Seventy-five former players sued the National Football League last month, alleging that the league failed to warn and properly protect them from the long-term brain-injury risks associated with football-related concussions. They say the NFL was negligent in failing to exercise its duty to enact rules regulating postconcussion medical treatment and return-to-play protocols and to enact reasonable rules to protect players against the risk of brain trauma.
No doubt the NFL lawsuit will raise eyebrows and blood pressure at the National Hockey League's head offices in New York. And if it doesn't, it should. Although hockey and football are different sports governed by different rules, the fact is they're cut from the same cloth of contact sports. Perhaps the threat of litigation will force the NHL to rethink its approach to head injuries.
While the NHL has been a leader in concussion management after a player has been injured, it has been painfully slow to implement changes that would reduce brain injuries in the first place. The league was pressed last year to pass Rule 48, which prohibits lateral or blindside hits to an opponent where the head is targeted, or is the principal point of contact, and updated it for next season by not requiring that the hit come from the blindside for it to be illegal.
The NHL almost got it right. The flaw in Rule 48 still is that the head must be targeted. In other words, the contact must be intentional. That the infraction must be deliberate has led to the absurd situation where the league plays psychoanalyst and jurist in trying to get into the minds of the offending players to determine whether the head shot was done on purpose. Rule 48 is a step in the right direction. That the league has to play mind reader in administering justice is not.
The NFL doesn't care about intent. It cares only about the harm suffered. If the head shot is deemed dangerous, the offending player is penalized. It doesn't matter whether he meant to do it. The International Ice Hockey Federation, the U.S. National Collegiate Athletic Association, the Ontario Hockey League and the Quebec Major Junior Hockey League all prohibit any hit to the head regardless of whether it was intentional.
Despite the NFL's strict liability approach to dangerous head shots and $75,000 fines (in comparison to the NHL's $2,500 maximum fine for an illegal hit to the head), the league is still staring at the barrel of a very large lawsuit. Even though the NHL has been more proactive in its postconcussion management protocols, that may not be enough. Given the league's zealous willingness to keep head shots in the game, the NHL is vulnerable to a similar lawsuit.
Let's hope the NFL suit will prompt the NHL to get rid of head shots from hockey. Enrolment in youth hockey is declining. The reasons are myriad, but there's no doubt that hockey violence and its effect on kids' brains is a factor in their parents' decisions. The NHL's influence on youth hockey is unmistakable, and kids will mimic what's modelled. The league does a disservice by not doing more.
Real change in youth hockey and the pros will only occur after the NHL breathes in the smelling salts, gives its head a shake and eliminates head shots from the game. And if the league continues to skate its way around this issue, perhaps the long reach of the law in the NFL case can knock some sense into the NHL.
Jon Heshka is an associate professor specializing in sports law at Thompson Rivers University in Kamloops, B.C.
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