‘Insulting attempt at a settlement’ Critics urge ex-players to reject NHL’s offer in concussion lawsuit.

Compensation being offered by league for brain trauma a relative pittance

Five years ago, a group of former NHL players embarked on a legal battle to hold the league accountable for alleged sins of the past.

They accused the NHL of failing to better prevent brain trauma, or warn players of its risks, all while promoting and profiting from a culture of violence. And while NHL commissioner Gary Bettman insisted the case was “without merit,” in other eyes the ex-players had a plausible argument. Sloughing off brain injuries, returning to play after having one’s “bell rung,” was a timehonoured NHL tradition for decades. And as longtime league executive Colin Campbell infamously acknowledged of the NHL in one of the hundreds of internal emails that became part of the public record in the ensuing courthouse wrangling: “We sell and promote hate.”

But after taking stock of the tentative settlement between the NHL and those ex-players announced Monday, the NHL’s penance for those alleged sins so far amounts to a relative pittance. The offer on the table is $22,000 (U.S.) per player, plus the possibility of $75,000 toward medical treatment for players who test positive on two or more neurological tests. And it comes with strings attached. The NHL would not acknowledge any liability for the players’ claims. Participants would waive their rights to pursue further concussion-related legal action against the NHL. And if all 318 players eligible to participate don’t opt into the deal, the league has the option of terminating it outright.

There were other sweeteners, including the promise of a $2.5-million “Common Good Fund” to go toward the health care of players not involved in the lawsuit. But seen in its whole, the proposed settlement is hardly a reasonable facsimile of the $1 billion-plus deal reached a few years ago in an NFL concussion lawsuit that laid the groundwork for this NHL version. Some observers, mind you, simply seemed happy that a long saga appeared at an end.

“I’m glad for the parties that it’s all over,” said Donald Fehr, executive director of the NHL Players’ Association.

“Hopefully people can go on with their lives, and now we can perhaps deal with these issues with the NHL without having to worry about the effect on the litigation.”

Not everyone involved was moving on quietly. While lawyers representing the players characterized the settlement as “good news” in a memo that recommended its acceptance, former NHLer Daniel Carcillo, called it “an insulting attempt at a settlement.” Via Twitter Carcillo urged fellow alumni not to take the deal. Mike Peluso, the former NHL enforcer, told TSN’s Rick Westhead that he plans to forego the settlement in favour of pursuing further legal action.

Chris Nowinski, a spokesperson for Boston University’s CTE Center, said he was “surprised” by the “small amount” of the proposed settlement.

“What this tells you is that it’s athlete beware,” Nowinski said. “The message from professional sports is: You’re on your own. Once you’ve left the team, it doesn’t matter if you’re a legend, once things go south for you, you and your family are on your own.”

What the settlement also told us was this: The real winners are the lawyers. Of the $19 million the NHL has agreed to pay, more than a third of it — some $7 million — is earmarked for legal fees and costs. If that wasn’t infuriating enough, on Monday Carcillo directed a tweet at Wayne Gretzky, the NHL’s all-time leader in goals, assists and points.

“I want (Gretzky’s) thoughts on the concussion lawsuit,” went Carcillo’s post. “I want (Gretzky) to use his platform to help the men who protected him throughout his career. Lack of pressure from former players is a direct result of this insulting attempt at a settlement.”

When the legal battle began a few years ago, there was some pressure applied by the headline-grabbing appeals of former NHLers, many of whom were hardly anonymous. Bob Bourne, who played on four Stanley Cup-winning New York Islanders teams in the 1980s, recounted what he considered the still-lingering degenerative effects of the multiple undiagnosed brain injuries he said he suffered as a player. Gary Leeman, a 51-goal scorer with the Leafs in 1988- 89, spoke publicly of headaches and anger issues he associated with the ravages of his long-done career. Bernie Nicholls, who scored 70 goals for the L.A. Kings in 1989-90, told reporters of disturbing memory loss he linked to head injuries suffered in the line of NHL duty.

Perhaps the NFL suit had more support from bigger-named players. Hall of Fame running backs Eric Dickerson and Tony Dorsett were among the plaintiffs, as was Super Bowl-winning quarterback Jim McMahon and the family of Hall of Fame linebacker Junior Seau, who committed suicide in 2012.

On Monday Sidney Crosby, the Pittsburgh star whose career has been interrupted by multiple concussions, distanced himself from the fray.

“I haven’t followed it. It’s hard for me to talk about,” Crosby told reporters when asked about the proposed settlement, which does not involve any active players. “My experience is a little different than theirs would have been. Obviously, we know a lot more now than we did before — even a lot more than we did when I had my first (concussion).”

The best Crosby could do was offer a generic endorsement of support for his less fortunate elders in the hockey-playing fraternity.

“Guys need support,” Crosby was quoted as saying. “The Players’ Association and the league, everyone’s got to be involved in part of that. It’s something that as players we know that risk, but I think that that being said, we still have to be there to support each other.”

What, precisely, are the risks? Through years of litigation the league has been embarrassingly loathe to acknowledge the full state of the current science. Commissioner Gary Bettman has repeatedly denied any link between hockey and CTE — chronic traumatic encephalopathy, the brain-wasting disease that’s been found in multiple former players and linked to repetitive brain trauma. Bettman has insisted, rightly, that the science isn’t conclusive, but fails to add the science is also both convincing and alarming.

It’s possible burying one’s head in the sand was a league strategy. In videotaped depositions that came to light earlier this year, two NHL owners, Boston’s Jeremy Jacobs and L.A.’s Philip Anschutz, both insisted under questioning that they had never heard of CTE. They made those claims in 2015, by which point CTE had been posthumously found in the brains of four former NHLers Reggie Fleming, Rick Martin, Bob Probert and Steve Montador.

Call it clueless, call it shameless — as strategies go, you can argue, when it comes to the league’s business plan, it has also been remarkably harmless. For years the NHL’s overseers sold and promoted violence and hate, no doubt at the expense of employee brain health. During the lawsuit, they traded on appalling ignorance on brain-health-related matters. But as Nowinski pointed out, none of it seemed to hurt the league. If the price of doing all those years of greymatter-rattling business turns out to be $19 million — potentially paid out in the age of the $650-million expansion fee — the price seems worth it.

Maybe it was no coincidence that Bettman, the commissioner of concussion denial, was inducted into the Hockey Hall of Fame Monday night.

“Even though the NHL said some terrible things about concussions and CTE, it didn’t cost them,” Nowinski said. “They’re not going to lose their fans over this suit, nor the loyalty of their stars.”

So the league wins, and the lawyers win. And those who willingly sacrificed parts of their being in pursuit of wins — as always, their outcomes remain far less certain. Athletes beware, indeed.

“They’re not going to lose their fans over this suit.” CHRIS NOWINSKI BOSTON UNIVERSITY CTE CENTRE