In late December, the National Hockey League claimed in court papers that the recent decision by a federal judge from the Northern District of California (Dent et al. v. NFL), which is summarized in the last issue of the Alert, supports its argument that a claim made by several former players that the NHL was negligent for failing to warn them about the damaging effects of concussion should be dismissed.
In Dent, the court dismissed a lawsuit brought by former NFL Hall of Famer Richard Dent and other players, who claimed that the NFL was negligent for failing the insure that prescription drugs were appropriately administered at the club level by athletic trainers and physicians. That court found that the Collective Bargaining Agreement (CBA) between the NFL and its players’ union was controlling. In short, the players union had agreed that such a responsibility rested with the teams, not the league.
“Just last week, the court in Dent vs NFL dismissed the claims of retired players that the NFL had negligently allowed them to be over-treated with painkillers,” claimed the NHL’s attorneys in documents obtained by the Canadian Website TSN.ca. “In evaluating any possible negligence by the NFL…, it would be necessary to take into account what the NFL has affirmatively done to address the problem, not just what it has not done.”
The league continued: “The court noted the ‘many steps’ the NFL had taken ‘to address the issue of player medical care by imposing on clubs detailed provisions in numerous collective bargaining agreements.’
“… The NHL’s collectively bargained agreements address player safety and health through provisions governing medical treatment for injured players, return-to-play determinations, and workers’ compensation coverage and end-of-season physicals. Moreover, unlike in Dent and the other NFL cases, the NHL has had (since 1997) a detailed collectively-bargained framework covering the subject matter underlying the negligence-based claims – the evaluation and management of concussions.”
The NFL also continued to claim that the players knew of the risk.
“When a plaintiff is aware of an injury and its cause, he is charged with knowing publicly available information that could be revealed through a ‘reasonable search,’ particularly where the issue has been discussed in ‘the press’ and medical studies are accessible through Internet searches,” according to the NHL.
“Plaintiffs contend that they had no burden to investigate because they relied on the NHL’s allegedly superior ability to interpret medical studies. But courts have squarely rejected arguments, like this one, based on a plaintiff’s alleged educational disadvantage relative to the defendant – even in cases involving a ‘trust relationship’ between the parties (which is absent here.)”
