Columnist image

TSN Senior Correspondent

| Archive

The National Hockey League's years-long investigation into concussions was a "whitewash", and the league's claims that players should have researched themselves the consequences of brain injuries is absurd, according to claims made by a group of former players in newly filed court documents.

Three weeks ago, the NHL claimed in pleadings that the former players who are suing the league over how it handled concussions and head trauma injuries ought to have been able to "put two and two together," thanks to newspaper and magazine stories and other news reports.

"Publicly available information related to concussions and their long-term effects, coupled with the events that had transpired – i.e., the players incurring head injuries – should have allowed (players) to put two and two together," the NHL said in its court documents filed in Minnesota.

Now, the players are firing back.

In newly filed documents obtained by TSN, lawyers for players including Joe Murphy, Bernie Nichols and Gary Leeman rubbish the NHL's claims, saying players had "no knowledge of the medical literature, and no understanding of any need to go find it because they relied on the NHL for information about player health and safety."

"Whether players could have accessed information in the public sphere is a red herring," the players say in court filings. "By representing that the NHL was the caretaker of player safety and was responsible for researching concussions... the NHL was telling players not to look for or believe what the NHL now says the players should have researched and understood."

The players, whose claims have not been proven, allege 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.

"For decades, NHL players who sustained in-game concussions or who lost consciousness were simply propped up, given smelling salts, and quickly returned to game-action," the players allege.

While the NHL began its concussion study in 1997 and published its findings in 2011, "It was not until July 23, 2013, that the NHL changed its concussion protocols to require a concussed player not return to the same game in which the concussion occurred."

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 NFL players are expected to be paid about $1 billion, a lawyer working on the case told TSN.

In its legal filings, the NHL says the court should dismiss the case because it's taken too long for players to file their complaints.

"(The players) are not seeking recovery for acute injuries resulting from the individual hits, blows or instances of trauma inherent in hockey," the players' pleadings say, adding that the injuries being sued for "are the permanent degenerative brain diseases, or accumulated brain cell damage increasing the risk of such diseases, which arose and of which the plaintiffs became aware only after plaintiffs retired from the NHL."

The NHL also has said the claim should be dismissed because health and safety issues fall under the purview of the league's collective labour agreement with the NHLPA.

The NHL said under terms of its CBA, that players have a responsibility to report injuries to their teams and submit themselves for examination. The CBA also addresses the rights of a player to receive his medical records, the NHL said in its legal filings.

"Players are clearly excluded from the NHLPA bargaining unit," the new court documents say, "belying any argument that they are represented by a union who can initiate a grievance on their behalf... plaintiffs, as retired players and unrepresented by the NHLPA, could not initiate a grievance on their own behalf even if they wanted to."

The judge overseeing the players' lawsuit will hear oral arguments about the NHL's motion on Jan. 8 and will decide whether to dismiss the case by April.

About 40 former NHL players have now signed up as named plaintiffs, compared to 4,500 in the NFL case.