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Major League Sports: Our Local Pros

2014 April 29
by Paul D. Anderson Consulting, LLC

On April 30th, I’ll be a panelist at a CLE in Kansas City. Registration information is below.



Join us on April 30th as we kick-off AWL’s CLE programming with presentations by our local sports law professionals, followed by a happy hour. (2.0 MO CLE Credit including 1.0 Ethics)

Session 1 (2:30-3:30pm):  

Local attorneys, including Paul Anderson and Scott Hofer, spearheading and/or defending sports litigation for the KC Royals and against the KC Chiefs will provide us with a sports litigation update concerning NFL concussion litigation, and the Royals “hot dog” litigation/appeal.

Session 2 (3:30-4:30pm): 

A panel of general counsel, including Daniel Crabtree (Stinson Leonard attorney and GC for the KC Royals) and Greg Cotton (GC and Chief of Staff of Sporting KC Soccer) will speak regarding their professional development, experience and challenges as general counsel, as well as ethical issues and obligations encountered in representation of professional sports teams.

The CLE and happy hour will be held at KCMBA Headquarters. Price is $60 for members/$75 for non-members. Register at .

Eliminating False-Marketing Campaigns

2014 February 26

Updated on Feb. 28, 2014

Riddell Helmets is facing at least three consumer class actions stemming from the false-advertising campaign for the Revolution helmets.

After a similar lawsuit was voluntarily dismissed in 2012, it was just a matter of time before various class actions would be revived.

In December 2013, the first of four class actions was filed in Florida. Shortly thereafter, two class actions (Aronson and Thiel) were filed in New Jersey. Just last week, a fourth class action was filed in California – with more likely on the horizon.

The Aronson complaint seeks to certify a nation-wide class of consumers that purchased the Riddell Revolution Helmet. The other three actions, taken together, seek to certify a state-wide class in California, Illinois, New Jersey and Florida.

With several overlapping putative class actions, which all share the same factual and legal issues, it is likely that Riddell will move to consolidate all the cases by requesting that the Judicial Panel on Multidistrict Litigation create an MDL.

The lawsuits target Riddell’s false-marketing claims that arose from a 2003 University of Pittsburgh Medical Center study that stated, “athletes who wore the Riddell Revolution helmet were 31 percent less likely to suffer a concussion compared to athletes who wore traditional football helmets.”

The 2003 study was scientifically flawed on multiple fronts.

First, the co-author of the study, Dr. Joseph Maroon, stated that the study should not have been used as a marketing tool. Second, Dr. Cantu said the study “suffers from a serious, if not fatal, methodological flaw….” Third, Dr. Jeffrey Kutcher testified to Congress that the study also had systematic flaws in data collection. Fourth, Dr. Cantu and Dr. Kutcher both agreed that the study was wrought with an “inherent conflict of interest.” Finally, a study from the Cleveland Clinic found that modern day helmets – including the Revolution – were no more effective at preventing concussions than leather helmets.

Since various companies continue to engage in false marketing, the only way to eliminate this will be through the civil-justice system.

Hopefully, this litigation and others like it will stop companies from profiting off of the so-called concussion crisis.

MLB Makes Good On Promise to Protect Players

2014 February 24
by Paul D. Anderson Consulting, LLC

While many organizations—NCAA, NHL and the NFL—take reactive measures, the MLB has taken steps to ensure it is not caught with its pants down, facing a multi-million-dollar lawsuit.

The Players’ Association and MLB announced that they have agreed to enact a home-plate-collision rule for the 2014 season. The rule seeks to limit violent collisions at home plate that have caused season-ending injuries, concussions and the potential for long-term cognitive impairment.

Mike Matheny, whose career was cut-short due to multiple concussions, had this to say about the proposed rule:

I’m not on a mission here to try to do anything except do what’s right,” [ ] “First of all, make people aware that the concussion thing is real and not just in football and hockey. It’s real in baseball, and I did a real poor job of communicating that early on. And the other thing is, let’s take a risk-reward analysis of this thing. What is the risk of the good of the game, let alone the individual, and the long-term repercussions? And what’s the reward?”

“I don’t know how it’s all going to play how except for the fact that we think it’s the right thing. And the right thing is to try to keep our guys on the field.”

