THE LONG ARM OF THE LAW
While NFL settles with former players, Bettman opts to wage legal war
While the NFL might have opted for a settlement with its players, Gary Bettman and the NHL haven’t given up the concussion fight.
All concussion cases are not created equal, at least when it comes to sports leagues. Some fight tooth-and-nail, while others settle to get the issue out of the courts and, hopefully, out of the news media.
So it is with the National Football League and the National Hockey League.
In 2013, after years of negative publicity and a series of suicides among former players, the NFL agreed to a settlement that is expected to pay about $1 billion in damages to retired players with neurological and cognitive problems. The deal came after thousands of former players sued the NFL for knowingly hiding from them the dangers of repeated head hits, and intensifying criticism of the league’s handling of concussions and head trauma.
Retired NHL players also filed a lawsuit against their league seeking damages for head trauma they endured while playing. The NHL has followed a different path. For the past four years, it has fought the retired hockey players at every juncture in court. Commissioner Gary Bettman, a former litigator, has not only tried to have the cases dismissed, he has vigorously questioned the growing evidence linking head hits and brain trauma.
In depositions, NHL team owners have claimed to not know about chronic traumatic encephalopathy, a degenerative brain disease found posthumously in retired players, despite ubiquitous media atten- tion to the disease and mounting examples of declining brain function among retired players. Some of those players were socalled “enforcers” — hockey players whose main responsibility was to fight with opponents.
For now, both strategies seemed to have worked. The NFL has paid out hundreds of millions of dollars, but the settlement covers all retirees, not just the 5,000 that sued the league. Current and future players are excluded from the settlement, which lasts for 65 years, essentially capping the league’s exposure.
The NHL lost several early decisions in court, but on July 13, Susan Nelson, the federal judge overseeing the case, denied the ex-players’ bid to attain classaction status. That would have made it easier for thousands of other players to join the suit. In her decision, Nelson wrote that managing the case as a classaction lawsuit would prove too difficult given that different states have different rules about the medical monitoring the players are seeking.
The plaintiffs’ lawyers have until Friday to file an appeal. If none is filed, or an appeal fails, the roughly 140 players who sued the NHL will have to pursue their cases individually, a more expensive and harder path.
The leagues’ divergent approaches are driven as much by the strength of their arguments as their financial wherewithal and the negative publicity they are willing to withstand, legal experts said.
“The NFL’s litigation strategy was informed less by the law than by the public relations and existential threat that concussions posed uniquely to their sport,” said Jodi Balsam, who teaches at Brooklyn Law School and worked at the NFL.
In contrast, the NHL strategy has been largely to ignore negative publicity, or at least not to seem outwardly rattled by it, and unapologetically attempt to use the law to its advantage. An NHL spokesman declined to discuss the league’s legal strategy.
Mark Conrad, the director of the sports business program at Fordham University, said the NHL made the calculation that it can absorb any blowback from its legal approach, even if it appears unduly harsh toward the players.
“To play such hardball, I don’t believe they are embarrassed, they don’t have shame,” he said. “But ethically, how long do you want to continue?” For now, the NHL may have calculated correctly. The league has not seen a dramatic decline in attendance or television ratings, though its national television audiences have long been the lowest of the four largest North American professional leagues. Participation has steadily grown, a sign that parents are not so worried about the safety of ice hockey that they are steering their children into other sports.
The NFL was in a different position. The league often fights vigorously in cases involving large amounts of money or legal issues central to the league’s health, like antitrust cases. In the concussion case, the league settled before a judge ruled on several motions to dismiss the case on technical grounds. But compared to the NHL case, there were many more plaintiffs. More than 5,000 former NFL players filed claims. The prospect of extensive discovery and retired players testifying would have generated more negative publicity.
By settling, the NFL tried to quell some of the criticism, and help put the legal matter to rest by covering all retired players, not just those who sued.
“The league traditionally does not resolve matters consensually, especially where, as here, it has potentially substantial defences to the alleged claims,” said Brad Karp, chairman of the law firm Paul Weiss, which represents the league in the case. “But this case, involving more than 20,000 retired NFL players, posed unique challenges that the league appropriately decided to put behind it through an overarching resolution that I believe was fair to both sides.”
Charles Grantham, the director of the Center for Sport Management at Seton Hall University and a former executive at the National Basketball Players Association, said the NHL is playing the long game. The longer the league drags out the legal battle, the greater the chance that players will give up the fight, he said.
Eventually, the league may admit there is a link between head hits and brain trauma. That, though, would make it harder for current and future players to sue the league because they would have been warned of the sport’s dangers.
“To play such hardball, I don’t believe they are embarrassed, they don’t have shame.” MARK CONRAD FORDHAM UNIVERSITY