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7/21/2019 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/.
10
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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
(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.
11
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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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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
(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