88
J S 44C/SDNY REV. 4/2014 CIVIL COVER SHEET Th e JS-44 civil cover sheet a nd th e information contl pleadi ngs or other papers as required by law, except Judicial Conference ofthe United States inSepteml initiating th e civil docket sheet. PLAINTIFFS DAN FRITSCHE an d CHRIS FERRARO, on behalf of themselvesand those similarly situated itlBd henA neither riPMVjJFr 3t Ipro^K by localulesBKo tam27WBftquiredmi^eWth supplementt| :ourt. This fori th e Clerk of CqMrt , DEFENDANTS NATIONAL HOCKEY LEAGUE JU L 2 5 2014 ATTOR NEYS (FIRM NAME, ADDRESS, ANDTELEPHONE NUMBER ATTORNEYS (IFKNOWN) WILLIAM CHRISTOPHER CARMODY ARUN SUBRAMANIAN SETH AR D SUSMAN GODFREY L.L.P.. 560 Lexington Avenue. 15th Floor CAUSEOF ACTION (CI TE THE U.S. CIVIL STATUTE UNDER WHICH YOU ARE FILING AND WRITE A BRIEF STATEMENT OF CAUSE; (DO NOTCITEJURI SDICT IONALSTATUTES UNLESS DIVER SITY) negligence, intentional harm,fraudulent concealment Has this action, case, or proceeding, or one ess enti ally the same been previously filed in SDNY at any time? NoSfesOjudge Previous ly Assi gned Ifyes, this Vol. Invol. Dismissed. No Yes fj If No. No 0 Yes NATURE O F SUIT ISTHISAN INTERNATIONALARBITRATION CASE? (PLACE AN[x]INONEBOX ONLY) ACTIONS UNDERSTATUTES CONTRACT PERSONALINJURY PERSONALINJURY FORFEITURE/PENALTY BANKRUPTCY OTHER STATUTES [ 1110 INSURANCE [ ]310 AIRPLANE I I 367 HEALTHCARE/ PHARMACEUTICAL PERSONAL , , 6 25 DRUG RELAT ED [ ] 422 APPEAL t ] 375 FALSE CLAIMS I ( J400 STATE i [ ]120 MARINE [ ) 315 AIRPLANE PRODUCT INJURY/PRODUCT LIABILITY SEIZURE OF PROPERTY 28 US C 15 8 REAPPORTIONMENT I [ J130 MILLER AC T LIABILITY [ ] 365 PERSONAL INJURY 21 US C 88 1 [ ] 423 WITHDRAWAL [ ] 410 ANTITRUST [ ]140 NEGOTIABLE [ ] 320 ASSAULT, LIBELS PRODUCT LIABILITY [ ]690 OTHER 28 USC 157 [ ] 430 BANKS & BANKING INSTRUMENT SLANDER ( I368 ASBESTOS PERSONAL [ ]450 COMMERCE [ ]150 RECOVERY OF [ ] 33 0 FEDERAL INJURY PRODUCT [ ] 460 DEPORTATION j OVERPAYMENT & EMPLOYERS' LIABILITY PROPERTY RIGHTS [ j 470 RACKETEER INFLU- j ENFORCEMENT LIABILITY ENCED & CORRUPT f OF JUDGMENT [ ] 340 MARINE PERSONAL PROPERTY [ ] 82 0 COPYRIGHTS ORGANIZATION ACT t (RICO) 1 1151 MEDICAREACT [ ] 345 MARINE PRODUCT [ ] 83 0 PATENT [ ]152 RECOVERY OF LIABILITY [ ] 370 OTHER FRAUD [ j 840 TRADEMARK ( ] 480 CONSUMER CREDIT | DEFAULTED J ] 350 MOTOR VEHICLE [ ] 7 1 TRUTH INLENDING [ ] 490 CABLE/SATELLITE TV f STUDENT LOANS [ 1355 MOTOR VEHICLE I (EXCLVETERANS) PRODUCT LIABILITY SOCIAL SECURITY [ ] 850 SECURITIES/ f [ ] 1 53 RECOVERY OF [ 1360 OTHER PERSONAL COMMODITIES/ > OVERPAYMENT INJURY [ I 380OTHERPERSONAL LABOR [ ]861 HIA(1395ff) EXCHANGE OF VETERAN'S [X] 362 PERSONAL INJURY- PROPERTY DAMAGE [ ] 862 BLACKLUNG (923) BENEFITS MEDMALPRACTICE [ ] 385PROPERTY DAMAGE [ I710 FAIRLABOR [ ] 863 DIWC/DIWW(405(g )) [ ]160 STOCKHOLDERS PRODUCT LIABILITY STANDARDS ACT [ ] 8 64 S SI D TI TL E X VI SUITS ( ] 720 LABOR/MGMT [ ] 8 65 R SI ( 40 5( g) ) [ ] 890 OTHER STATUTORY [ ]190 OTHER PRISONERPETITIONS RELATIONS ACTIONS CONTRACT [ ] 463 ALIEN DETAI NEE [ ] 74 0 RAILWAY LABOR ACT 1 ]891 AGRICULTURALACTS I 1195 CONTRACT [ ] 510 MOTIONS TO ( ] 751 FAMILYMEDICAL LEAVEACT (FMLA) FEDERALTAX SUITS PRODUCT ACTIONSUNDER STATUTES VACATE SENTENCE LIABILITY 28 US C 2255 [ ] 870 TAXES (U.S . Plaintiff or [ ] 893 ENVI RONMENTAL ( ] 1 96 F RAN CH ISE CIVIL RIGHTS ( ] 5 30 HA BE AS CORPUS [ ] 7 90 OT HE R L AB OR Defendant) MATTERS I [ ] 535 DEATH PENALTY LITIGATION [ ]871 IRS-THIRD PARTY [ ] 895 FREEDOM OF []440 OTHER CIVIL RIGHTS [ ] 540 MANDAMUS & OTHER [ )791 EMPL RET INC 26 US C 7609 INFORMATION ACT ] REAL PROPERTY (Non-Prisoner) SECURITY AC T ( ) 896 ARBITRATION j [ ] 441 VOTING IMMIGRATION [ ] 899 ADMINISTRATIVE [ ]210 LAND [ j 442 EMPLOYMENT PRISONERCIVILRIGHTS PROCEDURE ACT/RE VIEWOR | CONDEMNATION [] 443 HOUSING/ [ ] 462 NATURALIZATION APPEAL OF AGENCY D E C IS IO N [ ]220 [ ]230 FORECLOSURE RENTLEASE & ACCOMMODATIONS [ ] 44 5 AMERICANS WITH [ )550 CIVILRIGHTS (] 555PRISON CONDITION APPLICATION [ ] 46 5 OTHER IMMIGRATION [ I 950 CONST ITUT IONAL ITY OF | STATE STATUTES DISABILITIES - [ ] 560 CIVILDETAI NEE ACTIONS [ ]240 TORTSTO LAND EMPLOYMENT CONDITIONS OF CONFINEMENT [ ]245 TORTPRODUCT LIABILITY [] 44 6 AMERICANS WIT H DISABILITIES -OTHER I s I ]290 ALL OTHER [] 448 EDUCATION REAL PROPERTY I / Check if demanded in complaint: CHECK IF THIS IS ACLASS ACTION UNDERF.R.C.P. 2 3 DEMAND $_ OTHER Check YES onlyif dema nded incomplain t JURY DEMAND: BYES LKlO fF<ScS0SJ1 ^-M ™IS CASE 'S RELATED T0 A CIVIL CASE N0 W PENDING IN S.D.N.Y.? JUDGE on- Shira A- Scheindlin docket NUMBER14'^2531 NOTE: You mustalsosubmitatthe timeof filing the Stat eme nt ofRelate dne ss form (Form IH-32).

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Page 1: Fritsche v. NHL - Complaint

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UNITED STATES D ISTRICT

COURT

SOUTHERN DISTRICT OF NEW YORK

DAN

FRITSCHE

and CHRIS

FERRARO

on

behalf

of themselves and those similarly

situated,

Plaintiffs,

vs

NATIONAL

HOCKEY

LEAGUE,

Defendant .

325365W1/014353

1 4 CV 5 7 3 2

ECF Case

Civil Action

No.:

Jury Trial Demanded

C L A SS A C T I O N

C O M P L A I N T

 

c_

 

o i—

no

o

G O - , ,

o

en

pd

 

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T A B L E O F

C O N T E N T S

Page

INTRODUCTION

1

JURISDICTION

AND

VENUE 4

THE PARTIES 5

SUBSTANTIVE ALLEGATIONS 6

I. N H L M A R K E T S

A N D

P R O F I T S

F R O M

E X T R E M E V I O L E N C E 6

II . E X T R E M E

V I O L E N C E

A N D F IG H T IN G

I S

P R E V A L E N T

I N th e N H L

9

A. Extreme Violence Is A Prevalent Part

of

NHL Hockey 9

B. Fighting Is Prevalent and Accepted By the

NHL

12

i. NHL Considers Fighting to be Part of the Game 12

ii. Fighting Occurs at Epidemic Levels in the NHL 14

HI

NGERS

OF

HE T R U M IN N H L

17

A. Epidemic Levels ofHead Trauma in NHL 17

B. Scientific Evidence

of

Dangers of Head Trauma 23

C. Scientific Evidence ofDangers of Fighting in NHL 35

I V .

T H E

N H L s

K N O W L E D G E

O F

H E A D

T R A U M A R IS K S

A ND N HL s

D U T Y 36

A.

NHL's

1997 Concussion Program Study 37

B. Other Sources for

NHL's

Knowledge

of

Head Trauma Dangers 40

C. The NHL Downplayed Risks of Head Trauma 41

V.

NHL DOWNPLAYS AND CONCEALS RISKS O F HEAD TRAUMA 43

A. The NHL Downplayed Risks ofHead Trauma 43

B.

The NHL Concealed Risks

o f Head

Trauma

45

C. Crosby's Head Trauma Exemplifies Dangers

of

NHL's Concealment 47

i

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VI. NHL

REFUSES TO

REDUCE HEAD

TRAUMA RISKS

48

A. NHL's Role as Caretaker for Players 48

B. Unsafe Player Equipment and Rink 49

i.

Unsafe Helmets

49

ii. Unsafe Hard Plastic Body Armor 52

iii. Unsafe Rinks 54

C. Unsafe Playing Rules 55

V I I .

I N E F FE C T IV E C O N C U S S IO N P R O T O C O L 62

VIII.

THE

NHL

SPURNS CALLS FOR CHANGE

65

A. Max Pacioretty Incident in 2011 65

IX. TOLLING OF THE STATUTES OF

LIMITATIONS

69

X. CLASS

ACTION ALLEGATIONS 70

COUNT I

—NEGLIGENCE 71

COUNT

II

— MEDICAL MONITOR ING

73

COUNT

II I

— INTENTIONAL HARM 76

COUNT IV — FRAUDULENT CONCEALMENT 77

COUNT V — UNJUST ENR ICHMENT 79

COUNT

VI

— NEGLIGENT

MISREPRESENTATION

79

COUNT VII — DECLARATORY

RELIeF

81

PRAYER FOR RELIEF

82

JURY

TRIAL

DEMAND

82

n

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The above-captioned plaintiffs ( Plaintiffs ), by and through multiple undersigned

counsel, bring this complaint against the National Hockey League, and allege, upon facts and

information and belief, except for the allegations concerning

Plaintiffs

own actions, as follows.

I N T R O D U C T I O N

1. This action arises from the debilitating effects of head trauma, including mild

traumatic brain injuries ( MTBI ), caused by the concussive and sub-concussive impacts that

have afflicted former professional hockey players in the NHL. For many decades, evidence has

linked repetitive MTBI to long-term neurological problems in many sports, including hockey.

The NHL, as the organizer, marketer, and face

of

the world's premiere hockey league, in which

MTBI is a regular occurrence and in which players are at risk for MTBI, was aware of the

evidence and the risks associated with repetitive traumatic brain injuries virtually at the inception

of

the league, but deliberately ignored and actively concealed the information from the Plaintiffs

and all others who participated in organized hockey at all levels.

2. Ice hockey is a fast-paced and often physical game. But NHL hockey is

characterized by extreme violence and fighting not seen in other elite-level ice hockey

organizations, like collegiate hockey, European ice hockey leagues and the Olympics.

3. The NHL has expressly and regularly acknowledged that NHL hockey features

extreme violence, including fighting:

o In 1988, The Miami Herald quoted then NHL President John Ziegler as stating,

' Violence will always bewith usinhockey.' 1

o In a 2007 press conference,

NHL

Commissioner Gary Bettman similarly boasted

that [fj ighting has always had a role in the game .

. .

[W]e're not looking to have

a

debate

on

whether fighting . . . should

be

part

of

the game. 2

1 Jerry

Crowe, NHL President

Ziegler Denies

Problems

of

League,

THE MIAMI

HERALD, May

16,

1988.

1

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4. Other hockey leagues, such as European hockey leagues and the Olympics, have

nearly eliminated much of the extreme violence featured in NHL hockey, including fighting.

Those leagues, especially the Olympics and other international competitions, play with the same

level

of

talent, and many

of

the same players, as the NHL.

5. The NHL, which generates billions

of

dollars in revenue each year, has marketed

the violence

of

hockey, profited from the violence

of

hockey, and fostered the violence

of

hockey through lax rules. For example:

o The NHL has frequently admitted that it keeps violence in the game to raise

revenue because [o]ur fans tell us that they like the level of physicality in our

game and

 our

fans ~ who continue to attend our games in new record numbers .

. .

~ want [the game] to be physical

o A 1993 academic study

of

the

NHL's

profits from violence found that there is a

significant and positive relationship between aggregate measures

of

violence

(total penalty minutes) and attendance for games played in both American and

Canadian cities. 3

o The NHL's rules are not successful in defeating concussions: a recent study of

NHL concussions found that most NHL concussions resulted from legal actions

where the aggressor was not assessed a penalty, fine or suspension.

6. Studies show that various forms

of

head trauma, including concussions, are

observed in NHL players at epidemic levels. Many of these concussions result from extreme

forms

of

violence, including fighting, and inadequate NHL rules, equipment, and concussion

protocols.

2 Fighting

not up

for debate: Bettman,

CBC

Sports (Mar.

26,

2007),

http://www.cbc.ca/sports/hockey/fighting-not-up-for-debate-bettman-l .661551.

3

Jones, J. C. H., Ferguson, D. G. and Stewart, K. G. (1993), Blood Sports

and

Cherry

Pie.

American

Journalof Economics andSociology, 52: 63-78. doi: 10.111 l/j.l536-7150.1993.tb02742.x (emphasis

removed).

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7. The science has long been clear that concussions are highly dangerous to players'

health, but the NHL has refused to take steps to reduce violence in the game in part for fear that

doing so would hurt its profits.

8. Despite the fact that the NHL's violent game design induces head trauma,

including concussions, the NHL has failed and continues to fail to warn its players

of

the risks to

their lives and the devastating and long-term negative health effects. While the NHL has held

i tselfout to players and the public as an educator on the health risks

of

concussions, and claims

to have kept abreast of scientific research in order to convey that research to players, the NHL

has affirmatively concealed scientific evidence about the health risks and consequences

associated with playing in the NHL from players, including head injuries.

9. The NHL even concealed the results

of

its own study

of

NHL player concussions

conducted between 1997 and 2004. The NHL collected expansive data on player concussions

between 1997 and 2004, but the NHL refused to release any data or findings from this study until

2011, to the detriment

of

players who could have made more intelligent game-play, equipment,

and back-to-play decisions

if

they had learned the results

of

this study earlier. When the NHL

finally released a report on this study in 2011, the authors acknowledged that the report

contained vital information that could help players make better decisions about concussions.

10. Not only has the NHL concealed facts about concussions, but it has also

downplayed the head-injury risks

of

the violent aspects

of

the game, including fighting. For

example:

o In 2011, Commissioner Bettman explained that the rise in concussions was the

result

of

 accident events and  not from head hits. 4

In fact, a

subsequent study

4 http://www.cbc.ca/sports/hockey/pacioretty-injury-part-of-game-bettman-l.1008959 &

http://www.cbc.ca/news/canada/montreal/pacioretty-released-from-hospital-l.999400

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showed that only 4.9%

of

concussions during this time period were the result

of

unintentional

contact .

o In 2011, Commissioner Bettman said

of

fighting:

 Maybe

it is [dangerous] and

maybe

it s not. You don t know that

for

a

fact. 5

Mr. Bettman further

said itis

premature to

draw

a connection between fighting in hockey and chronic traumatic

encephalopathy, or CTE.

11. Plaintiffs seek damages, including punitive damages, and equitable relief on

behalf

of

the Class. Among other things, Plaintiffs ask this Court to order the NHL to institute a

medical monitoring program that appropriately cares for former and current NHL players, who

have and will suffer lifelong health problems and risks as a result

of

the NHL's misconduct.

J U R I S D I C T I O N

A N D

VENUE

12. This Court has subject matter jurisdiction over this matter pursuant to 28 U.S.C.

§1332(d), in that the matter in controversy exceeds the

sum

or value

of

$5,000,000 exclusive of

interest and costs, and is a class action

of

more than 100 potential Class members in which at

least one Pla int if f is a

citizen

o f a State

d if fe ren t f rom the

NHL.

13. This Court has personal jurisdiction over the

NHL

because the

NHL

has

substantial

and continuous bus iness contac ts w it h t he

State

o f

New

York.

14. Venue is proper in this District under 28 U.S.C. §1391. The NHL resides, is

found, and has its principal place of business, has an agent, or has transacted substantial business

within the Southern District

of

New York and the NHL is an entity with an unincorporated

association subject to personal jurisdiction in this District. Further, a substantial part

of

the

events giving rise to the claims alleged herein occurred in the Southern District

ofNew

York.

5

http://www.nhl.com/ice/news.htm?id=605081

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T H E

P A R T I E S

15.

Plaintiff Dan

Fritsche

is a

resident

and c it izen o f th e state o f

Ohio. M r. F rits che

played in the NHL at various times from 2003-2009. Mr. Fritsche played in over 250 NHL

games and suffered several concussions during

NHL

play. The last

of

these concussions

occurred on September 22, 2009 during a preseason game for the Columbus Blue Jackets, a NHL

team. He was released from the Blue

Jackets

10 days later.6 His concussions gave him

headaches and disorientation and continue to pose the risk of future serious health risks.

16.

Plaint i ff Chris Fer ra ro i s a

resident

and c it izen o f th e state o f

New

York. He was

drafted in the 1992 NHL Draft by the

New

York Rangers and played in the NHL at various times

between 1995 and 2001. Mr. Ferraro played over 70 NHL games for the Rangers, Pittsburgh

Penguins, Edmonton Oilers,

New

York Islanders and Washington Capitals. He suffered several

concussions during NHL play and suffered various negative health effects from the concussions,

including headaches and disorientation and has an increased risk of future serious health issues

d ue to

his concuss ions

a nd h ea d trauma.

17. Defendant NHL, which maintains its principal place

of

business at 1185 Avenue

of the Americas, New York, New York 10036, is an unincorporated association consisting

of

30

franchised member clubs. The NHL posted $3.23 billion in total revenue for the 2011-2012

season, the

last full season before

the

lockout-shortened

the

2012-2013 campaign.7

In 2012-

2013, when each team played 48 regular-season games instead

of

the usual 82, the league has

6

http://www.rotoworld.eom/recent/nhl/l

684/dan-fritsche

7 Christopher Botta, NHL

fleshes

out three-year plan, SPORTS BUS. JOURNAL,

(Sept.

