What the NFL concussion settlement means for the NHL

concussion

$765 million. Really?

While initial sentiments seem to favor the fact that the NFL won and got off easy (and in the litigation pot of gold that is the United States this may in fact be true), this writer’s opinion is that the money the players received sets a dangerous precedent for all other sports leagues – especially the NHL.

It is a general principle that an individual who voluntarily participates in a sport has consented to the physical risks of that sport. In fact Canadian cases such as Agar v. Hyde and Nichols v. Sibbick have established this principle under law by reasoning that “players will inevitably collide” and that a “person who engages in sport must be assumed to accept the risk of harm”. I think most of us reasonable people would agree that when an athlete steps on the field or ice for millions of dollars, he has done so voluntarily, and UNDERSTANDS the physical risks of that sport.

The risk of physical injury is inherent in every sport, whether that be football, hockey or lawn bowling. I remember the first big hit I took in football. And even 12 years ago I knew it didn’t feel good and I was probably injured – in the short-term. But I took the hit voluntarily because I enjoyed playing the sport. You ask NFL or NHL players to sign a document accepting the risks of injury and I guarantee you that over 99% of them would sign it. Why? Because they enjoy the sport, and enjoy the money.

Where the NFL case differs is not on the issue of whether the players accepted the risk, but rather on whether the league was negligent in informing players of the long-term effects of concussions. With the players claiming negligence by the league, the league would have to show certain factors to demonstrate and rely on the defence that players voluntarily assumed the risk of injury – those being that the players agreed to give up any future cause of action, and that the players willingly accepted and understood the risk of concussions (i.e., they were fully informed). And herein lies where the NFL likely realized they would have to settle this case – and fast. It’s quite likely the league possessed certain information that would have been damning as to what they knew on the long-term risks of concussions. No doubt the settlement was largely fueled by the league not wanting such information, if it existed, to be publicly disclosed. In the end however, these players had the individual CHOICE to play the game for all those years, and they made the choice to do just that.

So what does this settlement mean for the NHL?

Well first off, here is my issue with the settlement. Cause. What I mean is that all of the former players played football for over a decade before reaching the NFL. Where is the cause linking their injuries directly to the NFL, even under the lower threshold required in a civil case? Could these have been caused in College, High School, Pop Warner, school-yard football or how about a good old-fashioned game of Jackpot? Of course, but when deciding who to sue and from whom to recover damages, even a pre-law student could tell you to go after the deepest pockets. And in this case, it just happened to be a $9 billion revenue machine. The problem with this case is that it seems to be a cash-grab by a bunch of former players more than it does a certain segment wishing to receiving legitimate compensation for negligence. Now anytime you hear of a former NFL player going postal, one of the first responses is it must have been the concussions. Really people?

Well the NHL should be scared. With the extreme attention given to headshots in the past few years, clearly the NHL is preparing themselves for an NFL-type litigation battle. Stars such as Sidney Crosby, Marian Hossa and Marc Savard have each suffered their own significant head-injuries, with the long-term effects unknown at this point. The NFL settlement has effectively given players free reign to go after the league for any long-term effects they may have suffered while playing in the league (note that the NFL did not admit any liability or guilt with respect to negligence or a failure to disclose material information). If NHL players do sue, forget the fact whether the league was negligent in disclosing such detrimental effects. Forget the fact that an Ontario study revealed that 25% of players on just two junior teams suffered concussions in a certain season. Forget the fact that Eric Lindros voluntarily continued to play hockey after suffered six reported concussions in a Philadelphia Flyers uniform. Forget the fact that dozens of NHL players have likely suffered concussions prior to actually reaching the NHL. I think its laughable to think that when a player such as Senators pugilist Dave Dziurzynski goes toe-to-toe against a guy like Frazer McLaren, he does not understand that he may suffer a serious injury. Of course he knows that, but he has accepted that as part of his job. Its just like a police officer putting his life at risk every day on the job, just like a roofer risking falling 20 feet at every job site, and just like a lion handler risking being gruesomely attacked every time they enter the cage. But they have accepted these risks. And the reality of this world is that there is never perfect information. We act based on what he know.

To paraphrase another Canadian legal case on this issue, the element of risk, to the extent it is normally accepted as part and parcel of the game by reasonable competitors, is a risk that players reasonably expect and accept. I would not be surprised if the NHL settles a similar issue with former players within the next 3-5 years, but in my opinion, if they have nothing to hide, they should not pay a dime. Players voluntarily assume the risk of injury normally foreseeable in the course of a game, and to blame long-term injury on the richest kid in the park is absolutely reprehensible.

For Hockeyland Canada,

RK, Esq.

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5 responses to “What the NFL concussion settlement means for the NHL

  1. Concur with the article.

    From the NFL’s perspective, the settlement does help retain it’s image and public perception.

  2. The NFL settlement does set a dangerous precedent for all professional sport. Will the families of Bob Probert or Derek Boogard– two NHL enforcers who willingly dropped the gloves, punched other people’s brains out, and made millions of dollars doing it–have a case against the NHL given that both players on post-mortem investigation had evidence of CTE? While it is horrifying and truly tragic that both men died at an extremely young age, were their families not supporting their hockey heroes and benefitting from their fistful contributions on the ice? I bet they probably enjoyed those hockey careers, derived immense financial and emotional benefit from it, and they knew the risks associated with that role… The NHL may have a difficult job defending itself given the NFLs precedence. Which leads to what can the league do right now? Doing away with fighting would be a good start… A direct blow to the head will probably be grounds for legal action once the dust settles.

  3. If the NFL had information on the impact of concussions and withheld it from the players, then I could see how the NFL could be liable. They are especially implicated if they knew of interventions to mitigate the risk of concussions. For example, if some of the rule changes designed to reduce head shots that are in place today were available then, why weren’t they implemented? Then again, we are learning more each day about concussions and its likely the NFL didn’t know. As you say, the players must have known they were risking their bodies, anyone and everyone can see that.

    • The NFL likely didn’t have full knowledge of the implications of head injuries, from back in the 70s/80s. The medical knowledge about head injuries and its long term consequences has exploded in the past decade. My feeling is that the opportunity to play professional football is so privileged and desired, and comes with rewards that these guys could never otherwise dream of. I believe that they would willingly jeopardize their futures themselves, for the shot to play professional football, and achieve the great rewards that come with it. For many of these athletes, the alternative of potentially having limited employment opportunities because of their lack of social, academic skills (which may have been sacrificed for maximal athletic achievement) would be too terrifying.

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