The Wins and Losses of the NHL's Tentative Concussion Lawsuit Settlement

It was nearly two years ago when the U.S. Supreme Court denied petitions to review the NFL concussion settlement. The move all but ensured that the NFL’s 65-year, billion-dollar settlement would go into effect and approximately 20,000 retired players and families would become eligible for payment. On Monday, the NHL joined the NFL as a pro sports league attempting to resolve its concussion litigation. To that end, the NHL tentatively agreed to a settlement with a comparatively small group of litigants who sued over concussions. The group consists of 318 former players, of whom 146 filed as plaintiffs while the other 172 only retained counsel. This group attempted to become a class on behalf of thousands of retired NHL players but, as explained below, failed to do so.

Like with the NFL, the NHL concussion settlement will face criticism for not offering enough money to retired players with long-term neurological problems. By excluding the vast majority of retired NHL players, the settlement will also fail to serve as the last word on NHL concussion litigation. At the same time, the NHL concussion settlement offers a number of benefits for both retired players and the league itself.

Comparing the NHL and NFL concussion settlements

SI’s Alex Prewitt details the NHL concussion settlement, which will require judicial approval as well as a sufficient number of claimants before it can become binding. Among the settlement’s key features, the NHL will disburse $7 million to players who opt in as settlement claimants. This will lead to each plaintiff receiving up to $22,000. The league has also agreed to fund neuropsychological testing and reimburse up to $75,000 in medical treatment expenses for qualified players. Further, the league will create a “common good” fund of more than $2.5 million. All retired players will be able to draw from this fund for health and welfare matters. All told, the NHL will expend as much as $18.9 million under the settlement’s terms.

At first glance, it would seem that the NHL concussion settlement provides retired players with decidedly less than the NFL’s concussion settlement. While serious concerns have been raised about unexpected deductions and lengthy delays in paying, the NFL settlement is designed to pay retired players, on average, around $190,000 and up to $5 million depending on those players’ ages, injuries and NFL experience. By contrast, the former NHL players who opt-into the settlement will each receive only up to $22,000 in direct payment, along with as much as $75,000 in reimbursement of medical expenses and, like other retired players, access to the common good fund. While the NFL has pledged to pay out approximately $1 billion, the NHL has agreed to pay less than 2% of that amount.

From a different vantage point, the NHL concussion settlement may have certain advantages over its NFL counterpart. For one, it is not a massive enterprise that involves tens of thousands of persons and the accompanying bureaucracy required to help them avail their rights under the settlement. If approved, the NHL concussion settlement will result in the dismissal of 26 individual lawsuits, each of which involves multiple players. The smaller quantity to the NHL settlement should make it far less complex to administer and, hopefully, avoid the administrative problems endemic in the NFL’s concussion settlement. To that end, each former NHL player who claims from the settlement should detect better “customer service” than what numerous retired NFL players have expressed.

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The NFL pledging to pay out about $1 billion should also be viewed in the proper context. That figure is expected over a period of 65 years and contemplates payment to more than 20,000 recipients. The NHL concussion settlement appears likely to pay out over a faster period and only contemplates a few hundred recipients. The NFL also makes much more money than the NHL, generating approximately $14 billion a year in revenue, while the NHL generates somewhere between $4 billion and $5 billion a year.

The impact of the players’ failure to have their cases certified as a class action

Arguably a more problematic aspect to the NHL concussion settlement is its limited group of intended recipients and the accompanying absence of closure.

Unlike the NFL concussion settlement, the NHL concussion settlement does not resolve a class action. Instead, it is intended to conclude 26 similar, but nonetheless separate, lawsuits brought by former NHL players in different jurisdictions across the U.S. The first player to do so was former All-Star defenseman Gary Leeman, who in 2013 sued the NHL in the U.S. District Court for the District of Columbia. He claimed the NHL failed to adequately protect him and other players from risk of long-term neurological injury. Leeman’s lawsuit resembled those filed by former NFL players. It depicted his former league and its executives as grossly indifferent to players’ health. He also argued the NHL has been fixated on owners’ profits at the expense of players’ safety. Leeman charged that the NHL has repeatedly failed to take corrective steps, most notably by neglecting to utilize best practices in medical monitoring.

Leeman, as well as other former NHL players who subsequently filed concussion lawsuits, hoped that their collective litigation would eventually become a class action. A class action would have enabled a relatively small group of former NHL players to sue on behalf of thousands of other retired NHL players. This dynamic would have effectively transformed a handful of lawsuits involving dozens of players into a much larger and more threatening case.

The players’ pursuit of class action certification ended earlier this year. Judge Susan Nelson of the U.S District Court for Minnesota rejected the players’ class certification petition. Rule 23 of the Federal Rules of Civil Procedure was crucial to Judge Nelson’s ruling. Under Rule 23, a judge can only certify a proposed class when certain elements are met. For instance, the proposed class must display sufficient numerosity—all retired NHL players would have been numerous—and show that dozens or hundreds of virtually identical lawsuits would be impracticable and tie up courts.

The proposed class must also convince the judge of “commonality,” which refers to a finding that there are questions of law or fact sufficiently common to the former players. The players failed to persuade Judge Nelson of commonality. While all of the players’ claims center on a failure to warn and a failure to provide adequate medical monitoring, the claims invoked different states’ laws that diverged on questions of medical monitoring. For instance, Michigan has rejected any independent claim for medical monitoring. Yet in Arizona and Massachusetts certain plaintiffs can recover for the costs of medical monitoring, albeit under different kinds of circumstances. Judge Nelson noted that states’ laws on medical monitoring are simply too disparate for all of the former players to be in one class action. Although Judge Nelson acknowledged “sympathy” to the “the significant cost and the likelihood of duplicative proof in trying this case many times, for each individual player,” she was left with no choice under Rule 23 but to deny the proposed class.

In the absence of a class action settlement, the NHL could be sued by other former players in different jurisdictions across the U.S. and Canada. There are thousands of former NHL players alive, whereas only 318 are parties to the settlement. That 318 number could also shrink: each of the 318 has 75 days to decide if he wants to opt into the settlement. Those who don’t opt in won’t benefit from the settlement but can bring their own lawsuits against the NHL. It stands to reason that some of the 318 will likely decide the settlement isn’t good enough and bring their own cases. A little under one percent of retired NFL players opted out of the NFL concussion settlement.

Why the retired players agreed to settle with the NHL

While the scope and value of the NHL concussion settlement may seem underwhelming, there are a variety of reasons why the settlement was reached. First, a settlement means the litigation is over and the players—and their attorneys—will be paid.

For some retired players and their families, receiving as much as $22,000 and up to $75,000 in medical reimbursements in the near future could be of tremendous life value. Some retired players are clearly suffering from neurological and other health issues related to playing and have incurred heavy medical expenses as a result. They might value a certain near-term payment of a lesser monetary amount than a payment of a higher amount but a payment that is uncertain to happen and wouldn’t happen for several years. Keep in mind, to “go the distance” in the litigation, the players would need to prevail after a trial and subsequent court appeals. That process could take several years. Plus, the NHL might have ultimately prevailed, leaving the players with nothing.

Second, the NHL was armed with several persuasive defenses that would have made hurdles for the players’ attorneys. It’s worth noting that that NHL seemed highly confident that it would ultimately prevail, so confident that it was willing to endure embarrassing disclosures that occurred during the pre-trial discovery process. For instance, in 2016, the league was forced to share hundreds of documents with players’ attorneys. Among those documents were printouts of emails authored by NHL officials where they seemed insensitive about players’ health. Take this excerpt from a 2016 story by Cathal Kelly of The Globe and Mail:

The "smoking gun" conversation is started by then-vice-president of player safety Brendan Shanahan. He sends league commissioner Gary Bettman a link to a story by The Globe and Mail's Eric Duhatschek, headlined Getting rid of hockey's goons. The piece wonders whether a more concerted effort by the league to eliminate the role of enforcer might have saved the lives of former players Rick Rypien, Derek Boogaard and Wade Belak. All three deaths have been tied to the effects – both emotional and physical – of their brutal work.

"An interesting question is whether being an NHL fighter does this to you (I don't believe so) or whether a certain type of person (who wouldn't otherwise be skilled enough to be an NHL player) gravitates to this job (I believe more likely)," Mr. Bettman responds, in part.

This is the quintessential Bettman. He is a lawyer, thinking and operating like a lawyer – "What can be proved?" "Who can be blamed?" And not necessarily in that order.

In spite of the negative publicity from these disclosures, the NHL refused to settle. This was telling. It revealed a very different tactic from the NFL in its concussion litigation. The NFL settled prior to discovery, most likely out of concern that email disclosures would have humiliated league officials and tarnished their reputations.

In spite of being embarrassed, the NHL refused to settle because league officials believed, correctly as it turned out, that they could diminish the concussion litigation from a prospective class action involving thousands of retired players to merely a couple of dozen standalone lawsuits involving a few hundred retired players.

The league was also armed with at least three core defenses.

First, the NHL stressed “preemption.” In the context of concussion litigation, preemption means before a retired player can sue the NHL over a health matter, he is contractually obligated under the collective bargaining agreement to arbitrate his claim out of court. Stated differently, the player’s claim is preempted by his contractual obligation to first arbitrate using a collectively bargained grievance procedure. To that end, the NHL has insisted in court filings that its health, safety, disability and pension policies are collectively bargained with the National Hockey League Players’ Association. The league has hinted that if players are dissatisfied with the obligation to arbitrate first, they should blame their union, not the NHL.

It’s uncertain if preemption would have worked for the NHL had the litigation advanced. Judge Nelson—who ruled for Tom Brady and NFL players in the 2011 NFL lockout but was reversed on appeal to the U.S. Court of Appeals for the Eighth Circuit—refused to dismiss the litigation based on the NHL’s preemption theory. To that end, she disagreed with the NHL when the league claimed that preemption applies even though the players are retired. Judge Nelson instead stressed that the NHLPA only represents current and future NHL players, not former players. She also emphasized that certain state law claims are not automatically preempted merely because they raise similar issues as those found in a CBA or player contract. Judge Nelson observed that preemption could only be understood through more information about how the players’ claims relate to the CBA’s language. Although Judge Nelson signaled skepticism towards the NHL’s preemption argument, that argument remains a potentially powerful defense for the NHL—including in any appeal to the U.S. Court of Appeals for the Eighth Circuit.

Uncertain causation is also a key defense for the NHL as it has been prepared to argue that it’s impossible to trace a player’s neurological trauma to his time in the NHL. After all, the player played competitive hockey for years prior to his first shift in the NHL and experienced neurological impact during that time. The league can also assert that retired players may have made poor health choices in their post-playing careers that adversely impacted their health. The players would attempt to rebut such arguments by stressing that play in the NHL is far more physical than play in the American Hockey League, the NCAA, high school, the Canadian Hockey League and the like. Also, some retired players spent most of their adult years in the NHL, which would suggest they suffered more health trauma during that time than they did at any other level of hockey.

Assumption of risk is still another defense for the NHL. Each player voluntarily agrees to participate in the NHL, an obviously fast-paced league that has featured varying levels of fighting, checking and other physical conduct involving physically large men. Players also see first-hand that injuries, including head injuries, occur with regularity. The players would attempt to debunk this line of defense as a straw man argument. While certain kinds of injuries are open and obvious in an NHL game, the league’s failure to (in the players’ view) effectively monitor health was hardly obvious to the players who suffered as a result. Expert testimony would likely prove critical in this debate.

Instead of taking a chance in a trial—and possibly in multiple appeals—the players, through their attorneys, decided to accept the NHL’s settlement offer. The players will be paid perhaps less than they would have received if they won a trial and won appeals, but the pay is certain and should occur in the near future rather than several years from now. Of course, some players might not opt in. They can continue their litigation against the NHL and hope for a better result. The same is true of the vast majority of retired NHL players who were not parties to this litigation.

Why the NHL agreed to settle with the retired players

The NHL’s reasons for agreeing to the settlement are also important. For one, the litigation has periodically been a source of embarrassment for the league. As described above, email disclosures that arose through pretrial discovery have reflected poorly on league officials and depicted them as uncaring. A trial pitting the league against retired players, some of who might appear ill and weak, would have only exacerbated this dynamic. The league may have been concerned by how jurors would react to seeing high-paid executives from a multi-billion-dollar sports league sit across a courtroom from elderly and financially strapped retirees whose dedication and courage decades earlier helped to make the NHL what it has become.

Of equal importance to the league, the settlement does not require it to admit fault or take any responsibility for the players’ health woes. This should aid the league not only in terms of public relations, but also in terms of likely future litigation brought by other retired players. If the NHL admitted to fault, other players and their attorneys could rely on that admission and use it against the NHL.

The settlement also saves the league on legal fees. While the players’ attorneys likely worked on a contingency fee arrangement—whereby they are only paid if they win or negotiate a settlement—law firms hired by leagues usually work on hourly fees. Such fees at the kinds of firms hired by the NHL and other leagues can range from anywhere in the high hundreds to north of a thousand dollars. The concussion litigation has likely been costly for the league. Had the litigation advanced toward trial, the league would also have to pay for expensive expert witnesses.

With a tentative settlement in hand, the league can now focus on more proactive and positive steps to maximize player healthy. It can collaborate with the NHLPA while knowing this phase of the litigation is over. At the same time, the settlement only covers a slice of retired players. Expect the NHL to continue to face more litigation brought by retired players over concussions and to seek similar out-of-court settlements with them.

Michael McCann is SI’s legal analyst. He is also Associate Dean of the University of New Hampshire School of Law and editor and co-author of The Oxford Handbook of American Sports Law and Court Justice: The Inside Story of My Battle Against the NCAA.