Ex-players must prove NHL hid information

The list of medical conditions is familiar to anyone who has followed the evolving story of concussions in the NHL: hearing loss, dizziness, mood swings, depression, memory loss, headaches.

But for a group of 10 former NHL players who filed a class-action lawsuit against the NHL on Monday, the issue isn’t that they claim to have developed these symptoms after years of rugged play mostly before the NHL introduced measures aimed at reducing or dealing with concussions; it’s that the NHL knew about the dangers of concussions decades ago and failed to share the information with the players.

That is the crux of the lawsuit filed in federal court in Washington by a group of former players, including former Toronto Maple Leaf captain Rick Vaive and former sniper Gary Leeman.

Vaive told ESPN.com Monday evening there would be a time for the players to speak about the lawsuit and the issues related to the suit but that time isn’t now.

He referred to his statement, which said that players "were kept in the dark about the risks of concussions and many of the former NHL players are now suffering from debilitating head injuries from their time in the league. Hopefully this lawsuit will shine a light on the problem and the players will get the help they deserve."

“The reluctance of the NHL to do anything but pay lip service in response to this decades-long problem is shocking. The NHL has only reluctantly and recently amended a few rules that have been ineffective in reducing concussions,” said Steven D. Silverman, one of the litigators representing the former NHL players.

For each of the players -- such as Darren Banks, who played in only 20 NHL games in the early 1990s, and Bradley Aitken, who played just 14 NHL games -- the suit spells out a series of symptoms they reportedly continue to suffer even though their careers ended long ago. In Vaive’s case, the man who recorded 788 points in 876 games alleges he has suffered from “cephalgia, tinnitus, lightheadedness, depression, and memory loss.”

But sports law expert Eric Macramalla said it’s not enough to prove that the players have suffered these conditions, they must prove in court that the league had information the players did not have about the dangers related to concussions and chose not to share that information with the players.

Given the recent lawsuit filed by former NFL players and the subsequent settlement of that suit even though the NFL admitted no wrong-doing, it’s not surprising that a similar suit would be brought against the NHL.

“This lawsuit is not a surprise. I suspect that the NHL is not surprised,” said Macramalla, an Ottawa-based partner at the national law firm Gowlings with a special interest in sports law.

As with the NFL suit, the key “is the issue of concealment,” Macramalla said.

The documentation supporting the suit covers a lot of ground, including the amount of money the NHL makes, the “culture of violence” the league purportedly embraces and that league officials should have known about the long-term effects of repeated blows to the head even before the NHL introduced its concussion protocols in the late 1990s.

But suggesting that the NHL should have known about the physiological damage related to concussions sustained in a fast, violent game is different than knowing specifically about the long-term effects. Macramalla said the key to the case will be the ability to prove conclusively what information the NHL had, when it had such information and that such information was specifically kept from the players.

“They have to find that evidence,” he said. “If they can’t find that evidence, the case will ultimately fail.”

That means proving the league had “concrete, empirical evidence of the long-term neurological impacts of head shots and chose not to share them with the players,” the lawyer said.

Was there a study commissioned in which the results weren’t made available to players? Were there doctors’ reports outlining dangers that were kept from players?

In short, Macramalla said, the plaintiffs will need “a smoking gun.”

When we think of earlier generations, we are reminded of the oft-told tales of players getting their bells rung by a hit or dazed in a fight, then returning immediately to action. But there is also the element of consent among players to engage in a risky enterprise that the courts will have to consider. In addition, the likely NHL argument is that “we knew what you knew,” Macramalla said.

In a statement deputy commissioner Bill Daly released Monday night, he mentioned the NHL Players’ Association. The NHLPA and NHL have co-run the league’s concussion program since 1997, therefore the players have been in on the ground floor in terms of concussion protocol and research since at least 1997.

As for parallels between the NHL case and the NFL case, which was settled with a $765 million payout to more than 4,500 former players, Macramalla said, “it’s apples to NFL oranges, at least to begin with.”

The outcome of the NFL case has nothing to do with how this case might unfold.

“This NHL case is its own island,” Macramalla said.