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NHLers would face 'number of hurdles' in concussion lawsuit

This Jan. 5, 2011, file photo shows Pittsburgh Penguins' Sidney Crosby playing against the Tampa Bay Lightning in the first period of an NHL game, in Pittsburgh. Penguins captain Sidney Crosby has taken another step forward in his recovery from a concussion. Doctors cleared him for contact prior to Thursday's morning skate at Consol Energy Center. THE CANADIAN PRESS/AP, Gene J. Puskar

Gene J. Puskar/CP

Dale Hunter offers an uneasy laugh when he's asked about concussions.

Hunter was among the toughest players of his time, piling up 3,565 penalty minutes during his 19 years in the NHL, ranking him second only to Dave (Tiger) Williams. He spent so much time in the penalty box, the Washington Capitals presented him with an actual penalty box when the team retired his number in 2000. After he finished playing in 1999, Hunter went on to become a coach and team owner in the Ontario Hockey League, where he ran into trouble for encouraging players to fight, and he's now head coach of the Washington Capitals.

When asked Thursday if he's worried about the lasting impact of concussions, Hunter smiled and replied: "I never had one. So I should be okay. Shouldn't I?" Then he let out a long laugh.

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Hunter, 51, probably won't likely be lining up any time soon to hold the NHL legally accountable for any health damage he may have suffered as a result of repeated blows to the head. But other former players might.

Dozens of retired NFL players have recently filed class-action lawsuits against the NFL alleging the league ignored "overwhelming medical evidence that on-field concussions led directly to brain injuries and frequently had tragic repercussions for their retired players." One action claims negligence and fraud, and alleges the retired players suffer from speech problems, memory loss, depression, anxiety, dizziness and headaches.

"In theory former [NHL]players could start a lawsuit like that against the NHL," said Caroline Zayid, a Toronto lawyer who specializes in class actions at McCarthy Tétrault. "But there are a number of hurdles."

One of the biggest, she said, is trying to apply retroactively whatever medical knowledge we have today about concussions. Just because we know now that concussions can cause certain health problems, "that may not have been known at the time," Zayid said. And if the dangers of concussions were widely known back then, why did the players keep playing?

The NFL players argue the league knew for decades about the harm caused by blows to the head, but misrepresented the information to players. They point out that the NFL set up a committee in 1994 to study the impact of concussions and then allegedly used it to hide the real dangers. Retired NHL players would have to try to raise similar arguments.

Zayid said former players from both leagues face another legal obstacle: making a direct link between concussions and health problems. Depression, anxiety and other health issues could be caused by many factors, something NHL commissioner Gary Bettman has been arguing already. And even if concussions were to blame, Zayid said the league can argue the damage could have happened when the players were in junior hockey, long before they reached the NHL.

The NFL players have tried to counter similar arguments by citing dozens of studies the league allegedly disregarded or even tried to disprove over the years before finally acknowledging a problem recently. "That it took 16 years to admit that there was a problem and to take any real action to address same, is willful and wanton and exhibits a reckless disregard for the safety of their players," one suit alleges.

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Dimitri Lascaris, a class-action lawyer with Siskinds LLP in London, Ont., said another challenge for NHL players is "the doctrine of assumption of risk." The NHL, he said, "would argue that the players knew exactly what they were getting themselves into and that they voluntarily assumed the risk of such injuries in exchange for substantial compensation."

The NFL players have tried to counter that by acknowledging football is a tough sport where injuries are common. But they add that it's up to the league to identify the risks of long-term serious injury and "take reasonable steps based upon their findings to protect their players."

As for Hunter, he has another take on the whole issue of concussions and the growing number of players out with head injuries. "Sometimes it just goes in streaks," he said Thursday. "Unfortunately it's right now, but then it will go for a streak where there's none. So it's one of those things where … it seems like a lot, but it will even out, I think."

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About the Author
European Correspondent

Paul Waldie has been an award-winning journalist with The Globe and Mail for more than 10 years. He has won three National Newspaper Awards for business coverage and been nominated for a Michener Award for meritorious public service journalism. He has also won a Sports Media Canada award for sports writing and authored a best-selling biography of the McCain family. More

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