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Second Concussion-Related Lawsuit Filed Against the NHL

By Carrie Anderer

On April 8th, the National Hockey League (NHL or the League) was hit with a second concussion-related class action lawsuit brought by nine former players (Plaintiffs) in Manhattan federal court. While this second lawsuit is substantively similar to the lawsuit filed in November 2013, it notably places more emphasis on what it deems to be the League's unique culture of extreme violence, alleging that the NHL fostered violent fighting between players during games and sold this "commodity" of violence to its fans to help generate billions in revenues. The complaint ultimately alleges that the NHL acted negligently, intentionally and fraudulently in its failure to protect its players from head injuries, and seeks, inter alia, compensatory and punitive damages, as well as medical monitoring for the Plaintiffs' brain injuries sustained during their NHL careers.

The Plaintiffs argue that the NHL knew about the linkage between repeated blows to the head and debilitating brain injuries, and yet took no affirmative steps to adequately and meaningfully address the issue. Furthermore, the Plaintiffs claim that the League intentionally concealed what it knew about these devastating and long-term negative health consequences from players. The complaint criticizes the NHL's self-initiated Concussion Program, which was implemented by the League in 1997 to research and study brain injuries affecting players. The Plaintiffs allege that the first written report issued by the Concussion Program in 2011 "amounted to little more than a statistical analysis of concussions suffered and time lost by players." The Plaintiffs also contend that the League has not implemented any effective rule changes aimed at reducing head injuries sustained by players on the ice. For example, in 2011, Rule 48 was amended to ban all deliberate blows to the head. However, as the complaint points out, this rule change only prohibits hits which result in contact with an opponent's head "where the head is targeted and the principal point of contact." According to the Plaintiffs, Rule 48 is ineffective because it does not prohibit a player from deliberately targeting the head of another player during a body check.

Many of the complaint's substantive allegations center on the NHL's "inextricable ties to extreme violence" and its "sophisticated use of extreme violence to bring fans to the game of hockey." The Plaintiffs allege that the NHL has historically fostered a culture in which fights between players, typically instigated by players known as "enforcers," are an acceptable outlet for players' emotions, a means for players to protect their teammates and an expected element of play. As a result, players who already faced the risks of incurring concussions due to the inherently dangerous aspects of playing in the NHL are also exposed to non-inherent risks as a result of "unnecessary violence, including brutal fighting." The complaint describes the traumatic brain injuries suffered by some of the League's most iconic players, several of which were the result of blows to the head during a fight with another player.

The Plaintiffs face a difficult road ahead in terms of legal obstacles. First, they face the threat that their claims are preempted by federal labor law because they are arguably dependent upon or inextricably intertwined with an interpretation of the collective bargaining agreements. Second, it will be difficult for the Plaintiffs to prove causation by establishing that their long-term injuries were the direct result of concussions sustained while playing in the NHL. Third, they may face difficulty certifying the class since it is arguable that their individual injuries and unique factual circumstances will predominate over common questions of fact. Fourth, the Plaintiffs will likely face the argument that they assumed the risks associated with playing in the NHL, and that the medical evidence linking head injuries and neurological diseases has long been publicly available. Finally, the NHL will certainly argue that it took appropriate measures to protect players, including the implementation of the Concussion Program and certain rule changes.

Given that the complaint was recently filed, it is currently unclear what strategy the NHL will adopt; whether it will choose to defend itself in court, or whether it will consider reaching some type of settlement with players. One thing is clear: these types of lawsuits will continue to be filed, and the safety of players must become a number one priority.

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This page contains a single entry from the blog posted on April 13, 2014 8:43 PM.

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