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.

Poll: Are the Pens poised to repeat?

SAN JOSE, CA - JUNE 12:  Sidney Crosby #87 of the Pittsburgh Penguins celebrates with the Stanley Cup after their 3-1 victory to win the Stanley Cup against the San Jose Sharks in Game Six of the 2016 NHL Stanley Cup Final at SAP Center on June 12, 2016 in San Jose, California.  (Photo by Bruce Bennett/Getty Images)
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This post is part of Pittsburgh Penguins day at PHT…

By now you know the statistic, but here’s a refresher anyway.

The NHL hasn’t had a back-to-back Stanley Cup winner since Detroit turned the trick in ’97-98, and hasn’t seen a reigning champ return to the Final since Detroit turned the trick in ’08-09.

Doing it once is tough. Doing it twice has become nearly impossible.

In fact, winning the Stanley Cup in recent years has, more often that not, paved the way for an extremely difficult encore. Chicago won it all in 2015, and was bounced in the opening round last year. L.A. hoisted Lord Stanley’s mug in ’14, and missed the postseason entirely in ’15.

Which brings us to the Pittsburgh Penguins.

On paper, this year’s Pens are a virtual carbon copy of the club that won the Cup in June. Their most noteworthy departures were defenseman Ben Lovejoy (off to join former Pens GM Ray Shero in New Jersey) and third-string netminder Jeff Zatkoff, who signed in L.A.

And that’s it.

Everyone else is back.

Sidney Crosby, Evgeni Malkin and Kris Letang are back. The HBK line is back. Both goalies, Matt Murray and Marc-Andre Fleury, are back. Even the depth guys that some weren’t sure the Pens could afford — Justin Schultz and Matt Cullen — are back.

Head coach Mike Sullivan and his staff are back, and reigning GM of the Year Jim Rutherford is back.

At first glance, this would make Pittsburgh a likely candidate to “do the Detroit” (as outlined above, in either scenario). But the NHL is fickle, and a grind — and it’ll be curious to see what that does to a Pens team coming off an extremely long season, with six players set to participate in the World Cup of Hockey.

Anyway, go have a vote:

It’s Pittsburgh Penguins day at PHT

SAN JOSE, CA - JUNE 12:  Sidney Crosby #87 of the Pittsburgh Penguins celebrates with the Stanley Cup after their 3-1 victory to win the Stanley Cup against the San Jose Sharks in Game Six of the 2016 NHL Stanley Cup Final at SAP Center on June 12, 2016 in San Jose, California.  (Photo by Bruce Bennett/Getty Images)
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It’s been a summer of celebration for the Pittsburgh Penguins. They enter the upcoming season as the defending Stanley Cup champs.

The Stanley Cup made its way to the Toronto Hospital for Sick Children in a heart-warming visit from Phil Kessel. Bryan Rust was photographed cuddling with hockey’s silver chalice, because, why not? Jim Rutherford was named the GM of the year when the end-of-season awards were handed out.

All of it a reward for a Penguins team that was struggling in the Eastern Conference before a mid-season coaching change. And shortly after Mike Sullivan took over behind the bench, the Penguins took over the conference, rolling to a championship.

This summer, the Penguins made their pitch to land coveted college free agent Jimmy Vesey, with Sidney Crosby reportedly reaching out to the 2016 Hobey Baker Award winner. Pittsburgh, like many other teams, was ultimately unsuccessful in its quest, as Vesey signed with the Rangers.

The Penguins did sign another college free agent, forward Thomas DiPauli, on a two-year entry-level contract.

They also re-signed forward Matt Cullen to a one-year, $1 million deal. Defenseman Tim Erixon re-signed to a one-year, two-way contract worth $575,000 in the NHL. Justin Schultz, who initially didn’t receive a qualifying offer from the Penguins, making him an unrestricted free agent, eventually re-signed in Pittsburgh and that could give Derrick Pouliot, another young blue liner, some stiff competition when the season opens up.

