NHL dodging another blow to image in concussion lawsuit

A judge's order to unseal embarrassing email by an NHL official in a concussion lawsuit filed by ex-players hurts the league's image and perhaps its case.

A Minneapolis judge presiding over the class action concussion lawsuit brought by former players against the National Hockey League has ordered the unsealing of a series of “embarrassing” emails sent to and from league executives.

The documents are not yet public, but attorneys for the 100-plus players revealed that they include a 2013 email in which NHL Director of Hockey Operations Colin Campbell refers to an Ottawa Senators athletic therapist as a “freaking idiot” after the trainer laid out suggestions regarding the prevention and treatment of concussions.

In her decision, Magistrate Judge Janie Mayeron notes that several “unthoughtful and unkind” passages in Campbell’s emails are “relevant” to the players’ claims in the master complaint that the NHL has been “callously indifferent in its attitude to fighting and violence.”

SI.com legal expert Michael McCann says that while the judge’s ruling advances the players’ case, the actual effect on the question of whether the NHL broke the law is far less certain.

Email leaves NHL with PR black eye in concussion lawsuit

“On the surface, disclosure of insensitive emails supports the players’ argument that the league has not invested an appropriate level of care in its players’ neurological health,” says McCann. “In the unlikely event this litigation goes to trial, jurors would see these emails and that would not help the league. But the league’s attorneys would have a strategy in place for this occurrence. They would stress that the question of whether the league broke the law is a more complicated consideration than whether the league could have been kinder and more humane. Along those lines, the league can assert that insensitive communications between league officials and broadcasters, while damaging in terms of public relations, do not establish the necessary elements for proving liability.”

The bigger issue, McCann suggests, is the growing toll on the NHL’s reputation, having not yet settled the litigation.

“The NFL sought a settlement with retired players even though the NFL was 100% convinced it would win on the legal arguments should they have ever gotten to trial,” he said. “The NFL pursued a settlement largely for public relations considerations: It did not want additional information to surface during pretrial discovery that would harm the NFL’s already tattered image with the public, lawmakers and media. I suspect NHL attorneys are similarly convinced that their legal arguments are strong. They can argue the players’ claims are preempted by the CBA. They can also insist that it is impossible for players to prove legal causation when NHL players played hockey for years (and suffered many hits and injuries along the way) prior to becoming NHL players and thus it is uncertain whether playing in the NHL led to their long-term neurological problems.

“But public relations concerns may ultimately win out as NHL executives debate the concussion litigation. If so, it will convince the NHL to offer more favorable settlement terms to the players.”

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Those concerns may become a factor as the process continues. The emails ordered unsealed by the judge were just a handful from among the more than 2.5 million pages of documents turned over by the league in this case. The majority of these have been sealed by court order at the request of the league, which cited concerns about confidential business matters coming into public view.

But after hearing arguments from lawyers for the former players as well as a Canadian TV show that insist the public should have the right to review an initial batch of 54 documents, the judge issued her ruling in their favor.

Not all of the documents ordered unsealed were damaging to the league. According to TSN’s Rick Westhead, an email chain from Aug. 3, 2011, between NHL Commissioner Gary Bettman and Montreal Canadiens owner Geoff Molson, will also be unsealed. In them, Bettman and Molson discussed an article about the NFL concussion lawsuits and Bettman’s assessment of the NHL’s potential liability.

“Bettman’s statements simply reflect his observation that NFL concussion lawsuits do not place the NHL at risk, and in fact, his description of what the NHL is doing in connection with concussions is flattering to the NHL,” Mayeron wrote.