How will Gary Bettman respond on concussion lawsuit questioning?
Ever since it was teased in the since-settled Todd Bertuzzi lawsuit, I’ve had a hankering to see NHL commissioner Gary Bettman under oath and answering questions about the League’s culture of violence.
Not only because I think there’s a better chance of cracking Captain America’s shield than there is Gary Bettman in a lawsuit deposition, but because I’d like to hear him speak with as much candor as he can be compelled the muster about things like fighting and concussions.
Rick Westhead of TSN reported on Monday that the judge in the concussion lawsuit brought by former NHL players has ordered Bettman to testify in the lawsuit.
Westhead also published a few of the specific points on which Bettman will be questioned, and one can already see how this will play out.
In the case of the NHL People vs. Gary Bettman …
ACCUSATION: The NHL Concussion Program “did nothing” until 2011, fourteen years after it was founded. It only studied the years from 1997-2004 and it’s conclusion was that “more study is needed.” The NHL did not inform its players during the stud that they might be at any increased risks for concussions.
This is trying really hard to fit the template set by the NFL’s successful concussion litigants, which hammered the League for running a puppet study that aggressively attempted to show football was a safe sport, including conclusions like “concussions in professional football are not serious injuries.”
It was the smokingest of smoking guns, and the NFL paid up.
The NHL concussion lawsuit is seeking to establish that the program hid the truth from players, was gamed with doctors connected to the NHL and ignored the science that concussions were a epidemic in the sport.
Patrick Hruby took on this facet of the lawsuit when it was announced in Nov. 2013:
Some smoke? Sure. But no smoking gun. At least not yet. The NFL’s sins were ones of commission — the league actively produced junk science, sought to discredit researchers who disagreed and aggressively pushed a football’s safe, nothing to see here, let’s move on narrative through its marketing and public relations arms. Congressional comparisons to Big Tobacco weren’t just apt. They were earned.
By contrast, the NHL’s denial has been passive. Wait-and-see. Maybe there’s a problem here. We don’t know enough to really know. League doctors have never questioned or denied to existence of CTE. They haven’t submitted cooked papers to scientific journals. Of course, none of this makes the NHL’s actions right. It simply makes them less wrong. And likely less vulnerable in court.
Evasive and in the eyes of many probably irresponsible, but not the aggressive debunking the NFL shameless engaged in.
On top of that, the NHL’s concussion rates did drop during the time period in question. From a CMAJ 2011 study:
Rates of concussion in NHL regular-season games declined from a peak of 7.7 concussions per 100 players during the 2000–2001 season to 4.9 per 100 players during the 2003–2004 season. Possible explanations for this finding include the following: more conservative management or return-to-play decisions by physicians; increase in the NHL in the severity of concussions (i.e., longer time to complete resolution of postconcussion symptoms); failure by players to report symptoms for fear of being held out of games; reporting by players of only severe symptoms; use by NHL team physicians of higher thresholds for diagnosis of concussion; or increasing use of neuropsychological testing results before making return-to-play decisions.
Speculative, but interesting.
ACCUSATION: As late as 2011, Bettman said of fighting: “Maybe it is [dangerous] and maybe it’s not. You don’t know that for a fact.” He said of the link between CTE and fighting, around the deaths of three former players: “people need to take a deep breath and not overreact” and not “over-conclude when the data isn’t there.”
Bettman on fighting should be worth everyone's time, because the NHL is going to have to explain how it has the concerns of the players’ safety in one hand and the quasi-legal bludgeoning of their brains in the other. The best I’ve heard from players safety officials through the years was that “players engage in a fight together, but no one asks to be checked in the head.”
But as far as “don’t over-conclude when the data isn’t there,” the links between concussions in sports and genetics, and especially within the context of CTE, were still being debated in the medical community in 2014. So Bettman has a point.
ACCUSATION: Bettman flatly said that there is no need to “over-legislate” head hits during a 2011 Congressional hearing following the Zdeno Chara/Max Pacioretty incident. While Bettman acknowledged that concussions were on the rise, he inaccurately tried to explain this away as the result of “accidental events” and “not from head hits.” A recent study showed that only 4.9 percent of concussions during this time period were the result of unintentional contact.”
Coverage of Bettman’s testimony can be found here and here and elsewhere. It’s rather clear that Bettman is talking about overreaction within the context of the Chara hit, which the NHL didn’t punish and which a great number of people in the game felt was an “accidental event.” This is entirely reasonable statement.
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Again, it’s important that Bettman testifies because the buck stops with him and he’s been a leading voice on this issue for the better part of 15 years. But I’ve found the lawsuit’s justifications for finding the NHL liable on concussions a bit thin, and I imagine Bettman will ‘Bettman’ his way through these choppy waters as a witness.
The bottom line for me, as always, when discussing this lawsuit:
My heart goes out to the players that didn’t receive the post-career care and financial support they deserved, which was a catalyst for this 60-player suit; and that the NHL itself was far from the only entity that failed to properly address concussions and player safety for decades. It was an institutional failure between the League, its teams, its doctors and, shouldering more blame than they’d ever admit, the players.
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