Although there is no firm scientific data that proves this rule will reduce concussions, common sense clearly dictates that it will.

Unlike the NCAA, which repeatedly makes empty promises about player safety and simultaneously manufactures doubt about enacting hit limits, MLB has chosen not to wait.

MLB recognizes the threat and has taken proactive measures to ensure their players are protected at all levels.

I applaud MLB for placing player safety over profit. Perhaps this will be a wake-up call to the NCAA and NHL. Players are being exposed to needless brain trauma. Stop the excuses and live up to your professed obligations.


The NCAA Has Failed Its Student-Athletes For More than Two Decades

2014 February 9
by Paul D. Anderson Consulting, LLC

As lawyers fight for a seat at the table to negotiate a global settlement in the NCAA concussion litigation, an overlooked affidavit illuminates the NCAA’s historical failures.

A group of plaintiffs’ lawyers (hereinafter, the “Latecomers”) recently filed pleadings with Judge Lee seeking to halt settlement negotiations so that they can “adequately” represent the interest of pre-2004 football players.

The filing comes on the heels of the formation of the NCAA concussion MDL and against the backdrop of settlement talks between the Arrington lawyers and the NCAA (hereinafter, the “Negotiating Group”).

The Latecomers claim that there is a fundamental “intra-class conflict” that impedes the current Negotiating Group from reaching a global settlement that adequately represents all potential class members. Essentially, the Latecomers want a seat at the table because they believe their clients and hundreds of thousands of other former NCAA athletes that played prior to 2004 will be left without a voice.

The Negotiating Group contends that these accusations are without merit; rather, this is merely an attempt by a group of “copy-cat lawyers” to obtain a slice of the attorneys’ fees that may be awarded if a settlement is finally approved.

Both side’s arguments have merit.

The Arrington lawyers have represented to the MDL Court that they are negotiating a settlement on behalf of all former student athletes in all 50 states. However, their class certification motion seeks to represent only a class of post-2004 student athletes that played in 18 jurisdictions (i.e. jurisdictions that allow for medical monitoring without the necessity of proving an actual injury). The NCAA similarly has expressed its desire to settle the litigation on a global basis. “The only basis on which the NCAA is going to settle is all sports for all times and all jurisdictions,” the NCAA’s attorney told Judge Lee.

On the other hand, there is a real concern that certain comments (e.g. that pre-2004 claims lack merit) by the Arrington lawyers could hinder them from negotiating a deal that zealously advances the interests of all student athletes.

While there arguably is a strong inference that the Latecomers are just being opportunistic and seeking a windfall from any potential settlement, Rule 23 jurisprudence does support their position, to an extent. That is, during settlement negotiations, as opposed to after a deal is struck, it is essential that the negotiating parties are free of any interest that may be antagonistic to the interests of all class members. By publicly discounting the claims of pre-2004 players, there is a threat that a settlement could be struck that is detrimental to this allegedly abandoned group.

The Negotiating Group disagrees, arguing that Rule 23 provides adequate safeguards—such as the ability to object—to ensure this does not occur. The Negotiating Group also argues that any additional negotiators could potentially derail the settlement talks.

As an aside, the Latecomers’ argument would also necessitate the inclusion of additional sub-class counsel for all pre-2004 student athletes that played in any contact sport. The Latecomers are only representing football players, so their altruistic solution only solves a fraction of the purported problem.

On balance, and taking the representations regarding settlement negotiations as true, the threat may be artificial as opposed to real. If a global settlement occurs, it will apparently include all former and current student athletes that ever played a contact sport at any NCAA school. The remedy will merely be medical monitoring (i.e. neurological and neuropsychological evaluations), as opposed to CASH.

Thus, whether a student athlete played in 2009 or in 1989 for one season or four seasons, the remedy will be the same: medical monitoring. Unlike the inadequate NFL proposed settlement, it does not appear that there will be a compensation fund that entitles the players to cash payouts.

Judge Lee has informed the parties that he intends to rule on the above dispute prior to or at the March 5, 2014 hearing.

Finally, the most intriguing part of the court filings is an affidavit submitted by Dr. Robert Stern. The affidavit was included by the Latecomers to substantiate their position that pre-2004 student athletes have real claims and they are entitled to relief.

