Bernie Nicholls (Getty Images)
The NHL's motion to throw out a lawsuit filed in U.S. district court by a group of retired NHL players including Bernie Nicholls and Gary Leeman was denied Wednesday – and it's more than likely this is another early step in what promises to be a protracted and emotional legal proceeding.
The ongoing lawsuit filed against the NHL by former players in U.S. court took its next step with a Wednesday ruling from a judge who denied the league's motion to dismiss it. It appears unlikely there will be any end to the legal proceedings anytime soon. In fact, these are still the early days of a high-stakes, protracted battle that almost assuredly has numerous twists and turns ahead.
The lawsuit, filed in a U.S. district court in Minnesota, has six named plaintiffs – retired NHLers Bernie Nicholls, Gary Leeman, Reed Larson, Dan LaCouture, Mike Peluso and Dave Christian – who claim the NHL was derelict in its duty to inform and protect players of risks associated with concussions and traumatic brain injuries. And Judge Susan Richard Nelson ruled the league's attempts to have the case thrown out – by arguing on three fronts: the case not being "adequately pled"; jurisdiction issues; and time sensitivity – was not enough to stop players from continuing on with it.
"We are pleased the Court has confirmed the validity of our claims and found the NHL's arguments insufficient to warrant dismissal of this case," co-lead counsel for the plaintiffs said in a statement after the ruling. "It is time for the NHL to be held accountable for deliberately ignoring and concealing the risks of repeated head impacts, and finally provide security and care to retired players whom the League has depended on for its success."
In a statement to THN Wednesday evening, NHL deputy commissioner Bill Daly acknowledged the case is in its infancy and indicated the league intended on presenting a vigorous defense as it moves ahead.
"While we would have hoped for a different result on this motion, we understand that the case is at a relatively early stage, and there will be ample opportunity for us to establish our defenses as the discovery process progresses," Daly said via email.
Nelson is still considering the league's other initial dismissal motion – one based on labor law pre-emption – and there was no indication when her ruling on that front would take place. So what's likely to be next? From the plaintiff's perspective, it's possible and probable the group of disgruntled former players will grow from the 10 who launched the lawsuit in November of 2013 far beyond the current group; estimates of the precise number of players involved varies, but it is believed the total is closer to 60 – and as more players from the high-speed, high-impact era of the game move into their post-playing days, that number will only grow.
It's also safe to say the NHL will attempt to discredit the former players in a different manner than they've attempted to this point, if only because the league's first effort to that end was baffling to numerous legal observers. To wit: In November arguments made to the Minnesota court, the NHL said players ought to have "put two and two together" in regard to concussions by reading media reports on 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 documents.
Here's the problem with that reasoning: as questions about head injuries began to mount in the past decade, league officials did anything other than paint a clear picture of the stark choices players made and the risks they took. League commissioner Gary Bettman made just such a statement in 2011 when he was asked about chronic traumatic encephalopathy (CTE) that had been found in the brain matter of deceased former players Derek Boogaard, Bob Probert, Rick Martin and Reggie Fleming:
“Do you know everything that went on in their lives?” Bettman responded. “Were there other things going on that could also cause CTE? And until you understand that what exactly causes CTE, it’s speculation as to one or two elements in each case that were in common. The data is not sufficient to draw a conclusion, and our experts tell us the same thing.”
So on the one hand, the NHL is claiming available data wasn't sufficient to draw any conclusions regarding head injuries, and on the other hand, they're arguing that data was there for the players to see and base decisions off of all along. That strikes many as inherently inconsistent, and if the case moves closer to an actual public courtroom showdown, legal experts familiar with the case expect the league to try and poke holes in the lawsuit in different ways. That said, there's also the expectation it could be months and/or years before such the public spectacle of a trial comes to pass, if ever it takes place at all. A similar lawsuit from NFL players resulted in a settlement that averted a trial, and some believe NHL players might eventually do the same thing.
But for now, the case will inch forward. Concussions are an issue not exclusive to hockey, and the litigation surrounding it is going to hover over many contact sports for the foreseeable future.