May 29, 2017

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NHL must come to its senses regarding concussions

THE CANADIAN PRESS / John Locher</p><p>NHL Commissioner Gary Bettman has seen his league win at the box office but lose in the courtroom this week.</p>

THE CANADIAN PRESS / John Locher

NHL Commissioner Gary Bettman has seen his league win at the box office but lose in the courtroom this week.

The hockey’s been historically competitive and exciting, with a record number of overtimes already in this year’s Stanley Cup playoffs.

With five playoff teams at the starting line and two still alive in the second round, Canada is paying attention again after a couple of post-seasons that delivered indifferent television ratings north of the border. (Although, what was with all the empty seats in Ottawa Thursday night?)

And with biggest-market teams still skating in New York and Los Angeles (Anaheim), the honchos at NHL head office are, no doubt, delighted.

By any measure on the ice, the NHL right now is, to use Charlie Sheen’s term — "winning!"

And yet years from now, I wonder if we won’t look back and remember this week not for the winning hockey on the ice but rather the two big losses hockey took in courtrooms north and south of the border that have the potential to reshape the entire game in years to come.

On Wednesday, U.S. Federal Court Judge Susan Nelson threw out a scurrilous motion from the NHL that would have forced Boston University researchers to turn over to the league almost all their groundbreaking work into chronic traumatic encephalopathy (CTE).

TSN’s Rick Westhead, who is making a full-time living these days just following all the court cases the NHL presently finds itself mired in, reported Nelson ruled the NHL’s motion would have been so onerous and time-consuming for the researchers to comply with that it would have effectively brought to a halt the university’s pioneering research into the subject.

All of which, of course, was exactly what the NHL was hoping would happen all along when its lawyers filed the motion as part of its defence against a proposed class-action lawsuit that has been filed in Minneapolis by more than 100 former players who allege the league knowingly put them in danger of CTE for decades in the service of profits.

Rather than reach a comprehensive settlement with its suffering alumni — as the NFL has done — the NHL has responded to the players’ lawsuit with a scorched-earth approach that refuses to even acknowledge the link between CTE and concussions, while at the same time attempting to put a chill into further research into the subject.

Mercifully, Nelson saw the league’s cynical motion for exactly what it was. "In balancing need versus burden, the tremendous burden to non-party BU outweighs the NHL’s need for the requested information," wrote Nelson.

Nelson noted BU researchers estimated that to comply with the NHL’s motion, it would have taken over 13 years for the university to collate the 68,000,000 autopsy photos and slides the school has compiled as part of its research into the donated brains of over 400 former athletes.

Think about that for a moment: a league that publicly maintains player safety generally — and reducing the number of concussions in particular — is its highest priority right now had essentially asked a court to help them shut down research into the subject for 13 years.

Continued on C3

That’s a new low, even for Gary Bettman.

With this little sideshow now out of the way, the players’ CTE lawsuit can now continue to work its way through the U.S. courts, even as the NHL continues to bury its head in the sand and make like climate change deniers with delusional talk about how the science is still "unsettled."

The only thing unsettled is this historic lawsuit, which includes former Winnipeg Jets great Dave Christian as a signatory. And the only question still unanswered is whether the NHL will finally come to its senses and voluntarily reach a settlement, or will they have to be dragged into one by the courts kicking and screaming.

The right approach, of course, is the former one: a cash settlement with affected former players that would allow the guys who got hurt to get some help, while simultaneously allowing the NHL to get some cost certainty and defuse what is a ticking time bomb.

It’s the right thing to do for the players and it’d be the right thing to do for the league.

Ask yourself this: if arguing the link between concussions and CTE was a winning legal strategy, don’t you think the NFL would have tried it before agreeing to a billion-dollar settlement with its players last year?

Gary Bettman is smarter than Roger Goodell, said nobody ever.

And then, even as the NHL was still digesting Nelson’s ruling, came another legal blow on Thursday when an Ontario Superior Court judge certified a class action lawsuit against the Ontario Hockey League that had been filed by former players alleging they’d been basically treated like slave labour during their playing days and seeking $180 million in back wages, overtime and vacation pay.

The ruling is the first of its kind and potentially monumental, with similar proposed class action lawsuits also waiting certification against the Western Hockey League and the Quebec Major Junior Hockey League.

While none of this litigation affects the NHL directly, make no mistake: a court ruling that junior teams in this country have to pay their players for services rendered would fundamentally reshape a league that is still the principal feeder system for the NHL.

Consider: Of the 211 players taken at last year’s NHL draft, 96 — or 45 percent —came from the CHL.

All of which is to say, the CHL has been very, very good to the NHL and the NHL has serious vested interests in maintaining the fiction that junior players are ‘amateur student athletes,’ rather than the revenue generators for privately held hockey teams they actually are.

The NHL has gotten a free ride for a long time now when it comes to player development, letting others absorb the monumental costs of developing young players while benefitting enormously when those players go on to become the league’s biggest stars.

If courts rule junior teams in this country have to begin paying those young players to play and also pay back wages to former junior players, those teams — many of them already cash-strapped, shoestring operations — will almost certainly go looking to the NHL for help covering those new costs.

The NHL and its owners have gotten rich for decades on a sport that makes players sick and takes advantage of its youngest prospects.

Courts in Canada and the U.S. handed down rulings this week that suggested the free ride may be about to finally end.

Winning? On the ice, maybe.

But off the ice, the NHL was losing the war this week.

paul.wiecek@freepress.mb.caTwitter: @PaulWiecek

Read more by Paul Wiecek.

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Updated on Saturday, April 29, 2017 at 9:40 AM CDT: Headline changed.

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