As an indictment on the NCAA leadership, Dr. Stern opines:

The NCAA and its leadership has known for two or more decades of the long-term risks associated with concussions and other brain trauma experienced by collegiate and other football players, and that medical intervention, brain trauma prevention strategies, and concussion management, may reduce the risk of subsequent brain disease and injury and related cognitive, mood, and behavioral impairment.

Accordingly, it is clear that the NCAA and its leadership have failed to live up to its founding principles of protecting student athletes for far too long. As you may recall, the NCAA did not take any action on concussions until 2010, and even then, it only issued toothless guidelines that have left member institutions scratching their head. And when it comes to schools egregiously violating NCAA rules, the NCAA does NOTHING. Instead, it spends its resources chasing down sandwich violators and ensuring that its labor force goes unpaid and medically unprotected from the real dangers of concussions. After all, that is the real meaning of modern-day amateurism: grave injustices.

NCAA Concussion Litigation Heats Up

2014 February 8

As one concussion MDL reaches the stage of resolution, another battle is set to begin. Following a similar path of the NFL, the NCAA Concussion Litigation has reached a point where the consolidation of multiple lawsuits into a single forum has been ordered.

In late December 2013, the Judicial Panel on Multidistrict Litigation ordered all pending putative class actions against the NCAA to be transferred and consolidated to the Northern District of Illinois.

As we saw with the NFL Concussion Litigation, when there are multiple lawsuits pending throughout the country, it is most efficient for the cases to be sent to a single forum in front of a single judge.

Philadelphia is the battleground in the NFL litigation and the “referee” is the Honorable Judge Anita B. Brody. For the NCAA litigation it will be Chicago, with the Honorable Judge John Z. Lee presiding.

The genesis of the NCAA litigation is slightly different, which has triggered in fighting amongst the plaintiffs’ lawyers. (Forthcoming article: Motion Filed to Halt Settlement Negotiations) The Arrington case, filed more than 2 years ago, has advanced the players’ claims significantly. The lawyers engaged in a voluminous amount of discovery, uncovering damning communications that undoubtedly showed the NCAA’s betrayal of the student-athletes.

The Arrington lawyers were able to advance the case to a point where the NCAA was publicly humiliated and concerned that class certification was a real possibility. The NCAA raised the white flag, initially, and it was announced that the parties were heading to mediation. Catching word of this, other lawyers around the country started to file putative class actions — whether this was done for altruistic reasons or to represent non-proposed-class members’ claims (i.e. pre-2004 student athletes) is debatable.

Against this backdrop, MDL No. 2492 In Re: NCAA Student Athlete Concussion Injury Litigation was formed.

The first step in multidistrict litigation is the development and appointment of a leadership structure. Judge Lee has ordered the parties to identify two Lead Counsel to represent the players.

In the NFL litigation, Chris Seeger and Sol Weiss fill this role. As you saw, these lawyers basically have all the power, so it is clearly a coveted role to assume.

Multiple lawyers will obviously be vying for these two positions. Since two factions have apparently formed—i.e. the Arrington lawyers vs. all the others—the court may be inclined to appoint a representative from each faction.

By making these appointments, it may be the first step in resolving some of the bickering that has developed. If the parties cannot reach an agreement by February 24, 2014, Judge Lee will be forced to make the decision at or before the March hearing.

That initial pretrial conference is scheduled for March 5, 2014 at 2 pm. This hearing should iron out whether resolution viz-a-viz the ongoing mediation with Judge Phillips will remain fruitful or if protracted litigation is necessary.

If it’s the latter, then additional discovery will be planned and the putative class will be restructured to include virtually all former student athletes that played a contact sport at any NCAA-affiliated college.

At bottom, the next four weeks will be critical in assessing whether the lawyers can put aside their differences, and focus on a global resolution that will benefit all former and current student athletes.

Guest Post: Head Games: Going to War with Your Body

2014 January 30
by Paul D. Anderson Consulting, LLC

By: Carrie Truax

Early in the film, Head Games, narrator Christopher Nowinski says, in reference to playing football, “It’s the closest thing to being a warrior without having to actually go to war.” I found this quote to be very intriguing, because to me, American culture is vividly manifested in football. Sports culture rules social interaction. Especially in the last five years, there has been a shifted focus on honoring the military in sports. Nowinski’s comment about being a warrior called to mind some very important comparisons between the two contexts. Military personnel are sent into battle with extreme protection, and trained to withstand countless physical attacks. Professional football players enter the stadium with pounds of protective equipment, prepared to make tackle after tackle. With that being said, I do not believe football players are given the same education as soldiers in battle. Lifelong illnesses, physical complications, and eventually in some cases, even death are all a result of playing professional football. Head Games made this point, but I do think it underestimates that playing professional football actually is going to war -going to war against your own body.

