trying to prove anything. For me, it’s definitely a tribute to a great player. If he asked me not to wear it, I’d definitely consider it, but I haven’t gotten any phone calls or anything. So for now I’m gonna wear it.”

Even though Lemieux has now given his blessing, don’t be surprised if Penguins fan are all over Ho-Sang during Friday’s game between the two teams at PPG Paints Arena.

PHT Morning Skate: Matt Duchene helps fan land a prom date

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Matt Duchene may be having a tough season, but he picked up a terrific assist on Thursday night, as he flipped a puck to a fan and helped her get a prom date in the process. (Top)

–Sportsnet breaks down the five longest individual playoff streaks. Henrik Zetteberg has the longest active streak, but that’s about to come to an end in the next few weeks. After the Red Wings are officially eliminated from the playoffs, Sharks defenseman Paul Martin will own the longest streak. (Sportsnet)

–As you may have seen, yesterday was National Puppy Day. Several NHL players shared pictures of themselves with their dogs. BarDown has accumulated some of the best ones. (BarDown)

–The Hockey News’ Ken Campbell thinks the NHL could improve the World Cup by taking some ideas from the World Baseball Classic. Campbell writes: “Not only was the World Cup in one country, heck it was in one city, in one arena. The World Baseball Classic, on the other hand, was played in four countries – South Korea, Japan, Mexico and USA, with three different American cities hosting games. If you want to capitalize on the unique passion that many European fans have for the game, you have to bring it to them and make them feel a part of the experience.” (The Hockey News)

Al Montoya is the first Cuban-American player to make it to the NHL, and he spoke to the Montreal Gazette’s Stu Cowan about his heritage. “I’m a first-generation Cuban-American. You don’t really hear that a lot. A lot of these (Cuban) people have been here for a while, so it’s something that’s special to me. Where my grandparents came from … they passed away a few years ago, but for me it was always a sense of pride the way that my grandparents carried themselves. The traditions that we had during the holidays … whatever it might be. (Montreal Gazette)

–The Vegas Golden Knights and Cirque du Soleil have become strategic entertainment partners. This partnership should make in-game entertainment pretty interesting. “Cirque du Soleil has had a significant presence in Las Vegas since 1992 and continues to be one of the most popular entertainment options in town. We are always looking for creative ways to enhance the overall fan experience at our home games and this partnership certainly helps advance that objective.” (NHL.com/GoldenKnights)

A big night for the rookies and a big win for the Maple Leafs

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William Nylander helped get Toronto started on Thursday, extending his point streak to 10 games — a new Maple Leafs franchise record for a rookie.

Connor Brown finished it with his 17th goal of the season, securing a 4-2 win for the Maple Leafs over the New Jersey Devils.

Toronto has won three in a row and moves three points clear of Boston for third in the Atlantic Division, with a game in hand, which further helps the Maple Leafs’ playoff chances with nine games remaining on their schedule.

Just another big night for Toronto’s impressive crop of rookies.

Auston Matthews had a pair of assists.

— Nylander had a goal and an assist. He set one and tied another franchise rookie record on Thursday.

Mitch Marner had an assist, giving him 40 helpers this season, which ties the franchise rookie record set in 1943-44.

“They’re good players,” said coach Mike Babcock, per the Toronto Star. “I didn’t know Marner would make the team. I knew Matthews and Nylander were good players. I knew Brown and (Zach) Hyman were relentless. I had no idea (Nikita) Zaitsev was as close to how good he is.

“We have lots of good players.”

In May of 2015, Babcock predicted at his introductory press conference that the Maple Leafs would, during their massive rebuild, endure “pain.” This was, he said, to be a long process — a “massive, massive challenge.”

Approaching the two-year anniversary of that event — after all the losing that franchise and its fan base has gone through, which obviously helped them with the Matthews lottery last year — the Maple Leafs are poised to make the playoffs with a nucleus of young players that present even more promise for the future.

“We just want to get in to the playoffs, and give ourselves a chance,” continued Babcock. “We’re playing well, and finding a way to win games. That’s what we have to continue to do.”

Capitals defeat Blue Jackets in clash of Metropolitan Division powers

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WASHINGTON (AP) T.J. Oshie scored the shootout winner as the Washington Capitals overcame a stellar performance from Columbus goaltender Sergei Bobrovsky to beat the Blue Jackets 2-1 Thursday night.

Despite 44 saves from Bobrovsky, the Capitals reached 104 points and extended their lead atop the Metropolitan Division and NHL standings. Oshie engendered memories of his Sochi Olympic shootout performance by again beating Bobrovsky, the goalie he scored on four times in six chances that day.

Dmitry Orlov finally cracked Bobrovsky early in the third period on Washington’s 35th shot of the game. Orlov’s goal tied the score after Seth Jones beat Braden Holtby on a wild scramble early in the third for his first goal since Feb. 7.

Holtby had 29 saves in regulation and overtime and three more in the shootout to pick up his 38th victory of the season, one shy of Bobrovsky for the league lead.

A showdown between two of the top three teams in the league jockeying for position atop the Metropolitan Division lacked a playoff feel. But the matchup of two likely Vezina Trophy finalists lived up to that billing as Bobrovsky and Holtby went back and forth with big saves.

Bobrovsky entered the night first in wins, goals-against average and save percentage with Holtby second, second and third in those categories. The 2013 Vezina winner could also be an MVP contender this season given his value to Columbus’ third playoff berth in franchise history.

“When he’s in his game it’s very hard to score on him,” said Capitals captain Alex Ovechkin, who had eight shots stopped by one of his Russian national teammates. “He likes the big moments, he likes pressure. His worth ethic is unbelievable. … In my opinion he’s one of the best goalies in the league right now.”