A federal judge from the District of Minnesota has denied the NHL’s motion to dismiss a concussion lawsuit brought by former NHL players, finding that the Collective Bargaining Agreement (CBA) does not preempt the claims as argued by the defendant. The ruling means the players can continue discovery, including examining potentially sensitive documents and emails and questioning NHL documents.
In the instant ruling, the court wrote that “discovery is necessary to shed light on the nature of the plaintiffs’ claims, when those claims accrued,” and if the CBA is “relevant.”
The plaintiffs are seeking unspecified financial damages and medical monitoring for neurological disorders associated with the aftermath of concussions and/or sub-concussive hits.
For background purposes, Lawrence Lee, a partner in the Denver office of Fisher & Phillips LLP, wrote the following for Hackney Publications last year:
“The players allege that the league possessed knowledge about the lasting effects of head injuries, it ‘willfully’ withheld information of the detrimental effects of repeated head trauma, and the league was proactive in encouraging unsafe and dangerous behavior on the ice rink.
“As with the prolific medical history and evidence frequent blows to the players’ heads leading to future harm, which led to the close to $1 billion settlement for the former and present NFL players, the class action by the NHL players is based on the presumption that repeated blows to the head is linked to chronic traumatic encephalopathy (CTE). While baseline testing has been created to assess potential cognitive impairment in living professional athletes, tests to determine the presence of CTE in an individual are only performed after death. Thus, the NHL players’ premise, that CTE and blows to the head are definitively linked together, are being denied and questioned by the NHL.
“If the fate of the players’ class action ends up, years down the road, before the judge or a jury, there may be a lack of empathy for the players who knew that professional hockey is an inherently violent sport whereby the longer it is played, the greater likelihood that injuries, whether as closed head trauma or not, will occur. Hockey fans have witnessed players flying around hitting each other with knife-like blades attached to their feet and understand that injuries are inevitable. A representative group of the legal community may ultimately conclude that professional hockey players are making millions of dollars by choosing to participate in a physically risky and dangerous sport that will sooner or later result in injury. In other words, NHL players “assume the risk” every time they lace up their skates.
“The NHL, similar to the NFL, asserts that it has attempted to make the game safer. This assertion may be subject to debate. In 2010, the NHL in its Rule 48 banned blindside checks to a player’s head. One year later, the rule was expanded to ban all hits, not just blindside checks, to the head. However, in a 2013 medical study led by Dr. Michael Cusimano, the factual data revealed that player concussions actually increased during NHL games from 2010 to 2013. The study concluded that the most common cause of concussions in the NHL, at 64 percent, was body-checking, and ironically, many of those hits were not specifically directed at a player’s head. Most body-checking concussions were linked to legal hits or non-penalized plays. In only 28 percent of the concussive events was there a penalty issued, which included fighting between players. Still, the study concluded that fighting, which is what many of the hockey-watching public believe is associated with concussions, should be banned.
“The foundation of the players’ class action lawsuit is that the NHL has purposely withheld key information about head trauma and links to significant brain injury of which the players needed to know in order to make an informed and reasonable decision before taking such risks. The 100+ page Complaint emphasizes, despite the significant capacity and resources available to the NHL to make the game safer and to prevent injury to the players, the league has allegedly failed to do the right thing in disclosing the significant risks of the profession. In the end, the Complaint seeks to have the Court make the game less dangerous, impose medical monitoring, and seek monetary and compensatory damages for the players as well as reimbursement of the players’ attorneys’ fees. It remains to be seen if the class action settles early, similar to the NFL concussion class action or whether the battle continues into overtime resulting in a courtroom shoot-out. The latter circumstance would likely mean a lose-lose scenario for the NHL players and the league based on the significant time and legal expense it would take to litigate this class action.”
The Preemption Argument in the Instant Opinion
The court noted that there were flaws in the NHL’s argument that the CBA preempted the plaintiffs’ claims, noting that NHL deputy commissioner Bill Daly publicly claimed that the league can make rule changes independent of the NHLPA.
He “commented in a news article and in an email to the players’ union that the NHL Board of Governors can enact rule changes without the players’ union’s approval,” wrote the court. “According to Plaintiffs, these documents show that a duty of care exists outside the CBA.”
Dionne Koller, director of the Center for Law and Sport at the University of Baltimore School of Law, told the Canadian news outlet TSN that the judgment in the NHL case is noteworthy because it allows discovery to continue.
