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Email leaves NHL with PR black eye in concussion lawsuit

An unsealed 2009 NHL email makes the league appear uncaring about retired players who are suffering from long-term concussion problems.

It’s cold and callous and probably the last thing the NHL needs, but an email that appears to marginalize retired players who are suffering from long-term concussion issues creates more of a PR problem for the league than a legal one.

The email, written in 2009 by NHL Deputy General Counsel Julie Grand to Commissioner Gary Bettman and Deputy Commissioner Bill Daly, is part of a group of documents related to ongoing concussion litigation that was ordered unsealed by the court.

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In it, Grand offers four suggestions on “next possible steps” for the NHL-NHLPA Concussion Working Group, including proposals that the league work with equipment manufacturers and study recovery methods along with the long-term neuro-cognitive and psychological effects of repeated concussions. Grand then argues that the league should not put an emphasis on exploring the alleged link between concussions and long-term brain injuries among retired NHL players because they are “removed from the current issues we face,” and should “leave the dementia issues up to the NFL!” legal analyst Michael McCann calls the email “insensitive,” but doesn’t believe this document will damage the league in its ongoing legal battle with players who suffered concussion issues during their careers.

“My instinct is that Grand’s emails pose more significant public relations problems for the NHL than legal implications,” he says. “As far I can tell, she ranked what she thought to be the right research priorities for the NHL. Clearly, her ‘leave the dementia issues up to the NFL!’ line was poorly worded, and in retrospect I’m sure she wishes she didn’t write that. She should have more seriously considered that emails are electronic records and are often subject to pretrial discovery, and emails need to be worded with that legal exposure in mind. 

“Substantively, however, taken in the context of what she seemed to be saying—that, in her view, the immediate next steps for the NHL should focus on (helmet design and rehab of concussed players) rather than other steps—it’s not unreasonable that she would rank dementia-related research after those immediate priorities. She should have taken much better care in expressing that point, however.”

It’s not known how the league responded to the email, but Daly told TSN that he didn’t “intend to try the case in the media.”

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“Suffice to say, [it’s] hard to perform an informed analysis on isolated emails with absolutely no contextual background or understanding,” he said.

Lawyers for the former players allege Grand’s email is evidence that the league has not taken the health problems of its former players seriously, noting that none of the options presented in 2009 were enacted.

McCann, however, sees no legal implications for the league here.

“Grand recommending the NHL adopt certain steps did not necessarily bind the NHL to adopt them, nor did the NHL have an automatic legal duty to adopt those steps,” he says. “Legal duty is a significant hurdle for the players suing.

“Health related issues involving a unionized workforce are normally subject to collective bargaining; if a proposal to research health issues related to NHL players wasn’t required by a collective bargained policy between the NHL and NHLPA, it is more difficult for the players to prove the NHL ‘had to’ adopt that proposal. That’s not to say the NHL shouldn’t be worried about this case and the ethical questions it raises about how sports leagues leagues consider the health of their players, but Grand’s emails may not have the legal significance that the players’ attorneys seek.”

In other words, the smoking gun sought by the retired players may be somewhere among the more than 2.5 million pages of documents submitted into evidence by the league, but this isn’t it. However, the NHL has been left with some powder burns on its face, if only of the PR variety.

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