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Gajtka: Only Courts Can Save Deflect-and-Deny NHL From Itself

If you love hockey, you should root for the National Hockey League to take it on the chin.

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If you love hockey, you should root for the National Hockey League to take it on the chin.

Based on U.S. District Court depositions reported on by TSN’s Rick Westhead, The Athletic’s Katie Strang and others in recent weeks, if you love hockey, root for the league to lose. From former Devils GM Lou Lamoriello admitting his team outright skipped baseline concussion testing during one preseason to longtime Bruins owner Jeremy Jacobs denying that he’s ever heard of CTE (chronic traumatic encephalopathy), the NHL has the look of a league covering its eyes and pretending to be blind.

While pragmatic, the NHL’s legal strategy is abhorrent from a human perspective. In order to prevent a consortium of former players from filing a class-action lawsuit, the NHL representatives being interviewed are denying and deflecting.

Their hope is that, by establishing enough gray area, they can avoid the fate of their National Football League brethren, who settled with a group of suffering players for around $1 billion last year. It was a similar case in that the NFL players of yesteryear claimed (successfully) that their league and its teams knew enough about the detrimental effects to the brain that football can cause.

That’s why we see Gary Bettman clinging to the thought that “(t)here’s no medical or scientific certainty that concussions lead to CTE” when grilled under oath three years ago.

(Video courtesy of The Athletic)

Bettman is technically correct that there’s no 100 percent certainty that concussions and the kind of general head trauma endemic to full-contact sports like hockey cause CTE. But medical professionals are increasingly compiling evidence that there is likely a cause-and-effect relationship.

Not only does that theory align with common sense, it’s a moral imperative to give weight to the good possibility that it’s accurate. And as I argued in last Friday’s 200-Foot Podcast here on PHN, for all the hours of enjoyment NHL players have given us over the years, we owe it to them to look out for their well-being.

Injured? You need a lawyer. Call Joshua R. Lamm.

The NHL likely realizes it’s in big trouble here. Considering the precedent set by the bitterly-disputed NFL case, it appears more likely than not that the former hockey players will be able to reach that class-action threshold and thus be able to team up against the league.

As such, NHL leadership figures are probably being instructed to play dumb, even if they were more enlightened of the latest research than they are letting on during the ongoing legal proceedings.

Nick Boynton and Daniel Carcillo have been among the most vocal of former players illuminating their struggles with mental health following careers of literal self-sacrifice on the rinks of organized hockey. These impassioned anecdotes via the Players’ Tribune are important in keeping this topic at front of mind in the hockey-following world.

All due respect to these men — and there’s plenty of it coming from my angle, believe me — but emotion and empathy aren’t what wins in the court of law. What wins is cold, hard evidence.

The question will be this: Are there enough facts to convince Judge Susan Richard Nelson in Minneapolis to grant the class-action request? Was the NHL reckless and negligent in failing to warn players of the potential long-term effects of head trauma?

We’re not privy to all of these on-the-record conversations. However, it strains credulity to believe that the league and its representatives acted in good faith. Whether they were actively malicious is in the eye of the beholder, but intent doesn’t matter. What actually happened does. And what actually happened was very little.

If you care about the people who make the NHL go, a.k.a., the players, then you should be pulling for the league to take a massive financial hit in this possible lawsuit. In my view, that’s the only motivation this group will actually respond to.

You may say how the NHL is conducting itself through this ordeal is just good business. I won’t disagree, but I’d also argue the best way to protect the business into the future is to ensure its upstanding stature in the eyes of the customer. Bettman and Co. should realize they’re losing the PR battle here, big time. That’ll hurt the bottom line in the end.

Now, we can debate which changes need to be made to the pro game to best protect current and future players. I’m not sure I have all the answers, outside of a zero-tolerance policy on head contact. Perhaps the NHLPA, which is not faultless in this situation, could offer its suggestions.

To put it in legal terms, though, there’s a preponderance of evidence that the league has been in the wrong and continues to be so. We don’t need ‘beyond the shadow of a doubt’ here. This is not a criminal trial.

How about giving the players the benefit of the doubt? The time for that is well past.

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A lifelong hockey addict, Matt has been fortunate enough to make his career in his sport of choice, working in high school, juniors, college and the pros in various multimedia roles. Previous to joining PHN, Matt was a credentialed Penguins/NHL beat reporter for the past two seasons, including coverage of the 2017 Stanley Cup Final. He signed on with PHN in Feb. 2018 as co-owner, contributing commentary and analysis in various forms.

5 Comments

5 Comments

  1. Ricardo58

    June 18, 2018 at 11:24 am

    I realize the rink is larger, but I enjoy Olympic hockey as much as the NHL. Olympic hockey is essentially what would occur if the NHL takes a hit like the NFL did. I’m ok with it. I don’t need a Tom Wilson type player on the Pens to continue enjoying the speed and pace of professional hockey. Sure I enjoy spirited battles along the boards and in front of the net, but I enjoy the skill, passing and stick handing even more.
    Simply, but here is the NHL challenge, “consistently” enforce any hit to the head whether 1st period, OT and/or in the playoffs. Take intent completely out of it. The players will adjust.
    Imagine the shock if a player was killed with a launching type hit to the head as Wilson put on ZAR. Sure most fans would be sincere with upset and sorrow, but anything coming from the NHL would be lip service. I paraphrase, but would the comment from the Caps coach, it was a hockey play and unavoidable, cut it?
    I lack faith in NHL management to get it right. Go Pens!

    • Matt Gajtka

      June 18, 2018 at 2:29 pm

      They surely won’t get it right on their own, and that’s as much a mark against hockey culture as it is against these powerful men in particular. The impetus for change will come from the outside.

  2. Robert Ulishney

    June 19, 2018 at 10:38 pm

    I would go a step further and say this needs to happen or the league will eventually die. It’s not exactly a popular sport to begin with. As such, the NHL does not have NFL money or popularity or political clout to help it in this matter. So, I’d conclude that someone could say it’s “good business sense” only if they plan all their business decisions for the short-term. Anyone looking long-term would conclude the opposite and say the league is making a terrible business decision.

    Most importantly, as you point out (and, not coincidentally, as seems to be the case with most of the issues of our day), this is a moral issue. We cannot as a society allow people to continue to destroy themselves for the paycheck when it easily doesn’t have to be that way. Some jobs are inherently dangerous like mining and being a foot soldier. Others are mortally dangerous only because of the incompetence and immorality of the people and bodies governing those jobs. Culture, rules, regulations, and laws are made by people and can (and will) be changed by people. If the NHL were run by smart, competent business people, they would do the right thing tomorrow. But, I think we all know what will happen tomorrow.

    • Matt Gajtka

      June 20, 2018 at 8:37 am

      Robert, loved the insight here. I feel like I want to tack this on to the end of my column. You’re right … hockey doesn’t inherently have to be this dangerous to long-term health.

    • Dan Kingerski

      June 21, 2018 at 8:06 am

      best reply ever.

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