Tuesday 26 November 2013

Rambling Thoughts on the NHL Concussion Lawsuit

I was surprised by my reaction to Monday’s announcement of retired players filing a lawsuit against the NHL.  If you have read any of my posts over the last 2 years it’s obvious that I’m no fan of fighting and I always expected a lawsuit would be brought against the league at some point.  Still I was disappointed to finally see it happen.

My hope was that the NHL and NHLPA would reduce violence, particularly fighting, because it was simply bad for the sport.  Two goons dropping the gloves can bring an exciting game to a screeching halt.  An unconscious enforcer lying on the ice will be replayed ad nauseam and overshadow any highlight of player skill or artistry.  At some point the league officials, coaches and players would have to accept that the facts show fighting does not change momentum, eliminate dirty play or make the game safer.  I believed that the NHL and NHLPA would realize that a positive image of hockey, without goons or excessive violence, would do far more to expand the game.  Hey, if you’re going to dream it should be in Technicolor.

But now the league will be forced into eliminating fighting and reducing the impact of body checking because of money.  They will need to demonstrate that they really, really care about the players and they want them to be safe.  I’ll be glad to see the end of fighting because it will make the game more exciting and promote more skill on the 4th line.  I am worried about the impact on body checking and how far the league will have go to make the point that it is reducing head shots.  When I played competitive hockey I loved hitting and I still love to see a clean hit.  That IS part of the game and I wouldn’t want to lose it. 

Many of the comments on articles covering the lawsuit have the same theme – that players knew what they were getting into and this is just a money grab.  On the surface that makes sense.  Players have been competing in a dangerous game at a high level for over a decade before they were drafted.  They accepted millions of dollars upon entry into the NHL and gladly went to war every game.  They’ve grown up in a culture of violence.  How could they not know what the risks were?

I do believe that there is some doubt that the players fully understood what they were getting into.   Let’s say your employer told you that they would pay you an astounding sum of money every year but there was a 3% chance that you would suffer a debilitating injury or early death.  You would carefully consider the odds and more than likely most of us might take that gamble.  What if your employer actually knew that there was a 10% chance but didn’t tell you.  What if it was 15%.  What if you found out, after collecting research from outside sources, that he had been misleading you and that you were now suffering from the very injury you had hoped to avoid?  I think that you would be talking to a lawyer about your options.

The NHL and NHLPA share responsibility for encouraging young players to take on the role of enforcer without disclosing full information.  Take a 16 year old junior player, with marginal skills but hulking physique, who dreams of a professional hockey career.  He is supported by parents who also want to see their son sign a contract with an NHL team.  Perhaps he is pushed by a coach who tells him he can achieve his dream by taking boxing lessons and “doing whatever it takes” to prove he belongs.  The player, his parents and the coach all know that a punch to the head is dangerous.  But the NHL and NHLPA tolerate and promote the role of the enforcer and reinforce the message that it’s a necessary part of the game.

At what point does the NHL and NHLPA disclose what they know about the long-term impact of hundreds of fights.  When do they present to the parents and their 16 year old son, who is starry-eyed about the prospect of a big paycheck, with facts about what his potential career and post-career could bring?  Beyond knowing that a punch to the head can cause a concussion does anyone really understand that their retirement years could be full of headaches, nausea, memory loss, mood swings and a potentially early onset of Alzheimer’s?  I don’t believe that any young enforcer knew what they were getting into and even today that information is not shared.   The League and the players association are encouraging young players to take on that risk without publically disclosing what the impact could be.

Does the NHL have that knowledge?  The lawsuit states that the former players believe the league had more information than was available to the general public.  The NHL has been collecting concussion data since 1997 and has not released any of their reports, other than the odd tidbit that would leak out from a general manager’s meeting. They have consulted experts during this study period but have not been open to sharing the findings with other medical groups who are studying concussions.  What if they have more conclusive evidence of a link between blows to the head and long-term brain trauma?   

NHL players have been accepting large salaries and weighing the risks of injury for decades.  They know how dangerous the game can be.  But if they don’t have all the facts how can they make reasoned decisions.  What if they didn’t really understand what they were getting into?  The NHL may have specific knowledge but didn’t disclose it, while continuing to manage the league at a level of violence that they believe sells tickets.  At that point the players are being misled, accepting a level of risk that they think is lower because not all the facts have been provided.  If that supposition is proven correct then the lawsuit has merit.

The only thing that is certain at this point is that we are looking at months, more likely years of legal maneuvers between the retired players and the NHL.  We should expect more players to join the lawsuit over that time.  Even if the league dodges a bullet and the lawsuit is dismissed we will see changes in the game.  At the heart of this action is money and the NHL and NHLPA will not jeopardize their profits or salaries.  To reduce the chance of a future lawsuit we should also expect that fighting is on its way out and hitting will become far more scrutinized.  This is the first skirmish in a long war and the battle plan will be constantly changing.

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