Tag Archives: NFL

Richie Incognito and Bullying in Professional Sports

December 2, 2013


By Chris Ross – Thompson Rivers University 2L JD Student

Bullying has always been a part of growing up. From the time children are in kindergarten, there are bullies and there are victims. Bullying is something that we expect to fade away as we get older and supposedly mature into grown-ups. However, at least in the National Football League, locker room bullying appears to be a widespread issue that is getting national attention due to some unfortunate circumstances.

Three weeks ago, Miami Dolphins offensive tackle Richie Incognito was suspended by the team indefinitely while the NFL investigates a situation involving Incognito and his second year African-American teammate Jonathan Martin. At the end of October, Martin went AWOL and left the team following a joke played on him by his teammates in the team cafeteria and has yet to return the team. According to reports, the reason for Martin’s departure was bullying and hazing from teammates, allegedly lead by his “best friend” on the team, Richie Incognito.

The most damning piece of evidence against Incognito is the transcript of a voicemail he left on Martin’s phone. The voicemail said: “Hey, wassaup, you half n—– piece of s—. I saw you on Twitter, you been training 10 weeks. [I want to] s— in your f—— mouth. [I’m going to] slap your f—— mouth. [I’m going to] slap your real mother across the face [laughter]. F— you, you’re still a rookie. I’ll kill you.”

Jonathan Martin has since hired high profile sports attorney David Cornwell to represent him going forward. Cornwell alleges that Martin has been subject to a “malicious physical attack,” his sister threatened, and “daily vulgar comments” from Miami teammates. Cornwell claims that the treatment his client was forced to endure was harassment that went far beyond the traditional locker room hazing.

The Incognito-Martin situation is very difficult to judge accurately because there are so many questions yet to be answered. While Incognito has handed over text message communications with Martin indicating that Martin was not holding Incognito responsible, it is possible he simply sent those out of fear of retribution from Incognito. There is so much that we do not know about the situation and until all the information from the NFL investigation comes out, it is probably best to withhold judgement on either player.

Right or wrong, hazing of varying magnitudes has always been a part of sports culture, whether it be at the high school, college or professional level. Nevertheless, the legal implications of this case could have a profound effect on the unique locker room culture of professional sports and the fine line that athletes walk between harmless hazing and hurtful bullying.

According to ESPN legal analyst Lester Munson, Florida law provides the basis for a civil lawsuit that would assess monetary damages against Incognito. Incognito’s use of the N-word and his threats “to kill” could qualify Martin for money damages for anyone who “has been intimated or threatened on the basis of race or color.” Florida law provides triple damages and would allow Martin to collect his legal fees from Incognito. Given Incognito’s expected earnings in the future and a possible end to Martin’s career, Munson asserts that Martin could collect as much as $15 million.

Furthermore, the fact that the Miami Dolphins organization may have known about this situation, and there are reports alleging they may have even encouraged it, could allow Martin to hold them liable as well. High profile attorney Gloria Allred has said that if the Dolphins knew of the racial or sexual harassment of Martin and failed to take action or even condoned it, they would be in violation of Title VII of the Civil Rights Act of 1964 and potentially be liable for emotional damages to Martin resulting from discrimination.

While the facts of this eye-opening situation are still murky at best, there is no doubt that professional franchises around North America have taken notice. In the November 18 issue of Sports Illustrated, editor Jon Wertheim wrote that the story is “pitting the NFL’s macho old guard against the anti-bullying movement” and that we “might be surprised at who’s winning handily.”

The locker room culture, a culture that is said to be incomprehensible to an outsider, may be forced to drastically change as a result of the Incognito-Martin fallout. Although it will be interesting to see if Richie Incognito and/or the Miami Dolphins are held legally accountable for this incident in some manner, the amount of negative attention this story has received, in both the sports and legal world, should be a catalyst to transforming the way in which locker rooms across professional sports operate.

