The precedent is set, the NHL will likely have to pay, but the question is: How much?
Back in August, the National Football League (NFL) settled with roughly 4,500 retired players who launched a lawsuit against the league for having “concealed the long-term dangers of concussions and rushing injured players back onto the field, while glorifying and profiting from the game’s violence,” as the Aug. 29 CBC article read.
The former athletes – some of whom are suffering from dementia, depression, or Alzheimer’s claimed to be caused by blows to the head – launched the case back in 2011 in Philadelphia. Since then, the settlement has grown to cover 18,000 players, and the league has committed $75 million for medical exams and another $10 million for medical research.
I wish I were in possession of a recorder during those humid days in August when all the litigations were occurring. “Just you wait,” I said, “the NHL is going to see how this all goes down, and once the lawsuit is settled, it will be the NHL players who file a class-action against the NHL.”
Well, my “I told you so” moment came last week when it was announced that more than 200 players have joined an existing lawsuit, with a handful of unnamable names, against the league that “knowingly put them at risk.”
In legal terms, the lawsuit has been filed for negligence and fraud on behalf of the NHL, and the contention of the players filing the suit is that there should have been more done to address head injuries – but instead, the league decided to continue to promote and profit from violence on the ice.
An article published in the Globe and Mail asked for legal advice on the matter, and questioned lawyers on why the NHL should have to pay for a sport that players knew was rough when they began playing it.
Legally, the players union signs a collective bargaining agreement that says players are responsible for accepting risk, “so the difficult thing for law is how much is too much…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 and beyond that of an average person, then the team has a responsibility,” said Burlette Carter, a law professor at George Washington University in Washington D.C.
Carter went on to speculate that the NHL’s best-case scenario at this point is to settle out of court, just like the NFL did.
For the average hockey fan, this won’t mean a disruption in scheduling or games. Even if the lawsuit goes through and a settlement is reached, Michael McCann, a sports law expert at the University of New Hampshire, said the worst-case scenario of a massive, nine-figure punitive damage award, or a sizeable settlement, is unlikely and not expected; adding that even though the NHL doesn’t have the money the NFL has, any settlement will likely not cause a threat to the league.
Carter has called this lawsuit a “warning shot” to not only the NHL but to other sports leagues, and even minor hockey, which will be frantically scrambling to redesign youth hockey to avoid concussions early in life.
The burden of proof obviously rests on the shoulders of the 200-plus players filing the lawsuit, and their legal team will have to prove that the NHL “had a duty and did not fulfill that duty to asses them [players] properly,” Carter said.
Here at the University of Guelph, coach Stu Lang was quick to boast in an interview earlier on this season, that the Gryphons football team is the first in Canada to test Riddell’s new InSite technology, which measures hits inside the player’s helmet and accumulates these hits over the period of a game and season, making it difficult for players to hide potential injuries.
The message is out, though: leagues are fair game for massive player lawsuits if the players can prove that the duty to protect and assess was not fulfilled, and as far as the NFL precedent is concerned, the players had a case.
To not make the same mistake twice, I will go on record now, and say that the lawsuits are far from over, and the next league in the crosshairs of some very serious legal ramifications from concussions is NCAA football. Stay tuned.