Nov 27, 2013
By Cam Cole, Vancouver Sun
VANCOUVER — And now, for the topic that would have been front-page news everywhere in Canada on Tuesday had it not been bumped by the $5.2 billion Rogers-NHL TV deal, but which is now two days old and several news cycles beyond the national attention span …
Concussions, that is. (Don’t think I can’t hear you groaning.)
Specifically, the class-action suit brought Monday against the National Hockey League in the District of Columbia by 10 (the number is growing exponentially) former players, essentially alleging that the league knew, or ought to have known, about the dangers of concussions and didn’t do enough to reduce the risk of brain injuries or sufficiently educate players about those dangers.
Stay with me. Focus. I know you’re tired, and your head hurts and you don’t want to think about this any more and you’ve had it with these former players who knew the risks and willingly took the money and now are looking for someone to blame for their headaches and memory loss, like the 4,500 families of National Football League players who accepted a piddling US $765-million settlement from the NFL to shut up and go away.
I know sports was better when you only marvelled at the action on the playing surface and knew nothing and cared less about the players’ problems — back when you thought all players were overpaid, anyway. Back when nobody had ever heard of post-concussion syndrome, let alone chronic traumatic encephalopathy (CTE), or seen pictures of the diseased brains of athletes after they committed suicide.
Back when men were men and played a man’s game and didn’t whine about the physical or emotional price to be paid in retirement.
Back when owners and GMs and coaches could milk what a player had to give and raise him in a culture of fear for his livelihood, and ostracize him if he didn’t play hurt and cut him if he took too much time off worrying about injuries that didn’t even involve bones sticking through the skin.
Yeah, those were the days.
But we live in a litigious age, and some of these ingrates are now teaming up to seek redress for what they claim were the hidden costs of doing business: the costs the NHL never told them about.
The actual filing of the suit — only the first of many, most likely — is no surprise to anyone. The NHL surely has been waiting for it, and building its counter-argument, for years.
It has publicly pounded the drum for player safety, established committees to study concussions ad nauseam, ever-so-reluctantly moving away from a culture where hits to the head were celebrated to increasingly strict interpretations of Rule 48, to the piece de resistance: mandating that players pounding each other in the head with their fists, deemed an essential part of the game, would be required to keep their helmets on or face a two-minute penalty for (wait for it) unsportsmanlike conduct.
This is progress.
Legal experts have opined on the chances of the players winning their class-action suit, and most think the tough part is going to be proving that in the era when most of these plaintiffs played, the NHL actually had any degree of sophisticated knowledge about diagnosing and treating concussions.
That didn’t stop the NFL from dropping a load of money on its oldtimers, but there are a couple of differences: one being that bare-knuckled fighting is legal, and has ever been, in the NHL.
The culture of hockey is well understood by all who aspire to the world’s best league — “shaking it off” when concussed, even if a player knew he was concussed, is ingrained behaviour. Smelling salts, not quiet rooms, were the standard treatment.
If the NHL seriously believed it had anything to fear from the plaintiffs — those in the current suit, or those from subsequent generations — it would come down hard on any team that flouted the quiet-room/waiting period/re-testing protocol with massive fines, because each team that breaks the rules to rush a player back into the game exposes the league to future litigation. In theory.
But ironically, the NHL’s best defence may be its own neanderthal thinking. For it was ever thus, in hockey.
Even some of its brightest people — let’s use Brian Burke, as an example — trained in law, as is most of the NHL hierarchy, can make a passionate defence of fighting, one that is endorsed by a large percentage of NHL players.
The threat of instant retribution stops the “rats” from running around injuring skilled players, says Burke. “Hear! Hear!” say the players and coaches and GMs. Only one problem. The rats are still running rampant, and skilled players are still getting abused. And the NHL Players Association, which is where the lack of respect ought to be addressed with the membership, appears to have no power to effect change.
And so the argument goes around in circles. Players injure players, but coaches countenance it, and the league demands it, for the satisfaction of its customers.
In the end, very little changes.
The lawsuit will come down to what the NHL knew about concussions, and when it knew it. Did the league deny these players information that might have changed their behaviour, had they known of the consequences to their lives after retirement?
Most of the plaintiffs named to date — Brad Aitken, Darren Banks, Curt Bennett, Bob Bourne, Richie Dunn, Warren Holmes, Gary Leeman, Bob Manno, Blair Stewart, Morris Titanic and Rick Vaive — played in the 1970s and ’80s. What was the level of medical sophistication on concussions then, and was the NHL privy to it?
Future lawsuits involving players of today, and they surely will come, will have a better case, because there is no hiding from the medical evidence any more.
But it will probably take a prominent player to move the needle of public concern, and force the NHL to react in any substantial way. Rick Vaive isn’t big enough.
It will have to be, as with the NFL, a Junior Seau, shooting himself in the chest so that his brain could be intact for examination. Or a Tony Dorsett, diagnosed with CTE at 59, struggling with depression and thoughts of suicide, taking a flight from Dallas to L.A. to be tested but forgetting why he was on an airplane or where he was going.
Until that guy steps up, one whose name resonates with hockey fans, it’s like the game itself for the NHL’s legal eagles: hard to score, easy to defend.