NHL’s opening salvo in concussion lawsuit battle with former players a clear case of victim-blaming

Adam Proteau
Bernie Nicholls (Getty Images)
Bernie Nicholls (Getty Images)

As reported Thursday by TSN, the NHL has made its first significant legal reply in regard to the 2013 lawsuit filed by former players who believe the league seriously mishandled its approach to concussions and head trauma. And one only need give the reply a quick perusal to recognize it as the worst kind of victim blaming.

Filed in November of last year, the players’ lawsuit – now backed by a group of some 40 former NHLers including retired L.A. Kings star Bernie Nicholls and Toronto Maple Leaf Gary Leeman – alleges the league didn’t provide adequate protection from head injuries before a head trauma research committee was formed in 1997, and that, beyond that point, the results of that committee weren’t properly shared among players. Responding via legal documents filed in a Minnesota federal court this week, the NHL contends players forced to retire prematurely due to concussions should have realized on their own the risk they were taking and what could happen to them.

“Publicly available information related to concussions and their long-term effects, coupled with the events that had transpired – i.e., the players incurring head injuries – should have allowed (players) to put two and two together,” the NHL said in court filings obtained by TSN.

So let me get this straight – the league whose commissioner in 2011 said it was premature to link fighting in hockey with chronic traumatic encephalopathy is the same league that’s now saying players ought to have known what was up all along with head trauma in the sport because they should’ve read magazine and newspaper reports the league was questioning the veracity of? Does this make sense to anyone? Which is it – was the science on head injuries not in, or was the science fully apparent to all involved in the industry? And does this also mean retired NFL players who have successfully sued their league over concussions should give back the millions they’ve settled for because they should’ve subscribed to Sports Illustrated, hung out with neurologists and come to terms with the fact many of them were going to suffer horrific deaths?

C’mon now, NHL. We always knew you weren’t going to just hand over hundreds of millions of dollars to former players no questions asked, but telling those ailing athletes the Faustian bargain to which you’re implying they agreed – brain cells in exchange for big bucks – was as plain as day is disingenuous as hell. Are you actually attempting to argue the NHL had no control over its environment, no sway over its own culture? Hockey’s top league is not Jurassic Park; you don’t make players sign waivers, release them into the wild and tell them you hope they make it out intact.

The NHL’s team owners were not and are not passive observers in this process; rather, they’re absolutely complicit in a culture that, for example, allowed and still allows players to fight multiple times an evening. Neither the mixed martial arts business nor the boxing industry does that. That’s a clear-cut, undeniable business choice on the NHL’s behalf – and that business choice can have catastrophic consequences, just as the NFL’s decisions did for football’s top league. To suggest otherwise – to attempt to offload full responsibility to NHLers for their deteriorating conditions and argue they were the sole architects of their destiny when it comes to head injuries – is outrageous and insulting.

There’s an old saying from the old Western classic movie The Outlaw Josey Wales: don’t piss down my back and tell me it’s raining. The former NHL players should use the following variation of it when replying to the league’s first response:

Don’t piss down my back and tell me I’m pissing down my back.

Adam Proteau is a columnist at The Hockey News and a regular contributor to the thn.com Post-To-Post blogFor more great profiles, news and views from the world of hockey, subscribe to The Hockey News magazineFollow Adam on Twitter at @Proteautype