On Monday, 10 former NHL players filed suit against the league. Led by former All-Star Gary Leeman, the group claims the NHL failed to protect players from concussions. Later in the week, former Toronto captain Rick Vaive asked for his name to be removed from the lawsuit. Michael McCann, the director of the University of New Hampshire Sports & Entertainment Law Institute, joined Bill Littlefield.
BL: In a recent column for Sports Illustrated, you write, “Leeman V. NHL portrays the NHL as grossly indifferent to players’ health.” Michael, How so?
MM: Well, Bill, the complaint argues that the league knew at various times that there was a concussion problem, and it chose not to take actions that would make it less bad.
BL: The plaintiffs are asking the court to certify their class. Why is that significant?
MM: If the lawsuit becomes a class action it would allow these players to sue on behalf of potentially thousands of retired NHL players. That would make the case very threatening to the NHL and would threaten damages that are far greater than what these players can threaten.
BL: In August, the NFL reached a $765 million settlement with its former players over a similar suit. But perhaps comparing the two leagues isn’t fair. NHL Commissioner Gary Bettman has pointed out that the NHL was the first league to have baseline testing and protocols for diagnosing head injuries. It sounds as if the NHL has a stronger defense than the NFL?
MM: That would appear to be the case, Bill. The NHL, at least as the complaint alleges, didn’t do anything glaringly bad. They didn’t form commissions to make it hard for players to know about the incidence of concussions. The worst it appears the NHL did was know about concussions and the danger [of] them and not adequately share information with players and not monitor players given the information it knew. That’s not exactly the most damning indictment against the NHL. There are certainly ethical issues that could be discussed, but the layer of potential misconduct doesn’t seem nearly as great.
BL: You have written that the NHL is a league “known for its secrecy.” What private information could this lawsuit potentially make public?
MM: This is where the real threat is to the NHL, I think, Bill. In pre-trial discovery would require the NHL and its officials and team owners and team executives to potentially be deposed in court. And also potentially looking at the finances of teams, whether or not teams are as unprofitable as they like to claim they are whenever there’s a labor confrontation.
BL: It seems to me the most likely outcome in terms of actually changing the experience of watching a National Hockey League game might be that fights would be diminished as a result of this lawsuit. Does that seem likely to you?
MM: I think the issue of fighting isn’t clear cut. I don’t think it’s necessarily eliminating fighting, that makes the game much safer.
On the surface though it would seem that raising the penalties for fighting would at least deter it from happening, and maybe that would help. It sounds as if much of the science about head injuries in the NHL is not about fighting but instead about checking, hitting the boards—less obvious contact that over time and in compilation can be very dangerous.