The National Hockey League and the Concussion Litigation – Putting It in Context

Apr 23, 2021

By Sam Sherman

Concussions in the NHL

In the NHL, due to the enforcer’s role and hard hits comes injuries and, more specifically, head injuries, such as concussions. Given the speed at which the game is played, hockey has the second-highest concussion rate amongst contact sports, and 10% of players suffer concussions. Concussions are not new and have been a problem for a long time within the NHL.

In 1997, the NHL and NHLPA established the NHLNHLPA Concussion Program. The purpose of this program was to examine the science of concussions and educate its members. Much of this data has not been released to the public. Included in the program was baseline neurological testing. In 2000, an injury analysis panel was formed, and Eric Lindros sat out 10 weeks to recover from a concussion. In 2001, the injury analysis panel made its first report and made recommendations to changes in the NHL. Those changes included covering exposed hard-shell plastic padding, wearing helmet visors, and installing more forgiving (flexible) glass along the boards and near the bench. In 2003, an independent study reported that concussions have increased because more players are reporting them. In 2004, the injury analysis panel was eliminated. Additionally, the league did take illegal hits more seriously by imposing more suspensions and fines. In 2007, Gary Bettman, Commissioner of the NHL, proposed penalizing all hits to the head if the initial contact point was the head, but general managers rejected the proposal. In 2009, the Players’ Association Proposed penalties for recklessly or intentionally targeting the head. The concussions working group proposed using helmet sensors to study concussions and investigate the long-term implications of concussions, but that was also rejected. In 2010, a formal protocol for concussions was adopted along with the approval of Rule 48. In 2011, Sidney Crosby suffered a serious concussion, and because of that, the concussion protocol was altered. During that year, three former NHL players who had suffered concussions passed away. In 2012, the insurance industry expressed its concern about the growing number of concussions in hockey. In 2013, former NHL players filed a class-action lawsuit against the NHL. An independent study found that Rule 48 had minimal impact on the NHL’s number of concussions. Later that year, the League formed the hybrid icing rule and penalized players for removing their helmets during a fight. In 2014, The NHL reported that 17% of concussions were from illegal hits, 26% were from accidental hits, and 44% were from legal checks. Additionally, it was reported there was a double-digit percentage drop in concussions. In 2015, the concussion spotter system was implemented. In 2016, The League reported that fighting was down by a large percentage over a five-year period. Furthermore, the U.S. District Court rejected the NHL’s motion to dismiss the player’s lawsuit, and emails among NHL officials were released.

Statistics have shown that a majority of concussions in the NHL come from direct player-to-player hits, specifically the speed at which these hits are delivered. Fighting itself, is actually one of the lesser causes of concussions. In a study done in 2015, 8% of concussions in the NHL were a result of fighting while 75% were caused by the players’ heads hitting the ice. The pace of play in the NHL is becoming increasingly faster, and the hits are getting harder. Sidney Crosby, considered the best player in the NHL today, has had more concussions than most enforcers in the league, who have participated in dozens of fights.

Lawsuit against the NHL

Since 2013, over 300 former NHL players have sued the NHL on the basis that the League has not done enough to protect them from the dangers of head trauma. The suit alleged that the NHL had negligently failed to warn players of short- and long-term consequences of repeated concussions and head trauma, failed to sufficiently care for its players after such injuries, and promoted gratuitous violence, precipitating those very head injuries.

The NHL agreed to a settlement of $18.9 million but did not acknowledge any liability for the player’s claims in the settlement. The NHL can terminate the settlement if all 318 players do not elect to participate. The players have 75 days to decide. Each player who opts into the settlement will receive $22,000 and is eligible for up to $75,000 in medical treatment. This also includes neurological testing and assessment which is paid for by the League. If the players test positive on two or more of the neurological tests, then they are eligible for the additional $75,000 in medical treatment. Furthermore, there is a Common Good Fund worth $2.5 million for retired players in need; this also includes players who did not participate in the litigation. Lastly, the NHL will pay almost $7 million for the plaintiffs’ legal fees.

Class Action Status

After the initial lawsuit in 2013, more than two dozen cases followed in jurisdictions all over the United States. In 2018, a Minnesota judge denied a class-action motion that would’ve allowed every living ex-NHL player to join the suit. The Judge that denied the motion stated that there are widespread differences in state laws about medical monitoring that would present significant case management difficulties. If the class-action motion had been granted, more than 5,000 former players would have been able to benefit from the case. This is considered to be a tremendous victory for the NHL and minimizes their liability.

In an additional argument, the players felt the class? should have been certified under FRCP 23(b)(2), which permits class actions seeking common injunctive or declaratory relief. The court rejected this argument because it felt the medical monitoring remedy was monetary in nature and not injunctive. Additionally, the Judge held the class? could not meet the standard under the “rigorous analysis” required by Wal-Mart Stores, Inc. v. Dukes. The players continued to argue that because the NHL headquarters are in New York, legal liability could be determined by New York law to every player’s claim. The court rejected this argument. The court also rejected the argument that because the players sued in Minnesota, Minnesota law applies. Rather, the court applied Minnesota’s conflict of laws principle and held that liability and relief issues must be determined by the laws of the states where the players spent their careers or are currently domiciled. The players’ legal issues did prevail for the purposes of certifying a Rule 23(b)(3) class. For example, if someone played for the New York Rangers, they would have to show proof of current injury to state a medical monitoring claim, while if someone played for the Florida Panthers, they would not. Additionally, Michigan has rejected any independent claim for medical monitoring, but in Arizona and Massachusetts, certain plaintiffs can recover for medical monitoring costs. The Judge found that the state laws that should be applied are the ones in which the player is currently domiciled.

