Concussion issue especially tricky for less affluent NHL

Gregg Krupa
The Detroit News

Lawyers questioned NHL commissioner Gary Bettman under oath last month during the pretrial discovery phase of a federal suit by former NHL players who say the league inadequately informed and trained them about concussions.

Bettman's testimony is not public. But during the playoffs, the commissioner asserted, "From a medical science standpoint, there is no evidence yet" that concussion "necessarily" leads to the progressive, degenerative brain disease known as CTE, or chronic traumatic encephalopathy.

Experts say that while there is plenty of evidence concussions can cause CTE, Bettman's statement is literally true.

They also say, that like a good lawyer, the precision of his language, including the word "necessarily," which is the basis for a key argument in defending against the suit, simply echoes the league's legal strategy.

As the pretrial phase continues, legal experts say that as in a similar NFL case, the former players and NHL likely will settle while the NHL grapples with the scientific issues implicated by concussion and afflictions of the brain, its image and containing costs.

As a comparatively less lucrative league, however, the process in the NHL may be more difficult, legal experts say.

"Just like the NFL case, proving damages against the NHL specifically is not as easy as people might think," said Warren Zola, a lawyer and professor of sports law at Boston College.

"And so, if the plaintiffs are able to reach a settlement that doesn't give them everything they're after, but gives them some damages and they are able to help support some players, then certainly they can have an interest in settling.

"And, from the NHL standpoint, you've got cost containment certainty when you reach a settlement, as opposed to having damages awarded through a court system," Zola said.

"The problem with the NHL, as opposed to the NFL, is that the NFL is flush with cash in ways that the NHL is not. So for the NFL to write a large check and call it operating costs and apply it towards cost containment, there's a lot more flexibility, financially, than there is in hockey."

Meanwhile, medical experts say both suits and similar court action pending against the NCAA, high school associations in multiple states, professional wrestling and even water polo, are essential to educating public health officials and the public about the connection between sports and brain disease.

"This is a big, giant issue," said Susan Connors, president of the Brain Injury Association of America, which filed an affidavit, admitted on the record, in the NFL case, as part of its advocacy for 2.5 million people in the United States who sustain traumatic brain injuries, annually.

"From the 5,000-foot perspective, these lawsuits have all created a groundswell of public awareness about the dangers of concussion, which is phenomenal," Connors said. "Honestly, they have accomplished in just a few short years what advocacy and public health organizations have been trying to get before the public for 20 years, and they got it done in 20 months.

"They have generated public awareness, if you will, at the pee-wee level. And, in schools, they have been part of a nationwide sweep of school-age concussion laws all across this country. Every state, now, has a concussion law."

Players left to decide

All the court action appears destined to establish two fairly simple guidelines, legal and medical experts say: While leagues, organizations, coaches, trainers and equipment manufacturers have a responsibility, perhaps even a duty, to provide for adequate awareness, training and equipment, athletes ultimately accept the risk when they decide to play.

"What is now happening, at every level, is number one, how do we make these sports safer," Zola said. "But for the most part, the assumption of risk is going to be the controlling legal philosophy."

So, as players like Red Wings forward Johan Franzen and many others make a decision about whether to return, their discernment of the issues is critical both to their health and legal standing, should further injury lead them to seek damages.

Detroit's Johan Franzen and Montreal's Alexei Emelin collide along the boards during a game at Joe Louis Arena last season.

And with more and more information available on the nature of the risk, athletes — and if they are young enough, their parents and those acting in place of parents — need to be aware, and careful.

While that may permit leagues and organizations to proceed, with due caution — like the protocols established before concussed players may return to play, new rules barring intentional hits to the head and other measures — it places a critical obligation on players, as well as the families of young players and school and youth sports officials who are often legally determined to be acting in the place of parents.

"The new question is, now: Have we moved to the position of 'athlete beware?' " Connors said.

"We are taking someone, whether it be a professional athlete, an NCAA athlete, a high school athlete or a pee wee and we are saying, we know that a concussion alters brain function. It makes you dazed and confused, either momentarily or for longer periods, and it impairs your judgment.

"But it's your responsibility to decide.

"In this dazed and confused state, it's your responsibility to decide whether or not you should return to play. And there is something fundamentally wrong with that."

Charges still being fought

Two lawsuits are combined in the litigation against the NHL, which is in U.S. District Court in Minneapolis.

The retired players allege NHL officials knew, or should have known, about the dangers posed by concussions and failed to do enough to reduce the risk of head injuries and educate players about the issue.

The suit seeks rule changes, medical care for former players and the "full measure of damages allowed under applicable law."

NHL officials, who declined comment on the litigation, sought to dismiss the case for jurisdictional issues. It was denied by U.S. District Judge Susan Richard Nelson.

The league then issued a statement by deputy commissioner Bill Daly, saying, "While we would have hoped for a different result on this motion, we understand that the case is at a relatively early stage, and there will be ample opportunity for us to establish our defenses as the discovery process progresses."

The league also asserts the relationship with the players is governed by the collective bargaining agreement.

The plaintiffs hope to have a full day in court.

"We are proceeding with discovery per the schedule set by the Court, so retired players can learn the full extent to which the League for decades deliberately ignored and concealed the risks associated with repetitive brain injuries," said Charles Zimmerman, lead counsel for the plaintiffs in the cases, which have been joined.

"As the NHL, even to this day, denies a link between these injuries and long-term neurological issues, we will continue to seek security and care for the players who made the League what it is today."

Debate is good start

Meanwhile, for Connors and others, "athlete beware" and the legal concept of "assumed responsibility" governing the relationship between athletes and their sport, may be setting up too many to fail to protect themselves — especially, if they are not fully informed or careful.

"There are lots of efforts by states and on the local levels, in the schools," Connors said. "The White House did a concussion summit and made us all sign a pledge to do what we can.

"A lot of people have a responsibility.

"The emergence of concussion as a threat to athletes is at least having its time."

In Zola's view, "All of these cases are important in terms of sparking a debate in terms of which sports are safe, and do you want your children to play them.

"But, ultimately, I think that our society loves recreational sports, people will want to participate. I think people are just more conscious of ways to protect themselves and the importance of mitigation factors, if you do have a concussion, ranging from sitting out, to wearing different equipment and protection, et cetera."