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.

Stanley Cup Final Preview: Who has better coaching?

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Leading up to Game 1 of the Stanley Cup Final (Monday, 8 p.m. ET, NBC), Pro Hockey Talk will be looking at every aspect of the matchup between the Washington Capitals and the Vegas Golden Knights. 

WASHINGTON CAPITALS

Barry Trotz doesn’t have a contract beyond the conclusion of this current season. He entered the year with no job security, no sense of what his future would hold and still steering his troops to the top of the heap in the Metropolitan Division, and now, the Stanley Cup Final.

Washington’s start to the season didn’t help and rumors of Trotz’s pending axing swirled. But the man who sits fifth all-time in coaching wins turned his team around.

Trotz has found another gear behind the bench and has guided the Caps with calmness during these playoffs. It’s paid off. The Capitals were able to exercise their demons against the Pittsburgh Penguins and then come back from being 3-2 down against the Tampa Bay Lightning.

Oh, and he did this:

VEGAS GOLDEN KNIGHTS

There isn’t a world where Gerard Gallant doesn’t win the Jack Adams this year for top bench boss in the NHL. He’s simply done the unthinkable with a team no one expected to be competing, never mind being one of two teams set to do battle for the Stanley Cup.

Look, Gallant was given a bunch of players from all over the league and a mandate to try and figure out how they all fit together, who plays on what line. Who pairs with who on defense. What the power play and penalty kill look like. It was a tall task to begin with, but Gallant has nailed it every step of the way.

There’s been lots of talk of how poorly the Panthers fared when they lost both Jonathan Marchessault and Reilly Smith in the expansion draft. But one of Florida’s biggest losses was firing Gallant and leaving him on the side of the road.

That decision paved the way for Gallant to join the Golden Knights and smash nearly every record by an expansion team ever.

Gallant has given his players the controls. Mistakes don’t mean less ice time. Gallant has inspired his team and doesn’t have them playing scared. It’s a perfect approach and one that’s evidently paid off.

Advantage: Golden Knights

Trotz is a great coach, but there’s just something about the spirited way Gallant has Vegas playing that simply cannot be denied. We’ve seen it all season and all playoffs.

2018 STANLEY CUP FINAL PREVIEW:

• Who has the better forwards?
Who has better defense?
• Who has better special teams?

MORE:
• NBC’s Stanley Cup Playoff Hub
• Stanley Cup Final Schedule


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

Stanley Cup Final Preview: Who has better special teams?

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Leading up to Game 1 of the Stanley Cup Final (Monday, 8 p.m. ET, NBC), Pro Hockey Talk will be looking at every aspect of the matchup between the Washington Capitals and the Vegas Golden Knights. 

WASHINGTON CAPITALS

There is no team with a better weapon on the power play than Alex Ovechkin (sorry, Patrik Laine). The fact of the matter is Washington has clipped along at damn-near 30 percent (28.6%) in the playoffs on the power play through three rounds. The only team better is the Boston Bruins, and well, they were ousted in the second round.

And it’s not just Ovi producing on the power play (he has nine points). Defenseman John Carlson leads the team with 10 power play points. Evgeny Kuznetsov, who has been simply sensational in the playoffs, has nine, as does T.J. Oshie and Nicklas Backstrom.

One of the X factors in this series is going to be special teams, and for Washington, specifically, they’re going to need to tighten up on the penalty kill. They allow one goal every four opportunities they give to an opposing team on the power play. Couple that with the fact that they’re the most penalized team in playoffs (61 times shorthanded), and you can see where this all could go wrong. Perhaps the good news for the Caps here is that their road PK percentage (79.3%) is better than their home numbers (71.9%).

VEGAS GOLDEN KNIGHTS

Vegas’ pedestrian 17.6 percent power play success rate is a full 11 percent behind the Capitals, so Washington has them beat in this regard. Vegas is the second-most shorthanded team in these playoffs (57). Forward Erika Huala leads the team with 12 power-play points while William Karlsson (8), Reilly Smith (7), and Jonathan Marchessault (6) round out their top-four point producers.

The Golden Knights could use a spark on the power play away from home, where they take advantage of just 13 percent of their man advantages.

Vegas has been much better than the Caps when shorthanded, however, at 82.5 percent. Given how many penalties the Golden Knights have taken — and the fact they played Patrik Laine and the Jets in the Western Conference Final — that’s pretty impressive. They muzzled the Jets all over the ice, but were particularly good at keeping Laine and Mark Scheifele off their game on the power play.

Vegas’ PK has been good both on the home and away from T-Mobile Arena — much like everything they’ve done this season.

Marc-Andre Fleury owns a .909 save percentage on the penalty kill, compared to Braden Holtby‘s .857.

