Viewed through the most charitable of lenses, litigation is occasionally lauded as a means for achieving positive social change – a blunt and wickedly expensive tool for social engineering, if you will. Class actions can be particularly effective in this role, serving at times not only to direct attention to safety or public welfare issues, but also to impose massive penalties for transgressors and those who may snub their noses at the public good. The deterrent and behaviour-modifying effect of class actions can be very powerful indeed.
Consider, for example, the proposed class action lawsuit that was filed in Minnesota against the National Hockey League (NHL) almost five years ago. Former players accused the league of failing to protect them from head injuries and concealing information about the long-term effects of concussions. They sought to create two classes of members for certification: one group consisting of all living former NHL players, and another comprising all retired players diagnosed with a neurological disease, disorder or condition. Had they succeeded, more than 5,000 former players would have been allowed to participate in the action.
Many observers viewed the proposed class action as the pressure point required to get the league to finally take player safety seriously, in particular as it relates to head injuries. With countless players being forced to leave the game prematurely as a result of multiple concussions or repeated trauma to the head (think Eric Lindros, Pat Lafontaine and Marc Savard, by way of example), concern was mounting regarding the league’s apparent ambivalence to the well-being of its players. The proposed class action not only focused on an issue that league officials had been skating around for decades, it presented a real and present danger to the NHL’s bottom line. Surely this would get the league to pay attention and clean up its act (i.e. implement meaningful rule changes to reduce the potential for head trauma in the coolest and fastest game on earth). Well, not so fast…
Two weeks ago, U.S. District Judge Susan Nelson issued a 46-page ruling pursuant to which she denied class action status to the former players. In what was described as a mostly procedural ruling, the Judge refused to allow the players’ grievances to be tried as a class action, citing “widespread differences” in state and provincial laws governing the type and degree of medical monitoring the retired players were ultimately seeking. These disparities would lead to “significant case management difficulties”, rendering the matter simply ineligible to be tried on a collective basis.
Class action practitioners will see obvious merit in Judge Nelson’s approach. And this likely explains why the lead lawyers on the class action have elected not to appeal her decision. For its part, the NHL has been curiously silent, refusing to comment in any fashion on the situation. Are league officials savouring victory and popping the champagne, relishing in the thought that now the pressure is finally off of them to tackle the thorny issue they have been avoiding for years? Or, as some hockey writers believe, are they quietly getting ready for the next phase of the litigation, recognizing that Judge Nelson’s ruling has opened the door to about 100 individual lawsuits that have been filed against the NHL, but simmering on the backburner while the class action meandered its way to a dead end? This number is only likely to grow, now that the bid to assert a class action has been denied. If players are unable to change the league’s approach to player safety through their proposed class action, perhaps change can be achieved “by a thousand cuts”?
In my view, the league would do well to keep their champagne on ice at this point. Of the many individual cases that just got moved to the front burner, the first case to be heard is likely the one the NHL would be least interested in defending. In December 2015, eight months following the untimely death of former NHL journeyman, Steve Montador, his estate filed a lawsuit against the NHL alleging that the league “failed to keep Steven R. Montador reasonably safe during his career and utterly failed to provide him with crucial medical information on the permanent ramifications of brain trauma.”
The NHL will probably do anything to keep the Montador case from proceeding first and being the test case for all the other plaintiffs. Steve Montador was only 35 when he died, and studies of his brain after he died revealed it was riddled with Chronic Traumatic Encephalopathy (CTE). Moreover, since his death, Montador’s story and the terrifying effects of blows to the head were the subject of a book by Hall of Famer (and erstwhile lawyer) Ken Dryden entitled Game Change: The Life and Death of Steve Montador and the Future of Hockey.
Dryden’s book is a compelling piece of advocacy for changing the game of hockey to make it safe. When you read his plea for action, particularly after learning about the devastation suffered by the book’s endearing protagonist, it all seems so sensible and so simple. And yet the league stubbornly refuses to implement any meaningful rule changes to protect those who fill its arenas, and its coffers.
If the NHL won’t listen to one of its greatest ambassadors of all time, maybe they will to the next ruling waiting to come down from the Courts. Or the one after that one, or the next one…
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