A Stanley Cup victory did not come easy. The Penguins came out of the playoffs with injuries to several players, including Kessel, who underwent hand surgery.

But Rutherford is confident all the injured players — The Pittsburgh Tribune-Review listed Trevor Daley (ankle), Kris Letang (foot), Nick Bonino (elbow infection), Rust (hand), Patric Hornqvist (hand) and Evgeni Malkin (elbow) as those on the road to recovery this offseason — should be ready for the opening of training camp.

The Penguins could also have a competition in the crease.

Matt Murray, who turned 22 years old in May, backstopped the Penguins to their championship. But Marc-Andre Fleury, 31, would like the opportunity to regain his old No. 1 spot.

Capitals have big plans for Dmitry Orlov, but there is just one problem . . .

WASHINGTON, DC - NOVEMBER 25: Dmitry Orlov #9 of the Washington Capitals celebrates after scoring a goal in the second period against the Winnipeg Jets at Verizon Center on November 25, 2015 in Washington, DC.  (Photo by Rob Carr/Getty Images)
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Dmitry Orlov is still without a contract for the upcoming season.

A restricted free agent, the 25-year-old defenseman had eight goals and 29 points last season, while making $2.25 million in salary for the season, as per General Fanager. His previous two-year contract had an annual cap hit of $2 million. But with training camps approaching, he remains unsigned for right now.

As noted before, there is a cap crunch for the Capitals heading into the new season. Orlov is the only RFA left for the Capitals to re-sign.

From the Washington Post:

According to generalfanager.com, Washington has $3.4 million in salary cap space left, but to allow for in-season roster flexibility or a 14th forward, the Capitals have around $2.6 million to devote to re-signing Orlov.

Still, despite that fact, the Capitals coaching staff has big plans for Orlov for the upcoming season.

“I envision him playing with a [Matt] Niskanen or a [John] Carlson, probably more prime minutes as we try even out our defense a little bit in terms of [workload],” said Capitals head coach Barry Trotz, as per CSN Mid-Atlantic.

“It’s a great opportunity for him. He’s at the right age where he can really contribute. We’ll look for his contributions on the power play, the penalty kill, playing in that top-4 on a pretty regular basis. I just think it’s right for him.”

Maurice: ‘Zero repercussions’ for Jets prospect Laine following offseason knee surgery

MOSCOW, RUSSIA - MAY 21: Patrik Laine #29 of Finland looks on against Russia at Ice Palace on May 21, 2016 in Moscow, Russia. Finland defeated Russia 3-1.(Photo by Anna Sergeeva/Getty Images)
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With NHL training camps approaching and the beginning of the World Cup of Hockey next month, Winnipeg Jets head coach Paul Maurice had some good news to report.

It appears that forward Patrik Laine, the second overall selection in this year’s draft behind Auston Matthews, is progressing well from the minor knee surgery he underwent following the NHL scouting combine. That same operation kept him off the ice when the Jets held their development camp early in July.

“He was held out of (Jets) development camp for precautionary reasons, but he’s back to full training and has been for quite some time,” Maurice told NHL.com.

“There will be zero repercussions moving forward.”

Laine, the reigning World Hockey Championship MVP from earlier this spring, was named to Finland’s World Cup team. The tournament begins Sept. 17. Finland begins the competition the next day against Team North America.

After an unbelievable 2015-16 season — he was named the Finnish league’s playoff MVP and won gold for Finland at the 2016 world juniors with seven goals and 13 points in seven games — Laine now looks to make the leap to the NHL.

With his shot and skill — not to mention an entry-level deal with that carries an AAV of $3.575 million, including $2.65 million annually in performance bonuses, as per General Fanager — he’ll be given plenty of opportunities.

“Patrik is going to be able to do all those things he’s always been able to do,” Maurice continued.

“How long it takes him to do it, I don’t know, but he’s going to get a chance to play. He fits in to what we’re trying to do as a hockey team, so you’ll live with some mistakes that are youth-generated, but he’s a very special talent and I would not be surprised if he comes in and is able to finish and put up numbers.”