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The NHL Concussion Lawsuit: Another League of Denial?

How the NHL suit compares - and contrasts - with the NFL one

Sports on Earth

Editor’s note: On Monday, 10 former National Hockey League players filed a class action concussion lawsuit against the league. Here are the main questions answered:

Why are former NHL players suing the league?

Essentially, the plaintiffs are making the same argument that more than 4,600 former football players made against the NFL: the NHL had a duty to inform hockey players about the risks of brain damage and protect them from those risks, yet through a combination of omission and commission failed to do so. Consequently, the 10 plaintiffs — and other players, presumably — suffered “unnecessary harm” during their professional careers and now are suffering from a wide spectrum of health problems, including headaches, dizziness, depression, memory loss and other cognitive deficiencies.

Is the case against NHL similar to the case against the NFL?

Somewhat. In 1994, then-NFL commissioner Paul Tagliabue created the league’s now-infamous Mild Traumatic Brain Injury Committee. Staffed by a rigged deck of NFL-affiliated doctors and trainers and chaired by a resume-padding rheumatologist who also happened to be Tagliabue’s personal doctor, the committee ostensibly was intended to advance scientific knowledge about football-induced brain damage. Instead, it produced a series of discredited, evidence-cooking papers that downplayed and dismissed the risks of the sport. Drawing laughable conclusions such as “concussions in professional football are not serious injuries” and “professional football players do not sustain frequent repetitive blows to the brain on a regular basis,” the committee’s work supported both the NFL’s repeated public denials of a link between football and cognitive harm (which are ongoing!) and the blithe continuation of dangerous league medical practices, such as allowing concussed players to return to play on the same days as their brain injuries. Moreover, the committee ignored and attacked independent scientific evidence suggesting that getting hit in the head while playing football can result in both acute and long-term cognitive harm, including neurodegenerative diseases like chronic traumatic encephalopathy (CTE).

Now for the parallel: three years after the formation of the NFL committee, the NHL created its own concussion program, obstensibly to better understand brain damage in hockey. Between 1997 and 2004, the program required teams to maintain records of player concussions and also administer baseline neuropsychological tests. However, the plaintiffs argue that:

* The program did not issue a report until 2011, 14 years after its formation;

* The 2011 report only discussed concussion incidence in the NHL though the 2004 season and did not take a position on the long-term health effects of concussions and other brain trauma, ignoring “accepted and valid neuroscience regarding the connection between repetitive traumatic concussive events, sub-concussive events and/or brain injuries, and degenerative brain disease such as CTE”;

* The NHL publicized the program as “independent,” even though it was made up of doctors and researchers affiliated with the league;

* The program — and the league — have yet to take a public position on the long-term effects of concussions, with the NHL maintaining that more research is needed.

The result? According to to the plaintiffs, the league created a “climate of silence” that lead players to believe that concussions were not dangerous.

That sounds familiar, and not particularly good. Are we looking at “League of Denial II?”

Probably not. Some smoke? Sure. But no smoking gun. At least not yet. The NFL’s sins were ones of commission — the league actively produced junk science, sought to discredit researchers who disagreed and aggressively pushed a football’s safe, nothing to see here, let’s move on narrative through its marketing and public relations arms. Congressional comparisons to Big Tobacco weren’t just apt. They were earned.

By contrast, the NHL’s denial has been passive. Wait-and-see. Maybe there’s a problem here. We don’t know enough to really know. League doctors have never questioned or denied to existence of CTE. They haven’t submitted cooked papers to scientific journals. Of course, none of this makes the NHL’s actions right. It simply makes them less wrong. And likely less vulnerable in court.

To wit: the plaintiffs argue that doctors and scientists have known since the 1920s that getting hit in the head in boxing can lead to brain injuries and chronic damage — and as such, the NHL should have been aware of possible heath risks in hockey and done more sooner to protect its players. Now, that might be true. In hindsight, it definitely would have been a good idea. But by itself, it’s hardly evidence that the league was involved in a purposeful, malicious cover-up.

So, has the NHL done a good job protecting players from concussions and brain damage?

Not especially. As the plaintiffs make clear, the league hasn’t exactly acted with a sense of urgency. It’s one thing to tout yourself as “the first sports league to have a working concussion study group” — and quite another for said study group to take 14 years to produce a single document, one with the Earth-shaking conclusion that “postconcussion headache, low energy or fatigue, amnesia and abnormal neurologic examination were significant predictors of time loss among professional hockey players.” Duh. During the same time frame, players such as Eric Lindros, Keith Primeau and Scott Stevens were forced to retire due to concussions and brain damage.

So yes: time loss. Thanks, NHL science!

According to the lawsuit, the NHL in 1996 changed from flexible to rigid arena glass, despite player complaints that the latter was equivalent to “hitting a brick wall.” In 2005, the league began penalizing “clutch and grab” hockey, speeding up the game and — as the plaintiffs argue — increasing the number of brain-rattling high-speed collisions. Not until 2010 did the NHL begin to make significant rules changes designed to reduce brain trauma — penalizing checks on defenseless opponents and intentional hits to the head; requiring doctors, not trainers, to perform player concussion evaluations during games; creating a department of player safety; and just this year prohibiting concussed players from returning to the same games in which their concussions occurred.

