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Legal Look: The concussion lawsuit against the NHL

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Eric Macramalla
11/26/2013 11:35:48 AM
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Well it's finally happened. Ten retired players are suing the NHL in a class action lawsuit alleging that the league didn't do enough to protect their brains.

Gary Leeman, Rick Vaive, Brad Aitken, Darren Banks, Curt Bennett, Richie Dunn, Warren Holmes, Bob Manno, Blair Stewart and Morris Titanic retained the law firm Silverman Thompson Slutkin & White and filed their lawsuit on Monday.

This lawsuit is not a surprise, and most certainly is not a surprise to the NHL. The league is run by lawyers (Gary Bettman and Bill Daly) and it's likely they have been anticipating a court action for some time.

When I interviewed Bill Daly on my radio show in May of this year, I asked him if the league was concerned about the possibility of a concussion lawsuit like we saw in the NFL. This was his response:

"Certainly, we're aware of them, and aware of the industry in which we operate. You have to be cognizant of what's going on around you. I'm a lawyer by training, so I follow legal developments and certainly that's a legal development...Having said that, I don't think litigation per se can direct your business strategy. I think it's similar to what we were talking about before. You have to do what is right. Obviously, we feel there is an obligation on the part of the league office to make the game as safe as it can be without changing the culture of the game. Part of the attractiveness of our sport as an entertainment product is the contact nature of our sport. You don't want to take contact out. At the same time, if you can minimize injuries and make it safer for the players, you try to do that."

On to the lawsuit. The key allegation raised by the players is concealment. The players are arguing that the league knew of the long-term neurological impact of repeated headshots and elected not to share that information with the players. By not revealing that information, players did not have an opportunity to make an informed decision about playing in the NHL.

So the focal point of this lawsuit has less to do with the players knowing the risk, playing and complaining after the fact. Rather, the pivotal issue is whether the league concealed information.

Do the players have a case?

That is tough to say since everything turns on the evidence. However, this is not an easy lawsuit for the players. They will have an number of hurdles to overcome.

First is the issue of causation. In order to get paid, the plaintiffs like Vaive and Leeman are going to have to show that the brain damage they suffered was caused at the NHL level. On the flip side, the NHL will point out that no one can say for sure what caused a player's neurological condition, and even if it was caused by repeated headshots while playing hockey, how much of that damage was sustained while in the NHL and not in places like the AHL, WHL or Europe. So what caused the damage and when it was caused become critically important issues.

Leeman played about 660 regular season NHL games. He also played 357 games outside the NHL. Will he be able to make a convincing case that even if the NHL concealed information, his neurological impairment was caused at the NHL level? What kind of chance does Warren Holmes have of proving the NHL caused his damage when he only played 45 regular season NHL games while playing in 737 games outside the league? And what about Morris Titanic, who played just 19 NHL games.

The league will also take the position that it didn't conceal any information. Rather, they will argue that there wasn't any conclusive science at the time and they had the same information the players had. Basically, they will say 'we knew what you knew'. That being the case, the league will then maintain that the players were aware of the risk associated with playing hockey based on the science at that time, and agreed to those risks each time they stepped onto the ice. This legal principle is called informed consent (which makes sense since that's a nice way to describe it).

The NHL could also argue that this lawsuit doesn't belong in court in the first place, but rather should go to arbitration. The collective bargaining agreement provides that issues of player health and safety go to arbitration and not court. On the flip side, the players could take the position that since this case involves fraud, it properly falls outside of arbitration and within the jurisdiction of the courts.

So the bottom line is this: the players will need  to provide good evidence showing that the league concealed the harmful impact of repeated headshots. If they don't have that evidence, they will have a very difficult time. On top of that, they will need to deal with the very tricky issue of causation.

As far as next steps, it would not be a surprise to see more players join the lawsuit. Indeed, Vaive, Leeman and the other eight plaintiffs will not want to stand alone as there is strength in numbers. They will also look to make splash with a big name player. Ultimately, their goal may be settlement that provides players with some level of monetary relief very much like we saw in the NFL concussion lawsuits. In that case, the sides settled for about $765 million (however, the settlement has not yet been approved by the Court and any player has the option to opt out of the settlement and file his own lawsuit).

On the NHL side, the league may look to have the lawsuit kicked out of court on the basis that it doesn't belong in court but rather at arbitration.

This lawsuit is just starting and there is still a lot of ground to cover. Stay tuned.

Rick Vaive - Maple Leafs (Photo: Bruce Bennett/Getty Images )

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(Photo: Bruce Bennett/Getty Images )
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