The effects of fighting in ice hockey: an overview of the ongoing NHL concussion litigation

Published 19 April 2016 | Authored by: Ryan Lake

This is first in a series of blogs by Ryan Lake. The blogs are intended to give an overview of some of the contemporary legal issues impacting the sport of ice hockey, with a strong focus on the National Hockey League (“NHL”). Readers are encouraged to leave comments and participate in debates around the topics raised.

This blog examines the difficult and concerning issue of player concussions, focusing on a review of the ongoing consolidated litigation by ex-players against the NHL relating to the long-term effects of concussion and Chronic Traumatic Encephalopathy (“CTE”).

 

Concussion background

The true extent of brain damage after suffering multiple concussions in sport was not scientifically discovered until the untimely death of Mike Webster in 2002.1 Webster was a Hall of Fame football player for the Pittsburgh Steelers in the National Football League (“NFL”).2 After playing 17 years in the NFL and suffering multiple concussions, Webster started to experience symptoms normally only shown in people suffering from dementia and was prescribed a powerful cocktail of medications.3 In 2002, at the age of 50, Webster died from heart failure.

The pathologist on call at the Allegheny Medical Coroner’s office the day Webster died was Dr. Bennet Omalu.4 Dr. Omalu, conducted several tests on Webster’s brain, in the hope of discovering what was causing his symptoms. What Dr. Omalu found would change medical and sports history. Dr. Omalu described Webster’s brain “as one of boxers, very old people with Alzheimer’s disease or someone who had suffered a severe head wound.5 Dr. Omalu published his findings and named his discovery CTE.

A medical diagnosis of CTE can only be made after a posthumous examination of the brain. Over the next ten years, several former NFL and College football players were diagnosed with CTE, including, Terry Long, Andre Waters, Tom McHale, Owen Thomas, Dave Duerson, Ray Easterling, and Junior Seau, among others.6

After the discovery of CTE and the multitude of deaths associated with the disease, former NFL players filed a lawsuit against the NFL. Additionally, the U.S. Congress launched a former investigation in the NFL and its handling of players suffering from concussions.7

These events not only impacted the NFL but had ramifications throughout the sporting world.

 

CTE and the National Hockey League

The summer of 2011 was one of the most tragic periods in the history of the NHL. That summer saw the deaths of Derek Boogaard, Rick Rypien and Leafe Wade Belak in a span of four months. Boogaard, Rypien, and Belak, all played the role of enforcer during their NHL careers. An enforcer, in hockey terms, is a designated player given the responsibility and task of defending the other players on his team from cheap shots and other dirty plays. Enforcers tend to accomplish this task by playing a very physical game and specialize in the art of fighting. The three players also shared many of the common symptoms of CTE.8

It is reported that it is common for those who suffer from CTE to become depressed and resort to the use of drugs and alcohol to cope with the disease.9 Boogaard, Rypien, and Belak all suffered these symptoms towards the end of their lives.10

 

The NHL’s CTE and Concussion Lawsuits

After the tragic loss of Derek Boogaard, his family filed a wrongful death lawsuit against the NHL in 2013. The Boogaards allege that the NHL is:

Responsible for the physical trauma and brain damage that Boogaard sustained during six seasons as one of the league’s top enforcers, and for the addiction to prescription painkillers that mark his final two years.11

The Boogaard family has also filed a malpractice complaint against Dr. David Lewis, the co-founder of the NHL/NHL Players Association substance abuse program and the supervising doctor for Derek during his time in the program.12 The complaint alleges that:

the doctors failed in their medical and ethical obligations… by not holding [Boogaard] to account after he failed multiple drug tests.13

According to, Len Boogaard (Derek’s father), Dr. Lewis prescribed Derek with “1,021 pills during the 2008-09 season alone.14 While enrolled in the NHL’s substance abuse program Derek was to abstain from the use of any drugs unless prescribed to him by a supervising doctor.