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Owning a Player: Fantex and the Arian Foster IPO

November 23, 2013


By Kevin Robertson – Thompson Rivers University 3L JD Student

A vast number of people grow up dreaming about becoming professional athletes but few ever reach that level.Instead they are relegated to playing sports recreationally, cheering on their team, and participating in a fantasy league.In a fantasy league a person acts as a combination of owner, general manager, and coach in an effort to run their team better then their opponent.While pride may be one the line, oftentimes there is also money up for grabs.

In American football, due to the constant injuries and changing focus of teams (say from running to passing, or vice versa) it is often necessary for a person to add or drop players based on how a person believes they will perform in future games.In a sense, a person is stating their belief over how the player will perform in the future.Simply put, if a person believes that a player will do well then they will play them.Alternatively, if the person believes that the player will not do well then they will not use them. 

In this way, a fantasy football league is similar to how a person plays the stock market.Buy the stocks that you think are going to perform well and sell the stocks that you believe are going to do poorly.When you consider the dedication that people put into researching their choices the parallels become even more apparent.

However, things are about to change.Fantex is launching a new program whereby for $10 a person can buy a percentage of a player’s future earnings. The first player to sign on with Fantex for this program is NFL Texans running back Arian Foster.In exchange for giving Fantex a 20% share of his future football earnings he will receive $10 million USD.Fantex will then take the 20% share and divide it into one million shares, which will then be sold to investors through an Initial Public Offering (IPO).

As with all things of this nature, someone is going to lose money.It’s possible that Foster will go on to have a healthy career and thus earn those who own his stock a healthy profit but it is also possible that he gets injured in his next game and never plays again.

What is fascinating and will be a huge point of contention in the future is that the contract does not only include his NFL salary but also includes any related fields.In defining related fields the prospectus for the stock gives a few examples such as broadcasting and coaching.That being said, there are a lot of things that could fall into the grey area and possibly result in disputes.If Foster opened a sports bar, which was named after him, could that be considered a related field?What about if he was selling autographs?

As well, there are a couple of other things that could pose problems in the future.The contract does not expire so Foster will be giving 20% of football related income to Fantex for the rest of his life.While the freedom of people to enter into contracts on their own volition is well established, the shear length of the contract will likely bring up concerns.One issues is that Foster has in effect “sold his soul to the devil” for a one time monetary payment.The contract only ends if he pays back the full amount plus a penalty.He cannot get out of the contract without Fantex’s agreement.In this way, if he retires within 2 years of signing the contract for any reason other than injury, illness or medical condition Fantex can unilaterally cancel the contract and demand repayment of $10.5 million USD.

In Foster’s case his contract might only be for 20% of his future income but what would happen if it were for more?Say 50% or 100%?There is something morally wrong for a society that has moved past slavery to then allow a person to become indebted to another for life.

It is unclear whether college players will sign up with Fantex.While the NCAA has been adamant that they are not interested in paying the players for their services, it would be hard for a lot of the players to turn down a lump sum payment even if the terms were not favorable in the long run.

In fact, it would be possible for a college player to game the system in a certain situation.Taking Foster’s contract as an example, a college athlete could get a lump sum payment and then pay it back (along with the penalty) with a signing bonus if they make it into the league and get a large contract.A strategy such as this would be very smart if the player knew that they had an even larger endorsement deal coming in the near future.Once again, legally this would be a grey area in that Fantex is registering each player under the Securities and Exchange Commission, which has strict rules governing insider trading.As well, with college players there may be issues due to them being minors.

Like many things in sports, the IPO into Arian Foster will garner a lot of money for some people, even if it isn’t in the best interest of the game or society.

The prospectus for the IPO is available to read here and contains some very interesting information not only on his health but also his contracts with both the NFL and endorsement deals. 

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Ask not for whom the bell tolls

January 6, 2012


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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A (head) shot across the NHL’s bow?

August 9, 2011


The Globe and Mail – Canada’s national newspaper – just published a piece I wrote relating the NFL lawsuit to the concussion crisis in the National Hockey League (click here for the article). Here are a few excerpts:


Seventy-five former players sued the National Football League last month, alleging that the league failed to warn and properly protect them from the long-term brain-injury risks associated with football-related concussions. They say the NFL was negligent in failing to exercise its duty to enact rules regulating postconcussion medical treatment and return-to-play protocols and to enact reasonable rules to protect players against the risk of brain trauma.