9,

2013),

http://www.sportsbusinessdaily.com/Journal/Issues/2013/09/09/Leagues-and-Governing-Bodies/NHL-

reorg .aspx.

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projected  2.4

billion in

total

revenue.8

The

average

NHL team

is

worth

 413 million

according

to

Forbes9 and

the

NHL recently signed

a

multi-billion television

contract

for Canadian

broadcasting rights.10

18. The

NHL

is in the business of, among other things, operating the sole major

professional hockey league in the United States and Canada. As such, the NHL promotes,

organizes, and regulates the sport of professional hockey in the United States and Canada.

S U B S T A N T I V E A L L E G A T I O N S

I .

N H L M A R K E T S A N D P R O F IT S F R O M E X T R E M E

V I O L E N C E

19. The

NHL

has expressly and regularly acknowledged that it has capitalized on

extreme violence, including fighting. In 1988, The Miami Herald quoted then NHL President

John Ziegler as stating,

' Violence

will always be with

us in hockey.' 11 In a 2007

press

conference, NHL Commissioner Gary Bettman similarly boasted that [fjighting has always had

a role in the game . . . [W]e're not looking to have a debate on whether fighting . . . should be

part of the game.

20. One reason the

NHL

keeps fighting and violence in the game is in order to market

the game to fans who like violence. In 2011, Commissioner Bettman highlighted fan support as

a reason why fighting and other extreme violence has not been eliminated from NHL hockey:

 Our fans tell us that they like the level of physicality in our game, and for some people

it's

an

issue but it's not as big an issue in terms of fans and people in the game to the extent that other

8

Id.

9 http://www.forbes.com/sites/mikeozanian/2013/ll/25/the-nhls-most-valuable-teams/

1

http://sports.nationalpost.com/2013/ll/26/nhl-rogers-reach-12-year-5-2-billion-broadcast-deal-that-

would-see-cbc-keep-hockey-night-in-canada/.

  Jerry Crowe,

NHL President Ziegler

Denies Problems ofLeague,

THE MIAMI

HERALD,

May

16,

1988.

12

Fighting not up

for

debate: Bettman, CBC Sports (Mar.

26,

2007),

http://www.cbc.ca/sports/hockey/fighting-not-up-for-debate-bettman-1.661551.

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1 ^

people suggest it is, Bettman said, discussing fighting. In a 1989 interview with The Wall

Street Journal, former NHL president Ziegler explained the NHL would not put an end to

fighting because [f]he

main

question about fighting is, 'Does the customer accept it?' The

answer,

at

present, seems

to

be

yes. 14

21. The NHL regularly features violent hits and fights in commercials for the game,

and other advertising, and features such violence prominently on its website. For example, in

2012, the NHL gave feature bil ling on the

league's

website to a video of an infamous brawl in

Madison Square Garden involving six experienced

fighters fighting

at

once.15

An

article

from

the Canadian Press states that the NHL apparently liked the brawl, given the feature billing on

the website and the fact that NHL gave  nofines or suspensions to those involved. The brawl

involved six experienced fighters, which made it more dangerous to the combatants because

with six players fighting at once and only two linesman on hand to intervene, the chances of

serious injury are increased. 16

22.

NHL's

Deputy Commissioner William Daly acknowledged to Congress on

March 13, 2014 that the NHL earns revenue from the game's violence:

[0]ur fans ~ who continue to attend

our

games in new record numbers

almost every year (at least 20 million in attendance in every full season

since the turn

of

the century)

want [the

game] tobe

physical.17

13

Bettman

discusses fighting, CTE in remarks at

BOG

(NHL.com staff

writer)

(Dec.

6, 2011),

http://www.nhl.com/ice/news.htm?id=605081

14 Frederick Klein, On Sports: Less

Brawl,

More Teams, WALL S.J.,

Nov.

17,

1989.

15 Despite talk of fighting ban, NHL players, coaches

enjoyed

Rangers-Devils brawl,

http://www.nhl.com/ice/news.htm?id=623202.

Available at http://democrats.energycommerce.house.gov/sites/default/files/documents/Testimony-

Daly-CMT-Sports-Safety-2014-3-13 .pdf

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23. Empirical studies have confirmed the positive relationship between violence in

hockey and revenue. For example, in a 1993 study published in the American Journal of

Economics and Sociology, the authors concluded that there is a significant and positive

relationship between aggregate measures

of

violence (total penalty minutes) and attendance for

1R

games played in both American and Canadian cities.

24. The NHL has long recognized that extreme violence, including fighting, generates

extensive profits for the league. For example, in a 1986 Sports Illustrated article, the author

noted how important and profitable fighting was for the NHL:

[M]any

NHL

executives are scared to death that

if

fighting were banned

from hockey, thousands of season-ticket holders who get their jollies from

watching grown

men

in short pants in a quasi-legal, bare-knuckle battle

would bail out on the spot. Violence sells. That's not news, so does sex.

If that's what's important, why doesn't the league hire a bunch of bikini-

clad bimbos to skate around behind the Zambonis holding up placards

showing each team's penalty totals?19

25. Former

NHL

President Clarence Campbell expressly acknowledged that the

NHL's goal is to increase support at the box office through whatever means necessary:

[I]t is the business

of

conducting the sport in a manner that will induce or

be conducive to the support

of

it at the box office

  Show

business, we

are in the entertainment business and that can never be ignored.

We

must

put on a spectacle that will attract people.

18 Jones, J. C. H., Ferguson,

D.

G.

and

Stewart,

K.

G. (1993), Blood Sports

and

Cherry Pie. American

Journal

of

Economics and Sociology, 52: 63-78. doi: 10.111 l/j.l536-7150.1993.tb02742.x (emphasis

removed).

19 E.M Swift, Hockey? Call It Sockey: Hockey's designated hit

men

are making a travesty of

the

game.

It's high time to get rid of all the goons, SPORTS ILLUSTRATED, Feb. 17, 1986.

2

McMurtry,

supra, at 18.

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29. In a 1980 Congressional hearing, then NHL President John Ziegler and

Representative Henry J. Hyde acknowledged that NHL hockey is much more violent than

Olympic hockey (which remains true today):

Hyde: You have stated that you subscribe to the theory that roughness is a

basic part of the game, and that occasional fights occur as an outlet for

pent-up emotions.

How do you reconcile this with the fact that the

Olympic hockey games, which were magnificent, were played without

such

an outlet?

Ziegler: First of all, there were some outlets,

if

you will examine, when

there were confrontations and the outlets were this gesturing

when

they

came together, and there were a number. Second, they were playing on a

bigger ice surface, and you do not have the intensity

of

competition on a

bigger ice surface. You have

much

more time to execute.

You

play a

different game. You do not use the boards as much as part

of

defense and

offense. 5

30. Violence in NHL hockey has only increased since then. In 2011, Mario Lemieux

spoke against what the media described as the growing violence that has gripped the National

7f i

Hockey League. Mr. Lemieux is the owner of the Pittsburgh Penguins and was described as,

apart from Wayne

Gretsky,  probably

the most

respected hockey player

of the

last 35 years. 27

In response to the

NHL's

failure to discipline players following a fight-filled game between the

Pittsburgh Penguins and

New

York Islanders in 2011, Mr. Lemieux said in a letter posted on the

Pittsburgh Penguins website:

Hockey is a tough, physical game, and it always should be. But what

happened Friday night on Long Island wasn t hockey. It was a travesty.

It was

painful

to watch the game I love turn into a sideshow like that...

The NHL had a chance to send a clear and strong message that those

kinds of actions are unacceptable and embarrassing to the sport. It

failed... We as a league

must

do a better

job

of

protecting

the

integrity

Hearings Before theSubcommittee on Crimeofthe Committee on theJudiciary House of

Representatives on H.R. 7903: Excessive Violence in Professional Sports, 9th Cong. 134-163 (1980).

26 http://www.myentertainmentworld.ca/2011 /02/mario-lemieux-speaks-out-alone/.

27 http://www.myentertainmentworld.ca/2011 /02/mario-lemieux-speaks-out-alone/.

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of the

game

and the safety

of our

players. We

must make it clear that

those kinds

of

actions will not be tolerated and will be met with

meaningful disciplinary action...

 f the events relating to Friday night

reflect the

state

of the league I need to re-think

whether

I want to be a

partof

it2

31. An article discussing

Lemieux's

remarks criticized the

NHL's

continuing decision

to keep violence in the game:

Violence in hockey persists for one simple reason: Today, as in 1975, the

men who control the game have no interest in eliminating it. Forget all the

familiar rationalizations and explanations. Any reasonable analysis would

conclude that players should not be policed by other players, that the

threat

of

retaliation should not be used to enforce good behaviour, that

 

infractions of the rules should not be used to market a sport.

32. The violent dynamic

of

the

NHL

is unique to the

NHL. Other

elite and

professional ice hockey leagues have a different style

of

play, including Olympic and European

ice hockey, where violence is a much less prevalent part of the game and fighting is nearly

eliminated.

The difference

is

largely attributable

to

the rules

of

the game, 30the enforcement

of

those rules, and rink conditions and equipment.

33. NHL rules permit and encourage violence. For example, prior to the 2010-11

season, bodychecking another player with the head as the primary point of contact was legal, and

28 http://www.myentertainmentworld.ca/2011 /02/mario-lemieux-speaks-out-alone/.

29

http://sports.nationalpost.com/2011/02/20/fighting-hockey-violence-a-losing-battle/

3

James Christie,

TakingRisks

On

the

Job,

THE

GLOBE

AND

MAIL

(CANADA),

Mar.

18,

1981

(discussing how NHL owners passed up the opportunity to rid hockey of fighting around 1976); James

Christie, Viewpoint NHLStickhandlesAround Problem, THE GLOBE AND MAIL (CANADA),

June 12, 1980 (discussing how the NHL affirmed that one-on-one fighting is permitted in the game).

David Shoalts, Shanahan AdvocateLargerIce SurfacesNarrowConfinesCauseInjuries, StarSays,

THE GLOBE AND MAIL (CANADA), Dec. 12, 1996, at C13;

Smith:Enlarging the Crease Could

Cut Hockey Violence,THE GLOBE AND

MAIL (CANADA), Feb. 2, 1983.

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31

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^

other forms

of

violent body checking remain legal today. Rule changes introduced since 2010

ostensibly to reduce head injuries in the NHL have been ineffective in reducing head injuries,

according to a 2013 study analyzing the effect of those changes. Rather, the study found that

between 2009-2011  most NHLconcussions resulted from

legal

actions where the aggressor

was

not

 assessed a penalty, fine orsuspension. 34

B. Fighting Is Prevalent

and

Accepted By th e NHL

i. NHL Considers Fight ing

to be P art

o f

th e Game

34. The

NHL

is unique among professional sports in that it condones and has

encouraged bare-knuckle fist-fighting and, unlike collegiate and Olympic hockey, the NHL

boasts that fighting is part of its game.

35. Several decades ago, former

NHL

President

Campbell

acknowledged that a rule

on the books against fighting was so rarely enforced that he was not surprised that an avid

follower of the game had not seen it enforced once in 25 years.

36. In a 1989 interview with The Wall Street Journal, then

NHL

president Ziegler

explained why the

NHL

would not put an end to fighting:

 Ifyou did that, you wouldn't be commissioner for long, said he.

 The

view of the 21 people who own the teams, and employ me, is that fighting

is an acceptable outlet for the emotions that build up during play. Until

they agree otherwise, it's here to stay. He added:  Themain question

32

Donaldson L, Asbridge M, Cusimano MD (2013) BodycheckingRules and Concussion in Elite

Hockey.

PLoS

ONE

8(7): e69122. doi:10.1371/journal.pone.0069122,

available at

http://www.plosone.org/article/info%3Adoi%2F10.1371%2Fjournal.pone.0069122. This study also

found that in a random sampling ofNHL concussions in 2009-11, [t]he most common cause ofNHL

concussion was bodychecking, with and without head contact (64.2%).

33

Id.

34

Id.

35

McMurtry,

supra, at

20-21.

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about fighting is, 'Does the customer accept i t? ' The answer, at present,

seems tobe yes. 36

37. Current NHL Commissioner Gary Bet tman, at a 2007 press conference broadcast

on CBC Sports, concurred that fighting is essential to the game: Fighting has always had a role

in the game . . . [W]e're not looking to have a debate on whether fighting is good or bad or

should be part of the game.

38. In 2013, in response to the uproar caused when a goaltender  wasnot suspended

for pummeling [an opposing player] because there is nothing in the rule book to use as

precedent, 38

Bettman again

praised the role

of

fighting

in

the NHL, calling fighting

a

  thermostat in hockey that helps cool things

down when

tensions

run

high.

39. On March 13, 2014, Deputy Commissioner Daly acknowledged in congressional

testimony

that  fighting

remains

a

small part

of

our game. 40

40. Although fighting has long been forbidden at other high levels of play, including

the Olympics and the NCAA, the

NHL

has refused to follow suit, despite incontrovertible

evidence that eliminating fighting would significantly reduce concussions. While fighting can

earn minor penalties in the NHL, the rules, as enforced, are not effective in reducing fighting,

and the league has consistently declined to implement stricter sanctions - such as automatic

game disqualifications - used in other leagues that can and do reduce or eliminate fighting.

36 Frederick Klein, On Sports: Less

Brawl, More

Teams, WALL S.J.,

Nov.

17,

1989.

37 Fighting

not

up for

debate:

Bettman,

CBC

Sports

(Mar.

26,

2007),

http://www.cbc.ca/sports/hockey/fighting-not-up-for-debate-bettman-l.661551.

38 http://sports.nationalpost.com/2013/ll/ll/nhl-commissioner-gary-bettman-says-debate-over-fighting-

getting-too-much-attention/.

39

http://sports.nationalpost.com/2013/11/11/nhl-commissioner-gary-bettman-says-debate-over-fighting-

getting-too-much-attention/.

Statement

of William

L. Daly Before the House

of

Representatives Committee on Energy and

Commerce ( Daly Statement ), Subcommittee on Commerce, Regarding Concussions in Sports

(Mar. 13, 2014), https://energycommerce.house.gov/hearing/improving-sports-safety-multifaceted-

approach.

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ii. Fighting Occurs at Epidemic Levels in the NHL

41. According to hockeyfights.com, as of the end of the 2013-2014 regular season,

fighting occurred with alarming regularity in NHL games, measured by the number

of

times that

at least one player received a fighting major penalty during a game (which underrepresents the

number

of

actual

fights

per

game), as shown

by

the following charts:41

41

Regular

Season

Stats

2013 -14 1230 469 0.38 366 29.76 78

-

2013 -14 1230 469 0.38 366

29 .76 78

288

2012-13

720 347

0.48

264

36.67

66 245

2011-12 1230 546 0 .44 423 34 .39

98 321

2010-11 1230

645

0.52

458

37.24 117

348

2009-10

1230

714

0.58

493

40 .08

171 341

2008-09 1230 734 0.60 509

41.38 173 355

2007 -08

1230

664

0.54

473

38.46 143 324

2006-07 1230 497

0.40

384

31.22 87 292

2005 -06 1230 466

0 .38 357 29 .02 80 276

2003-04

1230 789

0.64 506 41.14

172 340

2002-03

1230 668

0.54

464

37.72

139

321

2001-02

1230 803

0.65

519 42.20

172

348

2000-01 1230

684

0.56 469

38 .13

155 329

http://www.hockeyfights.com/stats/.

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P re se a son

Sta t s

jAjUL d^Ut

ffr jyMLifl^ljfc

Fights

P«r

f:

•t

l ionttMNi

  jfc^*^jjLjUf*

2013-14

104

100 0.96

59

56.73

20

149

2011 -12 108 72 0.67 49 45.37 16 115

2010-11

106

115

1.08

67

63 .21 33

183

2009 -10 109

164

1.50

74

67.89

50 209

2008-09

111 151 1.36

70

63 .06 44

183

2007-08 105 121 1.15 63

60 .00

30 164

2006-07

105

92

0.88

55 52.38 27

138

2005-06 111 108

0.97

67

60.36

29

138

2003-04 124 137

1 .10 79 63 .71

35 168

2002 -03 120 143 1.19

78 65.00 43

165

2001-02 109

122 1 .12

67

61 .47 35 168

2000-01

122 126

1.03

72

59 .02 31 167

These tables also make clear that fighting is not decreasing: for example, the 2013-14 season saw

more fights than the 2005-06 season. A NHL general manager, who has been identified in the

media as a proponent of fighting in the league, acknowledged recently that fighting is worse now

than it used to

be.42

42. The NHL continues to permit fighting, and remains undecided on how to handle

fighting in the league, as acknowledged by Deputy Commissioner Daly in recent congressional

testimony on March 13, 2014:

[F]ighting remains a small part of our game

 

The role

of

fighting

continues to be a hot topic in our game and one which engenders a broad

spectrum of opinions and debate. As a League, we continue to search for

a consensus as to how best to serve the interests of all constituent groups

in the game on the issue - including our fans, our teams, and our Players.

42

http://www.nhl.com/ice/news.htm?id=413255. The article quotesToronto GM Brian Burkeas saying:

 It usedto be that ifyou got hit like that you'd come back to the bench and your teammates would say,

'Keep your head up, what were you thinking?' Now somebody fights for you. It used to be maybe

only one playeron every team got that level of protection, now it's any teammate that gets hit.

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To this point, that consensus has proved elusive, including with and as

among our

Players.

43. Specific recent examples of fighting set forth herein illustrate the current nature,

prevalence and tolerance

of

fighting in the league.

44. Former NHL president Campbell once acknowledged the type

of

pressure facing

players to fight:

McMurtry:

And right now it is extremely difficult for the player who is

being provoked and being pushed to turn his back and appear to be

running....

* * *

McMurtry:

To have the sanction there

of

being embarrassed and

ridiculed and to be discussed among your peers and your coach and many

millions of fans, that is

no t

one of the most difficult decisions in the

world

for a person, to turn his back and not fight?

Campbell: /

didn t say it wasn t difficult.

I said it is an alternative.

(Italics in original.)

McMurtry: Then if

you will agree it is a very difficult alternative, it is

apparently what you call the free alternative. (Italics in original.)

Campbell:

All right.

(Italics in original.)

McMurtry: There is incredible pressure and duress on that player not to

t ur n h is

back - is that not true?

Campbell: I don't think it is as great as you say, but it is real. (Italics in

original.)

McMurtry: There is a

real pressure and duress

on

that player

to

stand

his

ground and

to

fight

Campbell:

I think

so yes yes. (Italics

in

original.)44

43 Daly

Testimony, supra,

available

at

http://democrats.energycommerce.house.gov/sites/default/files/documents/Testimony-Daly-CMT-

Sports-Safety-2014-3-13 .pdf.

44

McMurtry,

supra, at

19-20.

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NGERS

O F

H E T R U M IN NHL

45. Studies confirm that concussions occur at epidemic levels in the NHL, leaving

players with severe disabilities and the risk of further disabilities. The examples of debilitating

head trauma in

NHL

hockey players described in this complaint further illustrate the scope and

nature of the crisis faced by the league. The crisis is exacerbated by the

NHL's

refusal to

eliminate fighting, and other excessive violence, from the game.

A.

