By Jon Heshka — Associate Dean of Law at Thompson Rivers University
It was only a matter of time before the National Hockey League (NHL) would follow suit and be named in a concussion class action lawsuit. Dark clouds have been swirling around professional hockey for some time and it was the perfect storm of recent events which made the lawsuit inevitable. No doubt emboldened by the proposed $765 million dollar NFL settlement and on the heels of the Derek Boogaard wrongful death suit, this lawsuit was fortuitously filed the day before the NHL announced a 12-year, $5.2 billion Canada-only broadcasting deal with Rogers Communications (on top of the 10-year, $2 billion deal signed in 2011 with NBC for US broadcasting rights).
Having seemingly torn a page from the NFL concussion lawsuit, nine (initially 10 but Rick Vaive quickly withdrew from the suit) former players have sued the NHL. The lawsuit says that the NHL purposefully profits from the violence they promote and that the time has come for the league to elevate long-term player safety over money and hockey’s senseless culture of violence. The complaint makes many of the same claims as those from the football lawsuit. It basically alleges negligence, gross negligence and fraudulent misrepresentation.
It says that the NHL purposefully concealed the risks of brain injuries to players, that players relied on the NHL’s silence to their detriment, and that what was disclosed was not truthful or accurate.
The lawsuit alleges that the NHL had “unilateral and monopolistic power” to put in place rules and policies which served not only to expose players to unnecessary risks but which also made hockey more dangerous. It says that the NHL intentionally made the game more dangerous knowing it would result in more concussions by switching from flexible glass to rigid glass in 1996 (then changing back again in 2011). The claim further says that the NHL undertook rule changes in 2005 designed to make the game faster by penalizing “clutch and grab” hockey knowing it would result in more concussions.
The complaint conveniently ignores the role of the NHL Players Association and seemingly denies that safety and health are collectively bargained and not imposed by the league. The complaint also fails to appreciate that the rule changes intended to make the game faster were approved by the league’s Competition Committee which is comprised of half players and half club officials.
By so disingenuously ignoring the Collective Bargaining Agreement, there is no doubt the plaintiffs hope to have the case go to court rather than arbitration as per the grievance procedures in the CBA. The NHL will likely argue that these issues were collectively bargained and agreed to by the league and the NHL Players Association and that any claims are pre-empted by the CBA.
In regards to the NHL’s approach to concussions, it is noteworthy that the NHL mandated baseline neuropsychological testing for all players beginning in 1997-98 which was well before the NFL began to do similar tests. The NHL would also likely argue that its approach to concussions has been proactive and progressive particularly in relation to what other professional sports were doing at the time.
The lawsuit is critical of the NHL’s refusal to not only outlaw fighting but also bodychecking. The complaint alleges that the NHL knew how to protect its players (exactly how isn’t mentioned) from dangerous circumstances and failed to do so.
Hockey is a fast and furious contact/collision sport in which there are ten players on a surface 30% the size of a football field skating at speeds up to 27 mph and legally checking one another with open-ice hits or into the boards. It is these elements which ought to be the starting point in describing the circumstances upon which a duty is owed in hockey. Further, players’ heads get intentionally or incidentally bludgeoned by errant elbows, smacked by sticks or bashed into the boards. It could be argued that these are the risks to be ordinarily assumed and viewed as normal and inherent to the game of hockey.
The lawsuit has an entire section entitled, in part, “The NHL takes substantially ineffective action to protect its players” that discusses rule changes which it argues is “too little, too late.” The lawsuit may have some traction here insofar as arguing that the changes to date have been insufficient and that more change is necessary to safeguard the health of the players and to protect the integrity of the game.
It could be argued that further rule changes regarding head shots are necessary rather than just skating around the edges of the rulebook. For example, though not mentioned in the complaint, it could be said that Rule 48.1 which penalizes illegal head shots with a two minute penalty (the same as a delay of game penalty for a player unintentionally shooting the puck over the boards while in their defensive end) shows the “callous indifference” to which the NHL treats brain injuries. Further still, a match penalty is only assessed when the player is held to have deliberately injured his opponent. Establishing the necessary mens rea in a fast and furious sport like hockey which relies on split-second decision making is problematic. Adopting stricter rules would help solve this problem. To that end, Rule 540 of the International Ice Hockey Federation (IIHF) penalizes illegal checks to the head with automatic ten minute misconducts, automatic game misconducts or a match penalty. The IIHF takes head shots seriously.
The NHL has yet to file a statement of defense. Deputy Commissioner Bill Daly said in a statement: “While the subject matter is very serious, we are completely satisfied with the responsible manner in which the League and the Players’ Association have managed Player safety over time, including with respect to head injuries and concussions. We intend to defend the case vigorously and have no further comment at this time.”
With the NHL’s coffers now brimming with cash, there is reason to expect this lawsuit to drag on for some time.