Given the preponderance of scientific evidence indicating that the brain needs time to heal following a concussion and is particularly vulnerable to additional damage during that window, the above return-to-play rule seems woefully overdue. If nothing else, the NHL appears guilty of severe foot-dragging.

What’s the strongest part of the case?

The plaintiffs taking the NHL to task over fighting. On-ice fisticuffs are a popular, longtime aspect of professional hockey, deeply rooted in its history, culture and ethos of physical domination and self-sacrifice. However, brawls are not essential to the sport itself. They aren’t even scored (except on message boards). Outlaw fighting, and hockey would remain wholly recognizable.

Now consider: doctors have known for a century that getting punched in the head is bad for your brain, both at the moment and in the future. CTE has been found in the brains of former hockey players Reggie Fleming, Rick Martin, Bob Probert and Derek Boogaard — and all but Martin were enforcers. Nevertheless, the NHL hasn’t banned fighting outright. It hasn’t even taken drastic steps to curtail the frequency of throwdowns. When the plaintiffs complain that the league “exposed players to unnecessary dangers they could have avoided,” it’s hard to argue that the NHL’s longtime acceptance of fighting doesn’t qualify.

What’s the weakest part of case?

The plaintiffs contend that the NHL has promoted and encouraged a “culture of violence.” How so? According to the lawsuit:

… films such as Slapshot, The Last Gladiators, Goon, Youngblood and others reflect this NHL-inspired culture. The public statements of Don Cherry and the use of highlights on such sites as and his video series Don Cherry’s Rock’em, Sock’em Hockey are further examples of this violence- centered culture promoted by the NHL.
NHL Films, an agent and instrumentality of the NHL devoted to producing promotional films, has created numerous highlight features that focus solely on the hardest-hits that take place on the ice. These featured videos are marketed and sold to advance the NHL’s culture of violence as entertainment.
In addition, NHL-sponsored video games include fighting and vicious body checking. Video game players also add virtual Enforcers to their team rosters to ensure their players will not be intimidated by the simulated violent tactics of the opposition.
This is part of the overall culture in which NHL players are encouraged to play despite an injury, in part because failure to do so creates the risk of losing playing time, a starting position, demotion to the minors and the abrupt end to a career.
Within this culture, the NHL purposefully profits from the violence they promote …

Do the plaintiffs have a moral point? Probably. Is it a sturdy legal argument — that is, can hard-hit highlight videos demonstrably be shown to have contributed to player brain damage? Probably not.

Sadly, the suit does not mention arena sound systems playing Danzig’s “Mother,” nor the ability to make Wayne Gretzky’s head bleed in “NHLPA ’93.”

What’s the most unusual part of the case?

Easy: the plaintiffs repeatedly take the NHL to task for not only refusing to ban fighting, but also body-checking. All body-checking. In other words, the lawsuit suggests that hockey as we know it is fundamentally and unacceptably dangerous with regards to brain health.

What kind of defense will the NHL employ?

Beyond the usual legal maneuvering, expect the league to point a large finger at the players’ union, which helped create and administer the NHL’s concussion program. Responding to the suit, league deputy commissioner Bill Daly gave the following statement:

“While the subject matter is very serious, we are completely satisfied with the responsible manner in which the league and the Players’ Association have managed player safety over time, including with respect to head injuries and concussions. We intend to defend the case vigorously and have no further comment at this time.” (Bold added)

Translation? We’re not the only ones holding the bag here.

Are the plaintiffs looking for an actual trial, an NFL-style settlement, or something else?

Right now? Probably the last two. The case as presented is relatively weak, both in facts (no NFL MTBI committee-like smoking gun) and size (only 10 plaintiffs). In some ways, the suit is a two-pronged fishing expedition — a way to attract additional former players, and also gain leverage against the NHL through the prospect of a legal discovery process. As Sports Illustrated’s Michael McCann explains:

In addition to threatening the league with substantial damages, Leeman v. NHL threatens an uncomfortable legal process. Pretrial discovery, in particular, would be worrisome for the NHL. Sensitive documents about league and team finances may have to be shared, and owners and league officials could be deposed by the plaintiffs’ counsel under oath. For a league known for its secrecy, the prospect of a high-profile class action and private documents becoming public is surely an unwelcome thought.

The suit itself asks for unspecified damages — read: cash — and a medical monitoring program to diagnose and treat former players with cognitive health problems. The proposed NFL settlement offers somewhat similar terms. If the NHL plaintiffs can wrangle a deal out of the league, they may be inclined to take it.

What does the lawsuit mean for hockey going forward?

It makes the NHL’s ongoing embrace of fighting increasingly untenable. And it could lead the sport as a whole to consider and adopt additional restrictions on checking. Otherwise, it’s too early to tell.

Read the original article at Sports on Earth