Epidemic Levels of Head

Trauma

in NHL

46. Recent studies have confirmed that there is a head-trauma epidemic in the NHL.

In 2011, the

NHL

published a report on the incidents of concussions during regular season play

between 1997-2004. The results were staggering: team physicians reported 559 concussions

during this seven year period, excluding concussions sustained in preseason, playoffs, and

practice.45

47. An academic study published in 2008 conservatively estimated the number of

concussions suffered in each of the

previous

10 NHL seasons.46 These

estimates

were based on

sources such as media reports, rather than internal

NHL

data, because, as the authors lamented,

the

NHL

was still refusing to publish any part of its internal data from the NHL's 1997-2004

concussion study at that time. The

study's

estimates of concussions were as follows:

45

http://www.ncbi.nlm.nih.gov/pmc/articles/PMC3091898/

46

Wennberg

RA, Tator CH (2008)

Concussion

incidence and time lost from play inthe NHL during the

past ten years. Can J Neurol Sci 35: 647-51, available at

http://cjns.metapress.com/content/9610466p85w93551/fulltext.pdf

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Season

Concussions*

Penalties*

Power Plays*

Median (mean) number games

missed per concussion ± standard

deviation

97-98 72

16,899

11,405

4

(8.6)

±15.5

98-99 8 9

14,974 10,773

3(6.9)* 11.4

9 9 - 0 0

8 0 13,614

9,925

4

(5.7) ±6.2

00-01

8 4

14,907

11,282

5 8 .8 1 ± 13.1

01-02 67

14,126

10,154

4 (10.4) ±16.2

02-03

7 9

14,164

10,876

5

(133) ±18 .0

03-04

7 0

14,144

10,427

7

(14.7)

±18.8

0 5 - 0 6 51

16,913 14,390

5 (102) ±15.2

0 6 - 0 7 5 8

14,515 11,935

6 I 3 . l ) ± 1 8 . 3

0 7 - 0 8

62

13,450 10,536

6 (12.6) ±18.3

48. Another academic study, published in 2013, made a conservative estimate that

the following numbers

of

concussions or suspected concussions were suffered during the 2009-

2012

regular

seasons:47

Concussions & Suspected Concussions

2009-10 NHL Regular Season

68

2010-11 NHL Regular Season

1 0 7

2011-12

NHL

Regular

Season48

120

49. Statistics from the 2010-2011 season showed that every posi tion is affected by

concussions and that players are concussed at epidemic levels

.49

48

49

Donaldson L, Asbridge M, Cusimano MD (2013) Bodychecking Rules

and

Concussion in Elite

Hockey. PLoS

ONE

8(7): e69122, available at

http://www.plosone.org/article/info%3Adoi%2F10.1371%2Fjournal.pone.0069122#pone.0069122-

Wennberg1

Of

the 120 concussions and suspected concussions in 2011-12 season, 86 were categorized as

concussions.

http://www.diehardsport.com/featured/concussions-continue-cripple-nhl-statistics/

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NHL Players Suffering

At Least

One

Concussion By

Position

2010-2011

Goalies

50. The 2013-14 season began with a 30% increase in concussions over the prior year

through the first three weeks of the season. During that time, from October 1-20, 2013, at least

10

NHL

players

suffered concussions or apparent

concussions.50

51. Many of these statistics on the frequency of concussions in NHL underestimate

the actual number

of

concussions because teams are not equipped, or motivated, to properly

diagnose and report concussions. For example, the following chart shows the number of

concussions reported by NHL teams in 2010-2011:

5 http://o.canada.com/sports/nhl-hit-with-30-increase-in-concussions-this-season

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Number

of Concussions Reported

by

T e a m 2 0 1 0 - 2 0 1 1

52. Only one team reported 10 concussions, the NY Islanders reported 6 concussions,

and the rest

of

the league reported 5 or less concussions. It is highly unlikely that players in

Colorado were at least twice as likely to sustain head injuries. For more likely and plausible,

other teams are not equally well equipped to properly diagnose and report concussions.

53. The following concussions

from just the first 3 weeks of th e most recent

NHL

season underscore the severity of the current crisis:

Oct. 1, 2013: George Parros, Montreal, concussion sustained during fight with

Colton

Orr o f Toronto.

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PHOTO:

Dario

Ayala/Montreal Gazette

Montreal

CanacJiens George

Parros f al ls on

the

ice aft er a fight with

Toronto

Maple

Leafs Colton

Orr

Oct. 4, 2013: Roman Josi, Nashville, initially listed as an upper-body injury, was

concussed by controversial hit from Steve Downie, Colorado, who got a charging

minor.

Oct. 8, 2013: Rick Nash,

New

York Rangers, concussed by an elbow from Brad

Stuart, San Jose.

Oct. 13, 2013: Ryan Clowe, New Jersey, on injured reserve listed as head injury,

thought to be a concussion. Was hit with elbow to the head from Winnipeg's

Jacob

Trouba.

Oct. 14, 2013: Keith Ballard, Minnesota (upper body) has missed four games after

being hit in the face with a puck. Concussion hasn't been confirmed but is

suspected.

Oct. 15, 2013: Dan Boyle, San Jose, pushed face first into dasher board by Maxim

Lapierre, St. Louis. Boyle was placed on injured reserve with head injury.

Oct. 17, 2013: Niklas Kronwall , Detroit, concussion after being boarded by Cody

McLeod,

Colorado.

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55. The concussion epidemic in the

NHL

is not new and has always been a part of the

game, even

if

concussions and head trauma were not diagnosed as frequently in the past. In

1998, a Canadian news article documented how frequent concussions were for

NHL

players at

the time, stating:

Concussions have become an epidemic in the NHL over the past several

years, striking everyone from marquee players to fourth-line checkers.

* * *

According to statistics provided by the NHL, 60 players had concussions

last season during the regular season and the playoffs. As

of

early

February this season, 56 players already had received concussions.

B. Scientific

Evidence

of

Dangers

of

Head

Trauma

56. Medical science has known for many decades that repetitive and violent jarring of

the head or impact to the head can cause MTBI with a heightened risk of long term, chronic

neuro-cognitive sequelae.

57. The NHL has known or should have known for many years that the American

Association of Neurological Surgeons (the  AANS )has defined a concussion as  aclinical

syndrome characterized by an immediate and transient alteration in brain function, including an

alteration

of

mental status and level

of

consciousness, resulting from mechanical force or

trauma. The AANS defines traumatic brain injury ( TBI ) as:

a blow or jolt to the head, or a penetrating head injury that disrupts the normal

function of the brain. TBI can result

when

the head suddenly and violently hits an

object, or when an object pierces the skull and enters brain tissue. Symptoms of a

TBI can be mild, moderate or severe, depending on the extent of damage to the

brain. Mild cases may result in a

brief

change in mental state or consciousness,

while severe cases may result in extended periods of unconsciousness, coma or

even

death.

52

Maureen Delany, NH L struggles with efforts to

prevent

concussions Bell

Ringers

/ They

don

 tjust

makeplayers see stars. Theycan end a season, or even a career, THE GLOBE AND MAIL

(CANADA),

Mar. 24, 1998, at SI 1.

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58. The NHL has known or should have known for many years that MTBI generally

occurs when the head either accelerates rapidly and then is stopped, or is rotated rapidly. The

results frequently include, among other things, confusion, blurred vision, memory loss, nausea,

and sometimes

unconsciousness.

59. Medical evidence has shown that symptoms

of

a concussion can reappear hours or

days after the injury, indicating that the injured party has not healed from the initial blow.

60. According to neurologists, once a person suffers a concussion, the person is up to

four (4) times more likely to sustain a second one and each successive concussion increases the

seriousness of health risks and the likelihood of future concussions. Additionally, after suffering

even a single concussion, a lesser blow may cause the injury, and the injured person requires

more tim e to recover.

61. Clinical and neuropathological studies by some

of

the nation's foremost experts

have demonstrated that multiple concussions sustained during an NHL player's career can cause

severe cognitive problems such as depression and early-onset dementia.

62. Repeated head trauma can also result in so-called Second Impact Syndrome, in

which re-injury to a person who has already suffered a concussion triggers swelling that the skull

canno t accommodate .

63. Repeated instances

of

head trauma also frequently lead to Chronic Traumatic

Encephalopathy ( CTE ), a progressive degenerative disease of the brain.

64. CTE involves the build-up of toxic proteins in the brain's neurons. This build-up

results in a condition whereby signals sent from one cell to thousands of connecting cells in

various parts of the brain are not received, leading to abnormal and diminished brain function.

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65. CTE is found in athletes (and others) with a history

of

repetitive concussions.

Conclusive studies have shown this condition to be prevalent in retired professional hockey

players who have a history of head injury.

66. This head trauma, which includes multiple concussions, triggers progressive

degeneration of the brain tissue. These changes in the brain can begin months, years, or even

d ec ad es a fte r th e

last

concussion

or

the end

o f active

a th le ti c i nvo lvemen t. The

brain

degeneration is associated with memory loss, confusion, impaired judgment, paranoia, impulse-

control problems, aggression, depression, and eventually progressive dementia.

67. In a study at the Boston University Center for the Study

of

Traumatic

Encephalopathy and the Veterans Affairs Boston Healthcare System, in collaboration with the

Sports Legacy Institute, neuropathologists confirmed CTE in four deceased NHL players who

died after exhibiting signs

of

degenerative brain disease.

68. For almost a century, while unnecessary violence, including brutal fighting, has

permeated NHL games, the NHL has been on notice that multiple blows to the head can lead to

long-term brain injury, including, but not limited to, memory loss, dementia, depression, and

CTE and its related symptoms. There have been legions

of

studies throughout the eras proving

these negative health consequences.

69. In 1928, pathologist Harrison Martland described the clinical spectrum

of

abnormalities found in almost 50 percent of fighters [boxers] . . . if they ke[pt] at the game long

enough (the Martland study ). The article was published in the Journal

of

the American

Medical Association. The Martland study was the first to link sub-concussive blows and mild

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concussions to degenerative brain disease. There were many subsequent studies published

regarding the dangers of athletic head trauma.

70. For example, in 1937, the

U.S. Naval Medicine Bulletin

published a paper titled

Dementia

Puglilistica.54

In

1941,

JAMA

published

an

article titled

The

Medical

Aspect

of

Boxing.

In 1952,

JAMA

published a study

of

encephalopathic changes in those suffering

repeated blows

to

the head, focusing

on

professional boxers.56 That same year,

an

article

published in the New England Journal of Medicine recommended a three-strike rule for

concussions in hockey

 i.e.,

recommending that players cease to play hockey after receiving their

third concussion).

71. In 1956, the Journal

of

Neurology, Neurosurgery and Psychiatry published a

paper titled Diffuse Degeneration of the Cerebral White Matter in Severe Dementia Following

Head Injury.57 In 1959, the Journal ofMental Science published a paper

titled

Observations on

the

Pathology

of Insidious Dementia

Following

Head Injury.58

In

1959,

the Canadian Medical

Association Journal published a study titled Puck Aneurysm, in which it stated:

Although it is well known that to be struck in the head by a hockey puck

cannot be an entirely benign event, it is perhaps insufficiently appreciated

that a regulation hockey puck weights 165 grams and may travel at a

velocity in excess of 120 feet per second. When such a missile strikes the

head, delayed as well as immediate sequelae cannot be wholly unexpected.

In the cases reported here, it may be felt that the patients got of f lightly,

but on the other hand, it can be pointed out that in both instances the

53 Harrison S. Martland, M.D., Punch Drunk, 91 JAMA 1103 (1928).

54 J.A. Millspaugh,

Dementia

Pugilistica, 35 U.S. NAVAL

MED.

BULLETIN 297 (1937).

55

Ernst Joki, M.D.,

The

Medical

Aspect

of

Boxing,

117

JAMA

25

(1941)

Ewald W. Busse, M.D., Albert J. Silverman,M.D.,Electroencephalographic

Changes

inProfessional

Boxers, 149 JAMA 1522 (1952).

SabinaJ. Strich,Diffuse Degeneration

of

theCerebral White Matter inSevere Dementia Following

Head Injury, 19J. NEUROL., NEUROSURG. AND PSYCHIATRY 163 (1956).

J.A.N. Corsellis, JB Brierley,

Observations on thePathology

of

Insidious DementiaFollowingHead

Injury, 105 J. MENTAL SCI. 714(1959).

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injuries could have been prevented

by

the wearing of a suitably designed

protective helmet.59

72.

In

1962, JAMA published

an

article

titled Protection of the Head and Neck in

Sports, in which it concluded,  Helmets for

use

in

one

sport might not

be satisfactory

for

another. Individual design ofthe helmet for each sport ismandatory ifmaximum protection is

to

be obtained. In 1966,

the

Journal of Neurology published a paper titled Concussion

Amnesia. In 1968, the

Journal

of

Neurochirurgia published a paper titled

Brains ofBoxers.61

In 1968, the

Canadian Medical

Association

Journal published

a

study titled Severe Brain Injury

and Death Following Minor Hockey

Accidents:

The Effectiveness of

the

 Safety

Helmets

of

Amateur

Hockey

Players.

The

study noted

the

death

of

NHL

player

Bill Masterton

resulting

from head trauma he

suffered

during anNHL game.63

73 . The

article

then

concluded:

The ideal

protective

hockey helmet, therefore, should

be able to

protect

the

players against blows

and

falls.

The

shell

and

the suspension

apparatus ofthehelmets

should

be

able

to cushion enough ofthe impact of

falls and

blows to

reduce

the transmitted accelerating or decelerating

velocity of the head blow by the 30 ft. per second danger threshold found

by

White and

associates,

and below

the

425

lbs per

sq. in.

pressure

found

by Gurdjian. Apparently

30

ft. per second

is

the upper limit

of

impact

velocity which

the human

brain can suffer without experiencing cerebral

concussion. Likewise, 425

lbs. per sq.

in.

is the

approximate upper

limit

of pressure which the human skull can withstand without fracture.

59

60

61

62

63

J.S. Campbell,

M.D.,

Pierre Fournier,

M.D.,

D.P. Hill, M.D., PuckAneurysm, 82

CAN.

MED.

ASS'N

J. 923 (1959).

ES

Gurdjian,

M.D.,

HR

Lissner,

M.S.,

LM

Patrick,

M.S.,

Protection

of

the

Head and

Neck

in

Sports,

182 JAMA 509 (1962).

C.Miller

Fisher, Concussion

amnesia, 16

NEUROLOGY 826

(1966).

EE

Payne,

Brains ofboxers, 5

NEUROCHIRURGIA 173 (1968).

John

F.

Fekete,

M.D.,

Severe

Brain Injury and

Death

FollowingMinor

Hockey Accidents

99

CAN

MED.

ASS'N

J. 99 (1968) 1234.

64 Mat 1238.

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74. In 1969, JAMA published an article, titled Ice Hockey Can be Safer, noting the

imminent risk of head trauma to ice hockey players. The article stated:

Physicians have played some role in making the wearing

of

protective

helmets compulsory in amateur hockey on this continent. But we must not

presume that this regulation of i tself can eliminate serious head injury or

death. Patently, not all the helmets in use are sufficient. We must

encourage, support, or initiate research to produce more effective

equipment.

75. In 1969, the British Journal

of

Psychiatry publ ished a paper titled Organic

Psychosyndromes due to Boxing.

In 1969, Anthony Roberts published a study titled

Brain

Damage in Boxers: A study of the prevalence

of

traumatic encephalopathy among ex-

professional

boxers.6*

76. In 1970, The Lancet published a paper titled Retrograde Memory Immediately

After

Concussion.69 In

1970,

Medical &

Science

in

Sports published

an article

titled The

effectiveness of a special ice hockey helmet to reduce head injury in collegiate intramural

hockey.70

77. In 1973, a disabling and sometimes deadly condition involving the second impact

concussion occurring before symptoms of a first concussion was described by R.C. Schneider.

This later was coined the Second Impact Syndrome in 1984. In 1973, Psychology Medicine

65

Ice Hockey

Can be

Safer,

207

JAMA 1706

(1969).

66 Id.

67 John Johnson

M.D., M.R.C.P.E.,

D.P.M., Organic Psychosyndrome due

to

Boxing, 115 THE BRIT.

J.

PSYCHIATRY

45 (1969).

68

ANTHONY HERBERS ROBERTS, BRAIN DAMAGE

IN

BOXERS:

A

STUDY

OFTHE

PREVALENCE

OF

TRAUMATIC ENCEPHALOPATHY AMONG EX-PROFESSIONAL

BOXERS, London: Pitman Med. & Scientific

Publ'g

Co., Ltd., 1969.

69 PR

Yarnell,

SLynch, Retrograde Memory ImmediatelyAfter

Concussion,

295

THE

LANCET 863

(1970).

Jess F. Kraus, Bruce D. Andersonm, C.E. Mueller, Theeffectiveness ofa special ice hockey helmetto

reduce head injury in collegiate intramuralhockey, 2

MED. & SCI. IN SPORTS 162 (1970).

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published a study titled The

Aftermath

ofBoxing

J{

In 1974, the Journal ofBrain published a

paper titled,

Cerebral Concussion and Traumatic Unconsciousness: Correlation

of

experimental

7 9

and clinical observations ofblunt head injuries.

In 1974,

The Lancet

published a study titled

Traumatic

Encephalopathy in a Young Boxer. That same year, The Lancet also published a

study titled, Delayed Recovery of

Intellectual

Function AfterMinor

Head

Injury™

In 1975,

The

Lancet published an article

titled

Cumulative

Effect

of Concussion.75 In

1975,

the Minerva

Medical Journal published an article titled Ice Hockey Accidents, discussing, inter alia,

concussions.76 In

1978,

Aging published a

study

titled Posttraumatic

Dementia.17 The next year,

the

BritishJournal

of

Sports Medicine

published a study titled

Association Football Injuries to

7 8

the Brain: A Preliminary Report.

78. In 1980, the Canadian Journal

of

Applied Sports Science published an article

titled, Puck Impact Response of Ice Hockey Face Masks.79

79. In sum, as the NHL extracted vast sums

of

money by selling its violent

commodity, numerous studies were published in scores

of

peer-reviewed journals warning

of

the

dangers of single concussions, multiple concussions, and contact sports-related head trauma from

multiple concussions. These studies collectively and conclusively established that:

71 J.A.N.

Corsellis,

CJ Bruton, DFreeman-Browne, The Aftermath

of

Boxing, 3 PSYCHOLOGICAL

MED.

270

(1973).

AK Ommaya, TA Gennarelli,

Cerebral Concussion and

Traumatic

Unconsciousness: Correlation

of

Experimental and Clinical Observations ofBluntHeadInjuries, 97 BRAIN 633 (1974).

PK Harvey, JN Davis, Traumatic Encephalopathy in a Young Boxer, 2 THE LANCET 928 (1974).

D Gronwall,P Wrightson,Delayed

Recovery of

Intellectual

Function

After

Minor

HeadInjury, 304

THE LANCET 605 (1974).

75

D

Gronwall,

P

Wrightson,

Cumulative

Effect

of

Concussion,

306 THE LANCET 995

(1975).

76

PMuller, K

Biener, Ice Hockey Accidents, 66

MINERVA

MED. 1325 (1975).

77 J.A.N.

Corsellis,

Posttraumatic

dementia,

7AGING 125 (1978).

78 ATysvaer, O

Storli,

Association

Football Injuries

to the

Brain: A

Preliminary

Report, 15

BRIT. J.

OF

SPORTS MED. 163(1981).

7 9

RWNornam, PJ Bishop, MR Pierrynowski, Puck impactresponse

of

ice hockeyface masks, 5 CAN. J.

APPLIED SPORT SCI. 208 (1980).

