By Margaret Kelly. Esq.
On July 25th, the National Hockey League was hit hard by the latest in a series of concussion-related class actions. Throughout the body of this latest lawsuit (and its brethren) the NHL is brashly cast as deliberately promoting an environment conducive to grievous head injuries, intentionally withholding evidence clarifying the gravity of the associated risks, and failing to shield its players with reasonable regulations, all out of a callous pursuit for profits. If anything is clear, here, it’s this: these are fighting words and the mitts are off.
The Crash-Line[15]
The most recent lead plaintiffs joining the crash-line against hockey’s premiere league are former NHL players Dan Fritsche and Chris Ferraro. Both suffered repeated concussions over the course of their careers and reportedly continue to endure the consequences today.
Fritsche and Ferraro join an increasingly daunting line-up of former pro-players filing suit against the NHL on similar charges; theirs is one of four concussion-related lawsuits filed against the NHL in the last year, the largest of which—filed last November—has reportedly grown to include hundreds of former players.
As an evocative lawsuit filed by former NHL defenseman Jon Rohloff forcefully begins, “former NHL players are uniting to send one resounding message: they signed up to play hockey knowing that they might get injured and dinged, but they did not sign up for brain damage.”
While Rohloff is the only former player so far to file individually, the recent suit led by Fritsche and Ferraro is representative of the concordant class actions.
A Formidable Faceoff[16]
In its opening lines, the Fritsche-Ferraro suit identifies itself as arising from the debilitating effects of repetitive concussions, long-suffered by NHL players. The lawsuit alleges, in the main, that the NHL has breached its duty to protect its players by creating, fostering and promoting a culture of extreme violence on the ice, where head trauma has been and remains an imminent threat. Plaintiffs further contend throughout the suit that the NHL has negligently and brazenly failed to enact reasonable rules and regulations that could reduce incidents of head trauma and otherwise mitigate its effects.
A final, disquieting theme throughout is the lawsuit’s contention that the NHL has been aware for decades of the explicit risks associated with repetitive concussions—which plague the sport at epidemic levels—but has “deliberately ignored” and “actively concealed” the information from the plaintiffs, not to mention all other hockey players, at every level, nationwide.
Demanding the Sin Bin[17]
Canvassing the laundry list of substantive allegations, the suit alleges, first and foremost, that NHL hockey is problematically characterized by “extreme violence and fighting” not otherwise witnessed in comparable elite-level hockey organizations worldwide. The suit contends that other hockey leagues, such as those across Europe, the Olympics and the NCAA, have nearly eliminated the brutality that remains a marked feature of NHL contests. Indeed, “extreme violence,” plaintiffs insist—well beyond that which exists in other elite hockey leagues worldwide—has been and remains “integral” to the NHL.
The complaint goes onto reference studies observing “epidemic levels” of head trauma in current and former NHL players, and thereafter identifies four principal culprits behind the league’s scourge of concussions, and its corresponding culpability:
The NHL’s promotion of violence and compatibly permissive stance re: fighting
The NHL’s active down-playing of the risks associated with repetitive head trauma
The NHL’s inadequate rules, regulations and concussion protocols
The NHL’s passive endorsement of insufficient protective gear
The suit asserts with great force that the NHL has failed to minimally insulate its players from the sport’s brutal, repetitive, on-ice impacts. To the contrary, plaintiffs slate the NHL as actively endorsing the more violent features of its sport and downplaying any associated risks. On this plane, the complaint documents several incriminating sound bites from the league’s leaders over the years, including NHL President John Zeigler’s 1988 remark to the Miami Herald that “violence will always be with us in hockey,” and NHL Commissioner Gary Bettman’s 2007 acknowledgement that “fighting has always had a role in the game.”
Plaintiffs also make note of Bettman’s 2011 documented insistence to the press that no one could know with certainty whether or not fighting was dangerous, and that it was premature to draw a connection between fighting on the ice and the onset of chronic, traumatic neurodegenerative diseases years later.[18]
Even more bluntly, as outlined above, plaintiffs go onto allege that the NHL’s billion-dollar enterprise has in fact actively marketed and profited from its sport’s violence[19], and even encouraged it through lax league regulations[20] and equipment standards[21] designed to shield profits before players.
