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.

A best on best mythical tournament: 30-and-over

Sidney Crosby of Pittsburgh Penguins and Alex Ovechkin of Washington Capitals
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With the 2019-20 NHL season on hold, Pro Hockey Talk will be creating full rosters for an imaginary best on best tournament. The first teams created were a 23-and-under and players in their prime.

Connor McDavid and other exciting young players have taken part of the spotlight, but Sidney Crosby and Alex Ovechkin remain the most prominent faces in the NHL. The next roster to enter this mythical best on best tournament consists of players 30-years-of-age-and-over. It has several of the League’s most accomplished players, including numerous skaters with multiple Stanley Cup rings and Olympic gold medals.

Line Combinations

First line: Alex Ovechkin – Sidney Crosby – Patrick Kane

Thoughts: Kane and the Chicago Blackhawks have fallen out of the limelight in recent years after an era of dominance that included three championships. However, Kane has remained one of the most productive players in the NHL and the thought of his on-ice vision combined with Ovechkin’s blistering slapshot strikes fear into the heart of any opponent. Crosby has the wisdom and skill to balance this line to formulate a trio only used in a video game environment.

Second line: Brad MarchandPatrice BergeronBlake Wheeler

Thoughts: The Bruins have had the most complete line in hockey and two/thirds of that trio reside here. Blake Wheeler has the offensive punch coupled with strong defensive instincts to fill the void left by David Pastrnak. This line will be relied upon to matchup with skilled lines from opponents but also will need to contribute on the offensive side of the ice.

Third line: Claude GirouxEvgeni MalkinJakub Voracek

Thoughts: Malkin has been one of the top centermen since bursting onto the scene in 2006-07 and should bring out the best from his new linemates. Giroux and Voracek each took a step backwards in terms of offensive production this season, but the Flyers have emerged as legitimate Cup contenders in Alain Vigneault’s first season behind the bench in Philadelphia. The effectiveness of this line will determine how far this team could advance in the competition.

Fourth line: Jamie BennAnze KopitarT.J. Oshie

Thoughts: Is there anything else a coach could want in his fourth line? A two-time Selke Trophy winner flanked by a power forward and a skilled winger with defensive awareness? This line will start in the defensive zone majority of the time and be needed to flip momentum of the game within the game.

First D pairing: Mark GiordanoJohn Carlson
Second D pairing: Zdeno CharaDrew Doughty
Third D pairing: Ryan McDonaghAlex Pietrangelo

Thoughts: The absence of Shea Weber is jarring at first, but what attribute is missing from this defensive group? The biggest question facing this collection of rearguards is, do they have the foot speed to keep up with the quickness each team in this tournament possesses?

Starting Goalie: Tuukka Rask
Backup Goalie: Ben Bishop

Just Missed: Nicklas Backstrom, Phil Kessel, Carey Price, Steven Stamkos, Shea Weber

Captain: Sidney Crosby

Alternate captains: Patrice Bergeron, Alex Ovechkin

Analysis

The biggest advantage this team has over the competition is experience. Over half of the roster has a Stanley Cup championship under their belt and several players earned multiple championship rings in their respective careers.

Leadership will not be an issue with nine current NHL captains to help this team manage the emotions through this highly competitive tournament.

One area of concern is the speed of the game throughout the competition. Can the defense move the puck up the ice in a timely manner? Can the veteran forwards play at this pace each shift without sacrificing production? This team will be expected to play smart situational hockey and take advantage of special teams opportunities, but can they win even-strength matchups on a consistent basis?

There is an abundance of talent and wisdom up and down the lineup, but will they be able to dictate the pace and play the style they choose, or will they be forced to adapt to the opponents’ preferred style?

The answer to that question will determine how successful this team will be in this imaginary Best on Best tournament.

Surprising omissions

Phil Kessel: He was originally slated to skate alongside Bergeron and Marchand on the second line, but he doesn’t play a strong two-way game that his linemates would have demanded on a consistent basis. It was tough to leave a pure goal scorer like Kessel off the list, but his effectiveness is diminished if not playing in an offensive oriented role.

Steven Stamkos: The captain of the Tampa Bay Lightning is probably the most prolific player left off any roster in this tournament to date, but it was tough to find a spot for the skilled center. Crosby and Bergeron were no-brainers for this team, but the debate was between him and Malkin for the third line slot. The size and strength of the Russian forward were the deciding factors as that toughness will be needed throughout the tournament.

Shea Weber: He could easily slide into any spot along the blueline and the team likely wouldn’t suffer but tough decisions had to be made. The roster is not lacking in the leadership department and the three right-handed shot defensemen selected have the speed needed to keep up with the blazing speed of the competition.


Scott Charles is a writer for Pro Hockey Talk on NBC Sports. Drop him a line at phtblog@nbcsports.com or follow him on Twitter @ScottMCharles.

NBCSN’s Hockey Happy Hour: Martinez clinches Cup for Kings

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NBC Sports’ Hockey Happy Hour continues this week with matchups featuring unsung heroes.

In a role similar to one he played in the 2014 Western Conference Final victory over the Blackhawks, Alec Martinez of the Kings played hero for Los Angeles in Game 5 of the Cup Final, scoring the game-winner in double overtime to defeat the Rangers 3-2 and clinch the Cup.

Doc Emrick, Eddie Olczyk, and Pierre McGuire called the Stanley Cup action from STAPLES Center in Los Angeles, Calif.

Thursday, April 9
• NHL: Pause and Rewind (Encore) – 5 p.m. ET
• Rangers vs. Kings (2014 Stanley Cup Final, Game 5, Alec Martinez) – 6 p.m. ET

NBC Sports commentators conducting player interviews and sharing #HockeyAtHome social content will also be featured throughout the program.

