NHL may follow football's lead on concussion lawsuitsPosted On: May. 24, 2015 12:00 AM CST
Concussion-related lawsuits by professional football players are likely to guide the National Hockey League's legal strategy in similar cases filed by retired hockey players, including the possibility they will be settled out of court.
“I think that the (NHL) recognizes that it's in their long-term interest to deal with these issues and to settle these cases,” said Gary R. Roberts, dean emeritus and law professor at the Robert H. McKinney School of Law at Indiana University in Indianapolis. “They don't want the cases to drag on for years and years and have the league look like they're insensitive or unfeeling or don't care about their players.”
Earlier this month, attorneys for the family of former NHL player Steve Montador, who died in February, said a brain study found the 35-year-old died of chronic traumatic encephalopathy. Mr. Montador played defense for several teams during his 10-year career, including the Chicago Blackhawks. Attorneys say a concussion he suffered in 2012 while playing for the Blackhawks contributed to his brain condition.
Mr. Montador's degenerative brain condition and death “should serve as yet another sad wake-up call to the NHL,” Thomas Demetrio, a partner at Chicago law firm Corboy & Demetrio, said May 12 in a statement.
The firm, which represents Mr. Montador's family, also represents several former NHL players who are pursuing multidistrict litigation against the league over concussion-related health problems in federal court in Minneapolis.
Players in the case, which reportedly has grown to 70 plaintiffs, say they “signed up to play hockey knowing that they might get injured and dinged, but they did not sign up for avoidable brain damage,” according to court filings last August. The problems include headaches, personality changes, sleep disturbances and severe depression, according to the master complaint.
Players allege the NHL has “fostered an unnecessarily violent sport” by allowing “ferocious head-snapping checks” and “vicious bare-knuckle fist fights” between players to attract fans and revenue.
For “nearly a century, the NHL has failed to supply its players with full, accurate information about the risks of head trauma because it has continued to profit handsomely from its culture of violence, notwithstanding the brain injuries inflicted on NHL players,” according to the players' suit.
Charles S. Zimmerman, a partner at Minneapolis law firm Zimmerman Reed P.L.L.P. and a lead attorney in the players' suit, said he expects more concussion litigation from retired NHL players. Attorneys in the federal suit are seeking class-action status.
“There is clearly growing momentum for the litigation amongst former players who are concerned about the long-term effects of the repetitive head trauma they sustained in the NHL,” Mr. Zimmerman said in a statement to Business Insurance. “We hope this case will allow former players to finally hold the NHL accountable for its misconduct so they can receive the care and support they urgently need.”
In court filings, the NHL has argued that the players' claims “occurred many years — and even decades — ago” and should be time-barred. It also contends that the players have not shown sufficiently that the NHL took steps to conceal the dangers of concussions and other head injuries.
“On the face of the complaint, plaintiffs do not even attempt to plead that the NHL deliberately concealed material information from plaintiffs; nor could they given that the alleged material facts were publicly available,” the NHL said in a November motion seeking to dismiss the suit. “Rather, the only alleged misconduct plaintiffs identify is "silence' regarding the alleged "risks and long-term effects of head injuries suffered while playing in the NHL.'”
The NHL said it could not have fraudulently concealed head trauma dangers because such risks have been “publicly known and conclusively established for decades.”
Attorneys for the NHL did not respond to requests for comment last week.
Legal experts say they believe the NHL has watched how concussion-related lawsuits have played out for the National Football League in determining its defense.
In April, a Philadelphia federal judge approved the NFL's settlement of a class-action suit brought by more than 4,500 former players over concussion-related injuries. Former player Craig Heimburg this month filed an appeal in the 3rd U.S. Circuit Court of Appeals challenging the settlement, which is expected to cost the NFL more than $1 billion.
Ronald S. Katz, Los Angeles-based partner and chair of the national sports law practice at Manatt, Phelps & Phillips L.L.P., expects the NHL to use some of the NFL's presettlement defense arguments.
“The primary defense will probably be the same as that of the NFL — that this subject is covered by the collective bargaining agreement and should therefore be decided by an arbitrator rather than a court,” Mr. Katz said in a statement to Business Insurance.
Marc Edelman, a law professor at the Zicklin School of Business at Baruch College in New York, said players in the NHL case may have more difficulty pursuing their claims than athletes in the NFL or the NCAA, which offered in April to settle several former football players' federal suit over head trauma they suffered while playing for college teams.
NCAA athletes are not unionized, and many former NFL players who sued played before a union existed for them, Mr. Edelman said. As a result, the NCAA and NFL had a difficult time arguing that players should have filed grievances under collective bargaining agreements, rather bringing claims in court.
Players suing the NHL were represented by a union at the time of their alleged injuries, making it likelier that the league could be shielded from such litigation, Mr. Edelman said.
Indiana University's Mr. Roberts said concussion litigation has prompted the sports leagues to consider safety programs to help reduce player head trauma.
For instance, the NFL created a wellness program in 2012 for current and former players, while the NCAA released updated guidelines last year to diagnose and manage sports-related concussions.
Mr. Roberts doesn't believe such lawsuits will hinder the leagues in the long run.
“We're not going to see the NFL or NHL go out of business because they have to be more careful and they have to have more thorough protocols and treatment, but we might see them change the rules and that could have an impact on the game,” he said.
He also said such litigation has spread to other sports, such as professional wrestling and water polo.
“Suing a sporting organization because of concussions or head injuries has almost become America's favorite sport in the last few years,” Mr. Roberts said.