Throughout Boogaard’s time in the program, he tested positive for a variety of banned substances, including Diphenhydramine, Pseudoephedrine, Alprazolam, Xanax, Tramadol, and missed several required drug tests. The complaint alleges that despite these violations of the drug policy, Dr. Lewis did not hold Derek accountable and did not follow the requirements of the substance abuse program.15 According to Len:

[Dr.] Shaw and [Dr.] Lewis could have put [Derek] back in rehab, garnished his wages, banned him from playing hockey… he needed a wakeup call… Instead, he constantly broke the rules. And they let him.16

The California state medical board is currently investigating the complaint and the actions of Dr. Lewis.17 

The Boogaard case was the spark that set fire to the NHL concussion lawsuit saga. In November 2013, ten former NHL players18 filed actions against the NHL in the District of Columbia (find the complaint here). These lawsuits alleged that the NHL knew or should have known about the lasting impact of head trauma and had a duty to inform and protect the players against the dangers of concussions.19

The complaint filed in the U.S. District Court for the District of Columbia further stated that:

the NHL has known or should have known of this growing body of scientific evidence and its compelling conclusion that hockey players who sustain repetitive concussive events, sub-concussive events, and/or brain injuries are at significantly greater risk for chronic neurocognitive illness and disabilities both during their hockey career and later in life.20

The complaint further asserts that:

Despite this mounting evidence of which the NHL knew or should have been aware, the NHL took no remedial action to prevent its players from unnecessary harm until 1997 when it created a concussion program ostensibly to research and study brain injuries affecting NHL players.21

The concussion program created in 1997 was primarily tasked with researching the cause and effects of head injuries in NHL players. As a part of this research, the working group began neuropsychological testing of all players at a baseline and post injury. This testing provided the leaguea basis for historical data moving forward.22 The NHL and the NHL Players Association were jointly “recognized in 2008 by the National Academy of Neuropsychology with an award for their joint leadership in implementing testing and promoting brain injury awareness.23

The claimants in the concussion lawsuit against the league claim, as examined below, that while the NHL may have taken steps to research the effects of brain injuries, the league did not do enough to communicate and mitigate the risks associated with hits to the head.24

 

Consolidation of cases

In addition to the case filed in DC, lawsuits were also filed in the U.S. District Court for the District of Minnesota, and the U.S. District Court for the Southern District of New York.

The NHL requested that the three lawsuits be consolidated and transferred to the U.S. District Court for the District of Minnesota.25 In August of 2014, the motion for consolidation was granted and the U.S. District Court for the District of Minnesota became the forum in which the concussion battle would ensue.26

In the consolidated lawsuit, the Plaintiffs asserted six counts against the NHL. These counts include:

