Analyzing Leeman v. NHL, the newest sports concussion lawsuit

Tuesday November 26th, 2013

Hockey is widely known to be a violent sport, a fact that may hurt the argument of the plaintiffs.
Dave Reginek/Getty Images

The legal fallout of concussions in sports took a major turn this evening, as 10 retired NHL players sued the league in the U.S. District Court for the District of Columbia for failing to protect them from concussions. The plaintiffs, led by former All-Star Gary Leeman, seek for the court to certify their class. A certified class would make Leeman v. NHL very threatening, as it would allow these 10 players to sue on behalf of thousands of other retired NHL players. If successful in a trial, a certified class could obtain massive damages, perhaps in excess of a billion dollars.

Leeman v. NHL portrays the NHL as grossly indifferent to players' health. In various points in the 47-page complaint, the NHL is described as fully knowing of the dangers to players' neurological health and then either taking no corrective steps or, worse, making the game more dangerous. Leeman frames the NHL and its owners as obsessed with profits and as viewing players as disposable cogs in an economic machine. The lawsuit hopes to hold the NHL accountable by making it -- and the owners -- pay damages and adopt new medical monitoring.

MUIR: Ex-players may face uphill battle in concussion lawsuit against NHL

In addition to threatening the league with substantial damages, Leeman v. NHL threatens an uncomfortable legal process. Pretrial discovery, in particular, would be worrisome for the NHL. Sensitive documents about league and team finances may have to be shared, and owners and league officials could be deposed by the plaintiffs' counsel under oath. For a league known for its secrecy, the prospect of a high-profile class action and private documents becoming public is surely an unwelcome thought.

NHL Defense #1: Blame the NHLPA

In legal documents likely to be filed in December, the NHL will encourage a judge to dismiss Leeman v. NHL. The league is poised to raise several key arguments.

First, the NHL will stress that its health, safety, disability and pension policies are collectively-bargained -- not unilaterally imposed -- and that any claims over these policies are preempted by collective bargaining agreements and NHL player contracts. To that end, the league will highlight how it negotiates policies with the National Hockey League Players' Association. Players use the NHLPA as their exclusive bargaining agent and it is legally entrusted with protecting players. Strikingly, the NHLPA wasn't mentioned once in Leeman's 13,700-word complaint. The NHL will argue that Leeman and other players should blame their own union, not the league, for failing to do its job.

GALLERY: NHL careers ended by concussions

NHL Defense #2: Outdated and non-legal arguments

Second, the NHL will frame the plaintiffs' arguments as failing to state claims the law can redress. This type of argument could be raised in at least two ways. One way would be to contend that the players' claims are barred by the statute of limitations, which permit courts to redress only harms that arose in the last few years. Leeman, however, anticipated this argument and his complaint contends that the statute of limitations are tolled by the NHL's purported fraud. Whether that argument works remains to be seen.

Hockey's Great Debate: 50 landmark fights and more commentary

Another way for the NHL to characterize Leeman's claims as not suited for a court would be to say they are moral, not legal claims. Leeman and the other plaintiffs contend the NHL ignored warning signings about concussions, failed to implement medical monitoring and in some cases made the game more dangerous. The NHL will likely dismiss these arguments as untrue. Even if correct, the NHL might posit, they do not comprise legal arguments: the mere fact that the NHL could have made the game safer -- a critique which could be said of any sports league -- does not prove the league violated any laws.

NHL Defense #3: Uncertain causation

Third, the NHL will contend that the plaintiffs cannot establish causation between their health problems and playing in the NHL. Prior to taking his first shift in the NHL, every player has already taken thousands of shifts in practices and games at other levels of hockey. Indeed, all NHL players previously played in other hockey leagues, such as the American Hockey League, the Kontinental Hockey Association, international tournaments, college hockey, junior hockey or youth hockey. To the extent that ex-NHL players develop neurological problems from playing hockey, the NHL can maintain it's unclear from when and where those symptoms developed. The NHL can also assert that neurological problems for some players probably developed for reasons that are unrelated to hockey and it's impossible for the legal system to determine which causes are hockey-related and which are not.

NHL Defense #4: Assumption of risk

Fourth, the NHL will emphasize that NHL players voluntarily assume certain health risks by playing pro hockey. As the plaintiffs' complaint makes clear, hockey is a dangerous sport. The problem for the plaintiffs, the NHL might insist, is that this danger is obvious and much of the medical evidence detailing this danger was available to anyone. For instance, the plaintiffs highlight how the NHL knew of "published medical literature dating from as early as the 1920s that there is a serious risk of short-term and long-term brain injury associated with repetitive traumatic impacts to the head to which NHL players are exposed" and that "then-current NHL players and former NHL did not know these facts." The NHL could respond by arguing that even if this allegation is true, it was not the duty of the NHL to inform players of science that had been around for decades. If any group had a duty to inform, the NHL might reason, it was the players' association.

Will others sue, in both the U.S. and Canada?

If it follows NFL concussion litigation, Leeman v. NHL could be the first of several lawsuits against the NHL that raise the same fundamental arguments about concussions. Retired players no longer have to worry about the potential stigma of bringing the first concussion lawsuit against the NHL. Indeed, other retired NHL players will see Leeman v. NHL and may feel empowered to file their own lawsuits. Should there be multiple lawsuits, they would likely be consolidated into a one lawsuit at a later date.

One twist to this analysis is the possibility that some retired NHL players might file lawsuits in Canada instead of the United States. Much to the worry of the NHL, there could be parallel large, class action concussion cases in both the United States and Canada.

Is settlement the goal?

Although the NFL long insisted it did no wrong, it eventually reached a $765 million settlement with retired NFL players who sued over concussions. The proposed NFL settlement, however, does not necessarily end concussion litigation against the league. For one, the settlement must still be approved by U.S. District Judge Anita Brody. Second, retired NFL players can opt out of the settlement and preserve their legal claims against the NFL. Third, current NFL players are not bound by the settlement. Nonetheless, the NFL's settlement is poised to mute the concussion litigation and ensure that the NFL and its owners avoid the worst-case scenario: going to trial, losing, and being ordered by a jury to pay billions of dollars in damages.

The NHL may adopt a similar strategy. NHL lawyers probably feel confident they will convince a judge to dismiss Leeman v. NHL. Some NHL owners, however, will probably prefer a more risk-averse strategy and will encourage settlement talks. A settlement could take on the features of the NFL's concessions: improved benefits for retired NHL players and funding for research to make the sport safer. Don't expect settlement talks anytime soon. The NHL concussion litigation has just begun and will probably take months, if not years, before there is any resolution.

Michael McCann is a Massachusetts attorney and the founding director of the Sports and Entertainment Law Institute at the University of New Hampshire School of Law. He is also the distinguished visiting Hall of Fame Professor of Law at Mississippi College School of Law.

SI Apps
We've Got Apps Too
Get expert analysis, unrivaled access, and the award-winning storytelling only SI can provide - from Peter King, Tom Verducci, Lee Jenkins, Seth Davis, and more - delivered straight to you, along with up-to-the-minute news and live scores.