Keith Strudler: Hockey Fights

Jul 25, 2018

There was a point in my distant past where I thought I would go to law school. This period came largely before I got to the heart of college coursework and realized that law school could be unpleasant and lead to unintended consequences- namely then having to be a lawyer. 

I obviously changed career intentions for the first of many times. So, acknowledging my own personal limitations from that decision, know that anything I say about the legal fight between the National Hockey League and its former players around concussions and CTE is in no way grounded in an astute understanding of the law.

That disclaimer aside, the NHL is currently moving full steam ahead in taking on its retired workforce that claims irreparable damage from the fairly obvious head trauma from playing professional hockey. This is a similar claim made by former football players towards the NFL, which has offered considerable if not necessarily adequate funds towards retired players for damages, much of which is now increasingly apparent as popular former football stars deteriorate with age. This settlement limits the NFL’s legal liability to former players – not current or future ones – even if it does relatively little to curtail the rising tide of public opinion around the safety of the game. But from a strategic perspective, the NFL decided it was better to settle than to continue the legal fight ad infinitum. And again, remember, I’m not a lawyer.

As reported by the New York Times, the NHL has, unlike its football counterpart, chosen instead to fight. So instead of settling or trying to put the issue behind them, at least legally, the league has battled individual cases in court, arguing, amongst other things, they didn’t realize the connection between hits to the head and the long lasting trauma that’s become a cornerstone of this legal dispute. Believe that at your own discretion. But so far, apparently the strategy has worked, at least since a federal judge has denied former players the ability to make this a class-action lawsuit, which would allow for scores of former players to join in collectively. Without that status, individual athletes have to endure the challenge of an individual lawsuit against a powerful sports league – and their lawyers and deep pockets. So at least legally speaking, the NHL has won the battle. Perhaps this is a result of having a lawyer as commissioner, as opposed to the NFL, which has a former publicist.

Of course, a single battle does not make a war, at least not when you’re talking about a dispute as potentially enduring as head trauma, CTE, and whatever else we don’t know about the ramifications of using your noggin as a blunt instrument of sport. It’s entirely possible – shall I say, likely – that time will increasingly reveal an undeniable link between things like hard hits in hockey and the inability to cognitively function in middle age. That may not change the legal dispute, as long as the NHL and its owners maintain a past of plausible deniability. In other words, that they didn’t know. Of course, with each passing day, that argument is going to be harder and harder to make.

Which gets to the crux of the issue, one that goes far beyond whether professional hockey compensates former players for their sacrifice, if you will. Or even if their legal strategy is more astute than the NFL, which bears a much larger burden in the court of public opinion. At some point, the NHL will have to decide what it wants to be as a sport and a cultural artifact. Right now, the League isn’t simply betting on a legal strategy. In many ways, it’s also gambling on the instincts of sports viewers and its particular fan base. By not settling with former players, hockey seems directed towards an ethos historically taken by sports like race car driving and boxing. Players know the risks, and fans accept that premise. So regardless of the legal peril, the NHL is gambling on the relative blood lust of its populace. That despite all the talk about CTE and all the research and news stories, fans will still want to see hard hits and hockey fights. Sadly, it’s probably not an awful bet, not in the short term at least, and certainly not in a world where fact is a negotiation and truth is subjective.

What’s not as certain is whether this strategy is effective in recruiting future players as much as it is fans. While hockey fans may not mind the risk/reward quotient, hockey moms and dads might have a different calculus. That, perhaps more than any ruling from a federal judge, might guide the League’s dealings around former players and head trauma. Of course, take anything I say with a grain of salt. As you know, I’m quite far from being a lawyer.