Moving forward, this allows for further lawsuits against the NHL. Players may opt-out of the settlement to pursue their own individual suit. A U.S. federal court judge terminated, in part, Steve Montador’s wrongful death suit. The judge wrote that the estate of Montador can still pursue negligence claims against the NHL and that the league has unreasonably promoted a culture of violence. The judge continued to write, “Given that Montador may seek to amend his pleading with additional facts and legal theories to maximize his chance of success on these two particular claims and the claims themselves likely will raise novel issues of state law, it is not clear how they will be decided.” This quote gives hope to the many retired NHL players out there who are suffering. The wrongful death count was preempted from the CBA, but the judge shows there is hope for the negligence claims.

Both Sides of the Settlement

If the settlement was not amenable, other players are pursuing their own suits, and players are discouraging the settlement, why would some of the retired players settle? Litigation is a slow, long, and to some, a painful process. Settling with the league means the litigation is over. Many of these players who desperately opted into the settlement need the money and can no longer afford to fight. They had to take what they could get. To some, the money is life changing. If the players kept fighting, this process could have taken years. Some of these players could not wait that long. Even if this trial went the distance, the NHL still could have won. This is a risk some were not willing to take.

Additionally, the NHL had many defenses against the players. One of their main defenses was preemption. Before a retired player can sue the NHL over a health matter, he is contractually obligated under the CBA to arbitrate the claim. On the other hand, this argument was refuted by the judge. The judge said that the NHLPA only represents current and future players. Furthermore, certain state law claims are not automatically preempted because they raise similar issues to those in the CBA. The judge needed to understand further how the claims relate to the language in the CBA. One of the NHL’s biggest defenses states that there is no causation between neurological trauma and playing in the NHL. Gary Bettman cites to the Consensus Statement, which I discuss later on. Lastly, the NHL argues the assumption of risk. As a player in the NHL, you understand what you are signing up for. Each player knows their role, and if you don’t, you won’t be playing in the NHL. It is a privilege, not a right. It is possible that some of the players would not have done the things they did if they understood the consequences of their actions, “but for cause,” which is also discussed later on. The players understood these defenses and decided what was best for them. At that point in time, the players that settled felt if the NHL had so many defenses, why did they settle? One of the main reasons was publicity. The longer the litigation went on, the worse it looked for the League. As stated earlier, the League was able to settle without claiming any liability. Certain emails became public within the League office. Some of those emails were not favorable towards the League. Bill Daly, the deputy commissioner, wrote in an email, “Fighting raises the incidence of head injuries/concussions, which raises the incidence of depression onset, which raises the risk of personal tragedies.”

Additionally, the League was able to save money on legal fees. Understanding that this settlement was a drop in the bucket of what could have been a lot worse, was an easy solution. But this does not dismiss the numerous lawsuits that are still going on against the League (part of the paragraph above) Furthermore, there were economic issues the NHL had to address. The league requires teams to have insurance policies, which help to cover the top five players’ salaries if they are injured for an extended period of time. Because concussions were increasing, the risk to the insurance companies was increasing. An insurance company executive noted if concussions kept increasing, insurance companies are going to be reluctant to insure the NHL. In 2014, a study was released that found injuries cost the league $200 million per year, and head and neck injuries cost $60 million per year.

Individual Lawsuits Against the NHL/ Individual CTE Cases

A few of the suits that have been filed against the NHL are suits from the estates of deceased NHL players. The players that were part of these suits, who are no longer with us, were found to have CTE in their brains. CTE can only be found in the brain postmortem, which makes these situations more tragic. The NHL and the organizations have little to no knowledge of how to diagnose or treat these issues while the players are experiencing brain trauma. In the next section, I will discuss some of the individual cases and the proximate cause of their brain trauma.

Derek Boogaard

Derek Boogaard was just 28 years old when died of a drug and alcohol overdose. Boogaard was known to be an elite enforcer in the NHL and ended up playing six seasons in the NHL, five with the Minnesota Wild and one with the New York Rangers.

After Boogaard passed, his family donated his brain to CTE research. The researchers who worked on his brain were flabbergasted by the amount of CTE they had found. They said that the “degenerative disease was more advanced in Boogaard than it was in Bob Probert, a dominant enforcer of his generation, who played 16 NHL seasons, struggled with alcohol and drug addictions and died of heart failure at the age of 45 in 2010.”

