Concussion suit drags on
NHL sued: Case filed in late 2013 is going through the legal equivalent of ragging the puck
It has now been a month since Calgary’s Dennis Wideman was suspended for 20 games for barrelling over NHL linesman Don Henderson in a game against Nashville in late January.
Wideman appealed, and lost, and the NHLPA took the rare step of appealing that decision to a neutral arbitrator, and the Flames defenceman still isn’t playing while that process grinds on.
In Toronto on Wednesday for the World Cup of Hockey announcement, NHLPA executive director Don Fehr was asked about the slow turn of the wheels of justice. His answer, paraphrased: It is what it is.
He’s quite right. As soon as the case moved out of the realm of the NHL’s internal system, it was bound to take more time. And this is the process that was collectively bargained. As much as Wideman feels wronged here, especially when the league does not dispute that he was concussed by an elbow to the head in the moments before he crashed into Henderson, legal hearings aren’t easily fast-tracked.
But his case will be closely watched by the plaintiffs, and their lawyers, in the lawsuit filed in a Minnesota court that charges the NHL with not doing enough to prevent brain injury to its players. As it happens, that lawsuit, which now includes close to 120 retired players, is also plodding along.
The lawsuit, filed in U.S. District Court and which counts Bernie Nicholls, Gary Leeman and Mike Peluso among its plaintiffs, is still in the discovery phase, the period during which both sides can compile evidence for their case. It was first filed in November, 2013, and the Stanley Cup will be awarded this coming June before the discovery phase will even be over.
Sometime after that, a judge will hear arguments on whether it should be certified as a classaction lawsuit. If that happens, the number of claimants would almost certainly balloon, as anyone who is a former NHL player would suddenly be in line for a possible payout in the event of a win for the plaintiffs. (The same is true today, but former players could be waiting to see how the process unfolds before attaching themselves publicly to the complaint.) The class-action certification arguments are scheduled for September, or right around the time the NHL and its players’ association are joining hands in celebration of the World Cup, which would be a little awkward.
But whatever happens in the next several months, it is fair to say that this process has unfolded quite differently than what happened with the National Football League and the legal action brought by its former players. That lawsuit, filed in a Pennsylvania court in late January, 2012, was never a class action, but by August of that year more than 3,400 former players were part of lawsuits alleging, in language similar to that of the NHL suit, that the league “knew or should have known” of the risks of brain trauma that were routinely part of the sport. By the spring of 2013 there were more than 4,500 former players involved and the NFL tried to have the lawsuits dismissed. When that didn’t work, and a judge ordered both sides to seek a settlement with a two-month deadline, a billion-dollar deal was reached in about seven weeks. There has since been a lot of criticism that the NFL, and its cabal of wealthy owners, will end up paying very little to its thousands of individual retirees, but the result was a payout that came without the case ever being litigated.
The NHL appears to be going down a much different track. Commissioner Gary Bettman has consistently said that the league places great importance on player safety, and he has refused to link hockey to the brain disease CTE unless and until the science is conclusive. Just last month, his deputy Bill Daly told ESPN that the NHL “take(s) great issue with any contention that the league did not at all times give appropriate attention to the health and safety of our players, or that we did anything inappropriate or wrong. We fully intend to establish those facts through the judicial process.”
The lawsuit, as they say, continues.