No doubt the NFL lawsuit will raise eyebrows and blood pressure at the National Hockey League’s head offices in New York. And if it doesn’t, it should. Although hockey and football are different sports governed by different rules, the fact is they’re cut from the same cloth of contact sports. Perhaps the threat of litigation will force the NHL to rethink its approach to head injuries.

Let’s hope the NFL suit will prompt the NHL to get rid of head shots from hockey. Enrolment in youth hockey is declining. The reasons are myriad, but there’s no doubt that hockey violence and its effect on kids’ brains is a factor in their parents’ decisions. The NHL’s influence on youth hockey is unmistakable, and kids will mimic what’s modelled. The league does a disservice by not doing more.

Real change in youth hockey and the pros will only occur after the NHL breathes in the smelling salts, gives its head a shake and eliminates head shots from the game. And if the league continues to skate its way around this issue, perhaps the long reach of the law in the NFL case can knock some sense into the NHL.


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NFL sued for failure to protect ex-players from concussions

July 22, 2011


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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Concussions are a Headache for the NHL and NFL

May 3, 2011


Sports Litigation Alert (Volume 8 Issue 7) just published an article I wrote entitled, “Concussions are a Headache for the NHL and NFL.”  Here are a few excerpts:


Brian Burke, Harvard-trained lawyer and General Manager of the Toronto Maple Leafs of the National Hockey League, referred to concussions as the “topic du jour” earlier this year. While Burke may be guilty of not being politically correct in his characterization of brain injuries sustained in the course of playing a game, his colorful comments may properly place the issue into perspective.

The National Football League doesn’t care about intent. It only cares about the harm suffered. If the head shot is deemed dangerous, the offending player is penalized. It doesn’t matter that he didn’t mean to do it.

Even the International Ice Hockey Federation and the NCAA prohibit any hit to the head regardless of whether it was intentional or unintentional.

The International Olympic Committee and World Anti-Doping Agency have the same strict liability approach to doping. WADA holds an athlete strictly liable for substances found in his or her bodily specimen, and that an anti-doping violation occurs whenever a prohibited substance (or its metabolites or markers) is found in a sample, whether or not the athlete intentionally or unintentionally used a prohibited substance.

If the National Hockey League is serious about hits to the head and brain injuries, they should tear a page from the playbooks of the NCAA, the IOC, and WADA and adopt a strict liability approach to hits to the head.


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It takes a law degree to be a sports fan nowadays

February 2, 2011


George Vecsey of the New York Times wrote a tongue-in-cheek yet truthful piece yesterday whose byline is ‘It takes a law degree to be a sports fan these days, what with the backlog of legal cases involving champions named Bonds and Clemens and Armstrong.’

Citing the usual suspects plus sundry sad stories involving the National Football League and Major League Baseball (‘Jose Canseco insisted he and Mark McGwire used to shoot up in the loo. What kind of sport is this?’), it makes for a fun read.

Click here for the story.

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US football player sues university over weightlifting incident

February 1, 2011

1 Comment

Former University of Southern California tailback Stafon Johnson filed a lawsuit last week against his alma mater alleging negligence and recklessness on behalf of former assistant strength and conditioning coach Jamie Yanchar and the university in relation to a weightlifting incident one-and-a-half years ago.

Johnson was injured during mandatory team weightlifting workouts on 28 September 2009. It was initially reported (read article here) that Johnson lost control of a bar while bench-pressing 275 pounds causing the bar to drop and land on his neck and throat. He underwent multiple surgeries for the injuries stemming from the incident. Johnson was sidelined for the remainder of the 2009 season, was passed over in the 2010 NFL draft but signed as an undrafted free agent by the Tennessee Titans.

Johnson now claims that he didn’t lose his grip and drop the bar on himself. The suit claims Yanchar hit the bar with his own body before Johnson had a grip on it with both hands thereby causing it to fall across his throat. The lawsuit further alleges that Yanchar was negligently and carelessly inattentive to properly placing the bar into Johnson’s hands and making sure that Johnson was ready for the bar to be placed into his hands.

