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.

Fights, hits and a blown kiss: Stars and Blues get nasty

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Things were getting out of hand between the Dallas Stars and St. Louis Blues on the scoreboard in an eventual 6-1 Blues win.

They were also getting a little raucous on the ice when it was clear that the Stars weren’t going to stage a comeback.

Jamie Benn was whistled for cross-checking Alex Pietrangelo, but it was Stephen Johns‘ hit from behind on Pietrangelo really revved up the violence.

Watch that hit and then the scrum that ensued in the video above, which included a scary display of an angry Ryan Reaves … who got creative at the end.

You may also want the kiss alone, so here it is:

Memo: rough stuff might not work so well against the Blues.

Read about that blowout here.

Blues bombard Stars, go up 2-1 in series

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Sometimes a final score is misleading. In the case of the St. Louis Blues’ 6-1 thrashing of the Dallas Stars, it might just be the start of the story.

Honestly, the most positive thing the Stars can say is “Well, at least it was just one game.”

It was one ugly game, however, and now the Blues hold a 2-1 series lead with a chance to really take control if they can win Game 4 at home.

The Blues dominated just about every category on Tuesday, firing more shots on goal, enjoying better special teams play and throwing more hits. They even blocked a higher number of shots, which often isn’t the case for the squad that carries play.

This leaves the Stars picking up the pieces, especially when it comes to their work in their own end.

Do you put greater blame on struggling goalies Kari Lehtonen and Antti Niemi or is this more about the Stars’ lax defensive coverage? The scary answer may be “Both,” and the Stars likely know that they need to find answers quickly.

On the bright side for Dallas, it is just one game … and the Blues were searching for answers of their own after Game 1.

We saw the Blues turn things around with these two straight wins, so now the Stars must show that they can gather themselves and play the attacking, out-score-your-mistakes style that got them here.

Granted, they may have to keep an eye out for supplemental discipline after some rough stuff toward the end of the game.

Predators smash Sharks to get back in series

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After a dispiriting 1-0 goal allowed by Pekka Rinne, things were looking bleak for the Nashville Predators for a moment there.

Nashville’s developed into a resilient group, however, and they stormed back for a commanding 4-1 win to shrink San Jose’s series advantage to 2-1.

The Predators saw some of their big names come up huge as the series shifted from San Jose to Nashville.

Pekka Rinne looked sharp following that first goal (and didn’t allow another). Their goals came from James Neal, Colin Wilson, Filip Forsberg and captain Shea Weber.

Weber’s tally was the game-winner, and it was downright thunderous:

Another promising sign: after a struggling to a 2-for-31 clip in previous playoff games, the Predators’ power play went 2-for-5 in Game 3.

Overall, the Predators really couldn’t ask for much more from this win, especially if Colton Sissons is indeed OK after a scary crash into the Sharks’ net.

Things could get really interesting if Nashville manages to “hold serve” with another home win on Thursday.

Stars’ goalie carousel goes around again: Lehtonen replaces Niemi

Dallas Stars goalie Antti Niemi (31) subs in for goalie Kari Lehtonen (32) during the third period of an NHL hockey game, Tuesday, Dec. 8, 2015, in Dallas. The Stars won 6-5. (AP Photo/LM Otero)
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It’s pretty tough not to make jokes about the Dallas Stars spending $10.4 million on their goalies at times like these, even if Dallas’ defense should shoulder plenty of blame.

After Kari Lehtonen was pulled from a Game 2 loss, the St. Louis Blues chased Antti Niemi early in the second period of Game 3 after Niemi allowed three goals on 12 shots.

Troy Brouwer‘s 3-1 goal was enough for Lindy Ruff to give Niemi the hook:

Unfortunately for the Stars, Lehtonen got off to a slow start as well, allowing an immediate Vladimir Tarasenko goal.

The Blues are now 4-1 and the Stars are searching for answers … and probably wishing Tyler Seguin was around to help them out-score their problems.