By Legal Contributor
The Harvard Law School recently hosted its annual Sports Law Symposium on February 26, 2018. The well-attended gathering offered several timely speakers and topics, including panel discussions on (i) issues facing college basketball given the ongoing federal investigation, and (ii) building and expanding new arenas and sports venues. The seminar also included a fireside chat with Michelle Roberts of the NBA Players Association. Featured speakers, in addition to Ms. Roberts, included Michael McCann of UNH Law School (and Sports Illustrated), Paul Kelly of Jackson Lewis (former Executive Director of the NHL Players Association), Jeff Kessler of Winston & Strawn (lead counsel for the plaintiffs in the pending NCAA antitrust litigation), Tim Leiweke of the Oak View Group (former President of the Maple Leaf Sports), and Chris Nowinski, Founding CEO of the Concussion Legal Foundation.
One of the featured panel discussions addressed legal issues affecting professional hockey and the NHL. Panelists included Paul Kelly, Chris Nowinski, Eric Macramalla, an attorney and frequent hockey commentator for TSN, ESPN and NBC, and Larry Elswit, Associate General Counsel of Boston University. Issues raised and discussed included the following:
Contentious issues in CBA negotiations past and present
The NHL has endured two lengthy lockouts since 2004. The first lockout involved the League’s desire to implement a salary cap, and the resistance of the players union under Bob Goodenow to accept it. The more recent lockout primarily involved the League’s intention to rebalance the percentage distribution of total revenues as between ownership and the players under the salary cap system. Panelists identified the following issues as likely to be front and center in the next round of CBA negotiations when the current deal ends in either 2020 (when each side can opt out of current deal) or 2022 (if they agree to keep the current CBA in place for its full term): further dispute over distribution of revenue as between ownership and players, capping payroll escrow under the salary cap system, revenue sharing and dealing with struggling franchises, terms of free agency, and future participation in the Olympics.
Participation in the Olympics
It was agreed by panel members that the overwhelming consensus among NHL players is a preference for Olympic participation. This view is apparently held particularly strongly by European and Russian players. The opportunity to represent one’s country, and to interact with athletes from other sports, is viewed as a great honor and privilege. It was also acknowledged, however, that the NHL has legitimate concerns and reasons for not agreeing to Olympic participation. These include having to interrupt its season during a key juncture (when it is not competing for attention with football and baseball), the risk of injury to its players, the lack of attention on prime time television when the Games are played in such countries as Korea and China, and the unwillingness of the International Olympic Committee to grant key licensing and marketing rights from the Games to the NHL. Future Olympic involvement is certain to be a key issue in the next round of CBA negotiations.
Fighting in Hockey
Should the NHL continue to allow fighting in hockey, particularly in the face of mounting evidence of the enhanced risk of permanent trauma from blows to the head? This is a question has been debated for years, and will likely continue to be for years to come. The League has taken steps to reduce fighting by amending its rules to, among other things, limit “staged fighting” (or battles between enforcers that does not arise directly from on-ice events). Statistics confirm that there are fewer fights within NHL games, and gone are the days of bench-clearing brawls and other instances of overt violence on the ice. Part of this reduction is due to the presence of helmets and visors being worn by players (making fighting more difficult), but it is also reflective of the increased prominence place on speed, skill and finesse within the sport, and a greater awareness of long-term health concerns.
Concussions and Head Trauma
An exchange of views on fighting led naturally to discussion of concussions and the risk of permanent damage to NHL players. The NHL has vigorously defended the pending class action lawsuit filed by certain former players, and the League has publicly disputed the link between concussions and the risk of lasting and debilitating harm. Chris Nowinski shared his view that the NHL is ignoring available and widely accepted scientific evidence, and acknowledged that an increasing number of hockey players have agreed to donate their brains to the Boston University CTE Center for further research. Larry Elswitt also briefed the audience as to his successful battle with the NHL’s lawyers over their effort to subpoena years of medical and scientific records from Boston University’s CTE Center and Brain Bank.
Age Eligibility and Amateurism in Hockey
A final issue examined by the panel was how hockey differs from other sports in terms of its development system and the amateurism challenges facing the sport given the presence and active recruiting efforts of the Canadian Hockey League, which competes directly with NCAA hockey for talented young players. The panelists agreed that an adjustment of the draft age within the sport, from its current age 18, to age 19 or 20, would give younger players more time to mature and develop physically, and thereby benefit colleges, junior programs, NHL teams, and the players themselves.
