Gary Leeman

Ask a Lawyer: Do the players suing the NHL over concussions have a case?

31 Comments

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.

Raanta rewards Rangers for starts over Lundqvist by blanking Blackhawks

VANCOUVER, BC - NOVEMBER 15: Goalie Henrik Lundqvist #30 of the New York Rangers shares a laugh with teammate Antti Raanta #32 after defeating the Vancouver Canucks 7-2 in NHL action on November 15, 2016 at Rogers Arena in Vancouver, British Columbia, Canada.  (Photo by Rich Lam/Getty Images)
Getty
2 Comments

If someone told you that the New York Rangers started a goalie on back-to-back nights, and that goalie wasn’t Henrik Lundqvist, you’d probably wonder if he was hurt or retired.

Nope. It just so happens that Antti Raanta is playing at an incredibly high level, Alain Vigneault noticed, and that decision paid dividends on Friday night. Raanta won both nights of a back-to-back, allowing a single goal (with the Rangers protecting him, being that he only needed to stop 43 of 44 shots during that span).

Raanta and the Rangers blanked the Chicago Blackhawks with a 1-0 overtime win, at least briefly climbing to first place in the massively competitive Metro Division:

1. Rangers – 39 points in 29 games played
2. Penguins- 37 points in 27 GP
3. Blue Jackets – 36 points in 25 GP
4. Capitals – 35 points in 26 GP
5. Flyers – 35 points in 29 GP

Nick Holden ended up scoring the only goal of the game:

Meanwhile, the Blackhawks lost but at least salvaged a standings point and it seems like Patrick Kane is OK after this injury scare:

Raanta improved to 7-1-0 on the season, allowing two goals or less in all but one of his appearances so far this season. That’s the kind of work you’d expect to see if you’re going sit a guy who’s, you know, a living legend.

Blue Jackets remain in thick of things in Metro on tough night for Red Wings

DENVER, CO - DECEMBER 01:  Boone Jenner #38 of the Columbus Blue Jackets is congratulated by his teammates after scoring the go ahead goal against the Colorado Avalanche at the Pepsi Center on December 1, 2016 in Denver, Colorado.  (Photo by Matthew Stockman/Getty Images)
Getty
Leave a comment

As the Columbus Blue Jackets keep rolling, the Detroit Red Wings are probably just happy to get Friday behind them.

For the second straight game, the Blue Jackets beat their opponent 4-1.

They’re now on a five-game winning streak, and like the climbing St. Louis Blues, things look great if you go back a little further. They’re 10-1-2 in their last 13 games and 13-2-3 since November began.

Columbus is now at 16-5-4, giving them 36 standings points. They’re once again in breathing distance of leading the Metro Division when you consider games in hand.

Update: Here’s how the standings look after the Rangers beat the Blackhawks 1-0 in overtime:

1. Rangers – 39 points in 29 games played
2. Penguins- 37 points in 27 GP
3. Blue Jackets – 36 points in 25 GP
4. Capitals – 35 points in 26 GP
5. Flyers – 35 points in 29 GP

That’s a stout division, and the Blue Jackets remain shockingly effective. Then again, with results like these over and over again, it might be time to merely expect such impressive work.

***

For Detroit, it was a rough night. Jonathan Ericsson couldn’t play, Mike Green was a little banged up and Petr Mrazek was pulled for Jimmy Howard. This goal summarized some of their struggles:

Blues blaze through Devils, even in New Jersey

NEWARK, NJ - DECEMBER 09: (L-R) Brad Hunt #77, Robby Fabbri #15 and Vladimir Tarasenko #91 of the St. Louis Blues celebrate Fabri's first period goal against the New Jersey Devils at the Prudential Center on December 9, 2016 in Newark, New Jersey.  (Photo by Bruce Bennett/Getty Images)
Getty
Leave a comment

The New Jersey Devils have been incredibly difficult to beat at home. Lately, the St. Louis Blues have been on a roll just about anywhere.

On Friday night, the Blues were the hotter team, handing the Devils their first home loss in regulation in 2016-17. And it wasn’t particularly close, with St. Louis winning 4-1.

It’s a convenient time to note that the Blues rank among the hottest teams in the NHL. Most recently, they’re 5-1-1 in their last seven games, but they’ve been especially impressive since they flirted with .500 at 7-6-3. Beginning with a 4-1 win against the Buffalo Sabres on Nov. 15, the Blues are on a 8-2-1 tear.

This leaves them second in the Central with a 16-8-4 record.

That’s impressive stuff.

This 4-1 win was quite the showcase for Robby Fabbri and Vladimir Tarasenko, in particular. Tarasenko collected three assists while Fabbri scored two goals on Friday night. His second goal was particularly slick:

The Blues are right in saying that this was a pretty fitting opportunity to drop a “Holy Jumpin.”

Oh yeah, don’t forget about Jake Allen, either.

Leon Draisaitl continues hot streak with silky smooth goal (Video)

Leave a comment

Minnesota Wild goalie Devan Dubnyk has been the most difficult goalies to score against this season. Leave it to a high-level player like Leon Draisaitl to make it look this, well, “easy.”

Draisaitl scored his 13th goal of 2016-17 by capping this pretty give-and-go play with Benoit Pouliot. You can see the frustration from Dubnyk at the end of the tally, as if he was saying “How was I supposed to stop that?” (though probably with more colorful language).

Draisaitl came into Friday with five goals and three assists in his last five games, so he’s been almost unstoppable lately.

Read more about his rise here.

Update: The Wild were able to shake off that goal, ultimately beating the Oilers 3-2 via a shootout.