NHL responds to concussion lawsuit, says players weren’t misled

The NHL finally responded to the lawsuit brought by 40 former players, seeking damages because they allege the League mishandled its response to concussions during their playing days. And the League thinks the suit should be dismissed from Minnesota District Court.

(In August, “a federal panel ruled that all concussion-related lawsuits brought by retired N.H.L. players would be consolidated into a single suit and heard by the United States District Court in St. Paul, Minn.”)

Via Katie Strang of ESPN.com:

According to the documents filed by the NHL, the league feels it has firm legal ground to stand upon in facing such allegations.

In one brief for dismissal, the NHL claims that collectively-bargained agreements between the league and NHLPA already comprehensively govern such issues as "Player health and safety, including the 'helmet requirement,' rules concerning removal from and return to work following an injury, neuropsychological testing of Players, Playing Rules on body checking, fighting and hits to the head, and disciplinary procedures."

In the other brief, the league cites certain statutes of limitations that preclude the plaintiffs from seeking compensation and considers the claims "untimely."

The league also takes issue with allegations of fraudulent concealment with respect to medical information that was "readily available in the public domain."

The most important facet of the players’ lawsuit is akin to what former NFL players argued against their League, before the two sides settled for an amount that could eclipse $1 billion: That the NHL withheld information about the dangers of head trauma, or at least should have been more aware of it before beginning to study concussions in the game in 1997.

From the first suit filed, which you can read here:

"The NHL caused or contributed to the injuries and increased risks to Plaintiffs through its acts and omissions by, among other things: (a) historically ignoring the true risks of concussive events, sub-concussive events and/or brain injuries suffered by NHL hockey players; (b) failing to disclose the true risks of repetitive brain injuries to NHL players; (c) refusing to address the issue of brain injuries despite a growing body of medical opinion establishing such a linkage and their own study of the issue; and (d) refusing to amend its rules and procedures and equipment requirements effectively to protect its players, including Plaintiffs."

How did the League respond to that claim? From Rick Westhead of TSN:

The league also said the players have not done enough to support their charge that the league purposefully withheld information from players about the risk and long-term effects of brain trauma.

The players "fail to identify the allegedly partial or ambiguous communications regarding safety or the risk of head injuries, the specific information that purportedly was omitted or who was responsible for the communications," the NHL said. "They also fail to plead when the allegedly misleading communications occurred or why any communication was misleading, incomplete or required clarification."

This is where the NHL players’ lawsuit is going to have a hard time proving the League was negligent.

The NFL players had smoking guns in their case, from straight up dismissal of concussions’ importance from Paul Tagliabue to misdiagnosis of injuries.

The NHL players’ lawsuit, at least one of the ones filed, had far less specificity; there’s a lot of citation of medical journals dating back to 1928, but nothing concrete that shows the NHL knew about the severity of brain injuries and withheld it. From the lawsuit, the players say:

For decades, the NHL has been aware or should have been aware that multiple blows to the head can lead to long-term brain injury, including but not limited to memory loss, dementia, depression, and CTE and its related symptoms.

There’s quite a gap between “has been aware” and “should have been aware,” and it’s going to be difficult to prove either. In the case of something CTE, are we going to pretend anyone was hip to it 15 years ago?

But these concussions lawsuits do require a semblance of suspension of disbelief. Like the fact that the NHL is the sole catalyst for a hockey culture that was inherently injurious, that valued playing through brain injuries for some rickety sense of valor, that deciding punching another guy in the head was the best course of action to “protect” the players.

No, all of that was born from the players, who did these things through every level of organized hockey before arriving in the NHL, where they helped the culture thrive.

It’s a dangerous, brutal, bloody and barbaric game. The players conspire to keep it that way, and are compensated handsomely for the risks they accept in competing in it.

This is essentially what the NHL meant in its court filing when it said, "Publicly available information related to concussions and their long-term effects, coupled with the events that had transpired – i.e., the players incurring head injuries – should have allowed (players) to put two and two together.”

Of course that was framed as “victim blaming” by Adam Proteau of The Hockey News:

The NHL’s team owners were not and are not passive observers in this process; rather, they’re absolutely complicit in a culture that, for example, allowed and still allows players to fight multiple times an evening. Neither the mixed martial arts business nor the boxing industry does that. That’s a clear-cut, undeniable business choice on the NHL’s behalf – and that business choice can have catastrophic consequences, just as the NFL’s decisions did for football’s top league. To suggest otherwise – to attempt to offload full responsibility to NHLers for their deteriorating conditions and argue they were the sole architects of their destiny when it comes to head injuries – is outrageous and insulting.

To argue this is the NHL’s fault is to argue that, for example, George Parros didn’t choose to fight Colton Orr twice, resulting in a near “catastrophic consequence” the second time.

Remember how that happened? Orr was taking liberties with PK Subban in front of the net. As The Code states – passed down by the players through the generations, protected by the NHLPA during rules change debates – Orr had to pay for this, so Parros fought him for a second time in the game.

His choice. His risk. His body on a stretcher after the fight went sideways.

If the argument is that the NHL doesn’t step in to prevent this from happening, my counterargument is that the players will always find a way. Like with those injury protocols the NHL has that the players laugh off or ignore to get back in the game, out of dedication to teammates or fear of unemployment.

That’s a culture developed by all involved in the game. The players understand it when they cashed their first paycheck. They still understand it now, during what amounts to a cash grab.