“The NHL does not acknowledge any liability for any of Plaintiffs’ claims in these cases,” the league said in a statement. “However, the parties agree that the settlement is a fair and reasonable resolution and that it is in the parties’ respective best interests to receive the benefits of the settlement and to avoid the burden, risk and expense of further litigation.”
The league will end up paying out roughly a quarter of a typical team’s annual player payroll, but the lawsuit had a broader impact on the NHL. Since the initiation of the suit, the NHL instituted a new concussion protocol before the 2016-17 season and then updated it before last season. The new rules, negotiated between the league and the NHL Players Association, include harsher penalties for hits to the head and the forced removal of players who show symptoms of potential concussions.
“All sports, once the spotlight of concussions shines across any playing field or rink or arena and people are watching or cognizant of the issue, you’re going to have more cautious approach to the benefit of player safety,” co-lead counsel for the players Steven Silverman said. “You have certainly a much more watched, rigid and enforced concussion protocol. That’s all for the greater good.”
While the NHL changed its on-ice policies, Commissioner Gary Bettman has been criticized for his stance regarding concussion science. Bettman has stated he believes there is no link between concussions and chronic traumatic encephalopathy (CTE), the degenerative brain disease with which a handful of deceased hockey players have been posthumously diagnosed.
Ann McKee, who heads the CTE Center at Boston University, told Canadian network TSN this past spring that the NHL is “in the dark ages” regarding concussions, calling its views “laughable” and “ridiculous.”
“I think the NHL made it very clear they do not believe in the science of concussions and the mechanisms of injury in the game of hockey as the cause of concussions, at least on a widespread basis,” Silverman said. “We’re grateful to provide our clients with diagnostic testing and those that require medical relief as a result of this resolution. We respect the NHL’s position. We agree to disagree. I think everyone has come together to put forth a resolution that balances the player safety and welfare with the risks of further litigation.”
The NHL case drew frequent comparisons to the NFL’s concussion settlement, which could pay retired players roughly $1 billion. But there were key differences in the way the leagues handled lawsuits pertaining to brain damage.
The NFL settled with retired players before judges could rule whether the players represented a class, in hopes of avoiding negative headlines regarding the sport and brain trauma. The NHL did not, and when a judge ruled the players could not file their case as a class-action lawsuit, the NHL gained a legal advantage the NFL never sought.
“Bringing a class-action for any type of personal injury, particularly concussions, is a very challenging legal endeavor,” Silverman said. “When trying to compare the NFL resolution to the NHL resolution, it’s truly like apples and oranges. The NFL made a business decision to put the concussion issue to bed without any substantive litigation occurring. The NHL made a decision to fight tooth and nail for over four years and ultimately chose to settle without being legally compelled to do so. It’s a different game, different set of circumstances. It’s really impossible to compare one to the other.”
NHL players, thus, received far less than their NFL brethren. But had they not settled, they would have been at risk of receiving nothing.
According to the NHL, 146 former players ended up being plaintiffs in the case, a figure dwarfed by the number of players who sued the NFL in its concussion settlement case. A lack of star players hurt the players’ case, as did the prevalence of international players, who are less inclined to be involved with litigation.
Among the plaintiffs was the estate of former Philadelphia Flyers defenseman Larry Zeidel, an enforcer who died at 86 after years of troubling behavior. His family donated Zeidel’s brain to Boston University researchers, who diagnosed Zeidel with CTE.
“In light of the fact that the federal court wasn’t able to certify a class, we are pleased to have worked out a resolution that will benefit not only our clients, but all retired players and set up a framework moving forward for a safer game,” Silverman said.