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.

Bovada gives McDavid higher odds than Crosby to win Hart in 2017-18

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In handing Connor McDavid an eight-year, $100 million extension, the Edmonton Oilers essentially are paying the 20-year-old star based on the assumption that he’ll provide MVP-quality play.

At least one Vegas oddsmaker agrees, as Bovada tabbed McDavid as the favorite to win the Hart Trophy, edging Sidney Crosby.

That’s interesting, yet it might be even more interesting to note where other players fall in the rankings. Auston Matthews coming in third is particularly intriguing.

Who are some of the more interesting choices? The 20/1 range seems appealing, as Carey Price is one of the few goalies with the notoriety to push for such honors while John Tavares has the skill and financial motivation to produce the best work of his career next season.

Anyway, entertain yourself with those odds, via Bovada: (Quick note: Bovada originally had Artemi Panarin listed as still playing with Chicago. PHT went ahead and fixed that in the bit below.)

2017 – 2018 – Who will win the Hart Memorial Trophy as the NHL’s Most Valuable Player?
Connor McDavid (EDM)                         3/2
Sidney Crosby (PIT)                              5/2
Auston Matthews (TOR)                         17/2
Alex Ovechkin (WAS)                            9/1
Patrick Kane (CHI)                                 14/1
Vladimir Tarasenko (STL)                       15/1
Evgeni Malkin (PIT)                                16/1
Carey Price (MON)                                 20/1
John Tavares (NYI)                                20/1
Jamie Benn (DAL)                                 25/1
Steven Stamkos (TB)                             25/1
Erik Karlsson (OTT)                               33/1
Nikita Kucherov (TB)                              33/1
Jack Eichel (BUF)                                  50/1
Ryan Getzlaf (ANA)                               50/1
Patrik Laine (WPG)                                50/1
Brad Marchand (BOS)                            50/1
Tyler Seguin (DAL)                                50/1
Nicklas Backstrom (WAS)                      60/1
Brent Burns (SJ)                                    60/1
Braden Holtby (WAS)                            60/1
Phil Kessel (PIT)                                    60/1
Artemi Panarin (CBJ)                              60/1
Joe Pavelski (SJ)                                  60/1

Oilers cap situation is scary, and not just because of Draisaitl, McDavid

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The Edmonton Oilers pulled the trigger – and likely made teams with big RFA headaches like the Boston Bruins grimace – in signing Leon Draisaitl to a massive eight-year, $68 million contract on Wednesday.

You have to do a little stretching to call it a good deal, although credit Puck Daddy’s Greg Wyshysnki with some reasonably stated optimism.

Either way, the per-year cap bill for Connor McDavid and Draisaitl is $21 million once McDavid’s extension kicks in starting in 2018-19; that’s the same combined cost that Jonathan Toews and Patrick Kane receive … and those two got those paydays after they won three Stanley Cups for the Chicago Blackhawks.

Now, if the Oilers struggle in the near future, plenty of people will heap blame on McDavid and/or Draisaitl. Really, though, the true scapegoats should be a management team with more strikeouts than homers.

(As usual, Cap Friendly was a key resource in studying Edmonton’s salary structure.)

Bloated supporting cast

There are some frightening contracts on the books in Edmonton, especially if a few situations work out unfavorably.

At 29, there’s severe risk of regression with Milan Lucic, even if he enjoys a more stable second season with Edmonton. He carries a $6M cap hit through 2022-23, so he’ll be on the books for all but two years of Draisaitl’s new deal.

Kris Russell costs $4.167M during a four-year stretch, and even now, he has plenty of critics. Those complaints may only get louder if, at 30, he also starts to slip from his already debatable spot.

Andrej Sekera‘s been a useful blueliner, yet there’s some concern that time won’t treat him kindly. He’s dealing with injuries heading into 2017-18, and at 31, there’s always the risk that his best days are behind him. Not great for a guy carrying a $5.5M cap hit through 2020-21.

One can’t help but wonder if Ryan Nugent-Hopkins might be an odd man out once the shackles of the salary cap really tighten. Just consider how much Edmonton is spending on a limited number of players, and you wonder if the 24-year-old will be deemed too pricey at his $6M clip.

