Legal Look: Could NHL be held liable on fighting?

Eric Macramalla, TSN Legal Analyst

10/2/2013 1:58:37 PM

Montreal Canadiens forward George Parros lost his balance in a fight against Toronto Maple Leaf Colton Orr, fell to the ice and knocked himself out cold. The Princeton grad is out indefinitely with a concussion.

This latest fight-related injury has once again sparked a debate as to whether fighting belongs in the game.

From a legal standpoint, the question is this: could the National Hockey League be held liable for brain trauma sustained while playing the game? Could someone like Parros come back and sue the league?

This type of question comes up a lot in light of the National Football League's concussion lawsuits. About 4,500 retired players sued the NFL alleging that the league concealed the long-term impact of headshots. The NFL settled that case when it agreed to pay the players nearly a billion dollars (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).

While the NFL has agreed on a settlement, that doesn't mean that a court would have found for the players. The same goes for the NHL if a player like Parros ever sued.

Indeed, players today would have some obstacles to overcome if they wanted to be successful in court. First, the collective bargaining agreement, which is agreed upon by the players, provides that issues of player health and safety go to arbitration and not court.

There is also the really important issue of consent. In hockey, when a player steps on the ice, he consents to bodily harm that is accepted as being part of the game. In the case of Parros, he is a fighter and knows there is a serious risk of injury. As well, players today have a better and more meaningful understanding of the long-term risk associated with playing hockey. It's not a secret that a player may endure cognitive struggles later on in life.

The final hurdle for player to overcome is something at law called causation. How does a player show that his brain damage was caused as a result of playing in the NHL? Very sadly, this is one limitation facing the Derek Boogaard lawsuit against the NHL. Boogaard fought for nine seasons in the WHL, ECHL and AHL before playing the NHL. It may not be clear where the damage was caused.

While these hurdles may discourage a lawsuit, they don't completely remove the risk of one materializing. Merits of a case aside, a player may still elect to sue the league if, for example, he believes that the league is responsible for brain trauma sustained while playing. And a lawsuit would bring with it negative publicity for the game. No business likes that, and the NHL is likely no different.

The discussion about the utility of fighting has been rising over the past few years as the public becomes more aware and sensitive to the potential long-term impact of headshots. Indeed, there seems to be a trend emerging: concerns over fighting have become part of the narrative of the game of hockey and they don't seem to be going away anytime soon.