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repetitive

head

trauma

in contact sports, including boxing and football, has potential

dangerous long-term effects on brain function;

encephalopathy (dementia pugilistica) is

caused

in

boxers

by repeated sub-concussive

and concussive blows to the head;

acceleration and rapid deceleration of the head that results in brief loss of

consciousness in primates

also

results in a tearing ofthe axons (brain cells) within the

brainstem;

with respect to mild head injury in athletes

who

play

contact

sports, there is a

relationship betweenneurologic pathologyand length

of

the athlete's career;

immediate retrograde memory issuesoccur following concussions;

mild

head

injury requires recovery time without risk

of

subjection

to

further injury;

head trauma is linked to dementia;

a hockey player who suffers a concussion requires

significant

rest

before being

subjected to further contact; and,

minor

head

trauma

can

lead

to

neuropathological and neurophysiological alterations,

including neuronal damage, reduced cerebral blood flow, altered brainstem evoked

potentials and

reduced speed

of information processing.

80. Rule 4.2.14 of the World

Boxing

Council's Rules and Regulations states:

 [b]oxers

that

suffered

concussion

by KO [loss of consciousness], should not participate in

sparring sessions

for

45

days and

no

less than

30 days

after concussive trauma, including

but not

limited

to

KO's, and should

not compete ina boxing match in less

than

75

days.

81. At the end of 1991, the Colorado

Medical

Society published

concussion

research

that

they

had been working on

since the death of a high

school student

from

second

impact

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syndrome. The paper outlined clear guidelines on the appropriate response to suspected

concussions.

82. According to the Colorado Medical Society guidelines, a Grade I concussion

consists of confusion only, Grade II includes confusion and post-traumatic amnesia, and Grades

III and IV involve a loss

of

consciousness. By these guidelines, an athlete who has suffered a

concussion may return to sports after having been free of symptoms, both at rest and during

exercise, as follows:

(a) Grade I - first concussion: 15 minutes; second concussion: one week.

(b) Grade II - first concussion: one week; second concussion: two

weeks

(with

physician approval).

(c) Grade Ilia (unconscious for seconds) - first concussion: 1 month; second

concussion: six months (with physician approval).

(d) Grade Illb (unconscious for minutes) - first concussion: six months; second

concussion: one year (with physician approval).

83. In response to the publication of the Colorado Medical Society guidelines, the

NCAA and high school teams almost immediately adopted the new, stricter guidelines on how to

care for injured players.

84. In 2000, the Clinical Journal of Sport Medicine published an article titled Risk of

Head and Neck Injuries in Ice Hockey with Full Face Shields or HalfFace Shields.

85. In 2001, The International Ice Hockey Federation, in partnership with the

Federation Internationale de Football

Associa tion Medical

Assessment

and

Resear ch Cent er and

the International Olympic Committee Medical Commission, organized the first International

Symposium on Concussion in Sport, and convened in Vienna.

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86.

Faced with the

increasing incidence

of

concussions and

head

injuries

in ice

hockey

and

other

sports,

the International

Symposium

on Concussion in

Sport gathered

the

leading medical

experts

from all

parts of

the world and from

a

wide sampling

of

different sports,

experienced

in

dealing with sports-related head injuries.

The

objective

of

the symposium

was

to

understand, as completely as possible, what actually takesplacewhen severe

blows

to the head

occur,with the goalof eliminatingconcussions in all sports.

87.

One of the papers presented at the first International Symposium on Concussion

in Sport

2001,

titled

Procedures After Minor Traumatic

Brain

Injury mTBI

In Ice Hockey to

Prevent

Neurological

Sequelae,

noted

that, during

the

15 years

preceding the

symposium,

the

proportion of

mTBI

(mild traumatic brain injury) to theoverall number of injuries inthe sport of

icehockey generally

increased

from

2%to 20%, andintheNHL specifically,

increased

from 2%

in the 1989-1990

season

to

8%

in

1999-2001 seasons. The authors recommended that

any

confused player with

orwithout amnesia

should be

taken off

the ice

and not bepermitted to

play

again for at least 24 hours.

88.

In

2004,

the International Symposium on Concussion in Sport reconvened in

Prague with

the

aim

of providing

recommendations for

the

improvement

ofthe

safety and health

of

athletes who

suffer

concussive

injuries

in

ice hockey,

rugby,

football, and other sports

based

on the

most up-to-date research. These experts

recommended that a player never be

returned

to

playwhile symptomatic, and coinedthe phrase, when in doubt, sit themout.

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89. In 2004, the Clinical Journal of Sport Medicine published an article titled Head

Injuries Presenting to Emergency Departments in the United States From 1990 to 1999 for Ice

Hockey, Soccer, and Football. The results of the study found:

There were an estimated 17,008 head injuries from ice hockey, 86,697

from soccer, and 204,802 from football that presen ted to US EDs from

1990 to 1999. The total number of concussions presenting to EDs in the

United States over the

same

period was estimated to be

4820

from ice

hockey, 21,715 from soccer, and 68,861 from football. While the rates of

head injuries, concussions, and combined concussions/internal head

injuries/skull fractures presenting to EDs per 10,000 players were not

always statistically similar for all 3 sports in each year data were available,

Q 1

they

were usually comparable.

90. The study concluded: While the total numbers of head injuries, concussions, and

combined concussions/skull fractures/internal head injuries presenting to EDs in the United

States are different for ice hockey, soccer, and football for the years studied, the yearly rates for

8 9

these injuries are comparable among all 3 sports.

91. In 2011, the

Clinical Journal ofSports Medicine

published an article titled

Sport-

Related Concussions:

Knowledge

Translation Among Minor Hockey

Coaches.*3

The

study

investigated minor hockey coaches' knowledge

of

sport-related concussions, and found that the

majority of coaches correctly recognized and understood the issues related to sports-related

concussions.84

8

J.

Scott Delaney,

Head

injuries

presenting

to

emergency

departments

in the

UnitedStates

from 1990

to 1999

for

ice hockey, soccer, andfootball, 14 CLINICAL J. SPORTS MED. 80 (2004.).

81 Id.

82 Id.

83 Martin Mrazik,

et al.,

Sport-related concussions: knowledge

translation amongminor hockey coaches,

21 CLINICAL J. SPORTS

MED.

315 (2011).

84

Id.

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92. In 2012, the Clinical Journal of Sport Medicine published an article titled

 

Eliminate Head-Checking in Ice Hockey. The article states:

Although findings have not been universally confirmed or accepted, 8

most studies suggest that multiple concussions can lead to permanent

functional impairment as a result

of

cumulative brain trauma. In most

head injuries occurring during athletic activity, there is a significant

acceleration, and diffuse damage may occur even if the coverings of the

brain

a re n ot b ro ac he d

. . .

We feel that the medical profession needs to raise awareness and to

advocate for a  nohead-checking rule, for stricter rule enforcement and

more vigorous penalization. The proposed  no head-checking rule

should be implemented in all levels of hockey and in all locations where

ice hockey is played. Everyone must send the message that there is no

role for the head as a target in ice hockey. We simply must have a  no

head-checking rule

in

all

ice

hockey.86

93. In 2012, the Clinical Journal of Sports Medicine published an article titled

8 7

Concussion reporting rates at the conclusion

of

an intercollegiate athletic career. The article

concludes:

Overall, 49.7% of all respondents (80/161) reported 1 acknowledged,

unreported, or potential concussion. The unreported rate was lower than

previous high school studies; however, the potentially unrecognized rate

remains high and should be clinically concerning. These findings suggest

educational interventions targeting collegiate student-athletes should

remain and continue to focus on identifying concussion symptoms and

dispelling the common misconception that 'bell ringers' and 'dings' are

88

n o t concu s s i on s .

94. The authors of a 2013 scholarly article on

NHL

concussions also reviewed 10-

week random samples of game films for concussions between 2009-2011 and categorized the

causes of concussions as blindsiding (checking from the

player's

bl ind side with primary

85

86

87

Tom Pashby, MD, et al.,

Eliminate Head-Checking in Ice Hockey,

11 CLINICAL J. SPORTS MED.

211 (2001).

Id

Tracy Llewellyn, et al., Concussion reporting rates at the conclusion ofan intercollegiate athletic

career,

24

CLINICAL

J.

SPORTS MED.

76 (2014).

88

Id.

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contact

to the head), other

checking

to the head, checking to the body,

fighting,

non-contact or

collision

with a

teammate,

hit by a

stick

or hit

by

a puck. 89

Among other

findings,

the article

found:

a. Themost

common

cause ofNHL concussion was bodychecking, withandwithout

head contact (64.2%). By contrast, only 4.9% of concussions were due to

 unintent ional act ions.

b.

12.2%

of concussions were caused when players were hit by pucks. Mostof the

players

injured

in thismanner resulting

also

in

facial

fractures were not

wearing

a

visor at the time (6 of 7 cases).

c. 51.2% of all incidents involved a secondary contact of the head after the initial

impact, most commonly to the boards or ice

C. Scientific Evidence

of

Dangers

of

Fighting in NHL

95. In addition to the articles above, other scientific evidence demonstrates the

dangers of fighting in the

NHL, even though

the

NHL continues

to deny that

there

is any danger.

A 2013 scholarly article analyzing

NHL

concussions also found that those engaging in more

fights were also ata higher risk ofa concussion orsuspected concussion. 90 Fighting

was

a large

cause

of

concussions

analyzed. For example, of the 55

concussions randomly

analyzed in

2010,

7 (12.7%) were the result of fighting. Thearticle also found that [i]llegal incidents, where the

aggressor was assessed a penalty, fine or suspension, accounted for 28.4%

of

cases for

concussion,

and that, when a

concussion resulted,

the most

common penalty called was

fighting

(32.3%).

The study found it  notable that  fighting and bodychecking

causing

secondary contact of the head with the boards or ice caused more NHL concussions than

blindsiding,

and these

incidents

are

not

covered

by

head

checking rules

in

either league.

The

Bodychecking

Rules,

supra.

BodycheckingRules, supra.

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article

suggested

that  aban on

fighting

or a harsher

penalty

for

those

involved in

fights

may

 need

tobe

implemented

in

[NHL and another

league] in

order

to

better

protect the

players.

96. Derek Boogaard was the

first

of three current or

former

NHL players (with Wade

Belak

and

Rick Rypien)

who

died

in the

summer

of

2011.

All

three players

were

considered

enforcers

~ guys for who fight more frequently than

their

teammates.91 According

to

the

press,

 [o]nlyBoogaard'sbrainwasstudied postmortem, andCTEwas found. 92

97. A scientific study in 2011 concluded that fighting is a common cause of

concussions in youth hockey. The study  followed two Ontario

junior

teams

over 52 games

in

2009-10, with independent clinicians conducting in-game examinations of players suspected of

having concussions. They

found

that of 21 diagnosed concussions, 5 were the result of

fights 93 According

to

apress report, Dr. Michael Stuart ofthe Mayo Clinic, the chiefmedical

officer for USA

Hockey

and

an

expert

on head

trauma, commented

on the

report and  said

he

wasnot surprised that fighting carries an increasedrisk of concussion. 94

 V THE NHL s

KNOWLE GE

OF

HE TR UM

RISKS

 N

NHL s  UTY

98.

Throughout

its

history,

the

NHL

has,

and

should

have,

kept abreast

of scientific

studies

into

the dangers

of

head

trauma

and

it

knew, and

should

have known, the known negative

health risks

of head

injuries. For decades,

the

NHL

has

been

aware

that multiple

blows to

the

head can lead to

long-term brain injury, including

but not

limited

to memory loss, dementia,

depression, andCTEand its relatedsymptoms.

http://www.nhl.com/ice/news.htm?id=605081

http://www.hockeywilderness.eom/2013/2/ll/3974248/nhl-concussion-policy-is-it-broken

93 http://www.nytimes.com/201

l/03/03/sports/hockey/03hockey.html

94

http://www.nytimes.com/201 l/03/03/sports/hockey/03hockey.html

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99. Rather than take immediate measures to protect its players from these known

dangers, it was

not until

1997 that the NHL launched a

concussion

program

study ostensibly to

improve the understandingofhead injuries.

A. NHL s 1997 Concussion Program Study

100. The stated purpose of the 1997 NHL

concussion

study was  to examine

concussion from

a

scientific perspective

and to better understand its

natural

history

and

contribute new knowledge to the field.

The

objectives of the study were to determine

rates

of

concussion

and

trends

related to concussion in the NHL, to descriptively

explore

initial

postconcussion

signs, symptoms,

physical examination findings

and

time loss (i.e., time between

the injury and medical

clearance

by the

physician

to

return

to

competitive

play), and

to

assess

the

utility of initial

postconcussion

clinical

manifestations

as

predictors

of

time loss among male

professional ice-hockey players.

101.

The

method

used by the

1997 NHL

concussion

study

was to collect concussion-

related data from NHL team

doctors

over seven NHL regular seasons, from 1997-2004. The

team

physicians

were

mandated

by

the league

to

document

all

concussions

sustained

during

regular

season

games,

using standardized injury report forms that evaluated concussion systems,

andthe time when players returned to action.95

102.

Even though

the

NHL concussion study

began collecting data in

1997,

the NHL

did not publish

any

results

from this study until 2011. The

2011

NHL concussion report

analyzed how

some

symptoms and circumstances correlated with the severity and risks

of

concussions.

95 Id.

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103.

According

to the

report, team physicians reported

559

concussions during

regular

season

games.96

The

estimated incidence was 1.8 concussions per 1000 player-hours and 5.8

concussions

perplayer per season.97

104.

The 2011 report also

found that

almost 20%

of

players returned

to play during the

same

game

they

suffered the concussion, and in nearly 10% of cases they returned to play after

seeing a team physician.

105.

The

2011 report

included

the following findings that directly

relate

to

how

the

symptoms and circumstances of concussions contribute to health risks:

a. Several symptoms were found to be significant predictors of time loss

(headache,

low

energy

or fatigue,

amnesia, and abnormal neurologic

examination). These

findings are of use to physicians, medical

support

staff, players, coaches

and management,

given

that they have

prognostic

utility for

assessing

concussion severity a t t he t ime of injury.

b.  Time

loss

significantly increased for every subsequent (repeat) concussion

sustained during the study period, as well as for each increase in the number

of postconcussion symptoms experienced.

c. In 27% percent of instances of concussion in which the player continued to

play

without

game-time medical evaluation,

more

than 10

days

of

time loss

resulted.... It is becoming more apparent that athletes with acute concussion

experience functional or cognitive impairment and reduced reaction times. It

is possible that continued exertion in the immediate postconcussion period

may exacerbate the injury or increase a player's susceptibility to further

injury,

which may

ultimately increase severity

and

prolong recovery.

106.

The

authors

concluded:

Our results suggest that more should be done to educate all involved with

the sport about the potential

adverse

effects associated with continuing to

play while symptomatic, failing to report symptoms to medical staff and

failure

to

recognize

or

evaluate

any

suspected concussion.

Our findings

96

97

Brian W. Benson et. al,

A

prospective study

of

concussions amongNationalHockey Leagueplayers

during

regular season

games:

the NHL-NHLPA Concussion Program, Canadian Medical

Ass'nJ

May

11,2011,905-911.

Id

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also suggest that more conservative or

precautionary

measures should be

taken inthe immediate

postconcussion

period, particularly

when

an athlete

reports or experiences a post-concussion headache, low energy or

fatigue,

amnesia, recurrent concussion or many different postconcussion

symptoms,

or

when

the

athlete

hasan abnormal

neurologic examination.98

107.

In

congressional testimony

from

this

year,

the

NHL

recently acknowledged

the

importance of this typeof knowledge for players:

Our recent educational

initiatives

have

focused

on

articulating

and

identifying many

of the

common

visible

signs

and symptoms of a

concussion so that Players will recognize when they, or a teammate, may

be at risk It is our

strong

beliefthat the Players'

health

and safety will

be enhanced if all relevant personnel clearly understand the latest science

regarding concussions.99

108.

Players

were

not

informed

of any of

these important

findings

until

2011

even

though

the

authors

of the report agree that the findings were of use to

players,

physicians and

coaches,

who could

have used them

to

help determine

the

severity

of their

concussions and how

long they should remain out after concussions. Even researchers lamented that the data was not

released earlier.100

109. While the 2011 report included important safety information that should have

been disclosed

much

earlier

to

players and others, there

was much

left out

of

the report. Notably,

the

NHL

Concussion

Program

report did not take

a position on the

long-term

effects of

concussions,

and did not

provide

any

specific

recommendations as

to

return

to

play

guidelines

or

98

99

10 0

Benson BW,

Meeuwisse

WH, Rizos J,Kang J,Burke CJ

(2011)

A prospective

study

ofconcussions

among National Hockey League players during regular season games:

theNHL-NHLPA

Concussion

Program. CMAJ 183: 905-11. doi: 10.1503/cmaj.092190, available at

http://www.ncbi.nlm.nih.gov/pmc/articles/PMC3091898/ (emphasis

added).

Testimony

of

William Daly, March 13, 2014, available at

http://democrats.energycommerce.house.gov/sites/default/files/documents/Testimony-Daly-CMT-

Sports-Safety-2014-3-13.pdf

Wennberg

RA,

Tator CH (2008) Concussion incidence and time lost from play in the NHL during the

past

ten

years. Can

J

Neurol

Sci

35:

647-51 ( The NHL

itselfhas

accumulated

data

on

incidence,

mechanisms of injury and return to play timelines since 1997but has not released these data to the

public ).

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rule changes. Nor did the report include any analysis of the causes of concussions, such as

fighting, rules, and equipment. Further, between 1997 and 2004, the NHL collected data for 36

total symptoms, but only 10 were consistently collected each year. The 2011 NHL concussion

report

analyzed

only

the 10

symptoms

collected each

year,

andthe

NHL

has still not issued

any

further reports

analyzing

or

disclosing

the

underlying data relating

to the

other

symptoms.101

After the

publication

of the

2011

NHL report, the NHL

continued

to take the position that

additional

research

was

needed.

110. The NHL Concussion Program was publicized as being independent

from

the

NHL, consisting

of

a combination of the NHL's Player's Association, doctors and researchers

from major universities.

111.

In actuality however, the

NHL

Concussion

Program

was not

independent.

It

consisted of individuals who were already affiliated with theNHL. For example, Brian Benson

was

the

principal

investigator for the study and took responsibility for the integrity of the data

and accuracy of the data analysis. Mr. Benson was on contract with the NHL as a concussion

data

analyst

and publication consultant.102 The study relied

on

data collected and reported

by

team physicians.

B. Other Sources for NHL s Knowledge of Head Trauma Dangers

112. In addition to the

1997

concussion study, the NHL

knew,

andshouldhave

known,

of the

dangers

of

head

trauma

from other sources, including

player

events,

its

knowledge

of

the

101

102

Id.

The

report disclosed

the

other

symptoms

collected,

and the total number

of

players

reporting

to

have

those symptoms, but no other underlying data. Id. App. 4. More than 50% of concussion-victims

reported

the

following symptoms,

none

ofwhich

was

analyzed:  Don't

Feel Right,

Feeling

like

'in a

fog,'

and

 Feeling Slowed Down.

The report

also disclosed other limitations, including that

physicians

may

have underreported concussions and no data was collected for practice, exhibition, and

playoffgames.

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scientific literature, and its participation in conferences and studies relating to concussions. The

NHLhas continually presented itselfas an educatorto players and otherson the dangers of head

injuries, and players have reliedon its superior knowledge, so the NHL has taken on the duty to

inform players about the scientifically known risks of head injuries and to design the gamein a

way that is most effective at reducing those risks.