“It’s far from over and this case can still be dismissed at a later time, but it’s important for the plaintiffs that this litigation hasn’t been stopped in its tracks,” she said. “Discovery, even if it’s targeted to issues like player injuries and the CBA, will turn up more important information for the players.”
In Re: National Hockey League Players’ Concussion Injury Litigation; D. Minn.; MDL No. 14-2551 (SRN/JSM), 2016 U.S. Dist. LEXIS 47224.
Attorneys of Record: (for plaintiffs) Bradley C Buhrow, LEAD ATTORNEY, PRO HAC VICE, Zimmerman Reed PLLP, Scottsdale, AZ; Brian C Gudmundson, Charles S Zimmerman, David M Cialkowski, LEAD ATTORNEYS, Zimmerman Reed, PLLP, Minneapolis, MN; Hart L Robinovitch, LEAD ATTORNEY, Zimmerman Reed, PLLP, Scottsdale, AZ; Janine D Arno, Kathleen L Douglas, Mark J. Dearman, LEAD ATTORNEYS, Robbin Geller Rudman & Dowd LLP, Boca Raton, FL; Leonard B. Simon, LEAD ATTORNEY, Robbins Geller Rudman & Dowd LLP, San Diego, CA; Stephen G. Grygiel, Steven D. Silverman, William N. Sinclair, LEAD ATTORNEYS, SILVERMAN, THOMPSON, SLUTKIN & WHITE, Baltimore, MD; Stuart A Davidson, LEAD ATTORNEY, PRO HAC VICE, Robbins Geller Rudman & Dowd, LLP, Boca Raton, FL. Bryan L Bleichner, Jeffrey D Bores, LEAD ATTORNEYS, Chestnut Cambronne, PA, Mpls, MN; Daniel E Gustafson, LEAD ATTORNEY, Gustafson Gluek PLLC, Mpls, MN; Jeffrey D. Klobucar, Lewis A Remele, Jr, LEAD ATTORNEYS, Bassford Remele, PA, Mpls, MN. Brian D Penny, LEAD ATTORNEY, Goldman Scarlato & Karon, PC, Wayne, PA; David I Levine, LEAD ATTORNEY, The Levine Law Firm, Fort Lauderdale, FL; James W Anderson, Vincent J Esades, LEAD ATTORNEYS, Heins Mills & Olson, PLC, Mpls, MN; Katelyn I Geoffrion, Thomas A Demetrio, LEAD ATTORNEYS, Corboy & Demetrio, Chicago, IL; Mark S Goldman, LEAD ATTORNEY, Goldman Scarlato & Karon, PC, Conshohocken, PA; Michael R Cashman, LEAD ATTORNEY, Zelle Hofmann Voelbel & Mason LLP, Mpls, MN; Richard M. Hagstrom, LEAD ATTORNEY, Hagstrom Law Office, Mpls, MN; Robert K Shelquist, LEAD ATTORNEY, Lockridge Grindal Nauen PLLP, Mpls, MN; Thomas Joseph Byrne, LEAD ATTORNEY, Namanny, Byrne & Owens, APC, Lake Forest, CA; William T Gibbs, LEAD ATTORNEY, Corboys Denetrio, Chicago, IL; David A Goodwin, Joshua J Rissman, Gustafson Gluek PLLC, Mpls, MN.
(for defendant) Adam M. Lupion, Joseph Baumgarten, LEAD ATTORNEYS, PROSKAUER ROSE, LLP, New York, NY; Geoffrey M. Wyatt, LEAD ATTORNEY, Skadden, Arps, Slate, Meagher & Flom, LLP, Washington, D.; James A. Keyte, Matthew Michael Martino, LEAD ATTORNEYS, Skadden, Arps, Slate, Meagher & Flom LLP (NYC), New York, NY; Jessica D Miller, LEAD ATTORNEY, Skadden, Arps, Meagher & Flom LLP, Washington, DC; John Herbert Beisner, LEAD ATTORNEY, SKADDEN ARPS SLATE MEAGHER & FLOM LLP, Washington, DC; Shepard Goldfein, LEAD ATTORNEY, Skadden Arps Slate Meagher & Flom, New York, NY; Aaron D Van Oort, Daniel J Connolly, Joseph M Price, Linda S Svitak, Faegre Baker Daniels LLP, Mpls, MN; Michael H Menitove, Skadden, Arps, Slate, Meagher & Flom LLP, New York, NY.