If one were to look at Boogaard’s medical reports, they would only show that he had approximately three concussions in his NHL career. His family would say 10-12. Later in his career, he went to a doctor who actually explained to him what a concussion was. After hearing the explanation, he laughed and said, “Wow, well if that’s the case then I’ve probably had hundreds.” Furthermore, when he was supposed to be healing from injuries, he was playing hockey. If he were hurt, teams would ask how badly he was hurt and if he could still play. They would shoot him up with pain killers just to get him back out on the rink.

More than six months after the death of Boogaard, his family sued the NHL on eight different counts, which included that the NHL was negligent in failing to protect Boogaard from brain trauma during his career. The NHL continued to deny liability that there was a connection? between the game of hockey and CTE. The NHL claimed that “the CBA gave it no control over the procedures that team doctors used to diagnose and manage concussions.” Furthermore, the NHL claimed it was determined by the teams’ doctors to apply the teams’ medical standard. The NHL won the suit because all of the claims were preempted by the Labor Management Relations Act.

Steve Montador

Steve Montador was a long time NHL enforcer. He played 571 NHL games and recorded 807 penalty minutes to his 33 goals. During his playing career, he has had 19 documented concussions and received thousands of hits to the head. In 2012, he had four concussions in a three-month span. Montador battled with memory issues, chronic pain, substance abuse problem, light sensitivity, mood swings, anxiety, and depression. Montador’s career was ended by concussions. In 2015, at the age of 35, he was found dead in his home in Ontario.

After his death, his brain was examined at a hospital in Toronto. The doctors diagnosed Montador with widespread CTE. Further on down the road, Montador’s father sued the NHL for failing to warn players on the risks of head trauma. The lawsuit states, “The NHL’s insistence upon preserving and promoting violence in spite of the obvious dangers caused, or contributed to cause, Steven R. Montador’s brain damage, addiction and depression.” The NHL filed a motion to dismiss stating that the claim falls within the scope of the CBA and should be settled through arbitration. Additionally, the motion denies the NHL had a duty to study the long-term effects of concussions or refrain from promoting violence. Furthermore, the NHL argues that Montador’s injuries were due to his own lack of due care and fault, or the lack of due care of others that the NHL does not have responsibility for.

In late 2020, a judge terminated the lawsuit that had been on-going for five years. The suit had been put on hold because the NHL was pursuing the class-action brought on by over 100 players. The judge denied in part, and affirmed in part, the NHL’s motion for summary judgment in this case. The judge determined that some of the claims were preempted by the NHL’s collective labor agreement with the NHLPA. It states that players with medical claims must pursue private arbitration. Furthermore, the Judge told Paul Montador that he may pursue other matters such as the negligence claim against the NHL.

Todd Ewen

Todd Ewen is a former NHL enforcer. Ewen played in the NHL from 1986-1997 and won a Stanley Cup in 1993, with the Montreal Canadians. Ewen played 518 games in the NHL and amassed 1,911 penalty minutes to only 36 goals. In his role, he suffered many gruesome injuries and many hits to the head. In September of 2005, Ewen took his own life.

After he passed, Kelli wanted answers. She sent his brain to the Canadian Concussion Centre to be analyzed by Lili-Naz Hazrati, a neuropathologist. Hazrati claimed the Ewen did not have CTE. Three years later, Ewen’s brain was sent to Ann McKee, one of the world’s leading researchers on CTE, is the chief of neuropathology at the VA Boston Healthcare System and the director of the Boston University CTE Center. McKee determined that Ewen did in fact have CTE. Kelli then went for a third opinion at the Mayo Clinic, where doctors confirmed the CTE diagnosis.

In the three years between when Hazrati and McKee looked at Ewen’s brain, the NHL employed Hazrati in its defense of the ongoing head-injury litigation. Hazrati cited Ewen’s case to refute the claim that there is a link between hockey and CTE. Later on, in a deposition, she continued her claim that there is no link between CTE and head trauma. Furthermore, Gary Bettman, NHL Commissioner, cited to Ewen’s case to discredit the link between CTE and hockey.

Conclusion

The NHL needs to accept responsibility that professional hockey can cause CTE. There is scientific evidence that excessive blows to the head can cause CTE, which does not necessarily mean hits to the head that cause concussions. The NFL, which is the largest and most profitable league in North America, has claimed responsibility that football can cause CTE. The NHL is the only major professional sports league yet to take responsibility for the connection.

Understandably, some people would like the game to become safer regarding fighting and hitting. The NHL has made strides in player safety. The issue is not with the safety of the game itself but rather the way the issues are handled, and the information being withheld. There is a culture amongst sports to keep going even when you are hurt. This works to an extent, however, there is also a difference between other bodily injuries and brain injuries. Somewhere along the line, it feels as if the NHL does not care about this aspect, which is a problem. To ignore this issue is ignorant. The players are the product, and without them, the NHL would not be the same. Additionally, the NHL has continuously maintained the stance that the long-term effects of concussions are unclear. That is not the case anymore. There is clear evidence. Therefore, the NHL needs to do its part in helping the fight against CTE.

Sam Sherman is a JD/MBA Candidate, Class of 2022, at the University of Miami.

Works Cited

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The National Hockey League and the Concussion Litigation – Putting It in Context

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