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.

The Buzzer: Ovechkin’s blast lifts Capitals in OT, Sheary speeds by Panthers

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Player of the night: Alex Ovechkin, Washington Capitals

Alex Ovechkin has already reached double digits in goals scored in this new campaign. The Capitals’ star recorded his 10th goal of the season on Friday and it counted as the overtime winner against the Detroit Red Wings.

The Capitals trailed late in the third period, but T.J. Oshie scored the tying goal and Ovechkin won it on a power play less than two minutes into the extra period, as he deployed that famous one-timer slap shot from his off-wing. This time, Petr Mrazek was victimized by the wicked slapper.

Ovechkin is now only two goals behind the entire Montreal Canadiens team — in the same amount of games.

Highlight of the night:

What a weapon speed is in today’s National Hockey League. Conor Sheary illustrated that once again, as he saw a little bit of room down the left side and flew around Alex Petrovic before making a move to the backhand on James Reimer. That goal counted as the eventual winner, as the Penguins defeated the Panthers 4-3. Earlier in the third period, Sheary and Roberto Luongo came together near the Florida net, causing Luongo’s right hand to get caught against the post, injuring the Panthers’ netminder.

Factoid of the night:

It was a milestone night in Winnipeg for Blake Wheeler and coach Paul Maurice.

Scores:

Vancouver 4, Buffalo 2

San Jose 3, New Jersey 0

Washington 4, Detroit 3 (OT)

Pittsburgh 4, Florida 3

Winnipeg 4, Minnesota 3

Anaheim 6, Montreal 2

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Cam Tucker is a writer for Pro Hockey Talk on NBC Sports. Drop him a line at phtblog@nbcsports.com or follow him on Twitter @CamTucker_Sport.

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Video: Price takes out his frustration, as the Habs were crushed again

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It’s gone from bad, to worse, to an absolute nightmare for the Montreal Canadiens.

A three-game trip through California is never fun for opposing teams, but this was misery for the Habs. They were outscored a combined 16-5 in three games against the Sharks, Kings and Ducks, with few, if any positives beyond the second period in a 6-2 loss in Anaheim on Friday.

Montreal hasn’t won since its season opener on Oct. 5, and is now on a seven-game losing skid, unable to generate much offensively with a league worst 10 goals scored through seven games before tonight, while giving up plenty of goals at the other end.

That is a recipe for disaster and even though it’s still early in the season, this has to be a major concern for coach Claude Julien and, in particular, general manager Marc Bergevin.

Read more: Is there a trade to be made between the Penguins and Canadiens?

Down by three after the first period, Montreal had 30 shots on goal during the middle frame and managed to trim Anaheim’s lead down to one heading into the third period. And then, just when it seemed like maybe they were on a path toward an inspirational comeback on the road, it all fell apart.

Three straight goals for Anaheim, with journeyman forward Derek Grant scoring the first two goals of his NHL career — in game No. 93.

As you can probably tell from the clip below, Carey Price was visibly irritated, as he whacked his goalie stick against the post after the sixth Anaheim goal.

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Cam Tucker is a writer for Pro Hockey Talk on NBC Sports. Drop him a line at phtblog@nbcsports.com or follow him on Twitter @CamTucker_Sport.

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Canucks defeat the Sabres, as the losing continues in Buffalo

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The Buffalo Sabres remain stuck on just a single win to begin the season. Jack Eichel is sick of losing, but the losing continues.

Returning home from a four-game road trip out west, the Sabres had an opportunity ahead of them to get back into the win column. The Vancouver Canucks, hardly a powerhouse in any way, were in town. They had played — and lost — the night before in Boston. And then the Sabres went out and were thoroughly outplayed in a 4-2 loss that, one could argue, flattered the hosts.

They weren’t able to take advantage of an early lead after Justin Bailey was allowed access to the net off the rush. They couldn’t hold the lead after Eichel dangled Ben Hutton and then scored on a shot Jacob Markstrom should’ve stopped. They gave up yet another short-handed goal, putting that number at six for the Sabres just eight games into the season.

Instead, Buffalo spent most of the night in its own end, giving up 37 shots through two periods. Hard to pin this, in any way, on goalie Chad Johnson.

“First of all, I thought we didn’t defend well and close quick enough in our defensive zone. We were a little bit slow there tonight. We need to be more aggressive and on the puck,” said head coach Phil Housley after the game.

While the Sabres were badly outplayed, one of the deciding moments in this game was a controversial video review in the second period. Vancouver took the lead on a goal from Daniel Sedin, although Housley challenged for a potential offside after it looked like Jake Virtanen didn’t have control of the puck as he entered the zone.

The linesmen looked over the play for a lengthy review before officials came to the conclusion that Virtanen did have control of the puck as he broke in over the blue line. The goal stood and the Canucks controlled the remainder of the game.

“I disagree with the call, totally,” said Housley. “In my opinion, he knocks the puck out of the air. He never has possession.

“But I call that 10 out of 10 times offside and I would continue to challenge that again.”

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Cam Tucker is a writer for Pro Hockey Talk on NBC Sports. Drop him a line at phtblog@nbcsports.com or follow him on Twitter @CamTucker_Sport.

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Roberto Luongo leaves game with apparent injury, as Panthers fall to Penguins

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The Florida Panthers lost to the Pittsburgh Penguins on Friday. Making matters worse was the fact their goalie Roberto Luongo left the game in the third period with an apparent hand injury.

The injury occurred after a collision in the crease with Penguins forward Conor Sheary.

Luongo immediately went down to the ice in pain. A replay from above the net showed Luongo’s right hand getting caught in an awkward position against the post after coming into contact with Sheary as he cut through in front of the crease in pursuit of the puck.

The injury forced James Reimer off the bench and into the game with the Panthers trailing by a goal. MacKenzie Weegar tied the game for Florida before Sheary scored the eventual winner about eight minutes later, on a night when the Penguins fired 48 shots on the two Panthers goalies.

Luongo gave up three goals on 36 shots before leaving the game. The Panthers now head out on the road. They’ll visit the Washington Capitals on Saturday.

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Cam Tucker is a writer for Pro Hockey Talk on NBC Sports. Drop him a line at phtblog@nbcsports.com or follow him on Twitter @CamTucker_Sport.

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