Ultimately, the lawsuit concludes that while long-accepted medical evidence is clear about the grave risks associated with repetitive head trauma, the NHL has shirked its corresponding duties to reduce violence on the ice, prioritizing its balance-sheets and therein exposing its players to undue risk. Finally, as noted above, the suit goes one step further with allegations that the NHL, acting again in the interests of profits, has affirmatively concealed scientific evidence about hockey’s health consequences, failing to warn players of very real risks to their lives and livelihoods.
Fritsche and Ferraro have demanded a trial by jury; they are seeking both damages and equitable relief individually and on behalf of the class, including but not limited to a medical monitoring program that appropriately cares for former and current NHL players as they battle lifelong health problems suffered as a result of the NHL’s alleged misconduct.
Words from the War Room[22]
The NHL has made no direct comment, as of yet, in relation to the latest class action led by Fritsche and Ferraro. Generally speaking, it has kept its own counsel regarding its potential defenses in this line of cases. In April, however, in a relatively rare, direct response (re: a lawsuit led by former players Dan LaCouture, Dan Keczmer and Mike Peluso) NHL deputy commissioner Bill Daly voiced his unwavering confidence in the league’s rules and policies related to concussions. He further indicated in the press that the league was “completely satisfied” with its record on player safety, including that related to repetitive head trauma.
Parallel Power Plays[23]
It is worth noting that the NHL is not the only bastion of American athletics backed against the boards by its players about its management of the concussion issue. Indeed, the substantive allegations, force and tone of the lawsuits pending against the NHL echo similar, concussion-related suits filed by former NFL players and NCAA student-athletes against their respective organizations.
Ultimately, July was a big month for those injured athletes seeking redress. Early in the month, a federal judge granted preliminary approval to a deal that would compensate thousands of former NFL layers for concussion-related claims. The settlement is set at a staggering $765 million, to be doled out to over 4,500 NFL players and their families as compensation for traumatic brain injuries sustained over the players’ careers.
The NCAA reached a like-minded decision at the end of July, agreeing to provide $70 million to settle claims in a range of concussion-related class actions. With the NHL in similar straights, battle-worn American athletes may soon be lighting the lamp, if you will, and scoring themselves a hat trick.
[15] A Crash Line: A starting line of hockey players that is known for big hits and tough play.
[16] A Face-Off: The method used to begin play. Two players, one from each team, line up facing each other and each attempts to gain control of the puck after it is dropped by an official between their sticks.
[17] The Sin-Bin: Ice hockey’s penalty box.
[18] Repeated instances of head trauma are routinely linked to Chronic, Traumatic Encephalopathy, a progressive degenerative disease of the brain which can begin months, years or even decades after the last concussion; CTE is associated with memory loss, confusion, impaired judgment, paranoia, damaged impulse control, aggression, depression and progressive dementia.
[19] On this point, the complaint notes that the NHL regularly features violent hits and fights in league-sponsored advertising and promotions. In 2012, for instance, the NHL’s website featured prominently an infamous, six-player brawl in Madison Square Garden, and notably issued no fines or suspensions to any of those involved.
[20] Other elite hockey organizations, for instance, have had no problem banning fighting from the ice, including the Olympics, the NCAA and the European Hockey League. The NHL has failed to follow suit in the face of unimpeachable evidence that banning fighting would significantly reduce concussions on the ice. The lawsuit presents further evidence, here, suggesting that most NHL concussions result from legal actions where the aggressor was not penalized, fined or sanctioned in any way. It is worth noting that rules aimed at reducing the prevalence of head injuries were instituted in 2010, but the lawsuit cites at least one study deeming these changes ineffective.
[21] The NHL requires neither a full-face shield nor a mouth-guard, despite medical opinion supporting the value of both, and the glaring fact that the large majority of concussions are sustained by players without face-shields.
[22] The War Room: A controlled office at NHL Headquarters in Toronto where all NHL goals, penalties and other close plays are subject to review. Most arenas have their own reviewing resources, but officials in the War Room in Toronto often make the final decision.
[23] A Power Play: A power play is a position of strength a team garners when its opponent has been assessed a penalty that forces it to play shorthanded (i.e. absent one or more players on the ice).