  1. Count I: Plaintiffs allege and sought a declaratory judgment, asserting that the NHL knew, or reasonably should have known “that the head impacts Plaintiffs… endured were likely to expose them to substantially increased risks of neurodegenerative disorders and diseases; that the NHL had a duty to advise Plaintiffs… of that risk, but willfully and intentionally concealed material information from, and misled, Plaintiffs concerning that risk; and that the NHL recklessly endangered Plaintiffs.27
  2. Count II: The Plaintiffs asserted that “as a result of the NHL’s misconduct, they have experienced injuries that have increased their risk of developing neurodegenerative disorders, and that costly medical monitoring procedures are necessary to enable Plaintiffs… to obtain early detection and diagnosis of those conditions.” Accordingly, Plaintiffs sought a “Court-supervised, NHL-funded medical monitoring regime.28
  3. Count III: Plaintiffs asserted a negligence-based claim, which they allege “that the NHL owed its players a duty of reasonable care to manage player safety and to act in the best interests of its players’ health and safety – including to keep players informed of the neurological risks associated with head injuries suffered while playing hockey in the NHL – and that the NHL breached that duty by, for example, promoting a culture of violence and failing to inform or warn players of the potential negative effects of such head injuries. Plaintiffs allege that, as a result of these breaches, they have suffered or are suffering long-term neurological damage.29
  4. Count IV: The NHL Players asserted a claim for negligent misrepresentation by omission. The Plaintiffs “allege that a special relationship existed between the NHL and Plaintiffs by virtue of the NHL’s superior knowledge of material medical information that was not readily available to players and by virtue of the NHL’s undertaking to communicate some safety information to player and the public, such that the NHL had a duty to disclose accurate information to Plaintiffs. According to Plaintiffs, the NHL breached its duty by negligently omitting material information regarding the link between the type of head injuries sustained in the NHL and cognition-impairing conditions. Plaintiffs assert that they justifiably and reasonably relied to their determent on these negligent misrepresentations by omission.30
  5. Count V: Plaintiffs assert a claim for fraudulent concealment based on “the NHL’s alleged knowing concealment of material information regarding the risks of head injuries suffered while playing in the NHL, the NHL’s alleged intent and expectation that Plaintiffs would rely on its silence and fraudulent concealment, and Plaintiffs’ alleged reasonable reliance on that silence to their detriment.31
  6. Count VI: The Plaintiffs asserted a claim for “fraud by omission and failure to warn. Specifically, Plaintiffs allege that ‘[t]he NHL had a duty to promptly disclose and speak the full truth regarding the health risks caused by concussion and sub-concussive blows to the head.’ Plaintiffs assert that this duty arose by virtue of the NHL’s superior knowledge of material medical information that was not readily available to players and by virtue of the NHL’s undertaking to communicate some safety information to players and the public. According to Plaintiffs, the NHL breached this duty by fraudulently and intentionally failing to disclose material information regarding the link between the type of head injuries sustained in the NHL and the cognition-impairing conditions, and that Plaintiffs justifiably and reasonably relied on these fraudulent omissions to their determent.32

The NHL countered the lawsuit with a motion to dismiss on November 18, 2014, asserting three grounds for dismissal:

  1. The Plaintiffs' claims were time-barred failed on the application of the applicable Statue of Limitations and arguments of tolling not being sufficienly pled . The NHL contends that the Plaintiff's injuries were not latent and thus, “under the relevant states’ laws, the limitation clock began running for those injuries on the dates when they occurred.” The NHL further asserted that the statute of limitations had passed, and thus the claims were not filed in a timely matter and should be dismissed.33
  2. The fraud-based claims must be dismissed because they were not pled with particularity. The Federal Rules of Civil Procedure, and in particular Rule 9(b), require a plaintiff to plead in detail “the specific who, what, when, where and how, of the alleged fraud, to conclude that the complaint detailed intent to deceive with particularity.34 The NHL contended that the Plaintiffs did not meet this burden.35
  3. That the medical monitoring claim must be dismissed because none of the relevant jurisdictions recognize medical monitoring as a stand-alone cause of action.36

On March 25, 2015, the Court denied the motion to dismiss filed by the NHL and allowed the litigation to continue.37Read the Court Memorandum Opinion and Order here.38

In February 2015, the NHL concussion predicament took another tragic turn when Steve Montador, a former NHL player, passed away. Mantador’s brain was found to have suffered “widespread chronic traumatic encephalopathy.39

Montador became the fifth former NHL player to be confirmed to have suffered from CTE.40 During his 10-year career, Montador played for the Calgary Flames, Florida Panthers, Anaheim Ducks, Boston Bruins, Buffalo Sabers, and the Chicago Blackhawks. Montador became widely known for his tough play and fighting prowess. Like Boogaard’s family, Montador’s family filed a wrongful death lawsuit against the NHL.41

At the time of Montador’s death, the ongoing class action lawsuit in Minnesota was made of up a group of about 70 former NHL players.42 By February 2016, the number of players involved in the suit was close to 120.43 The players who have joined the suit against the NHL include players who played as far back as the 1960s as well as players who retired just a few years ago. (Find a complete list of the players here).

