By Lawrence Lee
An unknown hockey observer once expressed the statement that “hockey is figure skating in a war zone.” After the $765 million dollar settlement for the NFL players that claimed they had sustained repeated head trauma on the gridiron, over 200 former NHL players have filed a similar federal class action lawsuit against the NHL. 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 dollar 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 or CTE. CTE is a progressive degenerative disease which may result in dementia, depression and aggression. 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.
Lawrence Lee is a partner in the Denver office of Fisher & Phillips LLP, a law firm representing employers nationally in labor and employment matters. Contact him at llee@laborlawyers.com or at 303-218-3650
