Concussion Controversy: Is the NHL Next?

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As previously reported by the Sports and Entertainment Law Insider, the NFL’s recent settlement of the concussion class action brought by former pro players, the pending suits by former college football players against the NCAA and helmet manufacturer Riddell, and the wrongful death action by the parents of a Frostburg State University football player who died after repeated head injuries suffered on the field, among others, all beg the question: When — not if — will hockey see a rash of concussion-related litigation?

Both the NHL and the NFL have seen numerous careers cut short by concussions over the last two decades. Like football, hockey is an inherently dangerous sport, one in which violent collisions are commonplace. In addition to the risk of concussions during the course of play, hockey has the added danger of injury from the accepted and encouraged practice of bare-knuckle fighting.

Every so often, especially after significant injuries occur or tragedies strike (like Derek Boogaard’s untimely death), the hockey world will revisit the rigorous and entrenched debate over the role of fighting in hockey. The subject has resurfaced once again as a result of the slew of concussions suffered in the first few weeks of the NHL season, including a scary incident and concussion suffered by tough guy George Parros in a fight during the first game of the season. Researchers at last week’s Mayo Clinic conference on concussions in hockey called for a ban on fighting at all levels of the game. (See stories here and here.)

The premier college development league in the United States, the USHL, is currently reconsidering its position on fighting due to the recent injury by 18-year old University of New Hampshire recruit Dylan Chanter, who fell backward and hit his bare head on the ice while fighting.

Ironically — and perhaps at this stage, anecdotally — the increased use of face shields as a protective measure over the last decade may be increasing the risk of concussions from hockey fights due to the unwritten code which requires those wearing visors to remove their helmets prior to the fight. For the most part, fights occur between consensual combatants, but questions will persist about potential legal liability so long as players keep getting severely injured.

While the viability of claims against teams and leagues for concussion-related injuries remains subject to debate and, ultimately, determination by the courts, to do nothing to substantially reduce fighting-related concussions will at some point soon require leagues and teams to defend against lawsuits similar to those brought by football players. At least one hockey player, former University of Maine player Kyle Solomon, has joined the class action lawsuit against the NCAA originally filed in U.S. District Court for the Northern District of Illinois in 2011 on behalf of former Eastern Illinois University football player Adrian Arrington. He is not likely to be the last.

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