NHL Fight Culture Complicates Concussion Cases

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By Steven M. Sellers

Oct. 31 — Professional hockey’s notoriety for on-ice fighting poses challenges for the league as it defends concussion litigation brought by its former players, sports lawyers tell Bloomberg BNA.

Fisticuffs have been a lightly-penalized staple of the National Hockey League since 1922.

This contrasts with the National Football League, where players risk disqualification for fighting. The NFL agreed last year to a $1 billion class settlement for concussion claims.

The distinction may complicate suits over brain injuries, some following concussion litigation say.

“The fighting thing is an interesting dynamic in hockey because it’s still somewhat within the rules of the game,” unlike in football, plaintiffs’ lawyer Paul Anderson, of the Klamann Law Firm in Kansas City, Mo., recently told Bloomberg BNA.

Anderson, who isn’t involved in the NHL litigation, represents athletes with brain injuries and blogs about sports-related concussion litigation.

“You can certainly make the argument from the plaintiffs’ perspective that the owners kept trying to capitalize on the sport, and yet [fighting] leads to brain injuries,” he said.

But attorney Mark Granger, of Granger Legal Consulting Inc. in Schroon Lake, N.Y., doesn’t see the issue the same way.

Hockey fights don’t necessarily create legal hurdles greater than those posed by other elements of NHL hockey, said Granger, a defense lawyer who chairs the Sports and Fitness Industry Association’s Legal Task Force.

“I’m not sure that it creates any more exposure to the NHL because fighting is often voluntary and players assume the risk of injuries,” he said.

Enforcers, Real and Virtual

At its core, the 126-page class complaint filed in September alleges that head traumas in the NHL, including those from fighting, cause degenerative brain conditions such as chronic traumatic encephalopathy ( 44 PSLR 1006, 9/26/16 ).

CTE was diagnosed in boxers as “dementia pugilistica” as early as the 1920s, but gained recent scientific scrutiny when it was found in the brains of some deceased pro football and ice hockey players ( 44 PSLR 1117, 10/24/16 ).

The plaintiffs, former NHL players who claim such brain conditions or the risk of them, say the league promoted violence but didn’t do enough to protect them from its neurological consequences ( In re Nat’l Hockey League Players’ Concussion Injury Litig. , D. Minn., No. 14-md-02551, filed 8/19/14 ).

They include on-ice “enforcers” who fought to protect teammates or to avenge misconduct by other teams. The complaint includes dozens of references to fighting, and asserts the league has profited from on-ice altercations for decades.

The NHL is “continuing to promote violence and bare-knuckle fist fighting” in ice hockey through highlight-reel clips of hard hits, as well as video games in which players can add “virtual enforcers” to their team roster, the players say.

Revenue and Risk

Fighting “increases revenue, and it increases attention to the sport, which in turn helps the owners,” Anderson said.

Granger, however, questioned whether other aspects of the sport have greater significance than fighting. “Not strongly prohibiting and punishing for checking from behind, high hits, shoulders and elbows to the head would be more problematic for the NHL,” he said.

But for Matthew Mitten, executive director of the National Sports Law Institute at Marquette University Law School in Milwaukee, fighting poses a clear litigation challenge for the league.

“I like the analogy to boxing because for a fairly long time it was pretty well known that fighting was part of the game,” Mitten told Bloomberg BNA.

The question is whether fighting is so tied to the legacy of the NHL that it is an inherent risk the league had no duty to protect against, or if the league “increased the inherent risk by tolerating it,” he said.

Fewer Fights

The NHL’s own view on fighting is found in a July letter sent from NHL Commissioner Gary Bettman to Sen. Richard Blumenthal (D.- Conn.). The letter, filed in the litigation, replied to Blumenthal’s queries about the league’s protection of its players.

Bettman paints a very different picture from Anderson, downplaying the severity of the sport’s fighting culture.

Penalties for on-ice fights have decreased 37 percent since the 2011-12 season, fighting is at “an all-time low” and 76 percent of all regular-season games are fight-free, Bettman said. He attributed the decrease to rules mandating helmet visors, and supplemental penalties when a player removes his helmet.

Bettman added that league proposals for stiffer fighting penalties never made it through collective bargaining—potentially fueling a claim that players accepted fighting in the league.

He also said there is no scientific consensus on a causal link between repeated concussions and CTE, and discounted comparisons between ice hockey, boxing and football ( 44 PSLR 800, 8/1/16 ).

The NFL cases provide some support for the league’s concussion science stance. U.S. District Court Judge Anita Brody ruled last year that “the association between repeated concussive trauma and long-term neurocognitive impairment remains unclear.”

It remains to be seen whether that question will be decided by U.S. District Judge Susan Richard Nelson, who oversees the professional hockey litigation in the District of Minnesota.

The league recently failed to get the cases dismissed on statute of limitations and labor law preemption grounds. Nelson ordered more fact-finding on those issues.

But the NHL may renew its dismissal effort once discovery is completed, Mitten said ( 44 PSLR 526, 5/23/16 ).

Settlement Power Play?

The trajectory for potential settlements in the NHL litigation also is unclear.

The $1 billion NFL settlement covering professional football players isn’t final, and neither is a $75 million deal the NCAA reached with its current and former athletes.

Objectors to the NFL settlement filed a petition Sept. 26 asking the U.S. Supreme Court to review the deal, and the NCAA settlement received only preliminary approval by the Northern District of Illinois in July.

But will the concussion settlement trend include the NHL cases?

The lawyers agreed it’s too soon to say, noting differences in sports, union contracts and the eras in which the players competed.

“If there’s a class certification, that increases the NHL’s exposure significantly,” Mitten said. “Right now, the potential scope of the NHL’s liability is really uncertain.”

Further, “each organization is different,” Anderson said. “The owners all have a say in whether there’s going to be a settlement, and the various stakeholders.”

The inclination to settle can get complicated by “forecasting and liability, financial hits and the insurance coverage,” he said.

Mitten agreed: “I would want to know what kind of liability insurance the NHL has.”

That scenario is already playing out for the NFL, which faces litigation in New York by its insurers over their duty to pay some player concussion claims.

The balance of these and other factors might mean the NHL will slog through litigation rather than settling anytime soon.

They may say “it’s worth the long legal defense they’re engaging in to get the case dismissed entirely,” Anderson said.

To contact the reporter on this story: Steven M. Sellers at sSellers@bna.com

To contact the editor responsible for this story: Steven Patrick at spatrick@bna.com

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