In this documentary, doctors and ex-professional football players band together to make a clear argument for better protection, more education, and less romanticizing in professional sports in order to alleviate the exponentially growing number of head injuries. In my opinion, the most important argument made in this film is the need for greater education. Head Games stated that 14 out of the first 15 players they studied had developed chronic traumatic encephalopathy or CTE, which results from mutiple concussions or head injuries. All of these patients were studied post-mortem, as that is the only way to clearly detect CTE. A greater need for education from the National Football League, NCAA, Pop Warner, statewide high school associations, and little leagues is perhaps the only way for changes to be made. Education and awareness about the causes of repeated distress on the brain is the only way to fully combat this epidemic.

The documentary also states that rest appears to be the soultion, yet players do not get off the field in time or in some cases – at all. At times, players well-being can be sacrificed for the good of the team, especially if the future of the season is at stake. According to Head Games, players should demand appropriate rest time and withdraw from competition if continual head trauma ensues.

Once proper education and awarenss are fully developed and intertwined in the football atmosphere, players will be more apt to reveal when they are in pain. At the same time, coaches and parents alike will be more aware of symptoms or signs of head trauma and will be more likely to protect athletes.

Finally, sports have been heavily romanticized by the media, especially in the new media age. Sporting events are not only covered live by sport media companies, but also by ameatur sport journalists, better known as fans. Social media enables fans, athletes, coaches, and sports jouranlists alike to unite on a common front to idealize sports. Networks like ESPN and FoxSports have even a greater responsibility in the glamourization of sports. All of these entities combined are guilty of romanticizing sports. Because such a heavy influence is placed on competition, and the outcome of competition, little weight is placed on injury and the need for injury awareness. Once the leaders of professional sports leagues demand control, serious sporting injuries like concussions can begin to be remedied.

Head Games challenges its viewers to consider all circumstances related to the seriousness of concussions. From the professional ranks to little league, players should watch Head Games to become aware of the conditions surrounding head trauma. Although there have been great strides in the recent past to overcome these injuries, there is still work to be done. Most importantly, the leaders of sport organizations need to place as much value in head trauma education as they do ticket sales. Concussions and CTE are issues that can no longer be ignored. I commend advocates like Christopher Nowinski for taking the first step in player awareness and education.  There needs to more films like Head Games and organizations like the Sports Legacy Institute to provide adequate education and awareness, better protection, and less romanticizing in professional sports.

Carrie Truax, a native of Madison, IN, is a senior Communication Studies major at Clemson University. While at Clemson, Carrie has worked in the Athletic Communications Department for 3 years. She has also interned with the Washington Redskins and the Atlanta Falcons. Upon graduation, Carrie plans to attend graduate school and pursue a career in sports public relations. 

The Concussion Conference

2014 January 18
by Paul D. Anderson Consulting, LLC

One of the leading advocates for concussion awareness, Katherine Snedaker, is putting on an event that must not be missed:

Connecticut Students: Return to School THEN Return to Play

One Day Concussion Training offered in Two Connecticut Locations from 9 am to 3 pm

Thursday, January 30, 2014     Stamford: Chelsea Piers Connecticut
Friday, January 31, 2014         North Haven: Quinnipiac University School of Medicine

Helping Students with Concussions Return To Learning: Accommodating the K-12 School Day with Concussion Management Teams

This is not a simply “concussion awareness” event. Instead, each of the days will focus on Learning about Best Practices in Concussion Management from national experts. Then with new information and insight, participants will brainstorm with other stakeholders about solutions to improve concussion care for Connecticut students. The morning sessions are designed teach specifics for each group below, and afternoon panel discussions will provide networking and sharing opportunities between groups.

