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Does the NHL Have Brain Damage?

Kavitha A. Davidson is a former Bloomberg View columnist.
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The National Hockey League has issued its first legal response to the concussion lawsuit filed by former players, and it’s so tone-deaf it almost makes Roger Goodell and the National Football League look charitable.

Since the initial suit was filed by 10 players a year ago, four others have been brought against the NHL. Last week, a consolidated class-action suit representing 200 players was filed in federal court in Minnesota. The suit’s main complaint is that the league didn’t properly disclose to players that repeated blows to the head can result in long-term neurological damage.

In response, Rick Westhead of the Canadian sports network TSN reports that the NHL has filed a set of legal documents denying responsibility for head injuries by claiming that players should have been able to “put two and two together” from media reports on head injuries in hockey.

To recap: The NHL denies that there was any information it hid from the players -- while also maintaining that players could have obtained that information simply by reading the newspaper. That’s a rather mixed message.

Furthermore, it’s a bit difficult to take the league’s claims that it properly educated its players seriously. In 1997, the NHL formed a concussion program to maintain records of players’ health. But as Patrick Hruby has noted, it didn’t issue a report until 11 years later, and failed to study the long-term health effects the suit alleges forced several players into early retirement.

And as recently as 2011, Commissioner Gary Bettman refused to acknowledge the link between fighting and chronic traumatic encephalopathy. That doesn’t bode well for the quality of whatever information the league may have provided to its players. Exactly what conclusions are the players supposed to have drawn from media reports on science you’re claiming isn’t settled (even though it’s pretty much settled)?

Bettman’s denial is particularly important because the suit calls out the “culture of violence” promoted within hockey that encourages fighting and brutal hits. This has changed dramatically with the NHL’s new, stringent rules preventing players with concussive symptoms from returning to the ice. But for years, teams regularly made decisions to promote action in the rink to the detriment of a player’s health. Putting the onus squarely on the players amounts to victim-blaming.

Unsurprisingly, the NHL is denying that it should be responsible for covering the future medical costs, known as medical monitoring, of players suffering from long-term health problems stemming from their playing days. Per Westhead, the league asserts that in the states in which the players reside, the law requires plaintiffs to “show a reasonable probability that such medical expenses will be incurred in the future.” The league is also putting the responsibility back on the players and their union by noting that the collective bargaining agreement requires players to notify their teams of any injuries.

I admit that, if they knew full well the hazardous effects hockey might have on the brain, the players certainly had the choice to continue playing at their own risk. The crux of the suit is that the NHL didn’t adequately educate its players on the potential consequences, while also encouraging on-ice behavior that was particularly risky. Given the league’s inconsistency in its public messages on concussions over the years, one can only wonder what kind of information, if any, it was imparting to the players.

This column does not necessarily reflect the opinion of Bloomberg View's editorial board or Bloomberg LP, its owners and investors.

To contact the author on this story:
Kavitha A. Davidson at kdavidson19@bloomberg.net

To contact the editor on this story:
Tobin Harshaw at tharshaw@bloomberg.net