It further alleges that Yanchar failed to use the care, skill and attention ordinarily exercised in like cases by competent, reputable and reasonable members of their profession practicing in the same or a similar locality under similar circumstances, and to use reasonable diligence and care in the exercise of skill, in an effort to supervise the practice and to safely and properly spot Johnson while he was bench pressing 275 pounds. The bar was dropped, hit, and/or fell – the statement alleges – onto Johnson’s neck as a result of the Yanchar’s negligent, reckless and careless acts and omissions.

USC issued a statement saying that it ‘firmly believes it was not at fault in Stafon Johnson’s unfortunate weightlifting accident. We are sorry that Stafon was injured.’

At the time of the incident Johnson was in his senior year at USC and was the starting tailback and the leading rusher on the football team.

It is interesting that Johnson’s suit is seeking damages for lost earnings and loss of future earnings.

As Johnson missed most of his senior year following the incident, he was not drafted. Players who are drafted sign bigger contracts than those who are not.

In a preseason game with the Tennessee Titans, Johnson suffered an ankle injury and subsequently missed the entire season.

Being undrafted as a consequence of his laryngeal fracture no doubt compromised the size of his contract. Missing his rookie season with the Titans also devaluated Johnson’s future worth to the team.

The court will be challenged, not only to find USC at fault for Johnson’s injury, but to calculate the difference in what he could have earned as a drafted player versus a walk-on and to determine the difference in future income as a result of the weightlifting incident even though Johnson sustained a season ending injury which too will have the effect of diminishing his income generating potential.

None of the allegations have been proven.

Here’s a pdf of the complaint for damages – Johnson v USC and Yanchar

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NFL concussions – having your cake & eating it too

January 25, 2011


Fear of a public backlash (whiplash?) over American football’s efforts to rein in concussions has led to the National Football League deeming that a Toyota commercial which featured visuals of children colliding helmet-to-helmet be altered.

The New York Times reported here that Toyota edited the commercial under pressure from the NFL.

The ad highlighted Toyota’s decision to share crash research with scientists studying football concussions.

The original commercial which aired in November featured a mother worried ‘about my son playing football’ and showed two children colliding helmet-to-helmet has been altered so that the mother is now worried ‘about my son playing sports’ and the helmet collision has disappeared altogether.

George Orwell’s Ministry of Truth in 1984 couldn’t have done it any better!

The article noted that Zoe Ziegler, a spokeswoman for Toyota Motor Sales USA, said that the changes were made at the NFL’s insistence and that if Toyota did not change the ad, the league had threatened to cut back or terminate its ability to advertise during games.

Defending their position, NFL spokesman Brian McCarthy felt it was unfair to single out football as concussions are not unique to just football.

However, the facts suggest otherwise. According to the New York Times, research conducted at the Nationwide Children’s Hospital in Columbus, Ohio show that high school football players report about 100,000 concussions per year whereas the second through ninth-ranked sports combined total 110,000.

Further, a study published in the December 2010 issue of the American Journal of Sports Medicine found that there are an estimated 136,000 sports-related concussions among high school athletes annually and that football players account for 57% of the total figure with boys’ soccer, girls’ soccer, volleyball, boys’ basketball, girls’ basketball, wrestling, baseball and softball accounting for the remaining 43%.  The abstract is here.

So much for picking on football.

In a case involving one player striking another on-the-field but away from the play, the trial court in Hackbart v. Cincinnati Bengals, Inc. 435 F.Supp. 352 (D. Colo. 1977) held that the NFL ‘has substituted the morality of the battlefield for that of the playing field, and the ‘restraints of civilization’ have been left on the sidelines.’

And now the NFL massages commercials and makes offending images of legal hits disappear.

Talk about brand management and wanting to have your cake and eat it too!

Make no bones about it; American football is violent and barbaric. This is part of its appeal and marketability.

In the current climate of concern over concussions, the league is faced with a challenge of its own making: How to market a game which is inherently violent to a public that is becoming tired of the violence and uneasy about brain injuries?

