The Fear of Never Ending Litigation Could Force a Culture Change in The NHL

My belief is players are the ones which will be able to change the culture of the NHL if they have a clearer understanding as to the consequences of their actions. Many believe the key is not to count on a new awareness by players but rather focus on the punishment. There is good reason to believe if enough punishment is given, specifically in terms of suspensions, players at some point will be motivated to change their behavior.

In any regard the process of changing the culture of the NHL did appear to be a very lengthy one. The league seemingly dances between NHLPA concerns and those of franchise owners. The NHL did not appear to be worried about possibly being held financially responsible for serious injuries sustained by players. Now the league could be more  aware of ownership of the problem and push for change.

This isn’t your father’s NHL where problems where hashed out over a few bottles of Crown Royal in the Sonja Henie Room of the old Chicago Stadium. Now times are much more complicated and there are far more lawyers. It pains me to write that this time having more lawyers in society might actually serve a purpose.

My thinking is the fear of litigation and financial responsibility will be the biggest motivation for the NHL to force a change in the behavior of players. Money talks and the ramifications of open ended liability should motivate the NHL as well as the NFL to become as proactive as possible to change the culture of violence.

On Sunday night, NBC’s Bob Costas, in an open dissertation during half time of the Viking-Packers game shed some light on the motivation for the NFL to take serious action against hits to the head. As Costas pointed out, eventually the courts will get in involved and unless things change the NFL could be on the hook for serious financial consequences.

In essence, Costa wasn’t only alluding to a Todd Bertuzzi-Steve Moore situation, not just a player on player lawsuit. Costas was referring to the open ended financial risk for the league itself.

If next week a player were to be paralyzed or worse because of a flagrant hit to the head, the NFL could be a party to a lawsuit. The NFL, and the same could be said for the NHL, would need to prove they had the player’s best interest in mind and did everything possible to prevent such a dangerous play.

It would be up to each league to supply a defense which indicated players were made aware of the health concerns involved with head shots and consistent, appropriate punishment was in place to deter such behavior.

If my interpretation of the Costas remarks is correct, the league itself could be the biggest financial loser in case of lawsuits. It is common practice to include the party with the deepest pockets if possible when a law suit is filed. The liability for the NFL and NHL would extend for years and years to come.

The potential for lawsuits and significant financial liability could be never ending.

The NFL and NHL wouldn’t only be held liable for injuries occurring now. In 20 years, a former player in his mid- forties diagnosed with dementia or has other chronic health concerns which can be attributed to head trauma could sue the NFL or NHL.

Maybe the NFL and NHL will try to force players to sign waivers saying they can’t come back and sue the league. That wouldn’t be addressing the cause of concern. What would make the most sense is for each league to put forth consistent policies as to force a change in the behavior of participants as quickly as possible.

Both professional football and hockey are violent games and players will always risk serious injury. But maybe the realization has occured that each league will need to become more proactive in making their sport as safe as possible.

If not the courts could hit the NFL and NHL where it hurts the most for many years to come……In the wallet.

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  1. shruew says:

    That’s an interesting concept. If a player receives a career ending injury in the NHL, they are entitled to certain benefits. To receive those benefits, they have to sign a release with the NHL and NHLPA in regards to liability (see Exhibits 9,10,11 and 12 if you really care to).

    So a player would have to take a hit, refuse benefits, and take the matter to court where he could end up with nothing. In that regards, it’s more likely he’ll just take his benefits.

    Perhaps it’s the actuaries at Lloyd’s of London that did some spreadsheets and put the pressure on the NHL.

    • Al Cimaglia says:

      Also to your first we know every case is different..But my thinking is the NHL benefits for high priced pernmanently injured players would not be as great as what could be awarded in a law suit.

      But as you pointed out…There is no guarantee of winning the lawsuit.

  2. Al Cimaglia says:

    A tangled web…

    But if a law suit boiled down to proving if the NHL maintained expressed standards for punishment and did as much as possible to heighten awareness of the dangers of head shots…I think the league would have a big problem.

    What pushed my buttons is the possible open ended liability.

    Whereby a player could come back mmany years later if dementia and ALS were to be found, and head trauma was a proven cause.

    As my lawyer friends would say…A slippery slope.

    • shruew says:

      It is a tangled web, one certainly I can’t untangle. I do agree that the delayed lawsuit is interesting. I’m sure a lot of liability is signed away once one signs up with the NHLPA and NHL.

      That said, with people making $100Mil+ over a career, perhaps someone down the road can do without any of the benefits of the NHL/NHLPA pensions, insurance and tries to make an example in the court systems.

  3. Living the Cup says:

    Al – interesting blog. Certainly the NHL has shown they are not going to take serious action on head shots unless forced into it.

    Unfortunately they almost certainly won’t be proactive. A player in the NHL or another league like the NFL would have to get seriously injured and take the league to court before the NHL will move it’s dinosaur feet on this.

    And then they’ll pretend to be concerned about the players when as you say Al it’s their wallets they really are concerned with.

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