The Estate of Steve Montador, who played more than 600 games for various National Hockey League (NHL) teams, has sued the league for failing “to warn” Montador about the dangers of concussion.
The federal lawsuit, filed a on Dec. 8, 2015 alleges that as far back as 1997, the NHL collected data on repetitive head trauma in its game, but failed to warn Montador of the reality that repetitive head trauma in the NHL can cause long term cognitive and mental health impairments. The lawsuit alleges that this failure was intended to “conceal critical information” from NHL players in order to continue profiting from promoting an “extreme culture of violence.”
Montador, who took part in 69 NHL fights, died early this year at 35. Prior to his death, he reportedly suffered from depression, erratic behavior and problems with his memory. An autopsy revealed the presence of CTE.
“The NHL has long known that its players were susceptible to developing CTE and other neurodegenerative brain diseases as a result of the fist-fighting it allowed and promoted, the hard hits it encouraged and marketed, and/or the blows to the head that it steadfastly refused to eliminate from its game,” according to the complaint.
Plaintiffs’ attorney Thomas A. Demetrio of Corboy & Demetrio, who is representing the estate, compared the NHL’s action to those of the NFL.
“The NHL still refuses to accept the fact that its game creates permanent, progressive brain damage,” he said. “Instead, the NHL disingenuously gives its players a false sense of security by leading them to believe that repetitive head trauma in the NHL will not cause brain damage or resulting addiction or depression issues,” Demetrio added.
The lawsuit alleges he suffered thousands of hits to his head during his 13-year NHL career, including 15 documented concussions, with five concussions in just three months during the 2011-2012 season with the Blackhawks.
The Challenges Facing the Plaintiff
In an article written in 2013 for Sports Litigation Alert by Alana Newhook, now Vice President and General Counsel — Dallas Sports and Entertainment, she assessed the challenges facing plaintiffs suing the league, though primarily through class action:
“Despite the prevalence of concussions in hockey, hockey players have an uphill battle before a class action lawsuit could be filed against the NHL. This is due in part to the NHL’s proactive efforts to warn and educate its players against concussion injuries in contrast to the NFL. According to (Jon) Heshka (Associate Dean of Law at Thompson Rivers University in British Columbia, Canada), hockey began to appreciate earlier than football the risks inherent to the sport and started doing something about it.
“’After several players were forced to leave the game, the NHL mandated baseline neuropsychological testing for all players in 1997-98. This was well before the NFL began to do similar tests. In response to the tsunami of concussion litigation, the NFL has made far more rule changes to football to protect its players than the NHL has done to hockey,’ said Heshka. The NHL implemented new rules banning blind side or lateral hits where the principal point of contact is the head several years ago.
“The NHL has changed with regard to headshots and an overall awareness of the risks of concussions. In 2010, Dr. Ruben Echemendia, of the NHL’s concussion testing program and the NHL/NHLPA Concussion Working Group, stated that he thought the culture of hitting could change without having an effect on the integrity of the game and highlighted that players are looking at concussions differently. Echemendia was quoted in an article written in 2010 as saying that there have been changes in player culture with respect to concussions and an increased awareness of how serious the consequences of suffering a concussion can be for a player.
“The NHL instituted its current concussion policy in 2011 in which team medical personnel evaluate players as the first course of action after an injury. The team doctors determine when an athlete is ready to return to play but as evidenced in the saga with Sidney Crosby, the team doctors listen carefully to how the player feels about returning. In order to return, the player must be symptom-free at rest and exertion and must return to his baseline numbers. Baseline testing was first implemented as early as 1997. The concern over concussions and head injuries trickled down to the community level with stop signs being placed on the backs of youth jerseys in the 1990’s to educate young players about the dangers of hitting from behind. These are just a few examples of the NHL’s proactive approach to concussion injuries that makes a class action lawsuit similar to the litigation that the NFL is currently facing less likely to be launched against the NHL.
“The NHL’s proactive history in favor of protecting its players from concussions is just one reason why a class action lawsuit against the NHL is unlikely. The second hurdle that players would need to address in any attempt to file a class action lawsuit against the NHL is the jurisdictional headache created by the international nature of the NHL. The jurisdictional difficulties due to the fact that seven member teams of the NHL are located in Canada makes satisfying the requirements for class certification under the civil rules of procedure extremely difficult if not impossible. The NFL does not have this problem as all member teams are located in the United States and governed by the laws of the United States.
“The third challenge rendering a class action against the NHL unlikely is the main issue currently delaying the NFL litigation. The arbitration provisions of the collective bargaining agreement require that claims be arbitrated rather than heard in the courtroom. Lawsuits filed against the NHL would face the similar difficulty making the outcome of the NFL litigation extremely significant for the NHL. The NFL decision could potentially open the floodgates creating a precedent-enabling lawsuit to get out of the arbitration clause in the collective bargaining agreement and into the courthouse.
“The fourth challenge to a class action lawsuit or any lawsuits against the NHL by players seeking recovery for concussion injuries is the more obvious assumption of the risk legal argument. The defense of assumption of the risk is a hurdle that may be difficult to overcome. NHL hockey players have played since they were little and are well aware of the physical toll that the sport takes on an athlete’s body as well as the inherent risks of playing a sport. The NHL may use the legal defense to state that the players assumed the risk of concussion injuries by agreeing to play in the League. While this seems like a strong defense against a class action lawsuit brought by hockey players against the NHL, this legal maneuver may not be as potent as the NHL would like or as successful in the new NHL. When asked about the viability of the assumption of the risk defense, Paul Anderson stated that it would be a tough sell for the NHL, its member teams, or the team doctors to “successfully argue that former players were aware of the long-term neurological risks about concussions.” However, Anderson says, current players may not fare so well. ‘We are now in an era (i.e. post-2010) of concussion awareness, and assumption of the risk could potentially be a successful defense to a claim unless there are egregious facts.’
“The bottom line is that a class action lawsuit against the NHL based on concussion litigation is unlikely due to the four main hurdles that the players would have to face in order to certify a class, get out of the mandated arbitration, and overcome the legal defense of assumption of the risk. A class action lawsuit against the NHL would be difficult to accomplish but that does not preclude individual litigation against the League and its teams. The NFL litigation could open doors for increased litigation by hockey players against the NHL, its member teams and team doctors not only by bringing increased awareness of the possibility to sue for recovery for concussion injuries to the players but also by creating a legal precedent to get out of the arbitration clause of the collective bargaining agreement.”