113. In his congressional testimony on March 13, 2014, Deputy Commissioner Daly

acknowledged that the NHL participated in, and took a leadership role, the four International

Concussion in Sport Conferences between 2001, 2004, 2008 and 2012, discussed above.

114. Deputy Commissioner Daly also emphasized that the league has taken a

leadership role in teaching others about the dangers of concussions. For example, the league

states that education has been a vital component of its mission since 1997, and that its education

efforts are directed towards all relevant parties in our game, including most importantly our

Players, but also relevant Club personnel, including Club medical staff, Club owners and

executives, team General Managers and Coaches, and on-ice game Officials. The NHL has also

 assisted in the development

of

concussion educational programs for youth and junior age

hockey players. As a self-appointed leader in education, the league has portrayed itself as

knowledgeable about current research in concussions and head trauma.

C.

The NHL

Downplayed Risks

of

Head Trauma

115. At all times, the

NHL's

unique historical vantage point at the apex

of

the sport

of

hockey, paired with its unmatched resources as the most well-funded organization devoted to the

business of the game, has afforded it unparalleled access to data relating the effect of head

impacts on football players and made it an institutional repository of accumulated knowledge

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about head injuries to players. As set forth above, the NHL has trumpeted its role in educating

players on these issues and taking care of their safety.

116. The NHL's accumulated knowledge about head injuries to players, and the

associated health risks therefrom, was at all times vastly superior to that available to the

Plaintiffs.

117. From its inception, the NHL unilaterally created for itself the role of protecting

players, informing players

of

safety concerns, and imposing unilaterally a wide variety

of

rules

ostensibly to protect players from injuries that were costly to the player, the game, and profits.

From the beginning, the NHL held itself out and acted as the guardian of the players' best

interests on health and safety issues.

118. For these reasons, players and their families have relied on the NHL to intervene

in matters of player safety, to recognize issues

of

player safety, and to be truthful on the issue of

player safety

119. On information and belief, since its inception, the NHL received and paid for

advice from medical consultants regarding health risks associated with playing hockey, including

the health risks associated with concussive and sub-concussive injuries. Such ongoing medical

advice and knowledge placed the NHL in position of ongoing superior knowledge to the players.

Combined with the

NHL's

unilateral and monopolistic power to set rules and determine policies

throughout its game, the

NHL

at all relevant times was in a position to influence and dictate

how

the game would be played and to define the risks to which players would be exposed.

120. As a result, the NHL unilaterally assumed a duty to act in the best interests of the

health and safety ofNHL players, to provide truthful information to NHL players regarding risks

to their health, and to take all reasonable steps necessary to ensure the safety of players.

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121. The NHL's voluntary actions and authority throughout its history show that, from

its inception, the NHL shouldered for itself the common law duty to make the game of

professional football safer for the players and to keep the players informedof safety information

they needed to know.

V . N H L

D O W N P L A Y S

A N D C O N CE A LS R I S K S OF H E A D T R A U M A

A.

The

NHL Downplayed Risks of Head Trauma

122. The NHL has made, and continues to make, many statements inaccurately

downplaying the risks

of

head trauma and fighting, and denying the need for reform in NHL

r ul es t o d ec re as e those

risks.

a. In response to proposed congressional legislation in 1980 to curb violence in

professional sports, NHL president Ziegler was quoted as stating that the NHL

 didn't need the federal Government to interfere. 103

b. In a 2007 press conference Commissioner Bettman acknowledged that the

topic of fighting is something we need to look at but underscored that

 [flighting has always had a role in the game and

 we're

not looking to have

a debate on whether fighting is good or bad or should be part

of

the game.

The comments were in response to a series

of

fighting incidents, including one

on March 21, 2007,

when

Colton Orr of the

New

York Rangers fought with

Todd Fedoruk

of

the Philadelphia Flyers and ended up knocking Fedoruk

unconscious.

c. In response to calls in congress to legislate stricter protections for players after

the horrific injury to Max Pacioretty in 2011, Commissioner Bettman flatly

said there is no need to  over-legislate head hits.104 While Bettman

acknowledged that concussions were on the rise, he inaccurately tried to

explain this away as the result of  accident events and not from head

hits. 105

d. In 2011, Commissioner Bettman said of fighting:  Maybeit is [dangerous]

and maybe i t' s

not.

You don 't know that

for a fact

and

it's

something we

1 3 Al

Strachen, Intervention Spoils

Sport, THE

GLOBE AND

MAIL (CANADA)

Nov.

26, 1980.

1 4 http://www.cbc.ca/sports/hockey/pacioretty-injury-part-of-game-bettman-1.1008959

1 5 http://www.cbc.ca/sports/hockey/pacioretty-injury-part-of-game-bettman-1.1008959

http://www.cbc.ca/news/canada/montreal/pacioretty-released-from-hospital-l.999400

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continue to

monitor. 106

Bettman said it is premature to draw a connection

1 0 7

between fighting in

hockey

and chronic

traumatic encephalopathy,

or

CTE.

The remarks were made in response to questions about the deaths of three

former NHL players in 2011 who were prominent fighters, and a New

York

Times article discussing the linkbetween fighting and CTE. Bettman saidhe

thought

 in

this

whole

area

there

is

probably entirely

too much

speculation

and rumors. 108 He defended the inclusion of fighting in hockey, saying

 [o]ur

fans tell us that they

like

the level of physicality in our

game.

He

further explained  people need to take a

deep

breath and not overreact and

not

 over-conclude

when the data

isn't

there yet. 110

e. After a fight-induced concussion in 2013, and other fights, sparked league-

wide dialogue about the issue, Bettman said fighting incidents get more

attention than they probably warrant and called the incident a small pebble

relative to a beach full of sand, which is seeing an incredibly entertaining

season. 111 In one incident, a goaltender was not suspended for

pummeling

[an opposing

player]

because there is nothing in the rule

book

to use as

precedent. 1

In

response

to

the

uproar, Bettman again

praised

the role

of

fighting

in theNHL, calling

fighting

a  thermostat in hockey

that

helps cool

things down when tensions run high.113

123.

The NHL has also adoptedmany violence-friendly rules that send the message to

players thatviolence and fighting arenotunduly dangerous to theirhealth:

a. Until at least 2009, a shoulder hit to the head was not even penalized.

b. Prior to 2013, the NHL encouraged players to removehead gear during fights

and

penalized players

for

wearing

a

face

shield while instigating

a

fight. The

NHL recently acknowledged in congressional testimony that these ruleswere

bad because (a) if fighting occurs, head protection should be worn and (b)

1 6 http://www.nhl.com/ice/news.htm?id=605081

1 7 http://www.nhl.com/ice/news.htm?id=605081

108 Id.

109 Id.

110

Id.

1'' http://sports.nationalpost.com/2013/11/11/nhl-commissioner-gary-bettman-says-debate-over-fighting-

getting-too-much-attention/

1'2

http://sports.nationalpost.com/2013/11/11

/nhl-commissioner-gary-bettman-says-debate-over-fighting-

getting-too-much-attention/

113 http://sports.nationalpost.com/2013/ll/ll/nhl-commissioner-gary-bettman-says-debate-over-fighting-

getting-too-much-attention/

114

http://sports.nationalpost.com/2013/ll/ll/nhl-commissioner-gary-bettman-says-debate-over-fighting-

getting-too-much-attention/

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hard

head protection discourages players

from

fighting

in the

first place.115

Opposite rules were adopted in 2013.

c. In Congressional testimony this year, the

NHL

recognized that fighting

remains a small part of

our game. The NHL also acknowledge that while

 therole of fighting continues to be a hot topic, the NHL sti ll has not decided

how

to move forward because a consensus has proved elusive on that topic.

B . T he N H L C onceal ed R i s k s o f H e a d T r a u m a

124. The NHL has ascribed to itself the role

of

educating its players and others about

the dangers of the game. In recent congressional testimony, Deputy Commissioner Daly said

that education has been a vital component

of

the

NHL's

mission and that its education efforts

are directed towards all relevant parties in our game, including most importantly our Players, but

also relevant Club personnel, including Club medical staff, Club owners and executives, team

General Managers and Coaches, and on-ice game Officials. In connection with this educational

mission, he said it is the NHL's  strong

belief

that the Players' health and safety will be

enhanced

if

all relevant personnel clearly understand

the

latest science regarding

concussions. 116

125. Despite this self-ascribed role as educator for the players, the NHL concealed

most

of

what it knew from players. The

NHL

did not publish any results from its 1997

NHL

concussion study until 2011, to the detriment of players and the chagrin of other scientific

researchers

in the field.117

Although

the

authors

of the 2011

Report acknowledged

the

benefit

to

players of learning the study's results, players were left in the dark regarding what the NHL

learned

until

at l eas t 2011 .

115

Daly

2014 testimony

1,6

Testimony

of

William Daly, March

13,

2014,

available at

http://democrats.energycommerce.house.gov/sites/default/files/documents/Testimony-Daly-CMT-

Sports-Safety-2014-3-13.pdf

117

Wennberg

RA, Tator CH (2008) Concussion incidence and time lost from play in the NHL during

the

past ten years. Can J Neurol Sci 35: 647-51 ( The NHL i tse lf has accumulated data on incidence,

mechanisms of injury and return to play timelines since 1997 but has not released these data to the

public ).

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126. Between the time the NHL began its concussion study in 1997 and published

results from it in 2011, the NHL experienced increasingly devastating and highly publicized

career-ending concussions in its players. Many

of

these incidents are described in this

complaint.

127. Both before and after the beginning of the NHL concussion study in 1997, the

NHL knew that fighting and concussions in the NHL were serious risks that could result in life

altering consequences. However, at least through 2011 and beyond, the NHL continued to

withhold and suppress important and relevant information from its players, and the health and

careers

of

the

NHL's

best players continued to be destroyed.

128. The NHL also did not disclose to players what it learned about the dangers

of

head trauma from its attendance at, and self-ascribed leadership role in, the four International

Concussion in Sport Conferences between 2001, 2004, 2008 and 2012, discussed above.

129. Nor did the NHL disclose to players what it learned about the dangers

of

head

trauma, and fighting, from the scientific research discussed above, which it monitored and about

which it held itselfout as an educator to players.

130. Meanwhile, the NHL claims to have issued a publication beginning in 2001 for

players regarding concussions entitled Did You Know? Hockey Injuries Can Be Prevented,

which falsely suggested that concussions can be prevented by doing things such as tightening

one's

chinstrap.

131. Players have reasonably relied on the NHL's professed superior knowledge of the

scientific research and the misleading statements made by the NHL regarding the risks

of

violence, fighting and head injuries.

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C. Crosby s Head Trauma Exemplifies Dangers of NHL s Concealment

132. The NHL's concussion problem took center stage in 2011, despite the enactment

ofRule 48, discussed below, with injuries to its current star player, Sidney Crosby ( Crosby ).

133.

On January 1, 2011, Crosby and his NHL team played against the Washington

Capitals.118 During

the game,

opposing player

Dave

Steckel

( Steckel )

landed

a blindside hit

on Crosby.119

134.

AlthoughCrosbysufferedconcussionsymptoms from Steckel's hit, he returnedto

play in the internationally

televised game.120 This

was despite the fact

that

the NHL

had

learned

from the 1997NHL Concussion Program study (among other sources) that return to games after

a concussion was highly dangerous. The NHL, however, did not publish any results from that

19 1

studyuntil later in 2011. Four days later, Crosby's team played the Tampa Bay Lightning.

Although Crosby had neck

pain,

he

played

in the game.122

During

that subsequent game,

Crosby's head was driven into the boards by opposing player Victor Hedman ( Hedman ).

Hedman received only aminor penalty.124

118

Pen s

Crosby

Returns

on

Monday, EDMONTON

JOURNAL (ALBERTA), Nov. 21, 2011, at

C5.

119 A Timeline ofSidney Crosby s Concussion and Recovery, THE

CANADIAN PRESS

(Sept. 7, 2011)

http://www.nhl.com/ice/news.htm?id=587898 (last visited Mar. 28, 2014);

Pen s Crosby Returns on

Monday, supra.

12

A

Timeline

of

Sidney Crosby s Concussion and Recovery, THE CANADIAN

PRESS (Sept.

7,

2011),

http://www.nhl.com/ice/news.htm?id=587898 (last visited Mar. 28, 2014).

121 Id.

122

Id.

123 Josh Hargreaves, Crosby discusses

lengthy

recovery road from concussions,

safety

of the game, THE

GLOBE AND MAIL (Sept. 5, 2013) http://www.theglobeandmail.com/sports/hockey/ crosby-

discusses-lengthy-recovery-road-from-concussions-safety-of-the-game/article14118504/ (last visited

Mar. 28, 2014).

124 Angie Carducci, Crosby

Talks

Concussion, Blindside

Hits,

Inside

Hockey

(Jan. 8,

2011),

http://insidehockey.com/crosby-talks-concussion-blindside-hits (last visited Mar. 28, 2014).

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135.

As a result of Hedman's hit on Crosby,

Crosby

felt additional concussion-like

symptoms the

next day.125

Crosby was then

diagnosed

by a

specialist at the University of

Pittsburgh with

a concussion.126 The specialist

determined that the

concussion

was affecting

Crosby's vestibular system, which is the part of the brain that allows an individual to stand

upright

and

maintain balance.127 In the subsequent months, Crosby experienced concussion-like

128

symptoms.

VI. NHL REFUSES

TO

REDUCE HEAD

TRAUMA

RISKS

A. NHL's Role as Caretaker for Players

136.

The

NHL

publicly acknowledges that its management are the caretakers of its

players,129

and that the

NHL has to  do

everything possible

to

protect [its] players. 130 NHL

deputy commissioner William L. Daly stated

at a

recent

congressional

hearing,  [T]he National

Hockey

League considers

the safety of our Players to

be

a top priority. . . the National Hockey

League

has been

-

and will remain

-

absolutely

committed

to

promoting the safety

of

its

Players. 131

137.

But the

NHL's

actions

have

consistently failed

to

protect players

from

known

risks

of head injuries throughout theNHL's history.

  5 ATimeline

of

Sidney

Crosby s Concussion

and Recovery, THE

CANADIAN

PRESS (Sept.

7, 2011),

http://www.nhl.com/ice/news.htm?id=587898 (last visited Mar. 28, 2014)

126

Id.

127 Id.

128 Id.

12 9

Dan Rosen, New concussion protocol goes into effect tonight,

NHL.com

(Mar. 16, 2011),

http://www.nhl.com/ice/news.htm?id=556289.

Concussion Syndrome Rocks

NHL

League Puts

Study on Fast

Track,

but

players

must

show

more

respect, WINNIPEGFREE PRESS, Apr. 2, 1998, at C3.

STATEMENT OF WILLIAM L. DALY BEFORE THE HOUSE OF REPRESENTATIVES

COMMITTEE

ON

ENERGY AND

COMMERCE,

SUBCOMMITTEE

ON

COMMERCE,

REGARDING CONCUSSIONS

IN

SPORTS,

Submitted

in

connection with testimony

on

March

U

2014.

48

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13 0

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B. Unsafe Player

Equipment and Rink

i. Unsafe

Helmets

138. It was not until

1997

that all

NHL players were required

to

wear

a

helmet,132

decades

after

most

minor

leagues

and intercollegiate and international

hockey leagues mandated

the use

of

helmets.133

Prior

to 1979,

no

NHL

players

were

required

to

wear a helmet.134

As

noted

above,

theNHL

knew many decades

earlier that

helmets

were essential to player

safety.

139.

In

1959,

the

Canadian Medical

Association

Journal

published a

study

titled

Puck

Aneurysm, noting that a hockey puckweights 165 grams andmay travel at a velocity in excess

of

120

feetper second. Reporting on injuries from

hockey

pucks, the articleconcluded that the

injuries could have been prevented bythewearing of a suitably designed protective

helmet. 135

140. In 1968, a NHL player, Bill Masterton, died

of

a concussion from a hit to the head

while not wearing a helmet. His deathwas attributed largely to his failure to weara helmet. He

had always worn a helmet prior to joining the NHL, but he was not allowed to wear a helmet in

the NHL. One player, J.P. Parise, remarked: We were not allowed to wear helmets. You would

get

traded

if

you did.

It

was

a

no-no

inno

uncertain

terms.

You

were

a

yellow belly

if

you

wore

132

133

No

Helmet

to

Hang Up,

New

York Times (Apr.

30,

1997),

available

at

http://www.nytimes.com/1997/04/30/sports/no-helmet-to-hang-up.html.

Frank

Fitzpatrick,

Hazardous

Despite

A Player s Death,

Helmets

Were Long Ignored,

THE

INQUIRER, (Jan. 13, 1988),

http://articles.philly.com/1988-01-13/sports/26283417_l_billmasterton-

helmets-nhl.

  M

135

J.S.

Campbell, M.D., Pierre Fournier, M.D.,

D.P.

Hill, M.D.,

Puck

Aneurysm, 82 CAN.

MED. ASS'N

J. 923 (1959).

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a helmet.

On

Jan. 17, 1968,

the

NHL Players

Association issued

a statement

urging

the

league

to adopt

mandatory helmet

legislation.137

141.

In

1968,

the

Canadian

Medical Association Journal

published a

study titled

Severe Brain

Injury and

Death Following Minor Hockey Accidents: The Effectiveness

of the

 Safety

Helmets

of

Amateur

Hockey

Players, noting

the

death

ofMasterton resulting from

head

trauma he suffered during an NHL game while not wearing a helmet.138 The article concluded

that  [t]he

ideal

protective hockey

helmet,

therefore,

should

be able to protect

the players against

blows

and

falls,

and described

the

characteristics

of an

ideal helmet. The NHL, however, did

not

require

all

players

to

wear

any type of

helmet

forthenext29

years.

142.

A 1988

article criticizing the

NHL's

continuing refusal

to

require all

players

to

wear helmets harkened back to the Masterton tragedy, remarking Had it been so inclined, the

NHL could have required helmets immediately in the wake of the Masterton incident. 139 In

1988,

NHL commissioner

Clarence Campbell defending the

NHL policy

not

to

require helmets

dismissed theMasterton incident as a

normal

hazard of the

game:

 Itwas a routine accident that

could

have happened in any hockey game .. .

a

normal hazard

of

the

occupation,

Campbell said

in defense of

NHL

policy;  (Helmets) are optional now, and we think that is the best

method

of

13 6

http://www.thestar.com/sports/hockey/2011

/05/28/star_investigation_what_really_killed_nhIs_bill_

master ton .h tml

Frank Fitzpatrick,

Hazardous Despite

A Player s

Death, Helmets Were

Long Ignored,

THE

INQUIRER,

(Jan.

13,

1988),

http://articles.philly.com/1988-01-13/sports/26283417_l_billmasterton-

helmets-nhl .

John F. Fekete,

M.D.,

Severe Brain

Injury

and Death

Following

Minor Hockey Accidents, 99 CAN

MED. ASS'N J. 99 (1968) 1234.

1

^9

Frank Fitzpatrick,

Hazardous

Despite A Player s

Death, Helmets Were

Long

Ignored, THE

INQUIRER, (Jan. 13,

1988),

http://articles.philly.com/1988-01-13/sports/26283417_l_billmasterton-

helmets-nhl.

