Into the unknown: Lawsuit launches NHL into legal arena over concussions

Three years ago, Hockey Canada held a concussion seminar in Montreal. The participants received a packet that included a welcome letter from Ken Dryden, the Hall of Fame goalie and member of parliament.

Dryden wrote about how we think back on the past and wonder why we could have been so wrong. He went from slavery to smoking to sports. Why did football and hockey players go so long without helmets? Why did hockey goalies go so long without masks? He wondered what people would think in 50 years about how we have handled head injuries.

“Knowing what they know then, some hints of which we know now, these people of the future will wonder, ‘What could they have been thinking? Why didn’t they do more?’ ” Dryden said.

Well, forget 50 years. The future came Monday, when a class-action lawsuit was filed against the NHL alleging the league knew or should have known the dangers of brain trauma, promoted and profited from on-ice violence, did too little too late to address the problem, and caused harm to former players.

The suit lists 10 former NHL players as plaintiffs, some of whom barely played in the league, all of whom are suffering from problems that could be related to brain trauma. But it seeks to represent all former NHL players who retired on or before Feb. 14, 2013, and suffered brain trauma in the league. It seeks medical care and “the full measure of damages allowed under applicable law.”

It was inevitable, after the NFL agreed to pay $765 million to former players to settle a lawsuit. Keith Primeau, whose all-star career ended because of concussions, said in an email Monday that he had been approached about suing the NHL, though not by this group. It was just a matter of who would sue and when, and now it is a matter of how big this blows up.

[Related: Retired players sue NHL over head injuries]

NHL commissioner Gary Bettman and NHL deputy commissioner Bill Daly, both accomplished lawyers, have been well aware of this possibility and no doubt have been preparing.

In a statement, Daly said the NHL was “completely satisfied with the responsible manner” in which the league and the NHL Players’ Association had managed player safety – notably mentioning the players’ union, which has had a say in rules and procedures at least in recent years.

“We intend to defend the case vigorously,” Daly said.

If the case goes to court, the plaintiffs’ lawyers will have to prove two main things: That brain trauma suffered in the NHL specifically caused the problems that former players are experiencing, and that the NHL knew or should have known the risks and didn’t do enough to inform and protect the players.

This could be the NHL’s defense: Doctors are still learning about the short- and long-term effects of brain trauma. Can anyone link brain trauma suffered in the NHL directly to former players’ problems? How could the league conceal the risks for years when it still doesn’t know them definitively now? How could the league have dragged its feet when it has been out front on the issue relative to other pro sports leagues? And if the risks were so obvious, why don’t the players bear responsibility for themselves, especially when they have had influence through their union?

The suit states as fact that “both repeated concussions and sub-concussions cause permanent brain damage.” It cites studies conducted as long ago as the 1920s. But even the most current research, including the landmark work at Boston University on chronic traumatic encephalopathy, is preliminary. BU has done a series of case studies with biased samples; it has not done incidence-of-prevalence studies. BU agrees that the risk factor and rate of progression of CTE have not been established. NHL and NHLPA doctors agree CTE exists, but like others, they say there are many unanswered questions – including what causes pathological changes in the brain and how those changes are related to clinical symptoms.

“They keep going to the cause-and-effect relationship which hasn’t been supported at this point in time,” said Ruben Echemendia, the NHL’s neuropsychological consultant, in 2011. “It may be in the future, but at this point, it’s not. We don’t know what causes CTE. Nobody knows what causes CTE at this point in time.”

“If you look at all the people who have cognitive problems late in life and have dementia, have Alzheimer's, there's not an epidemic of ex-athletes in that population,” said Jeffrey Kutcher, a leading sports neurologist and an NHLPA consultant, in 2011. “There's a suggestion here and there that some populations of athletes have a higher risk of things like Alzheimer's, but it's not obvious and it's not a dramatic thing. So somewhere in there lies the truth, and to get to that truth, you need to do research – hard, complicated, long research.”

[Also: NHL responds to lawsuit, 'completely satisfied' with safety record]

The suit points out that the NHL didn’t begin its concussion program until 1997. But in 1997 the NHL became the first league to introduce baseline neuropsychological tests and use them as part of return-to-play protocol.

“We didn’t know what to do with them really to start, because there hadn’t been a lot of research,” said Jamie Kissick, head team physician of the Ottawa Senators from 1992 to 2002, in 2010. “But in a way, it was kind of pioneering. The NHL does get slammed a lot for sometimes the reactions to head hits and that sort of thing. But from the standpoint of looking at concussions, they were in there pretty early.”

The suit says the NHL “did nothing to protect its players from harm until 2010 – 13 years after the concussion program started,” when it made a rule against checks to the head. But concussions didn’t become a major issue in sports until relatively recently, and the rule came before the NFL cracked down on hits to the head. The rule has evolved along with several other initiatives, most notably the department of player safety, which monitors every minute of every game, suspends players and releases video explanations for transparency and education.

Some other allegations seem far-fetched – like the NHL making rule changes in 2005 to speed up the game “despite knowing that it would result in more concussions.” Did the league really know that? Should it really have anticipated that? Did anyone even mention the possibility at the time, let alone protest? The union? Individual players?

[More: Who are the 10 NHL concussion lawsuit plaintiffs?]

The suit says the NHL persists in “refusing to ban fighting and bodychecking.” Fighting is at least a major penalty, and bodychecking is a part of high-level hockey everywhere. Is the NHL liable if it allows any hitting at all?

Other allegations make more sense – like the NHL not doing more to curb fighting. How can the NHL not stiffen penalties for fighting, especially amid this climate? Is it enough to say fighters are willing combatants? Why do the players continue to support fighting through their union when they know the potential consequences better than ever before? With all the information available, at what point are the players giving their informed consent?

Hindsight is 20/20, and the suit makes these issues seem simple – like there has been a clear-eyed consensus for decades when there is still a raging complicated debate today. We wonder why it took so long for helmets and masks, but it did. We know only “some hints” of what we will know about brain trauma in the future, as Dryden wrote, but the game and the science have evolved and continue to evolve.

Has the NHL evolved fast enough? It isn’t just a philosophical or even a practical question anymore. It’s a legal one.


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