The Chicago Daily Law Bulletin Published Timothy Liam EPSTEIN'S Article Entitled, "'Lines drawn in the sand' over NHL concussion settlement."

Underscored by a $1 billion settlement between the National Football League and its former players is a lawsuit filed in 2013 by former National Hockey League players against the league.

The suit initially alleged that the NHL knew about the risks of head trauma that its players assume and that they should have taken action to inform and protect the players from long-term health problems.

The suit also detailed that the culture of violence surrounding the game continues to put these men in harm’s way and that the league is far more concerned with profits than the safety of its players.

The lawsuit may have finally reached its conclusion when the NHL announced a few weeks ago that it had come to a tentative settlement with 318 former players alleging that playing in the NHL resulted in long-term health concerns for them.

The settlement, reached after many months of contentious mediation, calls for the players involved to receive a total $18.9 million. This amount is dwarfed by the NFL settlement of 2013, however, the players involved in this suit were apparently more concerned with long-term medical coverage.

Plaintiff’s attorney Charles Zimmerman stated that most players involved were pleased with the terms.

Under the agreement, each player who opts in will receive $22,000 in cash payments as well as eligibility for up to $75,000 in medical treatment. Medical treatment is said to include neurological testing and assessment paid for by the league if the player being examined tests positive on two or more concussion tests. The settlement also establishes a “common good fund” for retired players in need of financial aid, including players who did not participate in the litigation.

This hard-fought battle finally resulted in this agreement because of the sheer power that the NHL holds over its former players. During the four years that the lawsuit was pending, the NHL refused to agree to future benefits for all retired players, something that the NFL agreed to in its settlement.

The NHL also successfully prevented the suit from being classified as a class action several months ago with the judge citing Rule 23 of the Federal Rules of Civil Procedure. Rule 23 states that a judge can only certify a class when: (1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class. Fed. R. Civ. P. 23.

While all of the players’ claims centered on a failure to warn and provide adequate medical monitoring, the judge described “widespread differences” in state laws concerning medical monitoring that would make a class-action suit highly impracticable.

A class action would have enabled a small group of former NHL players to sue on behalf of thousands of others. If the players had been able to achieve class-action status, more than 5,000 former players would have been able to join the existing 318.

The decision significantly limited the plaintiff players’ ability to arrive at a more favorable settlement, particularly when compared to the NFL concussion litigation. One positive that may be taken away from the denial of class certification is that other former players not involved in the subject lawsuit may still sue the NHL.

The NHL has regularly denied liability for players’ claims of long-term damages related to head trauma suffered during league participation. Commissioner Gary Bettman has on several occasions stated that the NHL is at the forefront of concussion treatment and has refused to accept responsibility for former players’ medical troubles.

This settlement has already resulted in lines being drawn in the sand between players who feel the settlement is fair and others who demand that the NHL admit its responsibility for long-term problems related to head trauma during NHL playing days.

NHL veteran Daniel Carcillo has been a consistent voice on the affects of playing in the NHL player’s long-term health. He expressed via Twitter his displeasure with the result and urged players to explore other avenues, as he fears that the doctors that will be doing the testing will be the same ones that have been allowing players to suffer head trauma for years.

He has also implored some of hockey’s brightest stars, such as Wayne Gretzky, to speak out and apply pressure on the NHL to provide a fairer settlement and admit liability.

For other players, the amount provides almost immediate assistance in dealing with their long-term neurological issues. If this case were to continue, it could be years before a decision is given. And even when a decision is given, it is likely that the players would not prevail.

Although clearly head trauma can cause long-term neurological issues, it is still impossible to draw a clear line from a player’s head trauma to his days as a NHL player and could provide for a tough road in holding the NHL liable.

It is clear that NHL believed that it would prevail if this suit were to be litigated in open court.

This settlement will allow the league to steer clear of the possible embarrassment of the discovery process, which could show that it knew about the risks and still subjected the players to harm.

Additionally, and as previously stated, the NHL has not admitted any fault in the settlement, therefore allowing it to address potential succeeding lawsuits without having an admission of guilt.

Despite the victory in settlement, look for more litigation is to come from the thousands of other players that did not settle.

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