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dealing with it. Around the time

of

the Masterton incident, most minor leagues and the

governing bodies

for

intercollegiate and international hockey

mandated

theuse of

helmets.140

143. In the 1970s, Rick Martin, a seven-time All-Star and winger with the Buffalo

Sabres,  wasvictim of one of the sport's most notorious fouls, when Dave Farrish of the New

York Rangers hooked his neck from behind and kicked his feet away. Martin, who was not

wearing

a helmet, hit his

head

on the ice andwent

into

convulsions. 141 It was later discovered

that Martin  suffered

the

degenerative brain disease chronic traumatic encephalopathy. 142

A

1987 article comments that Martin's head trauma could have been mitigated had Martin been

wearing a helmet, but quotes then NHL president Ziegler with a countervailing remark, ' The

league's position has been and is right now that the wearing

of

a helmet is up to the

individual.' 143

144. When the NHL finally required all players to wear helmets in 1997, the NHL did

not require

helmets

that

were

safe.144 And 1997 was the first time

that

helmets were required to

be  certified on

a going-forward

basis.145 NHL

goalies

didn't wear

a full

protective

mask

covering until

1959.146

145. Until recently, and even today, the helmets are unsafe. The NHL only mandated

visors in 2013 and only for players with less than 25 games' experience. Unlike the minor

140

Id.

141

THE

consequences

ofa

career f...J; AND WHILE WE RE

AT

IT (sport),

The

Daily

Mail,

Jan. 9,2012,

http://www.highbeam.eom/doc/lGl -276641492.html.

7Id

143 Martin suffers concussion Injury revives

NH L

helmet debate, THE GLOBE AND

MAIL

(CANADA),

Feb.

14,

1978.

Gare Joyce, HardHeads

Shun

SaferHelmets Heads up/ Some

of

Hockey s Greats Continue to Sport

Helmets They Wouldn  t Let

Their Kids

Wear.

The NHL

and its Players are Finally Putting

Their

Heads Together, THE GLOBE AND MAIL (CANADA), Dec 2, 1997, at A30.

Daly Congressional Testimony, supra.

The

nightPlante madegoaltending history,NHL.com (Nov. 1,2012),

http://www.nhl.com/ice/news.htm?id=383063.

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league American Hockey League, and collegiate hockey, the NHL does not mandate full face

visors or face cages, even though a study in 1999 showed that time lost from participation

because

of

concussion was significantly greater in the half shield group compared to those who

wore

a

full face

shield147 and

a

study

in

2002 showed

that

 Players

who

wore

half

face

shields

missed significantly more practices and games per concussion (2.4 times) than players who wore

full face shields. 148 The

 take

home message of

the

2002

article was

that  [i]t

would appear

that the lowest risk of concussion in ice hockey would be to a player wearing a full face shield

possibly with a

mouthguard. 149

The NHL still

requires

neither.

146. The NHL's failure to enact stricter visor rules is troubling, especially given that

being hit in the face with the puck is a major cause of concussions in the league and, in a random

sample of concussions in 2009-2011 seasons, [m]ost

of

the players injured in this manner were

not wearing a

visor

at the time (6of7

cases). 150

ii. Unsafe Hard Plastic Body Armor

147. The NHL has long known that hard cap plastic shoulder pads have increased the

incidence o f concussions.

BensonBW, MohtadiNG, Rose MS, et al. Head and neck injuries among ice hockey players wearing

full face shields vs half face shields.JAMA 1999;282:2328-32. This study and the next study cited

were conducted in part by Mr. Benson, who is listed as a consultant for the NHL in the 2011 NHL

Concussion Program study.

BW Benson, M S Rose, W H Meeuwisse, The impact

of

face shield use on concussions in ice hockey:

a multivariate analysis, BrJ SportsMed

2002;36:27-32 doi: 10.1136/bjsm.36.1.27, available at

http://bjsm.bmj .com/content/36/l/27.full.pdf+html.

Id. The article notes that, by contrast, [a]mateur high school and college hockey (NCAA) in the

United States as well as several Canadian hockey leagues currently have playing rules that mandate

the use of mouthguards.

15

Bodychecking

Rules,

supra, available at

http://www.plosone.org/article/info%3Adoi%2F10.1371 %2Fjournal.pone.0069122.

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148. The NHL recognized the risk

of

hard plastic capped elbow pads in 2003, when

rule changes required

any

hard plastic inelbow pads be covered by a layer of foam.151

149. NHL players have publicly stated that harder and more protective equipment

gives player a feeling of  invincibility, which leads NHL players to play much more physically

and aggressively; extensively padded players are less concerned about injuring themselves in a

hard body check.

150. Hard plastic acts as body armor and simultaneously protects an aggressive

player's shoulders, while creating a harder striking surface for the recipient of a blow, leaving

many players concussed.

151. The NHL waited, however, until the 2010-2011 season to require foam covering

over plastic shoulder pads.154

152. The use

of

hard plastic in both elbow and shoulder pads is still permitted, despite

numerous calls

to

eliminate hard plastic and soften the

padding

worn

by

NHL players.155

153. As Boston Bruins team president

Cam

Neely s tated in 2012: ' Personally,

I' d

rather have a player with a separated shoulder than someone with a concussion' .   'I

don't

know why it's tha t difficult to look at the equipment and say,

'We

really need to do something

with

the shoulder pads

and

elbow pads.' 156

David Shoalts, Elbow, shoulder pads under scrutiny in bid to reduce NHL head injuries, THE GLOBE

AND MAIL (CANADA), Dec. 13, 2011, http://www.theglobeandmail.com /sports/hockey/elbow-

shoulder-pads-under-scrutiny-in-bid-to-reduce-nhl-headinjuries/article4180946/.

152

Douglas Flynn,

NHL Needs to Modify Protective

Equipment

to

Reduce Head Injuries, NESN.com,

(Mar. 19, 2011), http://nesn.com/2011/03/the-hits-just-keep-coming/.

153 Shoalts, supra.

154

Id.

155 See e.g., Jason Brough, Flyers owner: NHL equipment too hard (Dec.

13,

2011),

http://prohockeytalk.nbcsports.com/2011/12/13/flyers-owner-nhl-equipment-too-hard/.

156 Fluto Shinzawa,

NHL

seeks improvements

in

equipment

safety, THE BOSTON GLOBE, May 20,

2012, http://www.bostonglobe.com/sports/2012/05/19/nhl-seeks-improvements-equipment

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iii.

Unsafe

Rinks

154. Olympic ice is

roughly

100 feet wide, about 15 feet

wider than

in the NHL.157

Many sources blame the narrow rink design and creases in NHL hockey, especially as compared

to

Olympic

hockey,

for some

of

the excess violence

in

the

game.158

One

reason that the

NHL

has reportedly been reluctant to switch to a larger ice surface, which would reduce hitting, is

precisely because that would tend to reduce the violence in the game.

155. Even using the NHL's violence-inducing rink size, the NHL rink has been unduly

dangerous. In or about 1996, NHL arenas began using a seamless glass system above the rink

boards. The seamless glass eliminated the metal dividers between the rectangular panes of

independent flexible plexiglass that was standard prior to the introduction

of

the seamless glass.

The seamless glass allowed fans to see the game more clearly, and pucks shot around the corners

did not take as many strange bounces.

156. Players immediately began complaining, describing hits against the seamless

glass as being like hitting concrete or a brick wall.

157. In a January 19, 1997

New

York

Times

article, NHL player Derian Hatcher was

quoted as saying:  It'shard. It doesn't move. It seems like guys will get injuries. Being hit into

this is not fun. 159

safety/qCK53CUqlupvel3SC9aidK/story.html.

157

Jeff Klein and Stu Hackel, Olympic Hockey

Is the Same,

Except

for

This

and That,

THE

NEW

YORK

TIMES (Feb. 11, 2014) http://www.nytimes.com/2014/02/12/sports/olympics/olympic-hockey-is-the-

same-except-for-this-and-that.html?_r=0

David Shoalts, Shanahan

Advocate

Larger

Ice Surfaces

Narrow Confines

Cause Injuries, StarSays,

THE GLOBE AND MAIL (CANADA), Dec. 12, 1996, at

CI3; Smith:

Enlarging the Crease Could

CutHockey Violence, THE GLOBE AND MAIL (CANADA), Feb. 2, 1983.

159

Joe

Lapointe, Players Call aNew

Type

of

Glass

AroundRinks Unsafe, N.Y. TIMES Jan. 19,

1997,

http://www.nytimes.com/1997/01/19/sports/players-call-a-new-type-of-glass-around-rinks-unsafe.html

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158. When asked to respond to players' concerns regarding the seamless glass systems,

Arthur Pincus, the NHL's vice president of public relations, said,  Wehave heard those feelings

and we are looking at a variety

of

things dealing with injuries. There is only anecdotal evidence

about a

variety

of factors

and we are looking

into any

number

of factors. 160

159. The

NHL

failed to act for another three years, until, prior to the 2000-2001

season, it adopted regulations requiring arenas with tempered glass to meet certain flexibility

standards.161 The

NHL gave a

target deadline

for

improving

the

safety

of

seamless glass

of

December

31,2002.162

160. A scholarly article examining the cause

of

a random subset

of

concussions during

the 2009-2011 seasons concluded that 51.2% of all incidents involved a secondary contact of

the head after

the

initial impact, most commonly

to the

boards

or

ice. 163

161. It was not until the 2011-2012 season, however, that the NHL finally required all

arenas to

convert

the

seamless glass system

toa flexible

acrylic system.164

C. Unsafe

Playing Rules

162. The

NHL

has adopted a series

of

playing rules that increase the risk

of

head

injuries and do nothing to abate those injuries. This is in stark contrast to other hockey leagues,

which have implemented a series of stricter rules that reduce head injuries.

160

Id.

Statement of

William L.

Daly Before the House of Representatives Committee on Energy and

Commerce,

Subcommittee on Commerce, Regarding Concussions in Sports (Mar. 13, 2014),

https://energycommerce.house.gov/hearing/improving-sports-safety-multifaceted-approach.

162

Transcript of media

conference

call

with

NHL Commissioner Gary Bettman, Oct. 3. 2002,

16 3

http://sportsillustrated.cnn.com/hockey/news/2002/10/03/media_conference/.

Bodychecking Rules, supra.

Statement

of

William

L.

Daly, supra; NHL opens its 95th season tomorrow night with spotlight on

Winnipeg return, B s Cup defense, NHL.COM (Oct. 5, 2011)

http://www.nhl.com/ice/news.htm?id=594578.

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163. It was not until 2010 when the NHL seriously began to implement rules

ostensibly designed to improve player safety relating to head trauma, but even those rules were

deficient.

164. Prior to the 2010-11 season, bodychecking another player with the head as the

primary

point

of

contact was legal.165

165. As recently as 2010, the NHL commissioner criticized the league's rules for being

too lax in penalizing vicious hits: commenting on a vicious hit to the head on Marc Savard in

2010, NHL Commissioner Gary Bettman stated:

' I

was very unhappy and upset with that

hit'....

'I was more

upset there was nothing [in

the League's rules] to

do

to

punish it.' 166

166. Prior to 2011, there was no prohibition on player checking or pushing a

defenseless opponent in a manner that causes the opponent to hit or impact the boards violently

1   l

or dangerously.

167. Until last year, during icing plays (when the puck is shot by the defensive team

from its side

of

the rink to the other end

of

the rink and players chase after it in a race to touch it

first), the trailing player was permitted to initiate contact on the leading player, often into the

boards at full speed, needlessly creating injuries. The rule was not changed until the 2013/14

seasonwhen the league adopted a hybrid icing rule, which was ostensibly designed to reduce the

risk for damaging collisions into the walls, but is still less effective than international rules in

reducing the risk of injury.

165

Donaldson L, Asbridge

M,

Cusimano

MD

(2013) Bodychecking

Rules

and

Concussion

in Elite

Hockey. PLoS ONE 8(7): e69122. doi:10.1371/journal.pone.0069122.

Bob Condor, Bettman on rule s effectonplay,

injury

prevention,NHL.com, Mar. 25, 2010,

167

http://www.nhl.com/ice/news.htm?id=522722.

Daly Congressional Testimony,

supra.

168

Daly

Congressional

Testimony, supra.

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168. Before the start

of

the 2010-2011 season, the

NHL

created Rule 48, which made

illegal checks to the head, defined as [a] hit resulting in contact with an opponent's head where

the

head is

targeted

and

the

principal point

of

contact

is not

permitted, 169 subject

to a

five-

minute major penalty and automatic game misconduct, as well as possible supplemental

discipline

if

deemed appropriate by the league.

169. Rule 48 did not, however, impair the ability

of

players to deliberately target the

head of another player during a body check, which continued to be legal under the NHL rules

until the beginning of the 2013-2014 season.

170. A clear indicator of the inadequacy of the

NHL's

rules in preventing concussions

is a recent scholarly finding that

 most

NHL concussions resulted from legal actions not

prohibited by the rules - [i]llegal incidents, where the aggressor was assessed a penalty, fine or

suspension, [only] accounted for 28.4% of cases for concussions and 36.8% of cases for

suspected concussions. 170

171. In 2013, researchers published an article titled, Bodychecking Rules and

Concussion

in

Elite Hockey.171

The abstract

of

the article confirms that the

various rule changes

implemented since 2010 that were ostensibly designed to improve player health have not

protected its players:

The number

of

NHL concussions or suspected concussions was lower in

2009

-10

than in 2010 -11 (IRR 0.61; 95% CI 0.45, 0.83), but did not

increase from 2010 - 11 to 2011-12 (IRR 1.05; 95% CI 0.80, 1.38).

169

Rule

48 -

Illegal

Check

to the

Head,

http://www.nhl.com/ice/page.htm?id=64063 (last visited

on

Apr. 4, 2014).

17 BodycheckingRules, supra (emphasis

added),

available at

http://www.plosone.org/article/info%3Adoi%2F10.1371%2Fjournal.pone.0069122.

Laura Donaldson, Mark Asbridge, Michael D. Cusimano, BodycheckingRules and Concussionin Elite

Hockey, PLOS ONE (July 2013),

http://www.plosone.org/article/info%3Adoi%2F10.1371%2Fjournal.pone.0069122

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64.2%)

of NHL concussions were caused by bodychecking, and only

28.4%o of

concussions and 36.8%) of suspected concussions were caused by

illegal incidents. We conclude that rules regulating bodychecking to the

head did not reduce the number

of

players suffering concussions during

NHL

regular season play and that further changes or stricter enforcement

of

existing rules may be required to minimize the risk

of

players suffering

these

injuries.172

172. The

NHL's

rules and position on fighting illustrate how out

of

touch the league is

with international norms. The NHL boasts that Fighting has always had a role in the game,

refuses

 to have a

debate

on whether

fighting

...

should

be

part

of the game, 173 and calls

fighting

a

 thermostat

in

hockey

that helps cool things down when tensions run high.174

173. The president of the International Ice Hockey Federation (IIHF) has taken the

opposite position:

Both me personally and the IIHF has never believed that fighting is or

should be part

of

the game, he said. The best

proof

is that neither in the

Olympics, nor in the world championships or in the World Cup

of

Hockey

there are ever any fights and no teams would imagine to carry a designated

goon on a team filled with talented players. Hardly ever are there any

fights in Stanley Cup games because the stars take over when the games

really matter. Pre-arranged fights between two goons are, according to me,

revolting.

If

there are fans who enjoy fighting they should turn to other

sports, said Fasel.

 Our

game should never cater to fans who go to games

to see fighting. In an era where hockey has lowered its tolerance on

rest raining fouls to in order to create a bet ter environment for the stars, we

simply cannot

tolerate Neanderthal behaviour.175

172

17 3

17 4

17 5

Id a t 1.

Fighting not up for debate: Bettman, CBC Sports (Mar. 26, 2007),

http://www.cbc.ca/sports/hockey/fighting-not-up-for-debate-bettman-l .661551.

Stephen Whyno,

NHL commissioner Gary Bettman says debate over fighting getting too much

attention, NATIONAL POST (Nov. 11, 2013) http://sports.nationalpost.com/2013/l l/ ll /nhl-

commissioner-gary-bettman-says-debate-over-fighting-getting-too-much-attention/

Brownlee, Robin (Sept. 29 2007), Fighting debate renewed in hockey circles, CanadianPress,

available at

http://web.archive.org/web/20070929111407/http://www.tsn.ca/nhl/news_story/?ID=201287&hubnam

e

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174. Many

NHL

rules, unlike international hockey, encourage fighting or exacerbate

the dangers of fighting:

a. NHL players are required to remove their gloves before fighting, leaving them

bare-fisted. Prior to 2013, the NHL even encouraged players to remove head

gear during fights and penalized players for wearing a face shield while

instigating a fight. The NHL recently acknowledged in congressional

testimony that these rules encouraged fighting and decreased player protection

because (a) hard head protection discourages players from fighting in the first

place

and

(b)

if

fighting

occurs,

head protection should

be

worn.1

6 The rules

were not overturned until 2013, but the NHL still insists that fighting is part

of

the game.

b. In 2009, the league finally announced that it  isready to take steps toward

regulating fighting and is currently researching the proper ways to make the

pugilistic part of the game safer. 177 At a NHL meeting that year, the league

made a very extensive presentation on our stats, the history

of

fighting,

where we are at today, injuries, and the NHL tried to categorize staged

fights, fights that were

responding

to legal and

illegal

hits, a lotof things.

178

As of that time, the NHL's rules had failed to eliminate fights after clean

hits.

c. In 2013, according to a press article, a goaltender was not suspended for

pummeling [an opposing player] because there is

nothing

in the rule

book

to

useas

precedent. 179

175. Unlike the NHL, fighting is strictly prohibited in European professional hockey

leagues and in Olympic ice hockey, resulting in automatic ejection from the game and other

sanctions,

for anyone

who starts

a fight oris the

first

to

intervene

when a fight is in

progress.180

Similarly, in NCAA hockey, fighters are given an automatic game disqualification and

suspensions. As a result, fighting has been minimized in these leagues. Under Olympic rules,

176 Daly 2014 testimony

177 Dan Rosen, Action under

way

to eliminate  staged fights, NHL.com

(Mar.

20, 2009)

http://www.nhl.com/ice/news.htm?id=413255

178 Id.

The results of the

NHL's study

of fighting

and

the

injuries that resulted from

it have never been

disclosed to players.

Stephen Whyno, NHL

commissioner Gary

Bettman

says debate over fighting getting too much

attention,

NATIONAL POST (Nov. 11, 2013) http://sports.nationalpost.com/2013/l l/ ll /nhl-

commissioner-gary-bettman-says-debate-oyer-fighting-getting-too-much-attention/

18 IIHF (2010), OfficialRule Book 2010-2014.

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for example, any player who fights receives an automatic ejection as well as a five-minute major

penalty. As a result

of

this and other differences in playing rules, Olympic fights are rare — only

eight in more than 500 games since 1960. The last one took place in 1998, between Slovakia 's

1 81

Peter Bondra and

Germany's

Erich Goldmann. The

NHL

does not have any rule result ing in

automatic ejection for players involved in fighting. Similarly, scientists have called for the ban

of fighting, which is accepted in the NHL and North American junior leagues but illegal in

1 8 9

European and Olympic hockey. As discussed below in connection with the Max Pacioretty

incident, the

NHL

routinely refuses to suspend players for violent hits and fighting, falsely

believing that suspensions would not deter such conduct.

176. In addition to the differences discussed above, NHL rules differ from Olympic

rules in many other ways that make NHL hockey much more violent than international hockey,

including:

a. Checks to head: The

NHL

penalizes when the head is the main point

of

contact, and when such contact was avoidable. Olympic rules are stricter:

they penalize a player who directs a check to an opponent's head and neck

area or forces an opponent's head into the glass or boards.

b. High-sticking: In the Olympics, unlike the NHL, a player who accidentally

strikes another with his stick when winding up or following through on a shot

or pass will be penalized.

c. Protective equipment: In the NHL, if a player's helmet comes off, he can play

without it until the next stoppage. In the Olympics, he must immediately go to

the bench. Failure to do so results in a minor penalty.