Yeah, not ideal.

It’s not all bad

Now, let’s be fair.

RNH could easily grow into being well worth that $6M. Draisaitl may also justify his hefty price tag. McDavid honestly cut the Oilers a relative deal by taking $12.5M instead of the maximum.

The Oilers also have two quality, 24-year-old defensemen locked up to team-friendly deals: Oscar Klefbom ($4.167M through 2022-23) and Adam Larsson ($4.167M through 2020-21). They need every bargain they can get, and those two figure to fit the bill.

Crucial future negotiations

GM Peter Chiarelli’s had a questionable history of getting good deals. He’ll need to get together soon, or the Oilers will really struggle to surround their core with helpful support.

Cam Talbot is a brilliant bargain at the strangely familiar cap hit of $4.167M, but that value only lasts through 2018-19. After that, he’s eligible to become a UFA, and could be massively expensive if he produces two more strong seasons.

The bright side is that the Oilers aren’t locked into an expensive goalie, so they can look for deals. That isn’t as sunny a situation if you don’t trust management to have much success in the bargain bin.

Talbot isn’t the only upcoming expiring contract. The Oilers have serious questions to answer with Darnell Nurse and Ryan Strome. Also, will they need to let Lucic-like winger Patrick Maroon go? Even with mild relief in Mark Fayne‘s money coming off the books, the Oilers might regret this buffet when the bills start piling up next summer.

***

Look, the truth is that management is likely to be propped up by the top-end in Edmonton, particularly in the case of McDavid’s otherworldly skills. As much as that Draisaitl deal looks like an overpay – possibly a massive one – there’s a chance that he lives up to that $8.5M, too.

It’s not just about those stars, though.

The Pittsburgh Penguins gained new life by complimenting Sidney Crosby and Evgeni Malkin with the likes of Phil Kessel. The Blackhawks have struggled once they couldn’t afford as much help for Kane and Toews.

You have to mix your premium items with bargains, and one wonders if the Oilers will be able to spot sufficient value beyond the no-brainer top guys. Their recent history in that area certainly leaves a lot to be desired.

Cullen signs with Wild, opting against retirement (and Penguins)

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Matt Cullen is going home, but that doesn’t mean that he’s retiring from hockey.

Instead, the Minnesota native decided to sign a one-year, $1 million deal with the Minnesota Wild. It’s unclear why, precisely, Cullen didn’t ink a deal to try to “threepeat” with the Pittsburgh Penguins.

The Wild note that his deal also includes $700K in potential performance bonuses.

This will be the 40-year-old’s second run with the Wild. His first run came from 2010-11 through 2012-13, where he appeared in 193 regular-season games and five postseason contests for Minnesota.

Cullen managed back-to-back 30+ point seasons with the Penguins while providing useful all-around play as a veteran center. If he can maintain a reasonably high level of play, this gives the Wild quite the solid group down the middle, even with Martin Hanzal gone.

Oilers ink Draisaitl to monster eight-year, $68 million deal

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The Edmonton Oilers have locked up their cornerstone players for the foreseeable future.

They didn’t come cheap.

Just weeks after signing Connor McDavid to a eight-year, $100 million deal, the Oilers signed fellow forward Leon Draisaitl to an eight-year, $68 million deal. The contract carries a $8.5M average annual cap hit and, combined with McDavid’s $12.5M, will now cost the Oilers $21M annually through 2025.

McDavid certainly warranted his payday. The same can be said of Draisaitl.

The 21-year-old just wrapped his three-year, entry-level deal, and couldn’t have done so in finer fashion. Draisaitl enjoyed a terrific season, platooning between the second-line center position and the wing alongside McDavid, and finished with 29 goals and 77 points.

Then, the playoffs happened.

Draisaitl had a terrific postseason, racking up six goals and 16 points in 13 games. At the time of elimination he was sitting second among all scorers — trailing only Evgeni Malkin — and was downright brilliant in Edmonton’s seven-game loss to Anaheim, finishing with 13 points.

More to follow…