Advantage: Capitals (ever so slightly)

Washington’s power play pushes them just over the top here, especially against a team that gives up so many opportunities. It has to be said though that this battle is very close on paper. Vegas has the better goalie in shorthanded situations and they have a better penalty kill all-around.

Special teams is certainly an x-factor in this series and should be fun to watch given the talent on both teams. 

2018 STANLEY CUP FINAL PREVIEW:

• Who has the better forwards?
Who has better defense?

MORE:
• NBC’s Stanley Cup Playoff Hub
• Stanley Cup Final Schedule


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

No contract, no problem: Trotz guides Caps into Cup final

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ARLINGTON, Va. (AP) One of the lasting images from the Capitals’ playoff run came the morning of Game 7 in the Eastern Conference final.

Usually Alex Ovechkin hustles around the rink in a hot lap prior to the morning skate. Only this time it was 55-year-old coach Barry Trotz, who answered the call from his players to do the lap.

“I was worried about the turns,” Trotz said. “The rudders haven’t been sharpened all year. … I almost bit it at the end there trying to imitate Ovi.”

The Capitals beat the Tampa Bay Lightning 4-0 that night to punch their ticket to the Stanley Cup Final, but they might’ve won Game 7 at that moment. Rarely in previous postseasons had Trotz been that relaxed, the result of an unusual situation.

Trotz went into the season without – and still doesn’t have – a contract for next season, a circumstance that almost never happens to an experienced coach of a team with legitimate postseason hopes. But in a strange way, being a lame-duck coach might’ve helped Trotz not feel the pressure of past early exits and played a positive role in getting this far.

“I think it could be the same effect on a player, too, that’s becoming a free agent,” general manager Brian MacLellan said Friday. “He’s basically becoming a free agent as a coach, and what effect does that have? Do you have your best year when you’re a free agent?”

Trotz has. Even with the fifth-most victories of any coach in NHL history, until this spring he hadn’t made it past the second round in 18 previous seasons with the Nashville Predators and Capitals. He called it “luck of the draw,” running into championship-bound teams from Detroit, Chicago and Pittsburgh.

This improbable Capitals run that continues with Game 1 of the Cup Final on Monday in Las Vegas is not luck. It’s parts Ovechkin and goaltender Braden Holtby, and also the right moves by Trotz. He called on Philipp Grubauer to start the first round in goal before switching to Holtby in Game 2 against Columbus and watching him get on a roll. He put Jakub Vrana on the top line not long before the rookie scored the winner in Game 5 against the Penguins and pushed all the right buttons on rest and preparation.

Teams tend to read cues from a head coach, and those have been positive.

“I think his demeanor has changed a little bit,” MacLellan said. “He seems a little lighter, a little looser, a little less pressure, maybe a little more freedom in terms of how he goes about things.”

Despite back-to-back Presidents’ Trophies, MacLellan and Capitals management didn’t offer Trotz an extension.

Before the playoffs, Trotz said he hadn’t lost any sleep over his status and referred questions to MacLellan and owner Ted Leonsis. In March, Leonsis said he doesn’t talk about contracts, and MacLellan has repeatedly stated that any talks would wait until after the playoffs. There are currently no vacancies in the NHL.

Toronto’s Mike Babcock is the highest-paid coach at $6.25 million, Chicago’s Joel Quenneville is next at $6 million and Montreal’s Claude Julien comes in at $5 million. Those three have combined to win the Cup five times.

Trotz’s price tag has gone up however the Final goes against the Golden Knights.

“He’s probably going to benefit from this, too,” MacLellan said. “I think he’s done a good job managing it. To come in this year with so many questions – not from my point of view the lineup questions were that a big deal – but just the emotional state of our team coming in to start the year and how to handle that, I think he’s done an outstanding job.”

Trotz survived a 10-9-1 start that culminated with 6-3 and 6-2 losses at Nashville and Colorado, and the Capitals winning 12 of their next 14 games might have saved his job. Players’ response to Trotz reading them the riot act showed he certainly hadn’t lost the room.

But a journey of self-discovery last summer went beyond not having a contract.

“It gave me just some clarity on what defines me, what defines us, what defines you,” Trotz said. “If you don’t win any awards or anything, I’m not going to look at you any different. If you’re a good person and you treat people right and you live your life right, then I’m going to think really highly of you. If you don’t, I’m not going to think so much of you. And I started getting that clarity that everybody looks for the wrong in people rather than the right and it gave me a lot of clarity. And some things happened in my life that allowed me to see that and it’s been good.”

Happy, relaxed Trotz has made more appearances in these playoffs than buttoned-down, terse Trotz. He hasn’t soured amid the road bumps this postseason.

The Capitals have followed Trotz’s even-keeled approach and even been upbeat following losses. Like his players, he’s enjoying the ride.

