1/29/2014

Burning Down Hockeytown

Concussion allegations spur five-alarm response from the National Hockey League.

By Christopher Fusco , Matthew Szymczak

Across the sports world, professional leagues, team executives, team insurers, and players are facing questions whether the physical and mental toll exacted on athletes at the highest level is worth the entertainment value derived from the playing of a game.

Recently, the National Football League made global headlines when it reached a $765 million proposed settlement with more than 4,500 retired players, who sued over concussion-related brain injuries. The retired NFL players had accused the league of concealing the dangers of concussions and rushing injured players back onto the field, exposing them to further and potentially more severe injuries. The $765 million figure would be distributed to any of the approximately 18,000 retired players who are eligible. Though the NFL maintains that it had no liability and admitted no wrongdoing, Executive Vice President Jeffrey Pash said at the time that the league sought to do “the right thing,” for the game and the players who played it.

However, almost immediately after the settlement was announced, four former players (not included in the settlement) filed a new suit alleging that the NFL, as well as its long-time helmet maker Riddell, had extensive knowledge about the dangers of brain injury and hid that information. A recent PBS documentary, “League of Denial,” explored many of those same issues in-depth and raised many new questions about the NFL’s knowledge. Clearly, this is one battle that isn’t going away, as even former college athletes have gotten into the act, suing the National Collegiate Athletic Association.

Considering this recent explosion of litigation, commentators and insurance industry professionals recommended that the other league most commonly associated with head injuries, the National Hockey League, must take action to address its concussion issues. The effects of concussions have been on display in the NHL for years, and former enforcers such as Reg Fleming, Bob Probert, and Derek Boogaard were all posthumously diagnosed with chronic traumatic encephalopathy, more commonly known as CTE. More recently, the league’s brightest star, Sidney Crosby, missed the greater part of almost two seasons with issues related to concussions.

Ahead of the Pack

At the outset, it must be noted that the NHL has, in many ways, been proactive with respect to concussions. Commissioner Gary Bettman is on record stating that the NHL was the first league to have a working concussion study group, introduce baseline testing, and have protocols for diagnosis and determination of when a player can return to a game. But those steps have not left the league unscathed.

Though it does not centrally address the concussion issue, the family of Derek Boogaard has filed suit against the NHL and National Hockey League Players’ Association, alleging that brain damage suffered by Boogaard during his NHL career ultimately led to a painkiller addiction and his unfortunate death due to an overdose. Boogaard passed during what was a dark summer for the NHL, as he, Rick Rypien, and Wade Belak died within a matter of months of each other. All three were known as “enforcers”—players whose unofficial role is to deter and respond to dirty or violent play by the opposition—and both Rypien and Belak allegedly committed suicide.

Other litigation precedent exists, as well. Former NHL player Steve Moore launched a still-pending lawsuit as a result of a March 2004 on-ice attack by then Vancouver Canuck Todd Bertuzzi. In retaliation for a perceived dirty play in a prior game between the Canucks and Moore’s Colorado Avalanche, Bertuzzi, in an attempt to engage Moore in a fight, came up behind Moore, pushed him, punched him in the back of the head, and then tackled him, driving Moore’s head into the ice.

Moore suffered a concussion, three fractured vertebrae, and has not played since. Moore named Bertuzzi, the Vancouver Canucks, and even then Canucks coach Marc Crawford as defendants, as allegations were that Crawford instructed his players specifically to retaliate against Moore, which in part resembles the New Orleans Saints “Bountygate” scandal that took place in the NFL.

After settlement discussions were unsuccessful, Moore has demanded CA$35 million in lost salary, as well as lost post-playing wages due to Moore’s persistent symptoms of post-concussion syndrome and his continual unemployment due to those symptoms. The trial date was recently announced as September 2014.

But the concussion issue will indeed be addressed. On Nov. 25, 2013, 10 former NHL players filed an eight-count suit in the United States District Court for the District of Columbia, alleging that the NHL “has known or should have known” about the “growing body of scientific evidence and its compelling conclusion” that brain injuries have been “caused by concussive and sub-concussive impacts sustained by former NHL players during their professional careers.” The complaint further alleges that the league continues this course of conduct by “refusing to ban fighting and body checking, and by continuing to employ hockey players whose main function is to fight or violently body check players on the other team.”