Programming will also stream on NBCSports.com and the NBC Sports app.

More information about NBC Sports’ Hockey Happy Hour can be found here.

Long-term outlook for the Montreal Canadiens

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With the 2019-20 NHL season on hold we are going to review where each NHL team stands at this moment until the season resumes. Here we take a look at the long-term outlook for the Montreal Canadiens.

Pending Free Agents

The Core

The Canadiens don’t have a lot of players locked up to much term. That seems like a plus, because the bigger contracts also happen to be Montreal’s biggest headaches.

Apologies to Carey Price after already critiquing his 2019-20 season, but you can only be so delicate about his situation. Price has already shown some troubling signs of fatigue at 32. His $10.5 million AAV is frightening now, yet it carries through 2025-26, with a no-movement clause to boot.

Shea Weber didn’t suffer a career-ending injury as feared, yet there’s no denying that he’s banged up. One wonders if the 34-year-old is fated for LTIR; otherwise, his $7.86M AAV (also through 2025-26) could become quite burdensome.

Jonathan Drouin breaks the trend of older players receiving term, but there are already rumors about the 25-year-old getting moved out before his deal ($5.5M AAV) expires (after 2022-23).

Looking at the Habs’ agreed-upon core is a chore. The more interesting questions revolve around who else might be a part of it.

The Canadiens don’t face that many long-term contract decisions this offseason, but pending RFA Max Domi is a key one. Can they find the right price and term for the speedy but flawed forward?

There are some other interesting mid-career players to consider.

Marc Bergevin balked on trading Tomas Tatar and Jeff Petry, two players whose contracts expire after 2020-21. Brendan Gallagher and Phillip Danault stand out as other noteworthy pieces who need new deals after 2020-21, too. Who stays and who goes?

Granted, a lot of that revolves around how much progress Montreal’s promising prospects make.

Long-term needs for Canadiens

Look, it’s not going to be pleasant for the Canadiens to pay a backup goalie a handsome fee. Not when they already allot $10.5M in cap space to Price.

Yet it seems like Montreal’s committed to at least hovering around the playoff bubble with Bergevin and Claude Julien running the show. Why wouldn’t you try to ease Price’s burden and get a Plan B when the market could include borderline starters like Anton Khudobin, Thomas Greiss, Cam Talbot, and old pal Jaroslav Halak?

Getting some saves would go a long way. So would finishing more chances.

For another year, Montreal clearly suffered for its lack of snipers. This team can hog the puck at five-on-five, and create havoc with skilled forwards. They just don’t really have a ton of players who finish, something that surfaces for a power play that finds itself snakebitten far too often.

The Canadiens could certainly use more NHL-ready help on defense. That’s another question filed under “How ready are these prospects?”

Perhaps more than anything else, the Canadiens need vision.

So far, Montreal’s been trying to build for the future while staying in contention. The first part’s gone pretty well, but the Canadiens have settled for not-quite-good-enough. Are they hurting their chances of having a higher ceiling by trying to prosper now and later? Should they at least do a Rangers-style mini-reboot, selling off the likes of Tatar, Petry, and Drouin (and maybe even Gallagher)?

Oh yeah, and how much would it take to compete in an Atlantic Division featuring the Bruins, Lightning, and Maple Leafs?

The answers are tough to come by, but Bergevin & Co. need to soul search on such topics.

Long-term strengths for Canadiens

Again, the Canadiens’ farm system looks pretty good. The Athletic’s Scott Wheeler ranked them second overall in February (sub required), and that’s while “graduating” the likes of Nick Suzuki and Jesperi Kotkaniemi. Cole Caulfield could indeed parallel Alex DeBrincat as a near-instant draft steal, as many wondered about the spritely sniper.

I wonder if that group could still use the added “oomph” that would have come with a tanktastic, premium high draft pick, but it’s heartening for Montreal overall.

Bergevin’s also seemingly learned from how much the Price contract boxed the Canadiens in by not signing many other long-term deals. The uncertainty translates to flexibility.

Arpon Basu and Marc Antoine Godin went in-depth on the Canadiens’ salary cap opportunities recently (sub required). If the pause squeezes the cap flat, Montreal could take advantage of teams in “salary cap prison.” They could also exploit a free agent situation that may thus be low on buyers. There’s also the possibility that Bergevin could send out more offer sheets.

Bergevin’s patience could pay off … if he makes the right moves.

MORE ON THE CANADIENS:
Breaking down their 2019-20 season
Biggest surprises and disappointments

James O’Brien is a writer for Pro Hockey Talk on NBC Sports. Drop him a line at phtblog@nbcsports.com or follow him on Twitter @cyclelikesedins.

Oilers say Colby Cave remains in medically induced coma

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TORONTO — Edmonton Oilers forward Colby Cave remains in a medically induced coma in a Toronto hospital after suffering a brain bleed earlier in the week.

The Oilers, through Cave’s family, provided an update on Cave’s status Thursday on their Twitter account.

”This is giving his brain time to heal & rest from all he’s been through,” the team wrote in the post.

The 25-year-old native of Battleford, Saskatchewan, was airlifted Tuesday to Sunnybrook Hospital and underwent emergency surgery. Doctors removed a colloid cyst that was causing pressure on his brain.

Cave’s wife, Emily, posted an update on Instagram on Wednesday after seeing him through a window with his parents and talking to him via a walkie-talkie.

”My heart is shattered into a million pieces without my best friend,” she wrote.

Emily Cave said the family is no longer allowed to be in the hospital because of COVID-19 rules. She said they have no idea when they will be allowed to see him again.

Cave scored one goal in 11 games with Edmonton this season. He has four goals and five assists over 67 NHL games with Boston and Edmonton.