Judge’s ruling helps Bettman add cynical insult to former players’ injury
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Hey there, time traveller!
This article was published 17/07/2018 (2081 days ago), so information in it may no longer be current.
The official position of the NHL on chronic traumatic encephalopathy — as articulated by commissioner Gary Bettman — is to deny what is otherwise settled science:
Hockey causes concussions and concussions cause CTE.
To claim otherwise, as Bettman has over and over again in saying there is no definitive scientifically established link between concussions and CTE, is as morally bankrupt as it is intellectually bankrupt.
But you know what else it is? A winning legal strategy.
In case you missed it, Susan Nelson, a U.S. federal judge in Minnesota, last week ruled that she was disallowing class-action status to a lawsuit brought by former NHL players alleging the league didn’t do enough to protect players from head injuries and deliberately concealed information about the long-term effects of concussions.
Now, it’s important to clarify what Nelson didn’t say: She didn’t say concussions don’t cause CTE; she didn’t say the NHL did enough to protect players over the years; and she didn’t say the NHL didn’t wilfully engage in a conspiracy to keep players in the dark about long-term post-concussion effects.
Those issues are still to be determined in court.
But the problem is that what Nelson did say last Friday, in denying class-action status to the former players bringing the suit, now raises serious doubt about whether the players will ever get their day in court.
And that, of course, is exactly the way the NHL and Bettman — who have already dragged this case out for four years — would prefer it remain.
In denying the players’ class-action status, Nelson is now forcing each of the more than 150 players attached to the suit to bring their own separate claims against the league and then fight its lawyers — and its bottomless war chest — on their own, even while many of them are ailing.
That, of course, puts the plaintiffs in an impossible position, which is also exactly the way Bettman and the NHL want it.
“It made and continues to make literally no sense to us or our clients why every retired player would have to prove the exact same thing over and over and over again, and that’s essentially what this ruling says to do,” Stuart Davidson, one of the lawyers representing the players, told Ken Campbell of the Hockey News this week.
“Each player is now required to file his own individual lawsuit and… that is, unfortunately, a very expensive proposition. You have to have epidemiologists and neurosurgeons and neurologists and neuropsychologists and the world’s most renowned experts. You can imagine how much they charge on an hourly basis.”
And so with that, Bettman and the NHL have turned a fight in which the players have the facts and overwhelming medical evidence on their side into a fight in which the league has an endless supply of lawyers, money and time on its side.
You’ve got to tip your hat to Bettman: he somehow managed to turn what looked, in the long run, like an unwinnable case for the NHL into a war of attrition, and the league now holds all the cards.
Machiavelli, not to mention Stalin, would be proud.
And Roger Goodell is jealous.
Goodell, of course, is the NFL commissioner who presided over a landmark settlement with former NFL players that went into effect last year. It will ultimately pay former players battling CTE and its symptoms a total of close to $1 billion in compensation.
Goodell convinced the league’s owners that a billion dollars was a small price to pay for cost certainty on an issue lawyers were telling the NFL they had no chance of winning in court or, for that matter, in the court of public opinion.
What Goodell and the NFL owners knew — and what Bettman and the NHL owners continue to deny, at least in public — is that there is an irrefutable scientific link between repeated concussions suffered in contact sports and the onset of CTE, a degenerative brain disease with symptoms that include cognitive impairment, depression, emotional instability and suicidal thoughts.
A study by researchers at Boston University, the undisputed worldwide leaders in CTE research, found evidence of CTE in the brains of 110 of 111 deceased former NFLers they studied. When you factor in former CFLers, college and high school football players, the rate of CTE in the brains of deceased football players tops 90 per cent overall.
Now, research into CTE in former hockey players hasn’t been as comprehensive to date, but there’s no reason to think repeated concussions suffered on a sheet of ice would be any less damaging to the long-term health of players than those suffered on a football field.
To date, at least seven deceased NHL players — all of whom died prematurely — were found to have been suffering from CTE when they died: Reggie Fleming, Rick Martin, Bob Probert, Derek Boogaard, Larry Zeidel, Jeff Parker and Steve Montador.
Put it all together and the NFL looked at all the available evidence and concluded the only winning strategy in the face of that mountain of evidence was to throw in the towel, pay off every player who’d suffered and then get back to the business of making billions of dollars in revenue every year.
And it worked. Despite a disastrous season last year in which the NFL and its players found themselves being used as yet another cudgel in the incessant and insufferable American culture wars, the box office was still boffo.
We know this because the Green Bay Packers — the only publicly owned team in the NFL and therefore the only team that has to report its finances publicly — announced their revenues in the last week and it showed the NFL last year distributed a record $8 billion in revenues to the league’s 32 teams. That’s $250 million per team.
All of which, of course, makes that $1 billion settlement for all the players who’ve been sickened playing in the NFL over the years look like what it is: chump change.
But at least the NFL is paying them something, unlike the NHL which has chosen to deny everything and spend its money fighting instead.
Jodi Balsam, a former NFL lawyer who now teaches at Brooklyn Law School, told TSN’s Rick Westhead in May that she estimated the NHL had spent more than $50 million on legal fees in the CTE lawsuit. That number is sure to rise dramatically if any of the players file individual suits against the league.
Wouldn’t it be easier, and maybe even cheaper, to just settle? The NFL certainly thought so and history seems to be judging it the correct decision.
But Bettman gives no quarter; never has, never will.
And so, if the NHL ends up spending as much in fees to a bunch of fat-cat lawyers as they would have in compensation to a bunch of suffering former players, you cannot help but get the feeling that’s just fine with Bettman.
Like I said, it’s morally and intellectually bankrupt, but winning is everything, right?
Faced with a choice between doing what’s right and doing what they can get away with, was there ever any doubt which path the league under Bettman would choose?
email: paul.wiecek@freepress.mb.ca
Twitter: @PaulWiecek
Paul Wiecek
Reporter (retired)
Paul Wiecek was born and raised in Winnipeg’s North End and delivered the Free Press -- 53 papers, Machray Avenue, between Main and Salter Streets -- long before he was first hired as a Free Press reporter in 1989.
History
Updated on Wednesday, July 18, 2018 11:07 PM CDT: Edits