Columnist image
Rick Westhead

TSN Senior Correspondent


NHL Commissioner Gary Bettman should be forced to be deposed about matters relating to the NHL concussions lawsuit within the next three months, lawyers for a group of former players wrote in a legal filing.

Lawyers for the former players wrote to the NHL on February 23 asking to set up a time and location to depose Bettman.

Three days later, a lawyer for the NHL replied, saying that the league was refusing the request because of a so-called "apex doctrine." That legal doctrine gives the league the ability to refuse the deposition request if the information Bettman might offer could also be obtained through other means, the league's lawyer wrote, adding that without the doctrine, "high level executives would be 'vulnerable to numerous, repetitive, harassing, and abusive depositions.'"

In newly filed court documents obtained by TSN, lawyers for the former players write that the NHL has been stonewalling their effort to obtain information. They want Bettman deposed by July 1.

A group of former NHL players including Joe Murphy, Bernie Nicholls and Gary Leeman charge that the NHL did not do enough to protect them from head injuries before it created a committee to study head trauma in 1997. Even after that, the players charge the committee's findings were not adequately shared with players.

The NHL players filed the suit in November 2013 after a group of nearly 4,500 former NFL players reached a settlement with the NFL over similar concussion-related complaints.

The discovery of information and documents in the NHL case began on Jan. 15, 2015. Nearly nine months later, the documents say, the plaintiffs have received only 7,772 pages of documents, consisting only of insurance policies and the NHL's official guide and record book.

Moreover, the plaintiffs' lawyers say the "apex doctrine" does not apply to Bettman.

"Even if Mr. Bettman tried to disclaim the deep knowledge the NHL's initial disclosures say he has, ample evidence demonstrates that his 20-plus years of direct involvement in the subject matter of this case gives him knowledge unique and superior to any other current NHL employee."

As evidence of his knowledge, the plaintiffs' lawyers quote an interview Bettman gave on March 18, 2015, during which he said, "concussions are not on the rise, to the contrary, and the number of man-games lost is down again. I'm not giving you numbers."

The plaintiffs' lawyers wrote that,"no one at the NHL is likely to have more knowledge than Bettman concerning the NHL's concussion study, which began in 1997 and was published in 2011, all under Bettman's stewardship. As the NHL commissioner from 1993 to the present, Bettman has unique knowledge concerning, among other things, the NHL's rationale for conducting the study, how it chose its researchers, why it took 14 years for the NHL to complete the study and publish its results, what the NHL chose to disclose and not to disclose to its players in the interim, and the reasons for those statements and silences. All are central issues in this case."

The NHL has also filed a list of 21 specific potential witnesses, Bettman included, who league lawyers wrote might be called to testify. That list also includes Brian Burke, the league's former senior vice president and director of operations, deputy commissioner Bill Daly, and Brendan Shanahan, the NHL's former senior vice president of player safety and hockey operations.

The league also wrote in court filings that it may call current and former NHL team player reps to testify in the lawsuit as well as the agents of current and former players.