You didn’t have to be a lawyer to see this one coming.
After a group of former NFL players netted a $756 million settlement and the NCAA facing its fifth concussion lawsuit, it was only a matter of time before the NHL faced concussion litigation. Well, the time has come. A group of 10 former NHL players sued the league in the U.S. District Court for the District of Columbia for failing to protect them from concussions. The plaintiffs, led by former Toronto Maple Leafs All-Star Gary Leeman, seek for the court to certify their class, which would allow these plaintiffs to sue on behalf of thousands of other retired NHL players and ratchet up potential damage awards into the billions (full text of the complaint after the jump).
Back in September I wrote that “the NHL should look at that $756 million [NFL] settlement and hide under the bed. In the coming years no full-contact professional sport will be immune from the realities of concussion litigation.” Looking back I should have bet the house on that prediction. Self-congratulating aside, unlike the NFL, the NHL could be crippled by this lawsuit.
The NCAA and NFL have television deals worth more than $1 billion annually. The NHL only receives $200 million per year through its agreement with NBC Universal, meaning they are less able to handle a massive litigation verdict. However, in an epic case of poor timing, the NHL just announced that it signed a 12-year, $4.9 billion deal with Rogers Communication in Canada. There is no doubt that the plaintiffs are salivating over that number.
Although it is hard to imagine that the NHL was as vile as the NFL in covering up known concussion dangers and paying for junk doctors and scientists to issue false reports ala Big Tobacco, liability for concussions in a sport that condones bare-knuckle brawling is very real and very costly. The pre-trial discovery phase will carry a lot of weight as this litigation moves forward. If there are any documents or any witnesses the NHL wants to keep out of the public spotlight, it will likely seek a settlement slightly less than the $756 million NFL figure.
The NHL is not without defenses, though. First and foremost it will point fingers at the NHLPA to argue that everything is collectively bargained with the players’ association. Therefore, a civil lawsuit such as this is preempted by collective bargaining agreements making the proper forum binding arbitration, not a federal courtroom. Next, the NHL will make the logical connection that there is no way to prove causation between NHL hockey and the alleged injuries when players have played the game in junior leagues, college, and minor leagues prior to the professional level. Finally, my personal favorite is the assumption of risk defense. As an insurance defense lawyer, I can sympathize with the NHL on this one. These plaintiffs, much like the NFL plaintiffs, knew exactly what kind of a sport they were choosing to play.
However, what did the NHL know about concussions and did it actively hide anything that would have been pertinent to players? Did the league encourage a more dangerous style of play? Should the league be providing better benefits to retired players? All of these questions will be answered in the coming months or years as this case winds through the federal litigation process.
In the meantime, every other professional sport should be on notice. The link between concussions and CTE is growing more conclusive and retired athletes have proven that they are not adverse to litigation. This will certainly not be the last concussion lawsuit.