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Concussion Litigation Strikes the NHL

2013 November 26

In a not-so-surprising fashion, the NHL inevitably found itself facing the wrath of former players – and plaintiffs’ attorneys.

On Monday, a group of ten former players filed a putative class action in the District of Columbia. The lawsuit borrows a chapter from the NFL Concussion Litigation playbook.

The players allege that the NHL knew or should have known about the link between repetitive head trauma and neurological diseases since the 1920s, yet the NHL never shared this with the players.

Instead, the NHL created a concussion program in 1997 that spent the next 7-plus years studying concussions. Rather than sharing the results with the players immediately, the NHL allegedly waited until 2011 to report its findings.

The players also attack one of the so-called quintessential aspects of hockey: fighting. They allege that the “NHL has refused to outlaw fighting and all body checking despite significant medical evidence that to do so would substantially reduce the incidence of concussions in professional hockey.”

The players seek to represent a class of more than 10,000 retired NHL players. The putative class seeks medical monitoring – similar to what will be made available to NFL players in the proposed settlement.

Although the legal theories are similar, the factual allegations in the NHL litigation are far less damning than those asserted against NFL.

There is no evidence—at least publicly—that shows the NHL created (1) a brain injury committee, (2) headed by a rheumatologist and (3) spent 15-plus years creating false studies.

What’s more, the NHL actually looks somewhat reasonable—when compared to the NFL—by creating a concussion program and implementing baseline testing in 1997. But guidelines and rules are only as strong as their enforcement measures, which apparently didn’t happen here.

The NFL didn’t make significant changes to its concussion policies until it was scolded by Congress in 2009. To my knowledge, the NHL hasn’t been targeted by Congress. In addition, the NFL is still publicly denying that football causes brain damage. The NHL hasn’t made this pubic faux pas.

As with all professional sports litigation, the players will face an immediate threat of dismissal when the NHL raises the powerful preemption defense. Like the NFL, the NHL will soon argue that this is a labor issue that must be resolved by an arbitrator and not the court.

Derek Boogaard’s wrongful death lawsuit, pending in the Northern District of Illinois, is facing this legal hurdle as we speak. A ruling is expected soon to determine whether Boogaard’s lawsuit is completely preempted by federal labor law. Or if, as Boogaard argues and the NHL players will soon argue, the CBAs will not need to be interpreted and federal labor law is of no moment.

This expected ruling could make or break the NHL concussion class action.

If Boogaard successfully convinces the court that the CBA will not need to be addressed to resolve his claims, the NHL players will use this ruling to persuade the court in the District of Columbia that another federal judge looked at a similar issue and determined that the preemption argument is without merit.

On the other hand, if it is determined that some or all of Boogaard’s claims require an interpretation of the CBA, the NHL players may face an early and possibly devastating defeat.

Even if the players are successful in defeating the preemption argument, certifying a class may be well-nigh impossible.

For example, due to the dual-country aspect of the NHL, the choice-of-law issues may be so unmanageable that the court may determine that the prerequisites for certifying a class are not satisfied.

Actually certifying a class may not be necessary, however. In the NFL litigation, the parties agreed to settle before the certification issue even had to be briefed.

If the NHL litigation reaches a critical mass like the NFL litigation did (i.e. thousands of individual lawsuits filed throughout the country) this could create an unbearable incentive for the NHL to borrow the NFL’s playbook and discuss a global settlement.

While a group of 10 seems small, it certainly seems likely that former NHL players will start lining up to add their name to the NHL Concussion Litigation.

Undoubtedly, NHL players are suffering from similar neurological disorders—and the tragic fate—as many NFL players.

In the following years, Judge Layn Phillips may get to broker another “historic deal” in the exciting arena of concussion litigation.

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