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American Football helmet-to-helmet hits and Hockey blind-side hits: A tale of 2 leagues

January 14, 2011


The National Football League launched its NFLHealthandSafety.com website on 11 January 2011.

The website has tabs entitled History and Commitment, Health & Safety Resources, and Media Centre. There are sections on Medical Studies and Community Resources and links to some interesting sites.

It looks pretty and professional and Commissioner Roger Goodell sounds sincere when he says that the NFL ‘has a long standing commitment to the health and well being of its players’ but I’m not entirely convinced.

Recall that this message is coming from a league whose commissioner didn’t acknowledge a connection between head injuries on the football field and later brain diseases in testimony before the US Congress in 2010 while defending their policies on head injuries.

The league, however, properly fired a shot across the bow in the fall threatening suspensions after six players sustained head injuries after violent hits on games played on 17 October 2010. The NFL’s executive vice-president of football operations Ray Anderson then called out for a ‘higher standard of accountability’ to address ‘egregious’ contact, ‘devastating hits and head shots.’

It was to be a brave new world.

Fast forward to now. No player has been since been suspended for illegal hits.

Did the threat work? Is the health and well being of its players first and foremost on the minds of the league? It’s hard to say but suspensions are unquestionably more sensible and effective as a deterrent than issuing fines which range from the measly ($5000) to the meager ($50000) for illegal hits to athletes who earn millions a year.

And now the NFL wishes to expand the regular season by two to 18 games.

Dr. David Geier, an orthopedic surgeon and director of the Medical University of South Carolina sports medicine program says there is no doubt that there will be an increase in injuries as a result. Dr. Matthew Matava, the head orthopedic surgeon for the St. Louis Rams, echoes this view noting that four to 10 players on his team are injured in a typical week, and that the longer season would inevitably raise the number.  Read the full Canadian Press article here.

In sum, the jury’s out whether or not the NFL is serious about the health of its athletes and if this website is nothing more than a high-tech smokescreen to deflect attention from the culture of violence that has permeated onto the playing field.

Meanwhile, in the other North American professional sports league which covets violence but – unlike its gridiron brethren, celebrates fights – there has been signs of progress.

In response to concussions sustained by Florida Panther David Booth and Boston Bruins’ Marc Savard arising from blind-side hits last year, the National Hockey League passed Rule 48 that prohibits ‘lateral or blindside hits to an opponent where the head is targeted and/or the principle point of contact.’

The NHL almost got it right. The flaw in Rule 48 is that the head must be targeted. In other words, the contact must be intentional.

That the infraction must be intentional has led to the almost absurd situation of NHL vice-president and discipline czar Colin Campbell playing psychoanalyst and jurist in attempting to get into the minds of the offending players and determining whether the head shot was done on purpose or not.

Rule 48 is a step in the right direction. That the league has to play mind reader in administering justice is not.

Not to mention the insult to the intelligence that the $2500 maximum fine for an illegal hit to the head represents to every thinking person (and hockey fan).

Then the premiere player and leading goal scorer in the league, Sidney Crosby, was concussed by a hit at the Winter Classic game on 1 January 2011 which somehow went unpenalized when he was away from the puck and looking in the other direction from his assailant. We are left with no other explanation than the hit was unintentional and a part of the game. Crosby remains out of the lineup for an indeterminate period of time with a brain injury.

To see a video of the hit and a transcript of an interview with Crosby, click here.

The National Football League doesn’t care about intent. It only cares about the harm suffered. 

The International Olympic Committee and World Anti-Doping Agency has the same strict liability approach to doping. WADA holds an athlete strictly liable for substances found in his or her bodily specimen, and that an anti-doping violation occurs whenever a prohibited substance (or its metabolites or markers) is found in a sample, whether or not the athlete intentionally or unintentionally used a prohibited substance. 

Unfortunately, the NHL wants to have their cake and eat it too. Trevor Amon in The Vancouver Sun adroitly noted that the league wishes to market their marquee player but maintain the status quo of a culture of violence that ironically endangers their cash cow.

The NHL should tear a page from the WADA playbook and adopt a strict liability approach to blindside hits to the head.

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