A series of brain image scansHayden Bird/Getty Images/iStockphoto
Two hundred retired NHL players, including former Toronto Maple Leafs 50-goal scorers Rick Vaive and Gary Leeman, have joined a class-action lawsuit in Washington, alleging they have permanent brain injuries from hockey, and the NHL owes them compensation. The suit follows a similar one from retired NFL players. The Globe and Mail asked legal and hockey experts about the ins and outs of the lawsuit and the game.
Why should the NHL pay? Didn't the players go into a rough sport with their eyes open?
Collective agreements make clear players are responsible for accepting risk, "so the difficult thing for law is how much is too much," says Burlette Carter, a law professor at George Washington University in Washington, specializing in sports and the law. "When you have a player who has a concussion on the field or on the ice, by definition, they don't quite know what's going on. When the decision depends on an expertise that is above that of the average person, then the team has a responsibility."
What did the league do wrong, exactly, according to the players?
They accuse the league of knowing but hiding risks.
Severe risks of brain injuries was as bad as those facing boxers or football players. The league should have banned fighting and bodychecking, the players say, and should not have put in rigid glass in 1996 (removed in favour of more-flexible glass in 2011) above the boards.
What's the big lesson of the class-action lawsuit against the NFL?
The NHL will be under enormous pressure to settle out of court. The NFL lawsuit, settled last summer for $765-million (U.S.) for more than 4,500 players, did not even make it to the pretrial discovery stage, let alone a jury. The football players' lawyers "were smacking their chops waiting to put some of the league's top dogs under oath," Carter said. "The NFL did not want that. Remember, the leagues have always claimed a right to be private about their information."
What's the worst-case scenario for the NHL?
A massive, nine-figure punitive damage award, or a sizable settlement. But neither is expected. "The NHL doesn't have the money the NFL has," says Michael McCann, a sports law expert at the University of New Hampshire. Whatever happens, it won't be an existential threat. With revenues set to rise because of a massive new Canadian broadcast-rights deal, the league should be able to absorb whatever consequences a suit would have.
Will this lawsuit change hockey?
The NHL would argue the game has changed considerably in the past five years. Legal action may focus the mind, but the NHL tends to move slowly. Experts suggest lower levels of the game are more likely to see major reforms. Lawsuits "send a warning shot out: 'Don't do this again,'" Carter says. At the very least, teams may be more careful about returning concussed athletes (or the potentially concussed) to play.
What will happen to fighting in hockey?
Today's players don't seem to be in any hurry to take action. About half the players in the NHL fought at least once last season, so getting a majority of the players' union to eliminating fighting is a big request. Montreal Canadiens tough guy George Parros, who suffered a concussion last month in a fight, still says "there's a place for it." This week, he suggested fighting is not the most dangerous aspect of hockey. "There's a group that says repetitive hits of a lesser strength than a punch to the face – the little hits that happen over the course of a season or a year – can be more damaging. In football, there's no punching."
What does this mean for Canadian NHL teams and other former players who live in Canada?
The NHL is a binational entity, although its corporate headquarters are in New York, and the teams, in theory, are independent businesses. That makes it a complicated proceeding, but it seems clear if the league were successfully sued, or if it reached an out-of-court settlement, all the teams, including the Canadian ones, would be on the hook.
What are the players really after?
The suit mentions "medical monitoring" – the former players want to be taken care of medically, the way the NFL has arranged to do with its battered former athletes. "After their careers are over, whether they last 20 years or 20 games, these guys are beat up," says Mel Owens, another lawyer representing the retired NHL players. The players are seeking punitive damages – which requires they show gross negligence – but the aim isn't to drive the league into bankruptcy. "You want to make sure they can still pay," says John Culhane, a tort law expert at Widener University School of Law in Delaware.
What kind of information could the hockey players demand from the league?
Anything relevant to the case, such as everything related to player safety. "They can even ask for hard drives that might have that kind of information," Carter says. "They might say, 'Let us go in and search.'"
What will the players need to show?
That the NHL "had a duty and did not fulfill that duty to assess them properly," Carter says. "There's a lot of evidence in the NFL that people were discouraged from seeking their own independent doctors. That increases the responsibility of the league to protect their health."