181

Jeff

Klein and Stu Hackel,

Olympic

Hockey

is

the Same,

Except

for

This

and

That,

THE NEW YORK

TIMES (Feb. 11, 2014) http://www.nytimes.com/2014/02/12/sports/olympics/olympic-hockey-is-the-

same-except-for-this-and-that.html?_r=0

182

Dennis Walikainen, Researcher

Studies

Hockey and Football Concussions: ItisTimeforMajor

Changes? MICHIGAN TECH NEWS (Jan. 30, 2012)

http://www.mtu.edu/news/stories/2012/january/researcher-studies-hockey-football-concussions-time-

for-major-changes.html

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d. Icing: The

NHL

uses hybrid icing, which permits a few high-speed chases to

continue to the end boards. Olympic hockey uses no-touch icing; play stops

the moment the puck crosses the goal line.

e. Behind the net: There is an additional two feet from end boards to goal line in

1 8 ^

international hockey, giving players more space in this area. More space

for players means less congestion for violent hits around the goal, where hits

frequently occur.

f. Crease violations: Unlike the NHL, Olympic rules prohibit players from

standing in the crease in front of the goal, where violent hits often occur. Play

1 84 .

is stopped and a face-off is taken in the neutral zone.

g. Goaltender Trapezoid: In the NHL, a goaltender

may

only play the puck

behind the goal line within the trapezoidal area behind the net. This limitation

makes it more difficult for teams to clear the puck out of the defensive end

and increases the chances of full-speed races towards the boards for a puck.

No such rule exists in international hockey, in which a goaltender may handle

the puck anywhere behind the goal line.

177. Press reports note that rule changes such as removing touch icing and the goalie

trapezoid

are two

easy

ways to stop players

flying full-speed

towards the

boards

for the puck. 185

178. According to the

New

York Times, the

NHL

measures fall far short

 of

more

stringent anti-concussion rules governing play in the International Ice Hockey Federation, which

oversees the Olympics, international tournaments and European leagues. Federation rules

penalize all contact to the head and, to guard against whiplash injuries, the neck area as far down

as the collarbone. According to the article, the N.H.L. has not adopted these strict rules,

because many coaches and players believe that the rough and tumble — or violence, if you

prefer — is essential to hockey's being hockey. The general manager

of NHL's

team Toronto

183

Jeff

Klein and Stu Hackel,

Olympic

Hockey

Is the Same,

Except

for

This

and

That,

THE NEW YORK

TIMES (Feb. 11, 2014) http://www.nytimes.com/2014/02/12/sports/olympics/olympic-hockey-is-the-

same-except-for-this-and-that.html? r=0

184 Id.

185 http://www.diehardsport.com/featured/concussions-continue-cripple-nhl-statistics/

186 JeffKlein, No

Fights.

No

Checking.

Can This Be Hockey?, THENEW

YORK TIMES,

 Mar. 5, 2011)

http://www.nytimes.com/2011/03/06/weekinreview/06hockey.html?_r=0

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Maple Leafs said of the stricter standards:   Ithink it has reduced hitting in those leagues, and

I'm

not in favor

of

that. 187

V II . IN EF FE CT IV E C ON CU SS IO N

P R O T O C O L

179. Academics have also criticized the

NHL

as being in a state

of

denial when it

1

 

comes to concussion management. Prior to 1997, there was  noprotocol to follow for

NHL

players who suffered concussions and players were frequently allowed to return to play after

suffering

a

concussion.189

180. In 1997, the

NHL

launched its Concussion Program, which the NHL boasted as

offering the best protocol available to players. The

NHL's

concussion protocol, however, was

and

remains broken .

181. While scientific research has long shown that repeat concussions in short time

periods are dangerous, the NHL Concussion Program's study found that between 1997-2004,

players were routinely allowed to return to play in the same game after suffering a concussion -

in

8 > of

cases where a player suffered a concussion between 1997-2004, the player returned in

the same game after the player was evaluated on the bench; in 11%

of

cases, the player returned

toplay in the same game

because

the

injury

was

not observed during

the game.190

182. The 1997 protocols had other glaring deficiencies: for example, players were

evaluated for concussions at the bench, rather than in the locker room, by a team-paid trainer,

187

JeffKlein,

No Fights. No Checking.

Can This

Be

Hockey?, THE NEW

YORK TIMES,

(Mar. 5,

2077jhttp://www.nytimes.com/2011/03/06/weekinreview/06hockey.html?_r=0

Alexander Hecht,

Article,

Legal andEthicalAspects

of

Sports-Related Concussions:

The

MerrilHoge

Story, 12 Seton Hall J. Sports & Ent. L. 17, 63 (2002).

189 Canadian

Press,

LeafBattles Backfrom Concussion, THE GLOBE AND MAIL

(Canada),

March

12,

1998.

19 Benson BW, Meeuwisse WH, Rizos J, Kang J, Burke

CJ

(2011) A

prospective

study of concussions

among National Hockey League players during regular season games: the NHL-NHLPA Concussion

Program. CMAJ 183: 905-11. doi: 10.1503/cmaj.092190

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rather than a doctor. As one commentator noted: [P]layers were evaluated at the bench. This

was grossly inadequate as players can easily wave the trainer away and shrug off the immediate

effects

of

a head

shot. 191

183. On March 16, 2011, the NHL finally required players to be taken to a quiet room

for testing, by a doctor. But unlike the NFL, which requires an independent consultant and a

team doctor to make return-to-play decisions, the NHL allows team-paid doctors to make the

1 0 9

decision. This puts tremendous pressure on team-paid doctors to allow star players to return to

action, especially in important games.

184. The cornerstone of the

NHL's

concussion protocol has been, and remains,

 baseline testing, where players are evaluated during the preseason for baseline cognitive skills,

then tested after concussion incidents to determine whether their cognitive functioning exceeds

their baseline abilities. Players under significant pressure to remain in games easily can and do

evade this

type

of testing by

scoring

low

during

the

preseason.193 Last

month,

NHL's

commissioner recognized that its protocol only works if players overcome their financial

incentive to be deceptive:

 if

a player is going to not follow the protocol, not say exactly what

he's feeling, that's

pretty difficult

to

address. 194

191

Bobby

Brooks,

2011 NH L Playoffs:

Are the New

NHL Concussion Protocols Really Working?

BleacherReport.com (Apr. 18, 2011), http://bleacherreport.com/articles/669655-headcases-are-the-

new-concussion-protocols-really-working.

192

Brigid22,

NH L Concussion Plicy:

Is

it

Broken?

Hockeywilderness.com

(Feb. 11, 2013)

http://www.hockeywilderness.eom/2013/2/ll/3974248/nhl-concussion-policy-is-it-broken

193

Baseline testing

for

concussions could

be

falling

short,

Sportingnews.com (Oct. 31, 2010)

http://www.sportingnews.com/nhl/feed/2010-10/pominville-injury/story/baseline-testing-for-

concussions-could-be-falling-short

Mike Heika,

NHL Commissioner Gary

Bettman

addresses several topics in his state of the

union

speech,

Starblog.com (June 6, 2014) http://starsblog.dallasnews.com/2014/06/nhl-commissioner-gary-

bettman-addresses-several-topics-in-his-state-of-the-union-speech.html/

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185. Moreover, baseline testing has drawn significant criticism from the scientific

community as being unreliable and driven more by liability concerns than science:

Dr. Christopher Randolph, who works in the Department of Neurology at

Loyola University Medical Center in Maywood. 111., thinks

baseline

testing is, at best, irrelevant and

that th e

increased use

of

baseline

testing is partially driven by liability concerns.

 The

baseline test

is

so

unreliable that

it's

certainly possible that (the player) could be completely

normal and be categorized as abnormal or they could be completely

abnormal and be characterized as normal, Randolph said.

 They'renot

useful

for

individual decision-making. It's kind of interesting

how

the

press

and the public have a different take on this than the science. The

science is

clear.195

186. In contrast, many European leagues instead require a player who suffers a

concussion to sit out for three weeks. A period of mandatory rest after a concussion is far

superior to ineffective and unreliable baseline testing. Among other

reasons,

 Concussion

symptoms may not show up for 24-48 hours after the hit occurs, so rinkside testing may be

worthless

in

some

cases. 196

187. A 2012 academic article criticized the

NHL's

concussion management policies as

 deficient :

195

One change in policy implemented by the NHL to combat the recent

concussion epidemic included the revision

of

its concussion management

protocols. First,

a

doctor, rather than

a

trainer,

must make immediate

return to play decisions. Second, immediate examinations to detect

whether an athlete had suffered a concussion must occur in a quiet room,

free from

distractions,

as

opposed

to on the bench, where such

examinations would

sometimes

occur. The

initial

examination represents

a

strong

improvement in theNHL's concussion management

policy,

as it

increases the likelihood of concussion detection. Where the old policy

allowed a motivated athlete to insist he is okay and return on the next

Baseline testing

for

concussions could be fall ing short,

Sportingnews.com (Oct. 31, 2010)

http://www.sportingnews.com/nhl/feed/2010-10/pominville-injury/story/baseline-testing-for-

concussions-could-be-falling-short

Brigid22

NHL Concussion Polk

http://www.hockeywilderness.eom/2013/2/ll/3974248/nhl-concussion-policy-is-it-broken

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196

Brigid22

NHL Concussion

Policy: Is

it

Broken?

Hockeywilderness.com

(Feb. 11, 2013)

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shift, the new policy requires a physician evaluation if an athlete exhibits

any of the following symptoms: loss of consciousness, motor

coordination or balance problems, slowness to get up following a hit to the

head, blank or vacant look, disorientation, clutching the head after a hit, or

a visible facial injury in combination with any of the above While

both the NHL and NFL have made positive changes to their concussion

management

policies, the policies

remain

deficient. 97

188. Moreover, post-concussive protocols are ineffective at reducing serious injury so

long as the

NHL

continues to refuse to minimize hi ts to the head. As one researcher commented

in 2011,

 It

is believed that one of the causes of CTE is sub-concussive impacts, the kind of

ordinary hits that athletes routinely take in the course of play, Johnson says. Solving the CTE

problem will require radical changes to football and hockey.

It's

a condition that can't be

diagnosed, doesn't have clear symptoms, and

can't

be treated. So, post-concussion guidelines

don't

do anything about CTE. 198

V III . T H E N H L S P U R N S C A L L S

F O R

C H A N G E

189. The NHL has paid cynical public relations lip-service to the need for change to its

violent manner, but has declined to heed many calls for change.

190.

But when

calls for change

came

from various authorities

and

institutions, the

NHL was quick to retreat from its public-relations lip service.

A. Max

Pacioretty Incident

in 2011

191. The NHL's continuing callous indifference to the risks of concussions is

exemplified in its reaction to the recent Max Pacioretty incident, in which it shunned the

197 Mitch Koczerginiski,

Article:

Who isat

Fault

When a

Concussed

Athlete Returns

to

Action?,

Al

Val.

U.L. Rev. 63(2012).

Dennis Walikainen,

ResearcherStudiesHockeyand Football Concussions: Is it

Time

for Major

Changes?

MICHIGAN TECH NEWS (Jan. 30, 2012)

http://www.mtu.edu/news/stories/2012/january/researcher-studies-hockey-football-concussions-time-

for-major-changes.html

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criticisms and suggestions made by Canadian government, NHL sponsors, NHL players, and

even

a

NHL franchise.

192. In March 2011, Max Pacioretty was hospitalized with a severe concussion and

fractured vertebra after the Montreal forward was slammed into a stanchion holding the glass at

the Bell Centre in Montreal on a hit by a Boston Bruins player, who rode Pacioretty into the

boards.199 Pacioretty's head slammed into

the

metal support holding

up the

glass, knocking him

out as

he

fell to the

ice.200 He lay motionless for several minutes after

he

fell: l

193. The offending player received a five-minute major penalty and a game

9 0 9

misconduct, but the NHL did not suspend or fine him. According to the CBC, the NHL's

decision not to suspend him sparked furious debate over the NHL's policy on serious

injuries. For Pacioretty's part, he could not remember the incident, but after seeing the tape

199 Pacioretty injury

part

ofgame:

Bettman, CBC.ca

(Mar. 10,

2011)

http://www.cbc.ca/sports/hockey/pacioretty-injury-part-of-game-bettman-1.1008959

2 Pacioretty

releasedfrom

hospital,

CBC.ca (Mar. 10, 2011)

http://www.cbc.ca/news/canada/montreal/pacioretty-released-from-hospital-l.999400

2 1

Pacioretty released

from

hospital, CBC.ca

(Mar. 10,2011)

http://www.cbc.ca/news/canada/montreal/pacioretty-released-from-hospital-l.999400

2 2 Pacioretty releasedfrom hospital, CBC.ca

(Mar.

10, 2011)

http://www.cbc.ca/news/canada/montreal/pacioretty-released-from-hospital-l.999400

2 3 Pacioretty releasedfrom hospital, CBC.ca

(Mar.

10,

2011)

http://www.cbc.ca/news/canada/montreal/pacioretty-released-from-hospital-l.999400

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said

that he was

 disgusted that

there was

no

fine or

suspension

from the NHL.204 Pacioretty

said he was mad because the league's failure to discipline the hit would encourage other players

to make those types

of

vicious hits in the future:

 I'm

mad because

if

other players see a hit like

that and think

it's

OK, they

won't

be suspended.

194. The Canadian government's strong reaction to the Pacioretty incident underscored

the

seriousness o f the event:

195.

Quebec's

top prosecutor ordered an investigation into whether the hit warranted

9 0 S

criminal charges after he viewed video

of

the game. Pacioretty said he did not want criminal

charges, however, because he believed that  theincident, as ugly as it was, was part

of

a hockey

game as the NHL has defined that game.

196. Canadian Prime Minister Stephen Harper called on the league to assess the

9 0 7

 growing number of serious injuries and head shots.

197. NHL's sponsors also waded into the debate. In the days after the Pacioretty

incident, Air Canada, a leading

NHL

sponsor, sent a letter to the league threatening to

withdraw its sponsorship unless the NHL moves to impose sanctions to reduce potentially

serious

injuries.20

A

spokeswoman for Air Canada

explained

that  [tjhere have been

a

number

of incidents regarding head shots and concussions this past season which have resulted in wide-

2 4

Bob

McKenzie, McKenzie: Pacioretty Not Happy With

Chora

Or League Decision, TSN.ca (Mar. 9,

2011) http://www.tsn.ca/columnists/bob_mckenzie/?id=357332

2 5

Pacioretty

released

from hospital, CBC.ca (Mar. 10,

2011)http://www.cbc.ca/news/canada/montreal/pacioretty-released-from-hospital-1.999400

2 6 Pacioretty injurypart ofgame: Bettman, CBC.ca

(Mar.

10, 2011)

http://www.cbc.ca/sports/hockey/pacioretty-injury-part-of-game-bettman-l.1008959

2 7 Pacioretty

released

from hospital,

CBC.ca

(Mar. 10,

2011)

http://www.cbc.ca/news/canada/montreal/pacioretty-released-from-hospital-l.999400

2 8 Pacioretty releasedfrom

hospital,

CBC.ca (Mar.

10,

2011)

http://www.cbc.ca/news/canada/montreal/pacioretty-released-from-hospital-l.999400

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spread public concern which

we share. 209 Commissioner

Bettman

brusquely

dismissed the

threat, saying  that'stheir prerogative, just like it's the prerogative of our clubs that fly Air

9 1 0

Canada to make other arrangements. Two sports-marketing professors said they have never

911

heard of sponsors going after a league because of excess violence.

198. A NHL team, Montreal Canadiens, also cri ticized the

league's

decision not to

suspend the offending player, calling the decision  ahard blow and expressing frustration,

9 1 9

disappointment and shock over the issue. The NHL team stressed the urgency of

addressing head injuries and player safety in hockey:

199.

Our

organization believes that the players ' safety in hockey has become a major

concern, and that this situation has reached a point of urgency. At risk are some of the greatest

professional athletes in the world, our fan base and the health of our sport at all levels. Players'

safety in hockey must become the ultimate priority and the situation must be addressed

immediately.213

200. The N HLPA was also

critical

o f the

r ink

conditions that contributed to the

severity of the Pacioretty injury: [I]ssues involving the boards and glass in

NHL

arenas have

been a longstanding focus for the players. The serious nature

of

the injury suffered by Max

2 9 Head-shot controversy

touches

NHL s most

sensitive

area: its wallet, Thehockeynews.com

(Mar.

10,

2011) http://www.thehockeynews.eom/articles/38974-Headshot-controversy-touches-NHLs-most-

sensitive-area-its-wallet.html

21

Pacioretty

injurypart ofgame: Bettman, CBC.ca (Mar. 10,2011)

http://www.cbc.ca/sports/hockey/pacioretty-injury-part-of-game-bettman-l.1008959

211

Head-shot controversy touches

NHL s

most

sensitive

area: its

wallet, Thehockeynews.com

(Mar.

10,

2011) http://www.thehockeynews.com/articles/38974-Headshot-controversy-touches-NHLs-most-

sensitive-area-its-wallet .html

Head-shot controversy touches NHL s most sensitive area: its wallet, Thehockeynews.com (Mar. 10,

2011) http://www.thehockeynews.com/articles/38974-Headshot-controversy-touches-NHLs-most-

sensitive-area-its-wallet.html

213

Pacioretty

injurypart ofgame: Bettman, CBC.ca (Mar. 10, 2011)

http://www.cbc.ca/sports/hockey/pacioretty-injury-part-of-game-bettman-l.1008959

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Pacioretty in Montreal this week reinforces the importance of maximizing the safety in this area

and highlights the need

to

look further into the matter. 214

A

former

NHL

player tweeted after

91 S

the hit that parts of the playing surface cause the worst of the damage.

201. The

NHL

was defiant and dismissive of the deep concern shared by the Canadian

government, NHL's sponsors,

NHL

players, and an NHL franchise. Commissioner Bettman,

testifying at a congressional hearing later that week and discussing it afterward, boasted that the

NHL was extraordinarily comfortable with its decision not to suspend the offending player,

taking the incongruous position that further discipline would not deter future vicious hits:

 It

was

a horrific injury,

we're

sorry that it happened in our fast-paced physical game, but I

don't

think

whether

ornot

supplemental

discipline

was imposed would change what happened. 216

IX .

T O L L I N G O F T H E S TA T U T E S

O F

L I M I T A T I O N S

202. Plaintiffs and members of the Class could not have discovered through the

exercise of reasonable diligence, did not know, and could not have known that the NHL was and

is committing wrongdoing, including but not limited to: (i) subjecting and continuing to subject

Plaintiffs and the Class to the imminent risk

of

head trauma and, as a result, devastating and

long-term negative health consequences; (ii) failing to and continuing to fail to warn Plaintiffs

and the Class of the risks and consequences of head trauma; (iii) concealing material scientific

and anecdotal information from Plaintiffs and the Class about the risks and consequences from

head trauma; and (iv) failing to institute policies and protocols that could have and will protect

214 Pacioretty injurypart ofgame: Bettman, CBC.ca (Mar.

10,

2011)

http://www.cbc.ca/sports/hockey/pacioretty-injury-part-of-game-bettman-l.1008959

215 Pacioretty

released

from

hospital, CBC.ca

(Mar.