For School Nurses & Staff - Learn strategies and accommodations for student concussion management during the school day with the goals of reducing student symptom severity and potentially promoting a faster recovery.  Learn how to implement a Concussion “Return to School” Protocol at the local level. Learn from Brenda Eagan Brown, MEd, CBIS, co-author of the new 2013 CDC Resource: Helping Students Recover from a Concussion: Classroom Tips for Teachers.

For Pediatricians - Review current concussion science and recommendations for best practices with a focus on Pediatrician’s Role in Return to Learn & School Communications. Discuss the 2013 AAP RTL Report with one of the co-authors plus Post Concussion Syndrome in Students.
For Athletic Trainers - Learn how a School Concussion Management Team can help your student athletes. Educate others about the role of Athletic Trainers in our schools.
For Coaches, Referee & Sport Organizations - “The Student Athlete – Concussion Issues for Coaches, Athletic Trainers and Officials: Managing the Risk” plus possible updates in CT Concussion Law.
For Parents - Learn how proper school concussion management can help students reducing their symptoms and potentially promoting a faster recovery. Learn how to implement a Concussion “Return to School” Protocol at the local level. Review current concussion science and Post Concussion Syndrome.
For Students with Concussions/PCS – Discover support groups & resources from local students, national experts and online communities


The Student Athlete – Concussion Issues for Coaches, Athletic Trainers and Officials: Managing the Risk

A Presentation for Sports Organizations by Alan Goldberger, a nationally recognized authority on sports officiating and sports law

Thursday, January 30, 2014 ,  Chelsea Piers, Stamford, CT      7 to 9 PM


Guest Post: Head Games – A Discussion About Priorities

2013 December 17
by Paul D. Anderson Consulting, LLC

By: Ali Rogers

Run faster. Play tougher. Hit harder. We disregard the consequences of over-aggressive behavior in sports and rave about the hardest hit in last weekend’s big game. We set aside the physical, psychological, and cognitive repercussions of blows to the head because admitting something might be wrong shows weakness. We somehow allow our priorities to fall in the wrong order, sacrificing the well being of athletes while deeming the most aggressive players as the most valuable players. We, in these regards, are the unaware and uninformed. But even as we are becoming more aware and more informed, does knowing lead to prevention? “Head Games” gives us an extensive view into the risks and dangers of sports-related concussions. While awareness may be the only truly effective effort, the authors of the film highlight a significant attempt to spread the message and to make athletes, coaches, and parents ask, is it worth it? Key themes throughout “Head Games” are the state of denial of the risk factors in which some people remain, the emotional and physical toll concussions take on athletes, and the willingness to sacrifice the well being of one’s self in the name of optimum athletic performance.

From young athletes who don’t want to know the effects of concussions on the brain to parents who don’t care to hear an activist’s warning, “Head Games” reveals an over-arching sense of denial existing in the sports world. A number of youth, parents, and coaches would rather turn a blind eye to the reality of concussions rather than take action in preventing damage to the brain. Even with more than sufficient amounts of research, they somehow justify allowing such aggressive behavior by simply pretending that severe brain damage caused by concussions does not exist. The question this pattern poses is, why? The instinct theory explains that violence is innate, a characteristic inborn and permanent. Thus, aggressive behavior in sports is considered normal and expected. This justification makes it easy for adults to allow even the youngest of athletes to give it all they’ve got and to never admit there just might be something wrong. Athletes, coaches, and parents deny the severity of concussions to intensify the athletic performance. The more aggressiveness and intensity demonstrated in a game, the more valuable the player is viewed. Denial of the reality will remain in existence until the sports world accepts the reality.

A chronic brain disease is driving an alarming number of players to madness…literally. It seems that playing sports, from little league ball to the pros, gives an individual a certain edge. Being an athlete brings on a certain “cool factor” and often makes others believe he or she has it all together. In reality, some of the all-time greats battle demons deep within themselves – demons caused by emotional disturbance from damage to the brain. Some concussions have brought premature ends to athletic careers; some have even led to suicide. “Head Games” highlights stories of individuals who have experienced sports-related brain damage and one tragic story of the considerable harm concussions can cause. Not only does a lifetime of hits and tackles cause physical suffering, but psychological and cognitive consequences as well. What happens inside the brain may be more devastating than any visible injury.

