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The Globe and Mail

Concussion lawsuit signals the start of a difficult legal fight for the NHL

FILE - In this Dec. 6, 2012, file photo, NHL Commissioner Gary Bettman, right, and deputy commissioner Bill Daly speak to reporters in New York.

Mary Altaffer/AP

The fact that 10 former NHL players filed a class-action lawsuit against the league in federal court in Washington, D.C., seeking damages and medical monitoring due to head injuries is not a surprise.

It was just a matter of time once the NFL settled its concussion lawsuit with thousands of former players who developed concussion-related medical issues such as dementia at a cost of $765-million (all currency U.S.). After all, the NHL is a league which did not make helmets mandatory until 1979 and even then grandfathered them in as long as the bareheaded loons signed a waiver.

However, what is surprising is the group of players in what is surely the first wave of NHL lawsuits, as at least one more can be expected in Canada. Only five of them – Curt Bennett, Richie Dunn, Bob Manno, Blair Stewart and Morris Titanic – started their NHL careers before helmets became mandatory in 1979. And of that group, it appears only Stewart, who played 229 NHL games between 1973 and 1980, did not wear a helmet for at least part of his career.

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That and some of the statements in the claim against the NHL indicate the players' legal strategy is to concentrate on the years leading up to 2010 when the league introduced Rule 48, which made hits that targeted the head illegal. Under the direction of Mel Owens, a disability lawyer and former NFL player, the lawsuit accuses the NHL of disregarding medical evidence about the risks of repeated blows to the head to its players until 2010.

The easiest path would have been to bring forward a group of players from the 1960s and 1970s when most of them did not wear helmets and when fighting was a lot more prevalent in games than it is now. But the largest group of surviving players is from the post-helmet era and it appears this fight will be waged on the years after 1979.

It is also worth noting that only one of the group of 10 former players did a lot of fighting, although not much of it was done in the NHL. Darren Banks, 47, had 73 minutes in penalties in 20 NHL games from 1992-1994 but racked up as many as 303 in a season in the minors.

The group is also a cross-section of NHL retirees, from journeymen to stars. The number of NHL games played among them ranges from 14 by Brad Aitken to 667 and 876, respectively, for former Toronto Maple Leafs Gary Leeman and Rick Vaive. Both Vaive and Leeman were scorers who did not play a physical game so it would seem the argument will be the NHL was a dangerous workplace no matter how you played or how many games you played.

In its only official response so far to the lawsuit, the NHL released a statement from deputy commissioner Bill Daly. He said, in part, "While the subject matter is very serious, we are completely satisfied with the responsible manner in which the league and the players' association have managed player safety over time, including with respect to head injuries and concussions."

The mention of the NHL Players' Association was, of course, deliberate. A key part of the NHL's strategy will be to emphasize it always acted in concert with the players' union, which is an attempt to shift much of the burden of responsibility for the former players' medical problems on to themselves.

But the NHL has a difficult legal fight ahead. While it can argue it has taken steps in recent years to limit concussions in a sport in which they can never be eliminated as long as body checking is part of the game, the players and their lawyers will no doubt present all sorts of evidence that head hunting was long encouraged in the NHL.

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Indeed, the claim spells this out when it says the NHL still contributes to head injuries because it will not ban fighting or even body checking, the latter of which will no doubt give many NHL types the vapours. It talks about a "culture of violence."

All the lawyers have to do is turn to the highlight shows from the 1980s through today, some of them from the league's own television network, to present ample evidence those who knocked out their opponents with shoulders, elbows, etc., to the head were glorified. And there are all those fight videos, although it looks like this legal fight will be about much more than punches to the head.

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