10,

2011)

http://www.cbc.ca/news/canada/montreal/pacioretty-released-from-hospital-l.999400

216

Pacioretty

injurypart

ofgame: Bettman, CBC.ca

(Mar.

10, 2011)

http://www.cbc.ca/sports/hockey/pacioretty-injury-part-of-game-bettman-1.1008959

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Plaintiffs and the Class from suffering or exacerbating head trauma sustained during practice or

in games.

203. The

NHL

affirmatively concealed and continues to conceal its wrongdoing from

Plaintiffs and the Class. The

NHL

instituted purposefully-ineffective studies and changes that

were solely calculated by the

NHL

to fool and mislead Plaintiffs, the Class and the public into

ceasing investigation into the risks and consequences of head trauma and the NHL's

wrongdoing. The NHL had and has superior knowledge of its wrongdoing, that there was and is

an imminent threat of head trauma for NHL players, and the risks and consequences of head

trauma to

NHL

players. Plaintiffs and the Class did not have this knowledge and could not have

had this knowledge through reasonable diligence.

204. Accordingly, all applicable statutes of limitations have been suspended with

respect to any claims by Plaintiffs and the Class and, moreover, the NHL is estopped from

relying on any statutes of limitations defenses of this action.

X . C L A S S A C TI O N A L LE G A T IO N S

205. Plaintiffs brings this action their

behalf

and as a class action on

behalf

of

all

former and current NHL players (the Class ).

206. This action is properly mainta inable as a class act ion under Rule 23.

207. The Class is so numerous that joinder

of

all members is impracticable.

208. There are questions

of law

and fact which are

common

to the Class and which

predominate over questions affecting any individual Class member. The common questions

include,

inter alia,

the following:

(a) Whether the

NHL

breached its duty to warn and protect the Class of the risks

and consequences

of

head trauma.

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(b) Whether the NHL was unjustly enriched by its conduct in generating revenue

from extreme violence while failing to protect the Class from the risks and consequences

of

head

t r a uma .

209. Plaintiffs' claims are typical of the claims of the other members of the Class and

Plaintiffs do not have any interests adverse to the Class.

210. Plaintiffs are adequate representatives

of

the Class, have retained competent

counsel experienced in litigation

of

this nature and will fairly and adequately protect the interests

o f

the Class.

211. The prosecution

of

separate actions by individual members of the Class would

create a risk

of

inconsistent or varying adjudications with respect to individual members

of

the

Class which would establish incompatible standards

of

conduct for the party opposing the Class.

212. Plaintiffs anticipate that there will be no difficulty in the management

of

this

litigation. A class action is superior to other available methods for the fair and efficient

adjudication

of

this controversy.

213. The NHL acted on grounds generally applicable to the Class with respect to the

matters complained

of

herein, thereby making appropriate the relief sought herein with respect to

th e C la ss a s a whole.

C O U N T

I —

N E G L I G E N C E

214. Plaintiffs incorporate by reference all paragraphs, except under other Counts, as if

fully set forth herein.

215. The NHL held itselfout as a protector

of

players and a leader in educating players

about the dangers of head injuries. Further, starting at least as early as 1997, the NHL

voluntarily and gratuitously inserted itself into the business of studying (and subsequently

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rendering expert opinions about) the relationship between repetitive head impacts in hockey and

brain injury.

216. The NHL had and has a duty to take all reasonable steps to protect Plaintiffs and

the Class from the risks and consequences of head trauma. The NHL breached that duty to

protect Plaintiffs and the Class by creating, fostering, and promoting a culture of extreme

violence, including violence from fighting, where head trauma to Plaintiffs and the Class has

been and is imminent. The NHL breached that duty to protect Plaintiffs and the Class by failing

to establish reasonable rules and protocols for preventing head trauma and minimizing the effects

of

head trauma, including during games and practice. What changes the NHL made to its violent

construct were purposefully-ineffective and solely calculated by the NHL to fool and mislead

Plaintiffs, the Class and the public into ceasing investigation into the risks and consequences

of

head trauma and the

NHL's

wrongdoing.

217. The NHL had a duty to take all reasonable steps to warn Plaintiffs and the Class

about the risks and consequences of head trauma. The NHL breached that duty to warn Plaintiffs

and the Class by failing to inform Plaintiffs and the Class about the scientific research on the

negative health effects

of

head trauma and about anecdotal evidence from the negative health

effects ofhead trauma from its own NHL players.

218. The NHL's failure to exercise reasonable care in its voluntarily assumed duty

increased the risk that the Plaintiffs would suffer long-term neurocognitive injuries.

219. Given the

NHL's

superior and unique vantage point on the issue of head injuries

and concussions, the Plaintiffs reasonably relied to their detriment on the

NHL's

actions and

omissions on the subject

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220. Under all of the above circumstances, it was foreseeable that the

NHL's

failure to

exercise reasonable care in the execution of its voluntarily undertaken duties would cause or

substantially contribute to the personal injuries suffered by the Plaintiffs.

221. As a direct and proximate result of the NHL's breach of its duties, Plaintiffs and

the Class have and will continue to suffer injuries.

222. Plaintiffs, on behalf of themselves and the Class, seek damages, including

punitive damages, and equitable rel ief against the NHL, including but not limited to medical

monitoring program that appropriately cares for former and current NHL players, as a result of

the lifelong health problems they have and will suffer as a result of the NHL's misconduct.

C O U N T I I —

M E D IC A L M O N IT O R IN G

223. Plaintiffs incorporate by reference all paragraphs, except under other Counts, as

if

fully set forth herein.

224. The Plaintiffs and class members experienced repetitive traumatic brain impacts

during their respective NHL careers that significantly increased their risk

of

developing

neurodegenerative disorders and diseases, including but not limited to CTE, Alzheimer's disease,

and other similar cognitive-impairing conditions.

225. Repetitive MTBI during NHL practices and games has a microscopic and latent

effect on the brain. Repetitive exposure to accelerations to the head causes deformation,

twisting, shearing, and stretching of neuronal cells such that multiple forms of damage take

place, including the release of small amounts

of

chemicals within the brain, such as the Tau

protein. Among other things, the gradual build-up

of

Tau protein - sometimes over decades ~

causes CTE, which is the same phenomenon as boxer' s encephalopathy (or punch drunk

syndrome ) studied and reported by Harrison Martland in 1928.

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226. The game of hockey as played in the NHL, including both practices and game

play, has exposed former players to hazardous conditions and out-of-the ordinary risks of harm.

These repetitive head accelerations to which the Plaintiffs have been exposed presented risks of

latent but long-term debilitating chronic illnesses which are not presented to the normal

population. Absent the defendant's negligence and fraud, the Plaintiffs' exposure to the risks

of

harm as described above would have been materially lower.

227. Accordingly, the repetitive head impacts sustained by NHL players in NHL

games and practices exposed NHL players, including the Plaintiffs, to subtle and repetitive

changes within the brain on the cellular level. For that reasons, the environment within which

NHL players have sustained repetitive head impacts exposed them to substantive hazards.

228. Depending on many factors, including the amount of the exposure to repetitive

head impacts and the release

of

Tau protein, the player/victim will develop a range

of

subtle to

significant neuro-cognitive changes over time.

229. The latent injuries which develop over time and manifes t later in life include but

are not limited to varying forms

of

neuro-cognitive disability, decline, personality change, mood

swings, rage, and, sometimes, fully developed encephalopathy.

230. Like the organizers of boxing, the NHL was fully aware of the danger

of

exposing

all

NHL

players to repetitive head impacts, including the repetitive sub-concussive and

concussive blows that increase the risk to NHL players of, among other latent injuries,

encephalopathy.

231. As noted above, by its actions and omissions

and

fraudulent conduct, from at least

1997 through 2011, the NHL further breached its duty (which it had assumed as long ago as the

1930's) of reasonable and ordinary care to the Plaintiffs by failing to provide NHL players,

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including the Plaintiffs, with necessary, adequate, and truthful information about the heightened

risks

of

neurological damage that arise from repetitive head impacts during NHL games and

practices.

232. As a proximate result of the NHL's tortious conduct, the Plaintiffs have

experienced an increased risk

of

developing serious latent neurodegenerative disorders and

diseases, including but not limited to CTE, Alzheimer's disease, and/or other and similar

cognitive-impairing conditions.

233. The latent brain injuries from which Plaintiffs suffer require specialized testing

(with resultant treatment) that is not generally given to the public at large.

234. The available monitor ing regime is specific for individuals exposed to repetitive

head trauma and is different from that normally recommended in the absence of exposure to this

risk o f harm.

235. The medical monitoring regime includes, but is not l imited to, baseline tests and

diagnostic examinations which will assist in diagnosing the adverse health effects associated

with hockey-related MTBI. This diagnosis will facilitate the treatment and behavioral and/or

pharmaceutical interventions that will prevent or mitigate various adverse consequences of the

latent neurodegenerative disorders and diseases associated with the repetitive sub-concussive and

concussive injuries that Plaintiffs experienced in the NHL.

236. The available monitoring regime is reasonably necessary according to

contemporary scientific principles within the medical community specializing in the diagnosis

of

head injuries and their potential link to,

inter alia,

memory loss, impulse rage, depression, early-

onset dementia, CTE, Alzheimer-like syndromes, and similar cognitive-impairing conditions.

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237. By monitoring and testing Plaintiffs, the risk that Plaintiffs will suffer long term

injuries, disease, and losses will be significantly reduced.

238. By monitor ing and testing Plaintiffs, the risk that Plaintiffs will suffer long term

injuries, disease, and losses without adequate treatment will be significantly reduced.

239. Plaintiffs, therefore, seek an injunction creating a Court-supervised, NHL-funded

medical monitoring program which will facilitate the diagnosis and adequate treatment of

Plaintiffs for neurodegenerative disorder or disease. The medical monitoring should include a

trust fund to pay for the medical monitoring and treatment of Plaintiffs as frequently and

appropriately as necessary.

240. Plaintiffs have no adequate remedy at law in that monetary damages alone cannot

compensate them for the continued risk of developing long-term physical and economic losses

due to concussions and sub-concussive injuries. Without Court-approved medical monitoring as

described herein, or established by the Court, the Plaintiffs will continue to face an unreasonable

risk of continued injury and disability.

C O U N T I I I — I NT E N TI O NA L H A R M

241. Plaintiffs incorporate by reference all paragraphs, except under other Counts, as

if

fully set forth herein.

242. The NHL has intentionally created, fostered, and promoted a culture of extreme

violence, including violence from fighting. The

NHL

has known that, due to such violence, head

t rauma

t o P la in ti ff s an d th e

Class

has been and is

imminent .

The

NHL

h as k nown

that

head

trauma to Plaintiffs and the Class has and will have devastating and long-term negative health

effects. Despite this knowledge and to maintain its revenue stream from its violent construct, the

NHL has and does intentionally subject Plaintiffs and the Class to head trauma.

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243. The NHL purposefully failed to establish reasonable rules and protocols for

preventing head trauma and minimizing the effects

of

head trauma, including during games and

practice. What changes the NHL made to its violent construct were purposefully-ineffective and

solely calculated by the

NHL

to fool and mislead Plaintiffs, the Class and the public into ceasing

investigation into the risks and consequences of head trauma and the NHL's wrongdoing.

244. The

NHL

failed to

inform

Plaintiffs a nd t he

Class

about

the

scientific

research on

the negative health effects of head trauma and about anecdotal evidence from the negative health

effects of head trauma from its

own NHL

players.

245. As a direct and proximate result

of the

NHL's

misconduct, Plaintiffs and the Class

have and will continue to suffer injuries.

246. Plaintiffs, on behalf

of

themselves and the Class, seek damages, including

punitive damages, and equitable

relief

against the NHL, including but not limited to medical

monitoring program that appropriately cares for former and current NHL players, as a result of

the lifelong health problems they have and will suffer as a result of the NHL's misconduct.

C O U N T

I V

— F R A U D U L E N T C O N C E A L M E N T

247. Plaintiffs incorporate by reference all paragraphs, except under other Counts, as if

fully set forth herein.

248. The

NHL

has intentionally created, fostered, and promoted a culture

of

extreme

violence, including violence from fighting. The NHL has known that, due to such violence, head

t ra uma to Plaintiffs and

the Class has

been and is

imminent. The

NHL has

known

th at h ea d

trauma to Plaintiffs and the Class has devastating and long-term negative health consequences.

Despite this knowledge and to maintain its revenue stream from its violent construct , the NHL

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has

failed

a nd c on tin ue s

to

fail

to

inform

Plaintiffs and the

Class about the

risks

and

consequences ofhead trauma.

249.

Inter alia the NHL failed to inform Plaintiffs and t he Class about the

scientific

research on the negative health effects of head t rauma and about anecdotal evidence from the

negative health effects of head trauma from its own

NHL

players.

250.

Further, between 1997 and 2011, the

NHL

failed to disclose the results of

it s

concussion study to players and others, which the study authors recognized was important for

players and others to

know

in order to manage and make better decisions about their concussion

symptoms.

251. The NHL purposefully failed to establish reasonable rules and protocols for

preventing head trauma and minimizing the effects of head trauma, including during games and

practice. What changes the NHL made to its violent construct were purposefully-ineffective and

solely calculated by the NHL to fool and mislead Plaintiffs, the Class and the public into ceasing

investigation into the risks and consequences

of

head trauma and the

NHL's

wrongdoing.

252. As a direct and proximate result of the NHL's misconduct, Plaintiffs and the Class

have and will continue to suffer injuries. The damages suffered by Plaintiffs and the Class are

not attributable to any of lack of diligence in investigation.

253. Plaintiffs, on behalf

of

themselves and the Class, seek damages, including

punitive damages, and equitable relief against the NHL, including but not limited to medical

monitoring program that appropriately cares for former and current NHL players, as a result of

the lifelong health problems they have and will suffer as a result of the

NHL's

misconduct.

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C O U N T V —

U N J U S T

E N R I C H M E N T

254. Plaintiffs incorporate by reference all paragraphs, except under other Counts, as

if

fully set forth herein.

255. It would be inequitable for Defendant to be permitted to retain the benefit which

Defendant obtained from their misconduct and at the expense

of

the Plaintiffs and members of

the Class.

256. The Plaintiffs a nd m embe rs o f th e C la ss a re ent it le d to t he e sta bl is hmen t o f a

constructive trust impressed on the benefits to Defendant from their unjust enrichment and

inequitable conduct.

257. Alternatively or additionally Defendant should pay restitut ion or its own unjust

enrichment

to

the

Plaintiffs

and

members

o f

the

Class.

C O U N T V I — N E G L IG E N T M I S R E P R ES E N T A T IO N

258. Plaintiffs adopt by reference all allegations contained in the paragraphs above, as

if

fully set forth in this Count.

259. A special relationship exists between Defendant and the Plaintiffs sufficient to

impose a duty on Defendant to disclose accurate information to the Plaintiffs.

260. Defendant long knew that repetitive head impacts in hockey games and practices

created a risk of harm to

NHL

players that was similar or identical to the risk

of

harm to boxers

who receive repetit ive impacts to the head during boxing practices and matches and football

players during games and practices.

261. Defendant was aware of and understood the significance of the published medical

literature demonstrating the serious risk

of

both short-term and long-term adverse consequences

from the kind of repetitive traumatic impacts to the head to which

NHL

players were exposed.

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262. Defendant, however, withheld this information from NHL players and ignored the

risks to NHL players.

263. Continuing to the present , Defendant has insisted that more data is needed before

any scientifically-proven link between repetitive traumatic head impacts and later-in-life

cognitive/brain injury, including CTE and its related symptoms, can be established, a material

representation of fact and the current state ofmedical knowledge.

264. Continuing to the present, Defendant has also denied the dangers of fighting and

the head trauma caused by fighting.

265. Defendant, therefore, misrepresented the dangers the Plaintiffs faced in returning

to action after sustaining a head injury and the long-term effects of continuing to play hockey

after a head injury and the health dangers of fighting.

266. Plaintiffs justif iably relied on Defendant 's silence and refusal to act in believing

that the long-term risks of permanent harm from playing professional hockey were minimal or

non-existent.

267. Plaintiffs' reliance on Defendant' s silence was reasonable, given Defendant's

superior and unique vantage point on these issues.

268. Defendant's silence, their protocol of returning players to the game after an on-ice

evaluation by a trainer, not a doctor, and their refusal to change any of the rules of play

supported the misrepresentations that concussions and long-term medical harm resulting from

them were not a serious issue for hockey and that present NHL players were not at an increased

risk of short-term and long-term adverse consequences if they returned too soon to an

NHL

games or practices after suffering head trauma and, therefore, that former players had not been

exposed to such increased risk during their time in the NHL.

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269. Defendant made these misrepresentations and actively concealed true information

at a time when it knew, or should have known, because

of

their superior position

of

knowledge

that Plaintiffs faced serious health problems

if

they returned to a game too soon after sustaining a

concussion.

270. Defendant knew or should have known the misleading nature of their silence and

refusal to act when they decided to do nothing.

271. Defendant made the misrepresentations and actively concealed information

knowing that Plaintiffs would and did rely on the misrepresentations or omissions in, among

other things, how the Plaintiffs addressed the concussive and sub-concussive injuries they

sustained.

C O U N T

V I I — D E C L A R A T O R Y

R E L I E F

272. Plaintiffs incorporate by reference all paragraphs, except under other Counts, as

if

fully set forth herein.

273. There is a case and controversy among Plaintiffs on the one hand and Defendant

on the other. Plaintiffs have suffered injuries in fact, physical, mental and economic, traceable to

Defendant's actions and inactions and redressable by a favorable decision in this case.

274. Pursuant to 28 U.S.C. § 2201, Plaintiffs seeks a declaration as to the following:

275. that Defendant knew or

should

have

known,

at all times material,

that the

repeated, traumatic and unnecessary head impacts the Plaintiffs endured while playing NHL

hockey were likely to expose them to substantially-increased risks

of

neuro-degenerative

disorders and diseases, including but not limited to CTE, Alzheimer' s disease and similar

cognitive-impairing conditions;

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276. that based on the NHL's voluntary undertaking to study the issue of MBTI,

Defendant had a duty to advise Plaintiffs of that heightened risk;

277. that the NHL willfully and intentionally concealed material information from, and

misled Plaintiffs concerning, that risk; and

278. that Defendant recklessly endangered Plaintiffs.

P R A Y E R

F O R

R E L I E F

WHEREFORE, the Plaintiffs and the Class pray for

judgment

as follows:

A. Granting an injunction and/or other equitable relief against the NHL and in favor

of

Plaintiffs for medical monitoring;

B. Awarding Plaintiffs compensatory damages against the NHL;

C. Awarding Plaintiffs punitive damages against the NHL;

D. Awarding Plaintiffs ' declaratory and such other rel iefas may be appropriate;

E. Certifying a class action, appointing Plaintiffs as Lead Plaintiffs and Plaintiffs'

Counsel as Lead Counsel; and

F. Granting Plaintiffs their prejudgment interest, costs and attorneys' fees.

J U R Y T R I A L D E M A N D

Plaintiffs demand a trial by

jury

on all issues so triable in this Complaint.

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Dated:

New

York,

New

York

July 25, 2014

SUSMAN GODFREY L.L.P.

William

<£hristopher

Carmody (WC8478)

Aran Subramanian (AS2096)

SethArd(SA1817)

560 Lexington

Avenue, 15'

Floor

New

York,

New

York 10022

(212)336-8330