This new lawsuit will certainly trigger the same insurance issues that existed in the NFL litigation, including coverage questions and the extent of the available pool of insurance and workers’ compensation coverage, if applicable. There also will be issues of causation that may impact the policy periods afforded by the NHL’s insurers for the alleged incidents.

Nonetheless, the league had been taking greater action in trying to prevent a bigger, more global suit like the one experienced by the NFL. To reduce the potential exposure for the league and its insurers (including workers’ compensation), new rules have been implemented that penalize hits where the head is considered to be the “principal point of contact.” Even this standard is constantly evolving, as the same rule required “targeting” of the head, and that the hit must have come from the “blind side” as recently as the 2010-2011 season for a penalty to be called.

In addition, the league recently instituted new procedures that require a potentially concussed player to be taken out of play for a minimum of 15 minutes and evaluated not only by his team’s medical staff, but also potentially by an independent physician. Finally, new to this season is a rule that increases penalties for any player who removes his helmet prior to a fight.

Existing protocols have been more strictly followed, as well. In the 2011-12 season, there were 55 total suspensions. This season, with just about a quarter of the season completed at press time, there have already been 19, which projects to approximately 80 over the course of the year.

Using Settlement Pools to Avoid Litigation

The NHL portrays itself as being at the forefront of any league, actively taking steps to combat what many would call a concussion epidemic and curtail future litigation. Yet, it has long been suggested that the NHL cannot really be taking this issue seriously while continuing to “allow” fighting in the course of play. Of course, fighting is not technically allowed; it is penalized, with participants spending five minutes in the penalty box. But to many, these penalties are simply not harsh enough, not when players feel comfortable enough with the consequences to have a fight occur in approximately every other game.

Stiffer penalties for fighting are one of the first steps, and perhaps the most obvious. A game misconduct penalty has been suggested, where a player is ejected for the remainder of the contest but is able to play in his team’s next game. But a serious question exists as to whether fighting and its effects are the true cause of concussions and, potentially, CTE. Former NHL player Rick Martin, a seven-time all-star who scored 382 goals, was posthumously diagnosed with CTE. Therefore, many have questioned whether it is fighting that causes the bulk of the NHL’s concussions or simply constant contact, as in the NFL.

Another suggestion made by some is that the NHL should institute a settlement fund from which former and current NHL players, upon their retirement, could draw as compensation for any potential injuries sustained. Though not as big as the $9 billion NFL, the NHL still amasses approximately $3 billion in annual revenue (plus any available insurance) and would certainly be considered a deep pocket by potential plaintiffs.

But in doing so, the NHL would be wise to take certain actions to avoid potential criticisms like those aimed at the NFL in the wake of its settlement. Many critics have said that the NFL was less than forthcoming in stating which former players would be eligible, that the window for former players is too small (the estates of players who died prior to 2006 will not be eligible), and whether the pool of money is even big enough, as the number of players diagnosed with eligible ailments, such as ALS, Parkinson’s, and Alzheimer’s, is sure to grow in the future.

Since the commencement of the NFL litigation, there has not been solid proof or facts to support allegations that the NHL has concealed information regarding the prevalence and long-term effects of concussions like the NFL is alleged to have done. Some players have even acknowledged their distaste for litigation. Former NHL player Keith Primeau, who retired prematurely due to post-concussion syndrome, has stated that “the game’s been very good to me, and I recognize and appreciate that.” He added, “I’ve never been motivated by money. There are more important things.”

Of course, it only takes one former player to head up a class. The future will reveal just which defense the NHL pursues. In fact, it may have already blocked this shot, as the collective bargaining agreement between the league and players mandates that any health and safety issues be submitted to arbitration. In the meantime, though, the league would be wise to start setting money aside.  

 



Christopher Fusco is the managing partner of CLM Member Firm Callahan & Fusco LLC. His blog, Sports in the Courts, can be found at www.sportsinthecourtsblog.com. He may also be reached at cfusco@callahanfusco.com.

Matthew Szymczak is an associate with CLM Member Firm Callahan & Fusco, LLC. He can be reached at mszymczak@callahanfusco.com.

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