First, it was Gary Leeman and friends who filed a concussion class action lawsuit against the NHL. On Thursday, I broke the story
that a second concussion lawsuit was filed against the NHL. A copy of the lawsuit can be found here.
There are nine plaintiffs in this latest lawsuit against the league: Dan LaCouture
, Dan Keczmer, Jack Carlson, Richard Brennan, Brad Maxwell, Michael Peluso, Tom Younghans, Allan Rourke
and Scott Bailey. These are not household or brand names, and for casual fans, the only recognizable names may be Peluso, and to a lesser extent, LaCouture.
The lawsuit alleges fraudulent concealment. In particular, the players complain 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. As was the case with the over 200 NFL concussion lawsuits filed, concealment is a critical component of this lawsuit.
The players are also alleging that the NHL was negligent in the way it handled the welfare of players. The lawsuit states that the NHL fostered and promoted a culture of violence with a view to generating revenue. In doing so, the league failed to institute reasonable safeguards and protocols to protect its players from head trauma. By failing to protect the players from the risks and consequences of headshots, the league failed to discharge a legal duty owed to its players.
Like concussion lawsuits generally, this one faces challenges. The first is causation. In order to get paid, the plaintiffs 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, CHL or Europe. So what caused the damage and when it was caused become critically important issues.
Brennan played 50 NHL games, while Rourke and Bailey played 55 and 19 NHL games respectively. With so few NHL games played, it's going to be tough for these plaintiffs to show that the NHL is responsible for their brain damage.
As well, Peluso played 458 NHL games. He also played over 250 games outside the NHL during his professional career. Can you say definitively that the damage was sustained at the NHL level? Not easy.
The league will also take the position that it didn't conceal any information. They will say 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.
The NHL could also maintain 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 would 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.
The way the lawsuit itself was drafted is a bit unusual. It provides that Gordie Howe is dead (he's not) and misspells Sidney Crosby
's name (Sydney). It also makes reference to movies, including Gladiator, Youngblood and Friday the 13th. This is atypical.
The lawsuit also relies on the concussion history of other players as support for the position that the game inflicts permanent neurological damage. In part, the lawyers point to players like Marc Savard
, Nick Kypreos, Geoff Courtnall, Petr Svoboda
, Keith Primeau
, Pat LaFontaine, Tony Granato and Paul Kariya
as having suffered long-term damage. However, this doesn't necessarily belong in this type of document. It looks more like evidence that needs to be presented at trial.
So the lawsuit is perhaps atypical in the way it was drafted.
From a legal standpoint, these inaccuracies may not ultimately hurt the merits of the lawsuit. These things can be corrected. However, it may undermine the credibility of the claims being made. As well, and perhaps more importantly, the whole idea with a class action lawsuit is to recruit other players. It's possible that other players may not feel entirely comfortable with this particular lawsuit given the oversights in the document. Still, there is time to right the ship and this lawsuit has some good lawyers associated with it.
As far as next steps, the NHL will do what the NFL has done in the past: go to court and ask a judge to punt this lawsuit. Assuming the lawsuit is not dismissed, we are still years away from a resolution.
One more thing: while this is the second NHL concussion lawsuit filed to date, it likely won't be the last. Expect to see more of them filed.