 

Public disclosure of documents

The case is now waged in public as well as in the court. A November 2015 motion by Canadian Television’s (“CTV”) W5, a weekly newsmagazine series, thrust the public opinion fight to the forefront. The CTV motion requested that certain discovery documents be made public. At the time of the motion, the NHL had turned over more than 2.5 million pages of internal league documents.44 However, these documents were protected and sealed by a court order.45 (Read the CTV’s Motion here).46 The motion asserts that there is a strong and legitimate public interest in issues related the litigation.47 CTV argued that “the instant litigation (whatever its eventual disposition) clearly demonstrates the public importance of issues related to concussions suffered by athletes in general, and by hockey players in particular.48

In January 2016, the presiding judge, persuaded by the public interest argument made by CTV, granted the motion to unseal a series of NHL internal emails.49 One email string from NHL Deputy Counsel Julie Grand to Commissioner Gary Bettman claim that 31 of 86 players who “suffered concussions in the 2010-11 season allegedly returned to the game.50 Further Grand states that 13 of the 31 players who were allowed to continue playing showed signs of concussions. Grand write:

Of the 86 regular season concussions this season, in 31 the player continued playing or returned to play the same game… In 13/31 the player had visible signs of concussion (wobbly, holding head, etc.) In the remaining, it’s possible that the player’s symptoms/signs did not evolve until after the game concluded which may explain their continued play. While our current protocol allows for some same game return to play, it says it should be ‘uncommon’ and only if the player has complete resolution of symptoms and is neurocognitively normal... Same game (return to play) in 30% seems more than ‘uncommon’ circumstances.51

Additionally, an email string between Bettman, Deputy Commissioner Bill Daly and former head of the Department of Player Safety and current President of the Toronto Maple Leafs, Brendan Shanahan make a clear correlation between fighting in the NHL to head injuries, concussions, and “personal tragedies.52 The email chain from September 3, 2011, reads in part as follows:

Bill Daly stated:

"Fighting raises the incidence of head injuries/concussions, which raises the incidence of depression onset, which raises the incidence of personal tragedies."53

The contents of the emails that were made public have certainly inflicted a blow to the public perception of the NHL. These emails may add support to the Plaintiffs claim of negligence on behalf of the NHL and its member teams when dealing with concussed players.

It would seem the league, and hockey in general face the challenge of doing more to protect the current players, which will inevitably include changing the culture of the sport, and implementing rule changes to eliminate many of the aspects of the game that increase the risk of head injuries. This is a large undertaking in a sport where the culture of fighting is strong, so much so it has been reported that major junior leagues, including the Canadian Hockey League (“CHL”), are training players in mixed martial arts to be able to be prepared for fighting in games.54 Major junior players are between the ages of 16 and 20 and are considered some of the top hockey prospects in North America.

 

Comment: Should fighting in ice hockey be eliminated?

Several organizations, such as the National Collegiate Athletic Association (“NCAA”),55 and the International Ice Hockey Federation (“IIHF”),56 have penalties, such as game ejections and suspensions, which have in effect eliminated bare fisted fighting. In the author’s view, the brand of hockey played in the NCAA, and the IIHF is still very entertaining, and the removal of fighting has not changed the essence of the sport.

However, fighting is still common in the NHL, its minor leagues and in the major junior leagues that make up the CHL (Western Hockey League, Ontario Hockey League, and Quebec Major Junior Hockey League). The class action suit against the NHL, which is likely to continue for the foreseeable future, will ultimately have a resolution, however, there is still the ongoing risk that current players are likely to face, as Rick Westhead of TSN documented in his powerful report “Lifetime Penalty.

Given the link between fighting and concussions, it would seem that the NHL and the CHL might be forced to eliminate fighting from the game in the not so distant future.

 

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About the Author

Ryan Lake

Ryan Lake

Ryan is an American attorney at Lake Law Group, LLC and a sports consultant at Beyond the Playbook. He works extensively on ice hockey, soccer, baseball, basketball and Olympic movement issues. Ryan is also an Adjunct Professor at St. John’s University School of Law.

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