THE EFFECTS OF FIGHTING IN ICE HOCKEY: AN OVERVIEW OF THE ONGOING NHL CONCUSSION LITIGATION

This is first in a series of blogs by Ryan Lake. The blogs are intended to give an overview of some of the contemporary legal issues impacting the sport of ice hockey, with a strong focus on the National Hockey League (“NHL”). Readers are encouraged to leave comments and participate in debates around the topics raised.

This post was written for and first published by LawInSport

This post examines the difficult and concerning issue of player concussions, focusing on a review of the ongoing consolidated litigation by ex-players against the NHL relating to the long-term effects of concussion and Chronic Traumatic Encephalopathy (“CTE”).

CONCUSSION BACKGROUND

The true extent of brain damage after suffering multiple concussions in sport was not scientifically discovered until the untimely death of Mike Webster in 2002.1 Webster was a Hall of Fame football player for the Pittsburgh Steelers in the National Football League (“NFL”).2 After playing 17 years in the NFL and suffering multiple concussions, Webster started to experience symptoms normally only shown in people suffering from dementia and was prescribed a powerful cocktail of medications.3 In 2002, at the age of 50, Webster died from heart failure.

The pathologist on call at the Allegheny Medical Coroner’s office the day Webster died was Dr. Bennet Omalu.4 Dr. Omalu, conducted several tests on Webster’s brain, in the hope of discovering what was causing his symptoms. What Dr. Omalu found would change medical and sports history. Dr. Omalu described Webster’s brain “as one of boxers, very old people with Alzheimer’s disease or someone who had suffered a severe head wound.”5 Dr. Omalu published his findings and named his discovery CTE.

A medical diagnosis of CTE can only be made after a posthumous examination of the brain. Over the next ten years, several former NFL and College football players were diagnosed with CTE, including, Terry Long, Andre Waters, Tom McHale, Owen Thomas, Dave Duerson, Ray Easterling, and Junior Seau, among others.6

After the discovery of CTE and the multitude of deaths associated with the disease, former NFL players filed a lawsuit against the NFL. Additionally, the U.S. Congress launched a former investigation in the NFL and its handling of players suffering from concussions.7

These events not only impacted the NFL but had ramifications throughout the sporting world.

CTE AND THE NATIONAL HOCKEY LEAGUE

The summer of 2011 was one of the most tragic periods in the history of the NHL. That summer saw the deaths of Derek Boogaard, Rick Rypien and Leafe Wade Belak in a span of four months. Boogaard, Rypien, and Belak, all played the role of enforcer during their NHL careers. An enforcer, in hockey terms, is a designated player given the responsibility and task of defending the other players on his team from cheap shots and other dirty plays. Enforcers tend to accomplish this task by playing a very physical game and specialize in the art of fighting. The three players also shared many of the common symptoms of CTE.8

It is reported that it is common for those who suffer from CTE to become depressed and resort to the use of drugs and alcohol to cope with the disease.9 Boogaard, Rypien, and Belak all suffered these symptoms towards the end of their lives.10

THE NHL’S CTE AND CONCUSSION LAWSUITS

After the tragic loss of Derek Boogaard, his family filed a wrongful death lawsuit against the NHL in 2013. The Boogaards allege that the NHL is:

Responsible for the physical trauma and brain damage that Boogaard sustained during six seasons as one of the league’s top enforcers, and for the addiction to prescription painkillers that mark his final two years.”11

The Boogaard family has also filed a malpractice complaint against Dr. David Lewis, the co-founder of the NHL/NHL Players Association substance abuse program and the supervising doctor for Derek during his time in the program.12 The complaint alleges that:

the doctors failed in their medical and ethical obligations… by not holding [Boogaard] to account after he failed multiple drug tests.”13

According to, Len Boogaard (Derek’s father), Dr. Lewis prescribed Derek with “1,021 pills during the 2008-09 season alone.”14 While enrolled in the NHL’s substance abuse program Derek was to abstain from the use of any drugs unless prescribed to him by a supervising doctor.

Throughout Boogaard’s time in the program, he tested positive for a variety of banned substances, including Diphenhydramine, Pseudoephedrine, Alprazolam, Xanax, Tramadol, and missed several required drug tests. The complaint alleges that despite these violations of the drug policy, Dr. Lewis did not hold Derek accountable and did not follow the requirements of the substance abuse program.15 According to Len:

[Dr.] Shaw and [Dr.] Lewis could have put [Derek] back in rehab, garnished his wages, banned him from playing hockey… he needed a wakeup call… Instead, he constantly broke the rules. And they let him.”16

The California state medical board is currently investigating the complaint and the actions of Dr. Lewis.17

The Boogaard case was the spark that set fire to the NHL concussion lawsuit saga. In November 2013, ten former NHL players18 filed actions against the NHL in the District of Columbia (find the complaint here). These lawsuits alleged that the NHL knew or should have known about the lasting impact of head trauma and had a duty to inform and protect the players against the dangers of concussions.19

The complaint filed in the U.S. District Court for the District of Columbia further stated that:

the NHL has known or should have known of this growing body of scientific evidence and its compelling conclusion that hockey players who sustain repetitive concussive events, sub-concussive events, and/or brain injuries are at significantly greater risk for chronic neurocognitive illness and disabilities both during their hockey career and later in life.”20

The complaint further asserts that:

Despite this mounting evidence of which the NHL knew or should have been aware, the NHL took no remedial action to prevent its players from unnecessary harm until 1997 when it created a concussion program ostensibly to research and study brain injuries affecting NHL players.”21

The concussion program created in 1997 was primarily tasked with researching the cause and effects of head injuries in NHL players. As a part of this research, the working group began neuropsychological testing of all players at a baseline and post injury. This testing provided the leaguea basis for historical data moving forward.”22 The NHL and the NHL Players Association were jointly “recognized in 2008 by the National Academy of Neuropsychology with an award for their joint leadership in implementing testing and promoting brain injury awareness.”23

The claimants in the concussion lawsuit against the league claim, as examined below, that while the NHL may have taken steps to research the effects of brain injuries, the league did not do enough to communicate and mitigate the risks associated with hits to the head.24

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