“Playoffs are fun,” Trotz said. “They are a grind. But they’re fun. And they should be treated as fun. They’re sort of all the hard that you have to put in just to get there and it takes even more hard work to go farther, but it is fun. I’m finding I’m having a blast during the games.”

More Stanley Cup coverage: https://apnews.com/tag/StanleyCupFinals

Follow Hockey Writer Stephen Whyno on Twitter at http://twitter.com/SWhyno

Golden Knights success raising stakes for next NHL expansion

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SEATTLE (AP) — From his office about 1,000 miles away from T-Mobile Arena, Tod Leiweke has watched the Stanley Cup playoffs with a growing appreciation for what is taking place in Las Vegas.

He was keeping an eye on the Golden Knights even before he became president of Seattle Hockey Partners LLC, the group looking to bring an expansion NHL franchise to the Pacific Northwest. Once he took charge of Seattle’s efforts , Leiweke’s interest intensified, just as Vegas began its run to the upcoming Stanley Cup Final.

”They’re playing the game with great joy and they’re having fun and it’s just inspirational to watch,” Leiweke said. ”We’re absolutely loving it and living vicariously through them.”

The Golden Knights’ success in their inaugural season has been unprecedented as Vegas prepares for Game 1 on Monday night against the Washington Capitals. It’s also seemed to have heightened the expectations for the next wave of NHL expansion.

Seattle is on deck. If the NHL awards the city a franchise, it could be on the ice as early as the 2020 season. It would require a $650 million expansion fee and a renovated arena. There’s also talk of future growth, with Houston mentioned regularly as a possible destination for the league.

NHL Commissioner Gary Bettman has met with new Rockets owner Tilman Fertitta, who is certainly more open to acquiring an NHL franchise for Houston than former owner Les Alexander. Seattle is certainly further ahead in the process by showing interest, but Houston has the arena and a potential owner already in place for the near future.

For now all the focus is on what’s happening in Seattle. And if Leiweke is feeling any additional pressure for his potential franchise given Vegas’ success on and off the ice, he’s not showing it.

”Well, to tell you the truth, I guess someone could interpret it that way that there’s all of a sudden this unusual pressure on us but in fact all they’re doing is helping us,” Leiweke said. ”They’re showing us how successful this league could be, the brilliance of the game, they’re showing us what happens when a team comes together and plays inspired hockey. We don’t at all see it as anything other than just a great thing for the National Hockey League. Those that come before us will set the table for us. When I think about what they’ve done my endorphins go off and I have such admiration and we’re truly inspired by it.”

The indications about six weeks ago, when Leiweke was hired, led those involved in the expansion process to believe some type of conditional approval would be granted by the NHL Board of Governors during their June meeting, to be followed by full approval in September. The staggered approach was to make certain construction on the arena would begin in late October as scheduled.

That has changed. Bettman told The Associated Press this week that the Seattle expansion won’t be formally addressed next month.

”What we have said to the people – David Bonderman’s group – is we’re on your timetable. There’s information that needs to be gathered after information is submitted. We have to finish doing our due diligence and our homework. We need to have the timetable understanding as to when the building’s going to get done. We can move as fast or as slowly as you want. There’s no rush,” Bettman told the AP. ”We’re in the middle of the process. They’re doing their homework, and they’re proceeding on two fronts because they’ve got to renovate a building and they’ve got to pursue the team and they’re doing both very nicely. They’re working with the city, they hired Tod Leiweke.

”Is it going to be on the June agenda? No. After that, could it be September? Could it be the annual meeting in December? It’s possible.”

Leiweke was hoping to have a true rooting interest in the finals, but the Tampa Bay Lightning were ousted in the Eastern Conference finals by the Capitals. Leiweke was the CEO of the Lightning from 2010-15 and was part of the group that turned around the organization, both with its on-ice success and in the stands, rejuvenating a fan base that had slumped following Tampa Bay’s title run in 2004.

The experience in Tampa Bay gave Leiweke an understanding of what it’ll take for Seattle to have a successful franchise. And while it may not be on par with what Vegas is accomplishing, Leiweke sees no reason why Seattle won’t have a chance to be a contender from the start.

”I won’t be foolish enough to say we’re going to make it to the Stanley Cup (Final) in our first year but I believe that we can absolutely build a team that is long-term competitive here,” Leiweke said. ”So when we think about this we don’t say look, we’re resetting a goal and our goal is to make the Stanley Cup in year one. But our goal is to replicate a good part of what they’ve done by building an incredibly competitive program where those players are proud to pull on that sweater.”

AP Hockey Writer Stephen Whyno contributed to this report.

More Stanley Cup coverage: https://apnews.com/tag/StanleyCupFinals

MORE:
• NBC’s Stanley Cup Playoff Hub
• Stanley Cup Final Schedule