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.

Ducks light up Cam Talbot to defeat Oilers

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Chris Wagner‘s first career playoff goal was the turning point in Game 3 for the Anaheim Ducks, as they defeated the Edmonton Oilers 6-3 to get their first win of this series.

Connor McDavid had just scored (another) spectacular goal, this one to get the Oilers back on even terms at three goals apiece after they fell behind 3-0 in the opening period. The orange crush at Rogers Place was, naturally, in a frenzy at the time.

The tide of this game had suddenly turned in favor of the home team, which had a 2-0 series lead.

As suddenly as the Oilers had come back to tie the game, the Ducks regained the lead. Wagner fired the puck from the side boards toward Cam Talbot, who misplayed the puck off his right arm and into the net.

That was only one part of a difficult night for Talbot, who allowed six goals on 28 shots. Anaheim had built up a three-goal lead less than 12 minutes in and needed only six shots to do so.

Talk about a quick turn of events. Talbot was sensational in Game 2, backstopping the Oilers to another road win with a 39-save performance.Edmonton’s troubles started early in Game 3. Rickard Rakell scored just 25 seconds in on a breakaway and the Ducks were rolling from there.

Wagner’s goal came just 48 seconds after McDavid tied the game. Jakob Silfverberg and Ryan Kesler increased the Anaheim lead in the third period.

This time, there was no inspired comeback from the Oilers.

While the Ducks found their scoring touch, they also received a 24-save performance from John Gibson. He was at his best in the second period, making a couple of key saves, including a great shoulder stop off a three-on-one rush.

Game 4 goes Wednesday in Edmonton.

Video: Connor McDavid puts on a show with this spectacular goal

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Connor McDavid has his first goal of this series against the Anaheim Ducks — and it was a beauty.

(Another spectacular McDavid goal? Get out!)

With one assist so far in this series, McDavid brought the crowd in Edmonton to its feet with a quick stop and cut back to his left against Sami Vatanen, followed immediately with a perfect wrist shot top corner on John Gibson.

“McWow!” is right.

The Oilers fell behind 3-0 in the first period, but that goal from McDavid tied the game before the midway point of the second period.

The celebration didn’t last long.

Just 48 seconds later, Chris Wagner‘s shot from the side boards, a rather harmless looking attempt, was misplayed by Cam Talbot to put Anaheim back in front by a score of 4-3. That’s the score heading into the third period.

‘We weren’t even competitive’ — Blues coach hints at lineup changes for Game 4

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Lineup adjustments can be a common occurrence in the playoffs. Based on his comments Sunday, St. Louis Blues coach Mike Yeo is seriously looking to make some changes for Game 4.

The Blues trail the Nashville Predators 2-1 in the series, following a disappointing 3-1 loss on Sunday.

Nashville dominated puck possession for long stretches, putting this one away on a goal from Roman Josi after just such a shift — caused by a Blues turnover in the defensive end — late in the third period.

Yeo praised the Predators for the way they checked the Blues, but was straight to the point with his assessment of his team’s performance.

“I mean, we scored one goal tonight. Fact of the matter is, for a large part of the game, we weren’t even competitive,” he told reporters.

“We obviously have to be way better. We have to make a couple of changes, personnel-wise, for the next game and look at the tape and see what we can do … a little bit better than tonight because it wasn’t good enough.”

Despite getting outplayed, the Blues were, for much of the second half of the game, one shot away from the tying goal. But hopes of a possible comeback were nullified after a shift of about 1:10 of furious Nashville possession in the offensive zone capped off by the Josi blast.

Blues defensemen Joel Edmundson and Colton Parayko — who both had a miserable day in terms of puck possession — had been stuck on the ice for almost two minutes before Josi scored, per NHL.com.

That’s one glaring example.

“The way we played in our [defensive zone] matched the way that we executed, matched the way that we competed all over the ice,” said Yeo.

“We were waiting to see what they were going to do. We were reacting to that. So we’ve got to initiate much better.”

No mic? No problem: Oilers fans sing American, Canadian national anthems

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There was apparently an issue with a microphone used for the national anthems prior to Game 3 between the Ducks and Oilers in Edmonton.

Canadian country music star Brett Kissel was supposed to perform the anthems, however, as he stepped up to the mic, he soon discovered that there seemed to be a malfunction.

With some quick encouragement from Kissel, fans at Rogers Place stole the show with stirring renditions of both the American and Canadian national anthems.

Here is the Star Spangled Banner:

Here is O Canada: