A lawyer specializing in class-action lawsuits believes the already-long odds of former NHL players attempting legal action against the league over the matter of concussions have become a little longer with the announcement of an imminent settlement between the NFL and more than 4,500 former players.
“One of the advantages for the NFL is this avoids them having to release all the documents that would show what they knew and when they knew it,” said Caroline Zayid, a Toronto-based lawyer with McCarthy Tétrault. “That would probably be something that they wouldn’t want to do.
“If all the documents had been produced, it might have made it easier to follow the trail and figure out when certain information became widely known and when medical evidence came to light. It might have provided a bit of a road map. The NHL is a different league, but you probably would have looked for parallels and it might have helped a little bit.”
Like the NFL, the NHL had had its feet held to the fire in recent years over the manner in which it deals with the incidence and severity of head injuries, both their prevention and monitoring. The Boston University Centre for the Study of Traumatic Encephalopathy has found evidence of CTE (chronic traumatic encephalopathy) in the brains of several former players. CTE is a degenerative disease caused by repeated brain injuries.
Several high-profile players, including Sidney Crosby of the Pittsburgh Penguins, have missed large amounts of playing time with concussions and the league has rewritten rules and changed their interpretation in response.
Frank Brown, a spokesman for the NHL, said the league would not comment on the settlement.
The NFL, which generates an estimated $9-billion in annual revenue, will not be compelled to share internal documents that would indicate how much the league knew about concussions and when it knew. That is one reason why Paul Echlin, a Burlington, Ont.,-based sports-medicine specialist and an expert in the field of concussion research, said the NFL settlement serves the economic interests of each side without having much of an influence on the bigger picture.
The proposed settlement came as a surprise given the complicated nature of the lawsuit and the emotional pitch of the public debate surrounding the matter, and removes a potentially damaging narrative for the league, which is a week away from the start of its regular season. Although future concussion-related lawsuits are not precluded, the NFL will not be compelled to share internal documents that might reveal the scope of its knowledge about the dangers of concussion-related injuries.
According to the settlement, $675-million would compensate former players and families of deceased players. Individual awards would be capped at: $5-million for men with amyotrophic lateral sclerosis, Parkinson’s or Alzheimer’s disease or other cognitive impairment; $4-million for former players whose chronic traumatic encephalopathy was discovered after their deaths; and $3-million for players with dementia.
“It solves the problem for the individuals that are caring for these individuals, because of the cost of care,” Dr. Echlin said. “But it doesn’t solve the problem. It doesn’t solve the games we play and the real evaluation of players. It doesn’t solve the issue of repetitive contact to the head.
“From a business point of view, this open, public information about concussions has not been beneficial to professional leagues selling a product that involves violence and brain injury. Less talk would be beneficial for leagues interested in selling a product as opposed to wanting to maybe get out on the cutting edge of the issue.
“But it’s not a setback for our work. The work goes on. The horse is already out of the barn.”