Fritsche v. NHL - Complaint

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),


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/.


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


29

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

3

James Christie,

TakingRisks

On

the

Job,

THE

GLOBE

AND

MAIL

(CANADA),

Mar.

18,

1981

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

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

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

David Shoalts, Shanahan AdvocateLargerIce SurfacesNarrowConfinesCauseInjuries, StarSays,

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

Smith:Enlarging the Crease Could

Cut Hockey Violence,THE GLOBE AND

MAIL (CANADA), Feb. 2, 1983.

11

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31


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^

other forms

of

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

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

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

between 2009-2011 most NHLconcussions resulted from

legal

actions where the aggressor

was

not

assessed a penalty, fine orsuspension. 34

B. Fighting Is Prevalent

and

Accepted By th e NHL

i. NHL Considers Fight ing

to be P art

o f

th e Game

34. The

NHL

is unique among professional sports in that it condones and has

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

boasts that fighting is part of its game.

35. Several decades ago, former

NHL

President

Campbell

acknowledged that a rule

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

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

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

NHL

president Ziegler

explained why the

NHL

would not put an end to fighting:

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

The

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

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

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

32

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

Hockey.

PLoS

ONE

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

available at

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

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

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

33

Id.

34

Id.

35

McMurtry,

supra, at

20-21.

12

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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.

13

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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/.

14

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P re se a son

Sta t s

jAjUL d^Ut

ffr jyMLifl^ljfc

Fights

Pr

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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21/88

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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28/88

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

25

3253651vl /014353


31/88

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).

26

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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.

27

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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).

28

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34/88

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).

29

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73


35/88

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

30

3253651vl/014353


36/88

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.

31

3253651vl/014353


37/88

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.

3 2

3253651vl/014353


38/88

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.

33

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39/88

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.

34

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40/88

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.

35

325365W1/014353


41/88

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.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

36

3253651vl/014353


42/88

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.

37

3253651vl/014353


43/88

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

38

3253651vl/014353


44/88

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

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