The juxtaposition of preventing concussions while spotlighting the best hits from the big game puts the sports realm in an awkward state. Mass media have the potential of being the greatest tool in prevention and awareness. All the while, they have more power in their hands than anyone to draw attention to the most spectacular hits. After all, the biggest, baddest hits are what bring in the viewers. As athletes strive to make a name for themselves, they allow this socially learned idea that violence is normal to take hold of their personal goals on the field, court, rink, or in the ring. Most players are indeed aware of the risks, but they unfortunately are willing to overlook the dangers. The players decide to put recognition before good health, all in the sake of proving themselves. No great athlete ever accepts defeat. No great athlete ever shows weakness. No great athlete ever admits that it’s too much to handle. Right?

A helmet may be the only tangible object keeping an opposing player from his or her target. It’s the responsibility of the athlete, coaches, and parents, though, to accept the reality and play with awareness. An athlete must keep his or her priorities in line, even if it means admitting the need for a break. The severity of a brain injury may remain unknown until it’s too late. Steve James, Bruce Sheridan, Christopher Nowinski, and a number of others bring on a new appreciation for life in their film. As the film sheds light on the reality of concussions, the message hopefully reaches athletes, coaches, parents, fans, and media, showing how we each have a role to play in prevention and awareness. The idea that “ignorance is not bliss” is the foundation of Steve James’ lesson in the film (James, 2012). When we live in a culture of toughness in America, admitting that there might be a serious problem is not always a seemingly simple task. Once athletes put it in their heads that their health is more important than any ball game, any play, or any hit, they can finally grasp what is worth valuing and what shouldn’t be taken for granted.

Ali Rogers is a senior communication studies major at Clemson University. This is her fourth year as an intern for the Clemson Football program where she is now in media production, hosting Death Valley Live and the All In Highlight Reel. Ali served as Miss South Carolina 2012 and was first runner-up to Miss America 2013. She traveled over 60,000 miles speaking across the state of South Carolina and used her sports background to promote healthy and active living. She is a full scholarship recipient and will complete her studies at Clemson University in August of 2014.

The Fight Must Go On

2013 December 3

Over the past two years I’ve closely followed the concussion litigation against the NFL. During this time, I became friends with several former players. Their harrowing stories shared a common theme: brains damaged by lies and deception.

I purposefully refrained from taking an active role in the litigation because I believed the players’ interests were adequately represented. I figured the players would be fighting the NFL for the next several years through a long and drawn out discovery process that would eventually uncover the truth.

To my surprise, the NFL and players’ attorneys announced a proposed settlement right before the start of the 2013 NFL season. At the time, I thought the deal was fair, but I quickly recognized otherwise.

Scores of players called me, sharing their dissatisfaction with the deal. One player told me bluntly, “What good is monitoring? I already know I’m f***ed up.” That’s tough to counter.

Although the deal is adequate for players suffering from dementia and other “severe” neurological diseases, it falls well short for the thousands of other players that are on the borderline. The deal cannot keep up with the rapid advancements in science. Living players are being clinically diagnosed with CTE (this should have been underway years ago, but for the NFL and Chiefs concerted efforts to conceal the reality of CTE). Simply put, $765 million is not enough to compensate all the players that likely have CTE.

Basically, the NFL is paying a fee to make the lawyers go away – many of them took the bait.

I decided that the fight must go on. The commentator hat is coming off. More work must be done. The public demands the truth and the players deserve justice.

To that end, our legal team (comprised of Ken McClain, Dirk Vandever and myself) filed the first ever brain injury lawsuit against the Kansas City Chiefs. Due to a unique opportunity in the law, Missouri is the only state that allows employees to sue their employers directly for occupational diseases. What’s more, our lawsuit is framed to focus squarely on the years (1987 – 1993) when no collective bargaining agreement was in effect.

Today, Chris Martin, Kevin Porter, Joe Phillips, Louis Cooper and Leonard Griffin took the first step to lead the former players down the path of justice. Many other players that played for the Chiefs or Rams could also benefit. The time is now.

A copy of the lawsuit filed today in Kansas City, Missouri can be found here: Cooper et al v. KC Chiefs.

Call us if you’d like to discuss your rights: 573-528-6478 or 816-836-5050.

Concussion Litigation Strikes the NHL

2013 November 26
by Paul D. Anderson Consulting, LLC

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.