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.

Pens coach praises Murray: ‘He doesn’t get rattled’

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Hot take: the Pittsburgh Penguins probably won’t deal with a goalie controversy going into Game 7.

(Ugh, that’s a failed hot take … you can’t use “probably” in those things, right?)

Matt Murray was fantastic at times during Game 6, much like his counterpart in the Tampa Bay Lightning’s net in a 5-2 win. Granted, there were some tense moments during the Bolts’ late-game push:

Much has been made about experience, especially from those calling for Marc-Andre Fleury earlier in this series. It’s telling that the praise Murray draws sure sounds like what you’d expect from a “veteran.”

“He has a calming influence,” Sullivan said. “He doesn’t get rattled. If he lets a goal in, he just continues to compete. That’s usually an attribute that usually takes years to acquire that, and to have it at such a young age is impressive.”

Thanks in part to Murray’s efforts in Game 6, he’ll get a chance to prove his resolve in something new: a Game 7 in the Eastern Conference Final.

Once again, his teammates seem pretty confident in this elimination situation.

Lightning lament Game 6 effort, Cooper doesn’t blame disallowed goal

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The Tampa Bay Lightning seemed to sleepwalk through the first two periods of Game 6, and waking up in the final frame wasn’t enough to edge the Pittsburgh Penguins.

On the bright side, at least the Lightning aren’t in denial about that weak first 40 minutes.

It seemed like everyone on the team more or less admitted as much in unison.

Brian Boyle added that he felt like the Lightning tiptoed around this game. Jon Cooper often provides great quips, yet he was pretty matter-of-fact in this case.

Many will linger on this disallowed goal for Jonathan Drouin, which would have provided a 1-0 lead for Tampa Bay in the first period.

Let’s face it; that moment came pretty early in the game. To Tampa Bay’s credit, they’re not pinning the loss on that setback.

Now they must set their sights on competing throughout Game 7 … and maybe earning some bounces of their own in the process.

Read more about Game 6 here.

Penguins force Game 7 after holding off Lightning rally

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The Pittsburgh Penguins played with fire late in Game 6, but they also showed plenty of fire in beating the Tampa Bay Lightning 5-2.

With that, this thrilling Eastern Conference Final will go the distance with Game 7 on Thursday.

There are at least a few “What if?” scenarios to consider, especially for the Lightning.

What if that offside goal counted?

Jonathan Drouin played some fantastic hockey on Tuesday, yet his most memorable moment came via something that ultimately “didn’t happen.” An offside call on a goal review kept a 1-0 lead from happening for Tampa Bay:

Instead, the Penguins poured it on during the first period and eventually went up 1-0. They then carried that momentum over through the second period, adding two more goals to go up 3-0 heading into the final frame.

What if Tampa Bay played more like they did in the third period?

The difference between the level of play in the first 40 minutes and the final frame were night-and-day.

Now, you can make a chicken-and-the-egg argument here. Did the Penguins take their feet off the gas with that lead? Maybe Jon Cooper finally unleashed the hounds when the Lightning were facing a big deficit?

Maybe it’s a combination of those factors; either way, the Bolts couldn’t come all the way back even after making it interesting. At one point the game was 3-2 before a Bryan Rust breakaway goal and an empty-netter put things out of reach.

Both Matt Murray and Andrei Vasilevskiy faced plenty of tough chances and came through more often than not. We’ll see if there are any goal controversy rumblings, but each netminder came through at times tonight.

***

Now the series shifts back to Pittsburgh for Game 7 with a Stanley Cup Final on the line. Excited and/or nervous yet?

More: Great goals by Sidney Crosby and Phil Kessel.

Sidney Crosby scores a superstar goal

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With the Pittsburgh Penguins’ season on the line in Game 6, plenty of eyes are on big guns Sidney Crosby, Evgeni Malkin, Kris Letang and Phil Kessel.

Those marquee names are really coming through so far as they’ve now built a 3-0 lead through two periods against the Tampa Bay Lightning.

You likely already saw Kessel’s display of high-end hand-eye coordination (if not, check it here). Kris Letang scored his first goal of the series to make it 2-0 on a very tricky, well-placed shot.

The highlight really might be Crosby’s tally, though. He left multiple Lightning players baffled and beat a very-much-game Andrei Vasilevskiy to beef that lead up 3-0.