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NHL concussion lawsuit stumbles into spotlight

Greg Wyshynski
Puck Daddy

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If the lawsuit brought against the National Hockey League this week, by an ever-growing collection of players, can prove that the League negligently withheld information about concussions then I’d like nothing more than to see Gary Bettman cut a massive, Publisher’s Clearinghouse-sized check to appease them.

I have my doubts that such evidence exists, or that the NHL did anything more nefarious than follow the same “play through the pain” mantra that permeated every contact sport at every level until the science showed us the irreversible damage that can cause later in life. And that’s essentially the NHL’s argument: We weren’t sure on the science, and we’re still not completely, but we know enough to have been reactive to the crisis in the last 15 years.

That they weren’t proactive, or reactive enough, is the crux of the suit.

Of course, one has to wonder how many of these players understand the lawsuit, let alone the crux. Rick Vaive, the most visible name among the first group of 10 players announced, pulled his name from the lawsuit just days after it was filed.

"Mr. Vaive misunderstood the nature of the proceeding being brought, and believed this claim was similar to the worker's compensation claim being advanced in California on behalf of several former NHL players," his lawyer Trevor Whiffen said in a statement Thursday.

"Rick has no interest in suing the National Hockey League and has advised that he will not be pursuing the claim in Washington. He has therefore instructed me to take the necessary steps required in order to remove his name from the lawsuit."

Essentially, a worker’s compensation claim is a much easier path to gaining compensation than taking on the NHL’s player safety policy of the last 40 years. It’s a way to avoid civil suits, actually: Worker’s comp claims are about a business’s responsibility to its employees without necessarily attacking the roots of that fault; a civil suit seeks to find fault and the degree of fault the business is liable for.

(There’s a lot of movement in California on a bill that would shut down worker’s comp cases.)

From the LA Times:

Unlike civil lawsuits, which workers cannot file against their employers for workplace injuries, workers’ compensation awards are strictly limited in size and scope and may include lifetime medical care. Still, spread across thousands of injured players, the costs can mount quickly.

The Times is keeping a running tally of former players that have filed worker’s compensation claims in the California courts against the NHL. Hundreds of players have filed suit looking for compensation for head injuries, including players like Valeri Bure, Al Iafrate, Matthew Barnaby and Marty McSorley; as well as concussion lawsuit participants like Bob Bourne and Gary Leeman.

Vaive, oddly, isn’t among the players listed.

The sense I’ve gotten from the players I’ve spoken to about the suit, off the record, is that it’s not about the NHL allowing the hits, but it’s about not having been properly compensated for taking them.

Their wages were low. Their benefits are limited. There’s no question that a large number of the 200-or-so players that have reportedly signed up for the concussion suit need the money – for rent, medical bills, etc -- and feel they were royally boned by the NHL during and after their playing days.

It seems more like motivation fit for worker’s compensation rather than a civil case against the league. But then they look at the NFL's massive concussion lawsuit settlement and think about a home run instead of a ground-rule double.

Bourne told Yahoo Sports that “it’s got nothing to do with trying to get money,” despite this being his second attempt to receive financial compensation for injuries sustained during his playing days.

Maybe there are a good number of ex-players like Bourne, who are in this thing to affect change and make “life after hockey” easier for others. Maybe that’s the wind in their sails on this lawsuit, the thing that’s going to fuel them in what would be a prolonged fight against the single most stubborn man in the history of pigheadedness, Gary Bettman.

And the suit targets the NHL specifically, which no doubt makes things a little more comfortable for the players: It’s not their TEAMS that did this to you, it’s the NHL. From the suit:

“Why the NHL (and its Concussion Program) failed to share accurate information and take appropriate actions is difficult to comprehend since the NHL has known or should have known for decades that multiple blows to the head can lead to long term brain injury, including memory loss, dementia, depression, and CTE and its related symptoms and that its players were retiring and dying due to concussions and MTBI. Instead, the NHL’s silence and insistent on the need for more data has misled players, coaches, trainers, and the public and impliedly spread disinformation.”

Think about this for a second. Here’s Bourne in the Toronto Star:

“I had the greatest situation of any athlete. We had two brilliant men, (GM) Bill Torrey and (coach) Al Arbour. We had a great owner in John Pickett. We were put in a wonderful situation,” he said. “We had a lot of care. I just think the head stuff was covered up. I firmly believe that . . . I’m very confident (the lawsuit) will show that.

“We had very smart people working for the Islanders. They were smart and they were educated. That’s all I can say.”

The lawsuit provides cover for them, but at the end of the day a player like Bourne has to realize that suing the NHL is claiming that Al Arbour – a coach that Brent Sutter called a “father figure”, and he’s not alone – understood he was potentially ruining players’ lives by playing them through head injuries. That his "great owner" had to understand those risks as well.

One can be Pollyanna about it and blame “the NHL” for the alleged cover-up, or you can acknowledge that any cover-up has its agents of suppression. Which, if you’re an ex-New York Islander, means Al Arbour and Bill Torrey and any number of their staff were heartless bastards that put them in harm's way for the sake of on-ice success and to the benefit of their product.

You know, if we're being honest here and taking this thing to its logical end ...

In his quote to the Star, Bourne seems to be comfortable pointing a finger at these “brilliant” and “educated” men that may have caused his current health issues – at least that’s the inference.

Bourne seems OK with this, and with moving ahead with a civil suit. Vaive clearly wasn’t.

One assumes the lawsuit will continue to swell in numbers. But one wonders how many of these guys know what they're fighting for, and who they're fighting.

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