Is the NHL Responsible for Brain Damage?

With as many as 10 000 litigants, the NHL is facing serious consequences for the concussions of their players and former players. The players are attempting to prosecute the league for not making them aware of the dangers of concussions. Did the NHL withhold information about the dangers of concussions in order to keep the league profitable? Or is this situation one where the league could not have possibly known about the affects of concussions because the research did not yet exist?

Jake Muzzin taking a bite out of the boards during the 2013-2014 Stanley Cup Finals. (Getty Images – Dave Sanford/NHLI via Getty Images)

The players argument is that it is the NHL’s sole responsibility to make them aware of all of the consequences that a professional hockey player may face from playing the game. They think it is the NHL’s job to keep them safe or at the very least make them aware of the potential ramifications they face on an almost nightly basis.

The leagues argument is that there is no way they could have possibly known about potential consequences of concussions because the research did not exist at that time. They also maintain that what little may have existed was inconclusive and not in anyway substantial enough to deem necessary a change to a professional league.

Colton Orr and George Parros drop the gloves in the season opener between the Leafs and Habs last season. This fight did end with a serious head injury unfortunately. (Getty Images – Richard Wolowicz via Getty Images)

Is it possible that the NHL was aware of how dangerous concussions are and chose to conceal that information? It may be important to remember how far technology and medicine have advanced since the league started. When the NHL was established in 1917 it was a different world. At that time there was not enough research for the players to argue that the league could have known. Now it is apparent that concussions are very harmful and there is evidence that they directly correlate with serious neurological diseases. At what point did the NHL become aware of these facts? Or at what point did sufficient evidence exist that they could be held liable?

Tanner Glass hits James Wisniewski from behind (Getty Images – James Sabau/NHLI via Getty Images)

There was not likely one study that defined concussions as severely dangerous. It likely was not a black and white day where it became apparent. It was more likely a gray area of time where evidence began to build up. Regardless of whether or not the NHL was aware of the consequences of concussions, once the evidence existed they became liable as employers. Somewhere in that gray area of time is when the NHL would have become legally responsible for making the players aware of the dangers.

Liability for concussions is not a NHL specific issue and it has been sort of a hot topic in contact sports lately. One case being in the NFL where a proposed settlement would see 214 former players receive 765 million dollars for. It is unclear exactly how the settlement will affect the NHL’s lawsuit but it may set legal precedent in that if the NFL is guilty, the NHL would probably also be guilty. Additonally, previous NHL concussion lawsuits have mostly been settled out of court which may also provide indication of how this case may proceed.

Ultimately, the case will likely be settled for a substantial amount of money. The NHLPA should use a part of it to pay for any neurological treatment a player might need. Additionally, instead of players receiving a share of the rest, maybe they should consider funding head injury research and treatment to benefit all people who have suffered head injuries.

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