Can other sports learn from NHL concussion lawsuit?

The lawsuit from former players against the NHL could threaten future of the league

The NHL is having a rough few months. They just announced that they won’t be going to the Olympics, even though their fans and players want them to.

They have franchises in trouble. Everybody seems to be complaining about the playoff format. Their new expansion team just got overshadowed by a bigger league.

This year’s playoff race has turned into a bust, with basically all the spots wrapped up before the final weekend. And it’s already sounding like the next lockout is all but inevitable.

And believe it or not, none of that comes close to being the league’s biggest problem right now.


That’s because the league is facing a major threat in the form of a lawsuit over its handling of concussions. The slow-moving suit has been winding its way through the courts for a few years now, and there’s no immediate end in sight. But some recent developments have pushed it back onto the front page. And it hasn’t been a good look for the NHL.

So what exactly is this lawsuit, and what does it mean for the NHL?

It’s a complicated issue with a lot of moving parts, but at a high level, this is about former NHL players who say they suffered concussions during their playing days, whether the league and its teams did enough to ensure player safety at the time, and what sort of responsibility (if any) the league should have to those players today.

Much of this resolves around a degenerative disease called chronic traumatic encephalopathy, or CTE. Most experts agree that CTE is related to a history of concussions and brain injuries, and can lead to all sorts of symptoms late in life, including dementia, aggression, depression and suicidal thoughts. Some of the stories of former athletes living with symptoms are gut-wrenching.

A growing list of former NHL players are suing the league, claiming that they suffered concussions during their careers - in some cases, multiple untreated concussions. Some players claim they’re already experiencing CTE-like problems, while others are concerned that they’ll face them in the future.

The list began with 10 players filing suit in 2010; that list quickly

grew to over a hundred. The case is now a class action suit, meaning it could include any ex-player who was suffering from concussion-related problems.

As often happens, this case has moved slowly. But we recently found out that a judge told the parties last year that she wants the case to go to trial in 2017, in some form or another.

What’s the players’ side of the case?

Basically, the players say that the league didn’t do enough to protect them from the dangers of head trauma. While concussions weren’t as well understood in the 70s, 80s and 90s as they are today, the players argue that the league and its teams could have and should have done more to ensure their safety.

Many players have told stories of suffering serious concussions, and receiving little or no support from their teams’ medical personnel. For example, you can read former enforcer Mike Peluso’s harrowing story of getting knocked out cold in a fight, then sent back out onto the ice to fight again. Many players have told similar tales.

The players are describing a league that was happy to market violence and that knew that fighting, big hits and physical play were a major selling point of their product, all while downplaying or outright ignoring the damage it could be doing to the players involved. If you got knocked out, you were expected to shake it off and get back out there, or your team would find someone else who would. And if players expressed concern, they were told that everything would be fine.

That sounds terrible.

It does. But remember, those are the players’ claims - they haven’t been proven in court.

So what’s the NHL’s side of things?

In the big picture, the league’s argument is that nobody understood the impact concussions could have back in those days, and that the players were given reasonable care given what was known at the time. In their view, the players understood that hockey was a dangerous sport that could do damage both short and long term, and that those players accepted the risks (and rewards) by suiting up. According to one court filing, the league says it was on the players to “put two and two together”.

The NHL has painted a picture of a league that did the best they could to understand the emerging threat of brain injuries; they began studying concussions in 1997, becoming the first major sports league in North America to do so. (The players would respond by pointing out that the results from those studies weren’t released for over a decade.)

The league has also suggested that the lawsuit is simply a cash grab, that the players involved are “mere puppets”, and that some of those sympathetic stories were the work of a public relations firm. One team’s insurer even suggested that Peluso’s health problems were the result of things like “lack of sleep” and “binge drinking”.

Didn’t the NFL go through a similar case?

They did, although the cases weren’t identical. The NFL reached a settlement with former players in 2013, one that was originally capped at $765m and was later increased to $1bn.

A challenge to that settlement was recently denied, meaning it will go forward. That case is clearly being used as a model for the NHL suit, and there’s been some overlap - Dr Bennet Omalu, the NFL doctor at the center of the movie Concussion, has lent his support to NHL players.

So at a high level, the cases are similar, although not directly related. But there are some key differences. For example, unlike the NFL, the NHL hasn’t yet acknowledged a link between CTE and concussions.

Wait, the NHL is disputing something that everyone else already agrees on?

Basically, yes. The link between CTE and head trauma is widely accepted, and while that view isn’t entirely unanimous, the NFL did

eventually acknowledge it.

But the NHL hasn’t done so, and has also declined to follow the NFL’s lead by funding research into the question.

As is often the case when you get into a courtroom, there’s some nuance here. The NHL doesn’t outright deny a connection; rather, they argue that the science isn’t settled, and that the players (and the media) are getting ahead of themselves. Still, it’s a stance that’s been widely derided, with one prominent player agent comparing the NHL to tobacco companies denying links between their product and cancer. He’s not alone.

The NHL is looking terrible in all of this, aren’t they?

They really are. As the entire process has unfolded, it’s often felt like every new round of revelations brought another PR black eye for the league.

Some of that is unavoidable. The NHL is a multibillion-dollar business run by guys in suits, so they’re not going to win any public opinion points when they’re up against the athletes that fans grew up cheering for, especially if those athletes are struggling with health and financial problems.

But even given that, it’s been ugly. That’s been especially true for a recurring theme over the years: Internal league emails being unsealed and made public that make the league look unsympathetic at best, and borderline barbaric at worst.

They’ve featured discussions over the role of fighting, including a senior league official referring to anti-violence proponents as “tree huggers” and “greenpeace pukes”.

More recently, emails emerged in which the league seems to consider withholding a former referee’s severance payto dissuade him from criticizing them.

In fairness, we don’t have the full context for some of these discussions, and not many of us would look good if our emails were opened up to the world. But the NHL consistently looks bad in all of this, and it’s safe to assume that they know it.

So what’s ultimately at stake here?

Quite possibly, the future of the league.

That’s not an exaggeration. We haven’t reached the stage where any dollar amounts have been attached to the suit, but it’s fair to say that in the absolute worst-case scenario, it could be an existential threat to the league. Remember, the NFL settlement would cost them a billion dollars, and plenty of people think

they got off easy

. They NHL isn’t a league that has a billion dollars just sitting around for a rainy day. A judgment or settlement that was near the NFL number - or even higher - could cause serious problems for the league.

Realistically, we probably don’t get to that sort of level. But the fact that the NHL is willing to continue to take a PR pounding rather than settle the case should give you an idea of how much money could be at stake.

And what happens next?

The judge wants something to go to trial this year, but that doesn’t necessarily mean the full class action. It’s possible we could see what’s called a bellwether case, in which a trial would focus on one player, such as Peluso, with that ruling leading into the broader litigation.

It's also worth remembering that there are other concussion and safety-related lawsuits in play, including those brought by the families of deceased players Steve Montador and Derek Boogard, that aren't part of this bigger class action.

So barring an unexpected settlement, we’re nowhere near a finish line yet. And that means we should expect the NHL to continue to take some ugly hits in the court of public opinion. That’s certainly not good for the league, but given what’s at stake right now, public opinion isn’t the court they have to worry about.

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