Retired players’ concussion lawsuit takes aim at virtually every aspect of the NHL

Ken Campbell
Phoenix Coyotes v Chicago Blackhawks - Game Three

When it comes to the class-action lawsuit it faces from 10 former players claiming it did not do enough to protect them from concussions, the NHL must certainly be hoping there are a lot of guys like Steve Ludzik out there.

“You’d think I’d be a poster boy for them,” Ludzik said.

There’s little doubt of that. Ludzik played seven years in the NHL before going on to a career as a coach at every level, including two seasons with the Tampa Bay Lightning, then to another career in broadcasting. He retains a high profile in the hockey world and, more importantly, disclosed last year that he has Parkinson’s disease which both he and his doctors believe was brought on by the many blows to the head and the brain trauma he endured when he played in the NHL.

In fact, the law firm that launched the lawsuit on behalf of the 10 players, Silverman, Thompson, Slutkin & White in Baltimore, approached Ludzik and invited him to join the lawsuit, but Ludzik has so far declined. That doesn’t mean he won’t add his name in the future, but for now, he’s very much undecided.

“I guess I’m betwixt and between a little bit,” Ludzik said. “Hockey is what made me successful in life and part of my life has been taken away from playing hockey. But I’ve never blamed hockey for this. I’ve never blamed hockey at all. That’s just the way the game is played. We’ll see how it plays out.”

The lawsuit, as it stands right now, is lacking two things – a critical mass of players and star power. Right now, there are 10 players involved, four of whom didn’t play as many as 50 games in the NHL. The lawsuit filed Tuesday in fact points out that a number of high-profile players have had their careers cut short by concussions, including Eric and Brett Lindros, Keith Primeau, Pat LaFontaine, Mike Richter, Scott Stevens and Nick Kypreos. None of them is named in the lawsuit, some because they are making a post-career living from the NHL, others presumably because they knew what they signed up for when they signed their contracts.

But there is a danger in writing off the 10 players as rabble-rousers with little chance for victory. Those who do might want to pause to remember the late Carl Brewer, who launched a lawsuit in 1991 with six other former players that resulted in NHL retirees winning back $40 million in pension money and greased the skids to bring down former NHL Players’ Association executive director Alan Eagleson.

And you’d have to think the NHL has to be a little bit nervous that the lawsuit is being taken “on behalf of (the 10 players) and all those similarly situated individuals.” If that rings a bell, you might recall that the National Football League recently reached a tentative $765 million settlement over concussion-related injuries to about 18,000 retired players. That lawsuit began with about 75 players.

Which is to say that Gary Leeman, Rick Vaive & Co., have a formidable battle ahead of them, but not an impossible one. You’d have to think that more players are going to come out of the woodwork here, but it’s difficult to tell exactly how big this is going to get.

“There’s no way to tell right now if this is the tip of the iceberg or just some guys who need some help,” said William Gibbs, who was part of the ground floor of the NFL lawsuit with former Chicago Bears player Dave Duerson and is representing the Boogaard family in its lawsuit against the NHL. “But it’s certainly an issue that’s ripe for litigation at the moment.”

The lawsuit is potentially an explosive one, particularly if the plaintiffs can provide solid evidence to support its claims. The lawsuit talks about “a culture of violence” in the NHL that is reinforced with fighting and head shots and, “within this culture, the NHL purposefully profits from the violence they (sic) propagate.”

It also claims that this attitude has not only existed for decades, but continues to exist and that the NHL, from its “superior and unique vantage point,” essentially knew the dangers of head trauma with respect to playing in the NHL and is guilty of “fraudulent concealment” when it comes to keeping the players informed about those dangers.

The lawsuit takes a run at pretty much every aspect of the NHL’s operations, from the solid glass it used along the boards to the concussion program that it claims produced virtually no follow up studies or significant rule changes. It claims the league was far too late in implementing Rule 48 governing hits to the head. It even claims the crackdown on obstruction that was adopted after the 2004-05 lockout was implemented knowing that the changing biomechanics of players and the fact that they were becoming bigger and stronger would put the players in even more peril. It claims the league made the game faster, “despite knowing that it would result in more concussions, which it already knew was a problem.”

They are damning allegations to be sure, but none has been proved in court. And therein lies the challenge. Ottawa-based litigation lawyer Eric Macramalla points out that this case will be judged on the merits of the evidence, something that will be difficult to prove. Can the players prove the NHL knew the dangers of concussions and, assuming it knew them, hid that information from the players?

It will also might be difficult for a player such as Brad Aitken, who is named in the lawsuit, to prove the NHL caused his concussion problems, since he played only 14 career games in the league. Darren Banks played 20, Morris Titanic 19 and Warren Holmes 45. (Although all of them played in the minors for teams that were affiliated with the NHL teams that owned their contracts.)

“For this lawsuit to be credible and substantial, they’re going to need (to add) more meaningful names to it,” Macramalla said. “The critical issue is concealment. The players have to show that the NHL had information and concealed it from the players so they couldn’t make an informed decision. You need to find evidence and that’s not easy. So if they can’t find that evidence, their case is going to be really challenging.”