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.

Video: Crosby to Dan Patrick – Subban fight ‘wasn’t as bad as it looked’

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Listerine, the 2017 Stanley Cup Final, and a growing rivalry. Sidney Crosby and P.K. Subban battled it out at the highest level not so long ago, but some of that action looked worse than it actually was.

At least, that’s the message Crosby sent on “The Dan Patrick Show,” as you can enjoy in the clip above.

As a bonus, Crosby also discussed his favorite Stanley Cup traditions – hey, there can be traditions when something happens three times – and how Mario Lemieux inspires some especially creative ideas:

Rebuild on hold? Red Wings reportedly eye Girardi, Hainsey, Daley

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For the first time in ages, the Detroit Red Wings missed the playoffs. To some, the sliver lining was that this might send a message to management to truly commit to a rebuild.

Perhaps GM Ken Holland & Co. aren’t quite ready for that.

Look, one or even a couple of potential free agent signings won’t disqualify the Red Wings from going younger. Still, the rumored defensemen they’re targeting aren’t exactly spring chickens.

Three names floating out there are Trevor Daley, Dan Girardi, and Ron Hainsey.

Daley was mentioned by The Athletic’s Craig Custance, MLive.com’s Ansar Khan, and the Detroit Free-Press’ Helene St. James. Khan and Custance both mention Hainsey and Girardi, too.

Even in one-case mentions, the “veteran” theme continues, with Brian Campbell‘s name coming up while forward Thomas Vanek seems like at least a remote possibility to return to Detroit.

Let’s look at the ages of the defensemen mentioned, noting that Daley is older than some might have expected.

Daley – 33
Girardi – 33
Hainsey – 36
Campbell – 38

In the case of Daley and Girardi, you could also argue that each blueliner also has a lot of “mileage” for their age. Girardi, in particular, plays the sort of grinding, shot-blocking style that might have accelerated his troubles with the Rangers.

As great as experience might be, even for a “final push,” this sends a troubling signal. In Mike Green (31), Jonathan Ericsson (33), and Niklas Kronwall (36), the Red Wings already have an aging group of defensemen. Kronwall and Ericsson are dealing with injuries that may hinder them for the remainder of their careers, too.

When you also note that Holland exposed 25-year-old goalie Petr Mrazek instead of 33-year-old Jimmy Howard, the picture isn’t especially pretty.

Maybe the Red Wings can have their cake (push for a playoff rebound) and eat it too (start to transition to youth), yet it’s not necessarily the aggressive move toward a rebuild that many likely hoped to see.

At least there’s time for Holland to prove these early worries wrong.

Note: In other Red Wings news, the team signed Ben Street to a one-year extension.

Blue Jackets sign Schroeder after trading for him

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Not long after acquiring him in a minor trade from the Minnesota Wild, the Columbus Blue Jackets signed Jordan Schroeder to a two-year contract.

The team confirms that it is a two-way deal for 2017-18 and then becomes one-way in 2018-19.

Schroeder is guaranteed $350K for the first year of that contract and then $650K in 2018-19, according to the Columbus Dispatch’s Aaron Portzline.

The 22nd pick of the 2009 NHL Draft receives a fitting contract: he’s been a “tweener,” bouncing around the NHL and AHL. He hasn’t been able to make much of an impact, Schroeder at least provides some organizational depth.

That could come in handy, as Portzline indicates that Sam Gagner – not so surprisingly – is expected to garner a lot more attention this time around in free agency. Perhaps Schroeder could serve as insurance for Gagner?

NCAA star Spencer Foo chooses the Flames

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NCAA standout forward Spencer Foo decided to sign with the Calgary Flames, as The Sports Corporation and team confirmed. The signing might not be official until free agency kicks off on Saturday, July 1, but he apparently made his decision.

After managing 25 points in each of his first two seasons with Union College, Foo exploded in 2016-17, racking up 26 goals and 62 points. You can see some of his highlights in the video above.

He didn’t go drafted, so this could be a case of another scorer blossoming late.

Foo is an Edmonton native, so playing close to home in Calgary likely factored into his decision. He was connected to the Edmonton Oilers in earlier rumors while MLive.com’s Ansar Khan indicates that his final choice came down to the Flames or the Detroit Red Wings.

Calgary is already classifying him as a RW. Perhaps he’ll be that long-desired fit for Johnny Gaudreau and Sean Monahan? There’s another positive aspect for the Flames, as this might help to soften the blow of giving up a bundle of assets in the Travis Hamonic deal.

The Sports Corporation tweeted out a photo of Foo, 23, in a Flames jersey: