Tag Archives: concussions

For Whom the Bell Tolls – Death of the NHL Enforcer

December 4, 2015

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By Dan Hutchinson – Thompson Rivers University 3L JD Student

The death bell of the NHL tough guy has been sounding for years and now that breed of player is all but extinct. Names such as Probert, Domi and Twist are long gone from the game and even more recent names such as McGrattan, Orr and Parros have been unable to find employment in the NHL either having to settle for minor league deals or retire The league simply phased these players out of the game with rule changes that make the game faster, with more emphasis on speed instead of toughness.

According to hockeyfights.com, after 227 games in the NHL this season there have been 53 fights corresponding to 20.3% of games played with a fight. The percentage of games with a fight is down nearly 7% from last season and has dropped significantly each season since 2010 when the number of games with a fight was 40.1%. This number has dropped significantly due to the NHL taking steps to limit fighting including stiffer punishment for players engaging in a fight and instructing linesmen to break up fights before they are able to start.

The drop in fighting has also resulted from a philosophical shift in the league towards speed and skill and away from toughness and grit. Teams want players that can play at least 10 minutes a game and contribute more than their fists. “You’re already seeing a lot of that,” said Carolina GM Ron Francis. “Now you get teams that have scoring on all four lines. The way the game is played and the pace it is played at, teams that have success are the ones that have 12 forwards who can give you minutes.”

While this philosophical change has played a part in the death of the enforcer it is not the only reason the tough guy is no longer part of the game. Significant changes in rules in hopes of protecting players has seen the league take matters into their own hands further pushing the enforcer out of the game.

With concussions being an issue on everyone’s mind, especially with the current lawsuit against the NHL launched by former players dealing with issues relating to head injuries sustained during their playing career, the NHL has started to give out lengthy suspensions and fines for players laying dirty hits on opponents. The most recent long term suspension was given to Raffi Torres for a shot to the head of Jakob Silfverberg. Torres was suspended for 41 games on the play.

The question now is whether these suspensions and fines are enough of a detriment for players to avoid dangerous hits and result in an actual increase in player safety. Or were players safer with their own personal policemen roaming the ice? Many believe that the threat of having to “face the music” as a result of a dirty play to be more of a detriment than a fine or suspension. With the way the NHL is going, the threat of an enforcer coming after a player due to a dirty hit or even a fight as retribution is becoming a non-factor, a path which many feel is wrong.
“I would hate to see the unintended side effects of where hockey would go without fighting, without that threat of retribution. It’s a fast, violent game where we’re wearing weapons on our feet and essentially carrying a club. So while a two- or five- minute penalty is a bad thing, it’s not going to knock somebody off their path of destruction as much as somebody grabbing them and punching them in the face,” claims ex-NHLer Kevin Westgarth.

It’s hard to know whether the NHL would be a safer place without fighting and the threat of a suspension being the only thing to stop players from dirty plays but looking at two high profile instances where headshots have been delivered, no enforcer was in the lineup for the team that sustained the hit. In the 2011 Winter Classic where Sidney Crosby was taken out with a blatant headshot, Pittsburgh hadn’t dressed their enforcer Eric Godard and neither did Anaheim when Torres nearly took off Silfverberg’s head. This would never have happened to Gretzky when McSorley was in the lineup. It’s impossible to say whether or not these hits would have occurred had an enforcer been dressed but it is something worth noting.

Additionally, in the NCAA fighting is banned and is arguably more dangerous as a result. “They drop the puck and you try to kill guys in the corner. I don’t know if it’s because there’s no fighting or because of the build-up, but there’s a lot of crash-and-bang, not much finesse out there,” says ex-NCAA and current NHLer Corey Tropp. So while the NHL is doing its best to phase fighting and the enforcer out of the game in an effort to maintain player safety, they may be doing more harm than good.

It may be best for the NHL to leave fighting alone rather than push it completely out of the game. It certainly seems like the players want fighting to stay a part of the game after a recent NHL Players Association survey revealed that 98% of players support fighting in hockey. The NHL is slowly working to eliminate fighting in an effort to increase player safety and decrease the number of concussions. However, the best option may simply be to let the fights and enforcers stay a part of the game.

 

 

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The Last Great Unknown: Mitigating Legal Liability and Maximizing Player Safety with Regard to Concussions

November 22, 2015

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By Ryan Hamilton – Thompson Rivers University 2L JD Student

Sports concussions have received a lot of attention over the past decade and are the last great unknown in sports medicine. Legal liability has acted as a sort of catalyst with respect to the amount of research and exposure that concussion related injuries have received. The solution to the problem of sports-related brain injuries is multi-headed and includes prevention, education, recognition, rule changes, and rehabilitation.

The truth is, there is really no way to eliminate head injuries from contact sports where players are getting bigger, stronger, and faster, at least without dramatically changing how these games are played. However, there are two strategies that should be employed and advanced upon to ensure that the games we love can continue to emulate a high level of ethical and legal standards.

These strategies can be referred to as recognition and education. Both of these can be highlighted in World Rugby’s Concussion Guidance Protocols. Their “Recognize and Remove” campaign highlights the necessity of recognizing the symptoms of concussion and removing players from the field to be properly screened.

Education as to what exactly constitutes “symptoms” in such a physical game is imperative to ensuring adequate safety standards. These educational programs should be mandatory for players of all ages and skill levels. As the understanding of concussions improves, the standard of education to athletes must improve as well. In doing so, organizations can protect themselves and reduce their liability by ensuring that participating athletes are aware and accepting of all the inherent risks associated with their sport.

The second important strategy is concussion recognition. A prominent example of the increased focus of recognition can be found in World Rugby’s Law 3.11: Temporary Replacement-Head Injury Assessment (HIA). The law came into effect on August 1st, 2015. Law 3.11 dictates that players in elite level matches who are suspected of having received a concussion are to be immediately removed from the field of play and assessed. The recognition of symptoms is not limited to the player, and also allows for medical staff to request a player be removed.

World Rugby Law 3.9 also allows the referee to order a player who he or she views as being injured to leave the field for assessment. Following the assessment, the doctors and medical staff make a determination as to whether the player can return to the field of play or is removed permanently. This is quite significant rule change, as normally any player who is substituted off, or leaves the field due to injury cannot return (with the minor exception of a “blood injury”).

The new rule allows for accredited medical professionals to make these assessments immediately following a suspected head injury. It also takes the decision largely out of the player’s hands, which is paramount to ensuring safety and reducing long-term injury. Concussions are a very unique injury. You don’t wear a cast, you aren’t in a sling, and there are no scars. As an athlete it can be tremendously difficult to pull yourself out of games based on symptoms that you haven’t been formally trained to recognize.

While educational programs can mitigate a lack of recognition, even the most informed player could have trouble diagnosing the symptoms of concussion after receiving an impact to the head. Keep in mind that an athlete doesn’t have to lose consciousness to receive a concussion, often times they don’t. Add to that the old school attitudes and mantra of a game built on toughness and you’re putting an unfair choice on an elite level player, especially on those international athletes who have worked their whole lives to represent their country, and would do just about anything to remain on the field regardless of consequence. While these attitudes are changing with the help of World Rugby’s campaigns, the choice to remove oneself from the field should never be left solely with the athlete.

An example of Law 3.11 working was during the recent Rugby World Cup match between Scotland and South Africa where the Scotland medical staff recognized that hooker Ross Ford was displaying concussion like symptoms. Staff promptly contacted the referee and had Ford removed for an HIA assessment. Ford failed the subsequent head injury assessment and was not allowed to return to the field.

According the British Journal of Sport Medicine, prior to the HIA protocols, 56% of players with a confirmed concussion remained on the field following their injury. That number has dropped to 12% since the HIA. This decrease is a huge success, and highlights World Rugby’s commitment to increased concussion awareness and emphasis on player safety; both of which are paramount to not only maintaining a high ethical standard, but also in protection from tortious liability as well.

 

 

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Concussed in the NCAA: What does it mean in the context of the NFL decision?

November 7, 2015

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By P. Kyle Sandulescu – Thompson Rivers University 2L JD Student

In the wake of the NFL concussion lawsuit settlement that came down in April, the National College Athletic Association (NCAA) is facing a similar class-action lawsuit launched by former college football, hockey, and soccer players who sustained concussions during their college sports careers. While the NCAA technically operates as a non-profit association, it makes profits that eclipse many major professional sports leagues. Therefore, if the plaintiffs can prove that the NCAA knew of the long term effects of concussions and failed to protect their student-athletes from head injuries, a judge will likely be persuaded to awarded compensation to former players, similar to the NFL settlement agreement.

In the class-action concussion lawsuit brought against the NCAA, Walker, et al. v. National College Athletic Association, former college athletes alleged that the NCAA breached its duty to educate players on the dangers of concussions, and breached its contractual obligation to ensure that member institutions complied with NCAA Regulations on enhancing the physical and mental wellbeing of student-athletes. The plaintiffs also claimed that the NCAA fraudulently concealed information on the long term effects of concussions. The plaintiffs initially sought a $70 million NCAA-funded monitoring program to provide early diagnosis and treatment of head injuries over a 50 year period. In June however, Adrian Arrington, the face behind the class-action lawsuit, fired his attorney and rejected the proposed settlement. One can expect that the plaintiffs will seek a considerably larger settlement perhaps approaching the one awarded to former NFL players.

There are important distinctions, though, between the NCAA and the NFL which make the NCAA lawsuit more complicated than the lawsuit against the NFL. First, in the NFL the players are in a contractual relationship with the league which is governed by the standard player’s contract, which directly imposes a duty on the NFL, whereas in the NCAA regulations govern the relationship between the NCAA and the universities that are members in the Association. However, a duty to protect players might be established by looking into the NCAA Sports Medicine Handbook which explicitly states that student athletes can assume that the NCAA’s member institutions have taken reasonable precautions to minimize the risk of injury from athletics participation. The plaintiffs would hence make the case that the NCAA owes a duty to the players who participate in sporting events on behalf of their universities.

With nearly $1 billion in annual revenue, the NCAA resembles less a non-profit association than it does a professional sports organization. The sheer volume of cash flow into the NCAA’s coffers has proven sufficient to attract interest in a class action lawsuit similar to the NFL suit. A key distinction between the two lawsuits is that the claim against the NCAA involves athletes from different sports and not just football, and does not preclude athletes from non-contact sports from bringing an action against the NCAA.

Simply put, there is a need to protect the majority of student athletes who do not go on to have professional careers. Adrian Arrington and countless others who did not have professional sports careers sustained head injuries while playing college sports under the NCAA. Many of them were left unable to work or utilize their degrees. The vast majority of student-athletes have to use their college sports careers as a means of getting an education and obtaining a degree. Therefore, former players should be compensated if they sustain an injury that prevents them from functioning in the work force when their college careers are over if the damage could have been prevented through proper monitoring and testing by the NCAA. With the resources and funding available to the NCAA, there is no reason to treat them differently from a professional sports league that fails to take action in minimize the risks faced by their athletes.

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Heads Up: Concussions, Class-Actions and the National Hockey League

October 22, 2015

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By Brianna Meyer – Thompson Rivers University 2L JD Student

The Stanley Cup. Sidney Crosby. Wayne Gretzky. These buzzwords ignite dreams of aspiring elite hockey players across Canada as children of all ages commence the journey to the National Hockey League (NHL). For those that make it, the NHL provides the ultimate platform of hockey excellence. A dream come true. But at what cost?

For over 200 former NHL players, the lasting effects of head injuries sustained during their professional hockey careers have motivated a class action lawsuit against the NHL. The players allege that the league was wilfully withholding information about the long term health effects of repeated head trauma and was actively encouraging dangerous behaviour.

This lawsuit follows the successful $765 million dollar settlement for players of the National Football League sustaining similar head injuries. Boston University researchers have diagnosed several deceased NHL players as victims of trauma-related brain disease. Although this area of research is novel and still advancing, Boston University has identified a link between chronic traumatic encephalopathy (CTE) and repeated blows to the head. CTE is a degenerative brain disease found in former deceased athletes often identified by the presence of hyperphosphorylated tau (an abnormal protein in brain cells).

This link is currently being questioned by the NHL who has since subpoenaed records from the Boston University researchers conducting these studies. NHL commissioner Gary Bettman has rejected the very notion that the link between CTE and sports-related concussions exists at all. Besides this league denial of a connection, there are other significant obstacles that stand in the way of former NHL players claiming damages from the NHL for their injuries. The majority of the claimants are retired, which raises questions as to the limitation period upon which this litigation is brought. In addition, we are talking about professional hockey players who grew up playing in minor and amateur hockey leagues. Isolating causation and liability specifically to the NHL will be a significant burden to prove.

Despite these impediments, this issue is not going away. In February 2015, Steve Montador died at the age of 35 from an undisclosed cause. He had been exhibiting signs of a brain disorder including depression, memory problems and erratic behaviour leading up to this death. An examination of his brain post-mortem revealed that he suffered from CTE. The scope of this class-action lawsuit demonstrates that Steve Montador is not alone.

Changes to the NHL official rules to prohibit illegal checks to the head were made in 2011. But is that enough? For players suffering from the long-term effects of traumatic brain injuries sustained while playing professional hockey the answer is clearly no. When elite athletes elect to participate in a sport there are always inherent risks. However, the core of this lawsuit alleges that the NHL withheld the very information players needed to know to make a rational, informed choice about taking such risks. The lawsuit emphasizes that the NHL has the capacity and the resources to better prevent head injury but failed to do so. Players can only consent to risks they are aware of. The NHL, it is alleged, blurs the lines of what players actually consent to.

CTE. Second-impact syndrome. Traumatic brain-injury. These words are killers of professional hockey dreams unless there are significant changes in the prevention, treatment and and return-to-play protocols of concussed players in the NHL. Legal accountability is one mechanism that can trigger this process. For the sake of aspiring hockey players across North America, I hope that the courts can force the NHL back into the reality of the game to deal with this issue head on.

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Non-Guaranteed Contracts, Guaranteed Injuries

October 5, 2015

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By Harman Toor – Thompson Rivers University 2L JD Student

Football is inherently dangerous. The term contact sport doesn’t apply to football, collision sport does. While those playing football know the risks, there are certain injures and concerns that have recently garnered considerable attention. Concussions and how to combat player injuries has become a highly dividing topic. Recently, the NFL reached a settlement with more than 5,000 retired players who accused the NFL of not warning players and hiding the damages of brain injuries. This settlement, numerous medical studies and the fear of North America’s most profitable sport eventually failing have led to numerous changes in an attempt to make football safer. However, the one item that is undermining any progress made when it comes to player safety is non-guaranteed contracts.

In 2013, the NFL implemented a concussion protocol in which independent doctors and neuro-trauma specialists examined players who were believed to have suffered a concussion. This was a welcomed change from years past where team physicians would administer tests and decide whether a player was fit to return to action, having to choose between the needs of the team and the wellbeing of a player.

Takings steps to identify concussions as well as changing rules is ignoring a much larger issue; the requirement of players to play through injuries to avoid a loss of wages. Darnell Docket, former player for the Arizona Cardinals stated, “…we know if we don’t play hurt and injured, we’ll be released just the same…the NFL says it wants us to report concussions, but its actions say differently.”
Of the four major North American sports leagues, the NFL is the only one where the contracts of players are not fully guaranteed. This means that when players sign a contract they are only guaranteed a portion of their salary, and may be released without receiving the total amount they signed for. For example, Aaron Rodgers, a Super Bowl winning quarterback recently signed a contract for $110,000,000 of which $54,000,000 is guaranteed. In comparison, Wes Matthews who suffered a major ACL tear, signed a $70,000,000 deal with the National Basketball Association’s Dallas Mavericks that is completely guaranteed. Many football players know that they will not see the entirety of their contract fulfilled, thus they try to negotiate as much guaranteed money upfront as possible.

For the majority of NFL players who are not considered “franchise players”, their leverage for guaranteed money is greatly reduced. Thus, those that know that the fulfillment of their contract hinges on their ability to play are far more likely to ignore their own personal safety in the hopes of continuing to collect a paycheque. Retired linebacker Ted Johnson recalled in The Concussion Crisis: Anatomy of a Silent Epidemic suffering a concussion in a 2002 preseason game. In fear of losing his roster spot and non-guaranteed Johnson partook in a contact drill at practice and suffered a second concussion.

This season Kam Chancellor, starting safety for the 2014 Super Bowl Champion Seattle Seahawks held out in the hopes of restructuring his contract. Numerous outlets have heralded him as greedy and not fulfilling his contractual obligation. However, while owners, fans and the media firmly believe a player owes loyalty to his team, due to the nature of the profession, rarely does a team show loyalty to their players. Prior to the 2015 NFL season numerous players had their team options declined, contracts restructured or were released outright by their team, never making it to the end of their contracts. This batch of players included Vince Wilfork, Andre Johnson and Troy Polamalu, all staples of their organizations.

In data released by the NFL, diagnosed brain injuries from 1996 to 2007 showed a significant decrease in the last five years of the sample. However, tight ends, linebackers and defensive backs (also known as safeties) have seen an increase in the rate of injury with defensive backs experiencing 291 documented brain injuries, more than any other position. Another study recently conducted by the Department of Veteran Affairs and Boston University found that 96% of former NFL players tested positive for chronic traumatic encephalopathy, a degenerative brain disease. As more studies reach similar conclusions, the idea of player holding out in the hopes of securing a more lucrative contract is seen less as disloyal and more as a smart business decision, especially without the assurances of a guaranteed contract.

The NFL has made great strides in attempting to make football safe. However, taking one step forward followed by taking two steps back can only get you so far. If players were able to sign guaranteed contracts, there would be less incentive to put your current and future health in harm’s way. The move towards guaranteed contracts would not eradicate the risks associated with football but would alleviate some of the issues. If the NFL’s goal is to improve player safety, then a move towards guaranteed contracts is long overdue. If the goal of the NFL is to avoid future legal battles for putting their players at risk, this move may be the difference between leaving it all on the field or leaving it all in the courtroom.

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Concussion Lawsuits: Is settling fair for the players?

November 23, 2014

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By Ryan Monty – Thompson Rivers University 3L JD Student

A recent concussion lawsuit filed against the Barrie Colts of the Canadian Hockey League reminds us that no contact sports league in North America, professional or otherwise, are immune to these legal proceedings. John Chartrand, a former player for the Colts, claims the medical staff of the team was negligent in clearing him to play even though he suffered a concussion in a car accident only days earlier. Although Chartrand’s original injuries occurred off the ice, it is still relevant in questioning the medical procedures and the culpability of the team and league when assessing the risks of allowing an athlete to return to play after suffering a head injury.

What amount of liability should the leagues governing these sports accept? One argument is that the players accept the inherent risks when playing contact sports like hockey. Any injuries or long-term side effects are their responsibility to deal with because it was their choice to participate. However, others argue the leagues were aware of the risks, and had more information regarding the long-term repercussions of head injuries than what was available to the players, making the teams culpable for allowing players who had recently sustained a concussion to return to play too soon. They also claim the leagues had the money to prevent players from suffering these on-field injuries but ultimately failed to do so. The National Football League settled a lawsuit with 1,400 former players for nearly $1 billion but as the case was not decided by a court, there isn’t an answer to what the duty of care is owed, if any, by the leagues and teams to their players, if they breached their standard of care, and what amount of compensation would be fair.

Some of the NFL players in the deal mentioned above are opting out because they believe the amount is insufficient. The process is also being stalled by players who are launching legal action against the deal itself in the hopes of preventing it from going through. As reported by USA TODAY, this has pitted the lawyer for the players, Craig Mitlick, against former players like Sean Morey. Mitlick believes that Morey, and players like him, are being greedy and hurting the other plaintiffs by delaying money that would fund their much needed medical treatments, while Morey feels the deal is not enough and is benefitting third parties, like the lawyers involved, too much. It is impossible for us to know who is right without the proceedings of a trial, but with the sheer amount of players seeking compensation, and the still relatively unknown extent of the long-term damages of concussions, the potential that former players accepting a deal from the leagues which is less than fair is increasingly more probable.

There is also the question of why no star players have been involved in any of these suits. Surely the settlement amount would be significantly higher with more high profile players attached. The highest profile athlete to date would have been Dan Marino, the former superstar quarterback of the Miami Dolphins. He was attached to a lawsuit against the NFL, along with 14 other players, but ultimately decided, days after the suit was made public, to remove his name from the list of plaintiffs, claiming it was a big misunderstanding.

Is it possible that higher paid athletes aren’t exposed to the same level of risk as other players? Unlikely. It’s more plausible that they do not want to alienate the game that made them rich, along with the fact that many former elite players, Marino included, end up working for the league or teams after retiring which makes the preservation of a positive relationship essential. This is where I believe the fallacy lies – the players, who are suffering from quantifiable damage, are either left with taking less than they should, or forced to suffer through the pain, holding out for a better deal because the players are not a unified group. There is no solidarity between the lower tier athletes and the elites, and until there is, or until one of these suits finally goes to trial, the players might not get the compensation they deserve.

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NHL is not taking the threat of concussions seriously enough

November 12, 2013

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By Hafiz Karim – Thompson Rivers University 2L JD Student

Concussions have become a prominent issue in the world of hockey and they are becoming more and more noticeable in the National Hockey League.Through the first month of this season, the rate of concussions in the NHL is up by about 30%.Just this season alone, we’ve seen star players such as Rick Nash, Dustin Penner, Danny Briere and Dan Boyle all suffer concussions.

There is no doubt that concussions are an extremely serious issue and the NHL Player Safety department has tried to address this.Rule 48.1 of the Official NHL Rulebook defines illegal checks to the head.It states that, “a hit resulting in contact with an opponent’s head where the head is targeted and the principal point of contact is not permitted.”The NHL states that they take this issue seriously and in reality they generally hand out suspensions for illegal checks to the head.Whether the sanctions given out to players who deliver headshots is adequate or even working is a question for another day.

The NHL makes a point of denouncing checks to the head but are they doing enough?One of my biggest problems with the NHL’s denunciation of headshots is that it is largely reactive rather than proactive.What I mean by that is that the NHL will suspend a player if he makes a deliberate and dangerous hit if a player gets injured, but they rarely seem to do anything over an attempted dangerous hit.

An example of this occurred last week in a game on November 2nd between the Vancouver Canucks and the Toronto Maple Leafs.Henrik Sedin, star centre of the Vancouver Canucks, cut to the front of the net and as he did so, Joffrey Lupul of the Maple Leafs, stuck out his elbow and took a run at Sedin.Sedin later said that he saw the elbow coming for his head out of the corner of his eye and was able to duck out of the way at the last minute.Lupul came at such speed that when he missed Sedin’s head, his momentum carried him forward and he ended up hitting his teammate Nazem Kadri in the head with his elbow.The game was being broadcasted by CBC as part of their Hockey Night in Canada program and it was astounding that the commentators did not reference this attempted dirty hit nor was there a replay shown of it during the game.It may have gone entirely unnoticed if not for social media, which picked up on it and the video clip went viral following the game.

The first time I watched the video, I thought it was hilarious that Lupul ended up elbowing his own teammate in the head.Only later did I realize how bad that could have been if Lupul’s cheap shot had actually connected with Sedin’s head when he was in a vulnerable position.Henrik Sedin is one of the star players on the Vancouver Canucks and is currently tied for third in points in the NHL this season.He also is second in the active Ironman streak in the league that recognizes most consecutive games played.That could have all ended had Lupul’s elbow connected.The Canucks were dominating the Leafs and Lupul must have been frustrated or angry because there is no doubt that he deliberately tried injuring Henrik Sedin with an elbow to the head.It amazes me that the league lays sanctions on players if they injure their opponent, but that there are no sanctions for deliberate attempts to injure that do not work.Even if the referees on the ice did not see Lupul’s attempt to injure another player, there is no way that the NHL did not see that play later on as it went viral.  How do you send a message that illegal checks to the head are not OK and are a suspendable offence, but attempting a check to the head is not a big deal as long it doesn’t connect?

In today’s day and age when there is so much evidence of the detriment of brain injuries, it makes zero sense not to punish players for attempting illegal shots to the head.As a Vancouver Province blogger stated, it makes no sense that someone would have to potentially concuss another player before they get suspended, yet they can attempt it as many times as they want without risk, until they connect.  

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Ask not for whom the bell tolls

January 6, 2012

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The words “Ask not for whom the bell tolls” should be ringing loudly at NHL headquarters following John Branch’s excellent expose (click here, here and here for the links) on Derek Boogaard, fighting in hockey, and brain injuries last week in the New York Times. I wrote an article in The Globe and Mail (click here to read it) earlier this year that suggested the NHL is vulnerable to a lawsuit on similar grounds to that which has been launched against the NFL.

The NFL’s concussion crisis was put into the spotlight starting in 2007 by Alan Schwarz of the New York Times. Schwarz has since written dozens of articles for the Times about brain injuries in football. As Ben McGrath of The New Yorker (click here for the piece) wrote last year, ‘Credit for the public’s increased awareness of these issues must go to the Times, and to its reporter Alan Schwarz, whom Dr. Joseph Maroon, the [NFL Pittsburgh] Steelers’ neurosurgeon and a long time medical adviser to the league, calls “the Socratic gadfly in this whole mix.”’ Schwarz’s reporting sparked and catalyzed change in the NFL’s approach to brain injuries. The league is now named in about a dozen concussion-related lawsuits.

The NHL has been painfully slow to implement real changes that would reduce the occurrence of brain injuries. Just like the hockey enforcer who is tapped on the shoulder by his coach or just knows he must answer the bell, the NHL has got to see that the writing is on the wall (on in this case, splashed on the pages of The New York Times), that the time is nigh for change and know that the bell tolls for thee.

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NFL sued for failure to protect ex-players from concussions

July 22, 2011

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As speculated in Ben McGrath’s excellent piece in The New Yorker on 31 January 2011 (click here for the article), a group of 75 retired NFL players and many of their wives sued the National Football League and helmet manufacturer Riddell in the Superior Court of California three days ago (click here for the CNN piece and here for the New York Times article).

The lawsuit alleges that the players ‘did not know the long-term effects of concussions’ and relied on the league to protect them. ‘For decades, defendants have known that multiple blows to the head can lead to long-term brain injury, including memory loss, dementia, depression and (chronic traumatic encephalopathy) and its related symptoms.

‘This action arises from the defendants’ failure to warn and protect NFL players such as plaintiffs against the long-term brain injury risks associated with football-related concussions. This action arises because the NFL defendants committed negligence by failing to exercise its duty to enact league-wide guidelines and mandatory rules regulating post-concussion medical treatment and return-to-play standards for players who suffer a concussion and/or multiple concussions.’

The plaintiffs are critical of a study commissioned by the NFL Committee on Mild Traumatic Brain Injury whose published results in 2004 showed ‘no evidence of worsening injury or chronic cumulative effects’ from multiple concussions. In a related study, the committee found that ‘many NFL players can be safely allowed to return to play’ on the day of a concussion if they are without symptoms and cleared by a doctor.

The lawsuit alleges that the NFL study is ‘completely devoid of logic and science [and] … contrary to … 75 years of published medical literature on concussions.’

‘By failing to exercise its duty to enact reasonable and prudent rules to protect players [and warn past players] against the risks associated with repeated brain trauma, the NFL’s failure to exercise its independent duty has led to the deaths of some, and brain injuries of many other former players, including plaintiffs.’

The suit alleges that the NFL failed ‘to regulate practices, games, equipment and medical care so as to minimize the long-term risks associated with concussive brain injuries.’ It is further alleged that the ‘defendants acted with callous indifference to the rights and duties owed to Plaintiffs … [and that the] defendants acted wilfully, wantonly, egregiously, with reckless abandon and with a high degree of moral culpability’ in either ignoring medical research on the subject or for not disclosing to the fullest extent what was actually known.

The plaintiffs are mindful of NFL Commissioner Roger Goodell’s testimony to the US Congress in October 2009 where he didn’t acknowledge a connection between head injuries on the football field and later brain diseases even though there was compelling evidence to the contrary. The lawsuit accurately notes that US Representative Linda Sanchez, D-California, ‘analogized the NFL’s denial of a causal link between NFL concussion and cognitive decline to the tobacco industry’s denial of the link between cigarette consumption and ill health effects.’

The suit also contends Riddell’s helmets were defective because they didn’t ‘provide adequate protection’ from concussions. The plaintiffs will no doubt try to rely on representations made by the helmet manufacturer in their marketing during the period in which they played. The plaintiffs would have to argue that they relied upon these fraudulent claims reasonably believing that the helmets either substantially reduced or eliminated altogether the likelihood of sustaining a concussion. For what it’s worth, Riddell’s current website (as of 22 July 2011) makes no such absolute claims that wearers of their helmets will not suffer a concussion during a collision whilst playing football.

NFL spokesman Greg Aiello said the league ‘will vigorously contest any claims of this kind’ and Riddell will not comment on the pending litigation.

This is going to get very interesting.

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Rule changes to head shots in hockey and a new spin on concussions

May 30, 2011

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Perhaps the elation and euphoria of the Vancouver Canucks (in my adopted province of British Columbia) playing for the Stanley Cup and the rumour that the Atlanta Thrashers of the NHL will soon be sold and moved to my home city of Winnipeg after losing the Jets for Phoenix in 1996 has adversely affected my attention span and productivity for posting missives to the Canary.

But I digress …

Hockey Canada’s call for zero tolerance on head shots has been answered. The national governing body for hockey in Canada unanimously approved rule changes two days ago at its annual general meeting that will make any contact with a player’s head illegal (read story here). The amendments include:

  • A two-minute penalty in minor and female hockey for any player “who accidently contacts an opponent in the head, face or neck with their stick or any part of the player’s body or equipment.” A double minor will be assessed for contacting a player in the head intentionally.
  • In junior and senior hockey, a minor and a misconduct, or a major and a game misconduct, “at the discretion of the referee based on the degree of violence of impact, will be assessed to any player who checks an opponent to the head area in any manner. A major and a game misconduct penalty shall be assessed any player who injures an opponent under this rule.”
  • A match penalty will be “assessed to any player who deliberately attempts to injure or deliberately injures an opponent.”
  • The rule changes for junior and senior hockey will be held a year while the Junior Pilot Project gathers more data on blows to the head and dangerous hits.

It’s about time.

However, a recent article on the number of hockey players playing hurt perhaps puts a new spin on concussions. The New York Times (read article here) reported on the number of San Jose Sharks playing with injuries and the list is impressive, inspiring and depressing. They include Joe Thornton, the team’s captain and best player, who played with a badly separated shoulder in the last game; Dan Boyle, their top defenseman, played since mid-March with a sprained medial collateral ligament in his knee; Ryane Clowe had his shoulder separated earlier in the playoffs and missed only one game despite being unable to tie his skates; Dany Heatley played with a hand which had been broken during the season; Logan Couture played with a broken nose; and the list goes on.

Given the extent to which athletes (presumably) consent to play through pain and injury, it may put into perspective the current conversation on concussions in professional hockey.

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