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.

Golden Knights captain Mark Stone undergoes back surgery

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Stephen R. Sylvanie/USA TODAY Sports
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LAS VEGAS — Vegas Golden Knights captain Mark Stone is out indefinitely after undergoing back surgery in Denver, the club announced.

The Knights termed the procedure as successful and that Stone “is expected to make a full recovery.”

This is the second time in less than a year that Stone has had back surgery. He also had a procedure May 19, 2022, and Stone said in December this was the best he had felt in some time.

But he was injured Jan. 12 against the Florida Panthers, and his absence has had a noticeable effect on the Knights. They have gone 1-5-2 without Stone, dropping out of first place in the Pacific Division into third.

Stone is second on the team in goals with 17 and in points with 38.

Devils associate coach Andrew Brunette charged with DUI

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DEERFIELD BEACH, Fla. — New Jersey Devils associate coach and former Florida Panthers head coach Andrew Brunette was arrested in South Florida while driving home from a bar in his golf cart, authorities said.

Brunette, 49, was pulled over just blocks from the ocean in the Deerfield Beach area, north of Fort Lauderdale, according to a Broward Sheriff’s Office arrest report. He was charged with one count of driving under the influence and two counts of disobeying a stop or yield sign. Brunette was released on $500 bond.

The Devils said in a statement that the team was aware of Brunette’s arrest and gathering additional information.

According to the arrest report, a deputy was in the process of giving Brunette’s illegally parked golf cart a ticket around midnight when Brunette walked out of a nearby bar and told the deputy he was about to leave. The deputy said Brunette seemed unsteady on his feet and slurred his speech, and when he was joined by his wife, the deputy said he overheard the wife tell Brunette not to drive while the deputy was there.

The deputy remained in the area and reported watching the couple drive away about 17 minutes later, according to the report. The deputy said he watched the golf cart run two stop signs before pulling Brunette over on a residential street about a mile away from his home. According to the report, Brunette had difficulty following instructions during a field sobriety test before eventually quitting and asking for an attorney. He also declined to take a breathe test to measure his blood-alcohol level, officials said.

Online jail and court records didn’t list an attorney for Brunette.

Brunette is in his first season as associate coach of the Devils. He was interim coach of the Florida Panthers last season after taking over when Joel Quenneville resigned for his connection to a 2010 Chicago Blackhawks sexual abuse scandal.

The Panthers fired Brunette after they lost in the second round of the playoffs last spring despite him leading them to the Presidents’ Trophy as the league’s top team during the regular season.

The Sudbury, Ontario, native played 1,159 NHL games for Washington, Nashville, Atlanta, Minnesota, Colorado and Chicago from 1995-2012. He was a Wild assistant in 2015-16 and worked on Florida’s staff from 2019-2022.

Stars aligned with new coach DeBoer, Nill-constructed roster

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DALLAS — General manager Jim Nill sensed things were coming together for the Dallas Stars even before the season started with new coach Pete DeBoer and a roster mixed with proven veterans, up-and-coming young players, and even a teenaged center.

At the NHL’s All-Star break, after 51 games together, these Stars are leading the Western Conference.

“Every year you start, you put a team together, and there’s always going to be question marks,” said Nill, in his 10th season as the Stars GM. “You have ideas how you think you’re going to come together, but there’s always the unknown. . This year has been one of those years where right from the start, you could just see everything was kind of jelling.”

The Stars (28-13-10, 66 points) have their trio of 2017 draft picks that just keep getting better: All-Star winger Jason Robertson, goaltender Jake Oettinger and defenseman Miro Heiskanen. The seemingly ageless Joe Pavelski, at 38 and already re-signed for next season, is on the high-scoring top line with Robertson and point-a-game winger Roope Hintz. Wyatt Johnston, their first-round pick in 2021 and half Pavelski’s age, has 13 goals.

There is also the resurgence of six-time All-Star forward Tyler Seguin two years after hip surgery and 33-year-old captain Jamie Benn, who already has more goals (19) than he did playing all 82 games last season.

The Stars have a plus-40 goal differential, which is second-best in the NHL. They are averaging 3.37 goals per game, more than a half-goal better than last season when they were the only team to make the playoffs after being outscored in the regular season. They are also allowing fewer goals, and have improved on power plays and penalty kills.

“Where we sit at this break, I think guys are happy with that,” Seguin said, before being asked the keys to the Stars leading the West and on pace for a 100-point season with their new coach.

“Our style, our team speed, our puck speed, being predictable. All the clichés, knowing where the puck’s going. Really how we play the five-man unit,” he said. “Our pace this year, it’s been a lot quicker. There’s been some solid depth scoring this year while we’ve got one of the best lines in hockey.”

The Stars went into the break on their only three-game losing streak of the season, all 3-2 overtime losses at home.

“Those aren’t real losses,” said DeBoer, who twice has gone to the Stanley Cup Final in his first season with a new team. “I’m happy where we’re at. I like how we’re playing.”

Plus, Dallas won’t have to worry in the playoffs about 3-on-3 hockey, which has been the only real stain on their season so far. Only one team has more than its 10 losses after regulation.

“We’ve played a lot of good hockey. We’ve made a lot of good strides in our game,” DeBoer said. “We still have another level we have to get to when we get back, but there are a lot of good things that have happened. They’ve worked to have us where we are right now in the standings. Good spot to be in.”

The Stars have 31 games left in the regular season. The first four after the break at home, like the last four before their week-long hiatus.

Robertson’s 33 goals rank sixth in the NHL, and the 23-year-old has the same number of assists while averaging 1.29 points a game even after he missed most of training camp before signing a four-year, $31 million contract. Pavelski has 48 points (14 goals, 34 assists) while playing every game, and Hintz 46 points (20 goals, 26 assists) in only 43 games.

Oettinger, who is 21-7 in regulation, has a .923 save percentage and 2.26 goals against average since signing his three-year, $12 million contract. That deal came after 223 saves in a seven-game playoff series against Calgary last May, capped by 64 in the series finale that went to overtime.

Nill said Robertson’s production has improved even with the league adjusting to the high-scoring forward, and that Oettinger is proving to be one of the league’s best goalies. But they are just part of what has been a tremendous team effort.

“They kind of had that mojo right from the start, and it was kind of this team’s got the right mix,” Nill said. “It’s come together well, and it’s shown in the standings. It’s been good to watch.”

Canucks’ Ilya Mikheyev to have season-ending knee surgery

Ilya Mikheyev
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VANCOUVER, British Columbia — Vancouver Canucks right wing Ilya Mikheyev is set to have season-ending surgery on his left knee.

Canucks general manager Patrik Allvin said Friday night the 28-year-old Russian forward tore the anterior cruciate ligament in his left knee in the team’s first preseason game Sept. 25. Mikheyev will undergo surgery next week and is expected to be ready for training camp in the fall.

Mikheyev was originally listed as week-to-week with the injury and played 45 regular-season games, finishing with 13 goals and 15 assists. He scored in his final appearance Friday night, a 5-2 home victory over Columbus.

Mikheyev signed a four-year, $19 million contract as a free agent last summer.