Fritsche V NHL - Complaint - File 7/25/2014

Case 1:14-cv-05732-SAS Document 1 Filed 07/25/14 Page 1 of 29
UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK
ECF Case
Civil ActionNo.:
DAN FzuTSCHE and CHRIS FERRARO on

behalf of themselves and those similarly
Jury Trial Demanded
situated,
Plaintiffs,
CLASS ACTION COMPLAINT

vs
NATIONAL HOCKEY LEAGUE,

Defendant.
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TABLE OF CONTENTS
Page
INTRODUCTION
............1
JURISDICTION AND VENUE
............4
THE PARTIES ...
............5
SUBSTANTIVE ALLEGATIONS
............6
I.
III.
III.
Iv
V.
NHL MARI(ETS AND PROFITS FROM EXTREME VIOLENCE....
............6
EXTREME VIOLENCE AND FIGHTING IS PREVALENT IN the NHL................9
A.
Extreme Violence Is A Prevalent Part of NHL Hockey...
B.
Fighting Is Prevalent and Accepted By the NHL
t2
i.
NHL Considers Fighting to be Part of the Game
t2
ii.
Fighting Occurs at Epidemic Levels in the NHL
l4
l7
DANGERS OF HEAD TRAUMA IN NHL.........
NHL.....
A.
Epidemic Levels of Head Trauma in
B.
Scientific Evidence of Dangers of Head Trauma
C.
Scientif,rc Evidence of Dangers of Fighting
...................17
..23
inNHL
..35
THE NHL's KNOWLEDGE OF HEAD TRAUMA RISKS AND NHL'S

DUTY
36
A.
NHL's 1997 Concussion Program Study
37
B.
Other Sources for NHL's Knowledge of Head Trauma Dangers..........................40
C.
The NHL Downplayed Risks of Head Trauma
NHL DOIWNPLAYS AND CONCEALS RISKS OF HEAD TRAUMA
Trauma
4I
43
A.
The NHL Downplayed Risks of Head
B.
The
C.
Crosby's Head Trauma Exemplifies Dangers of NHL's Concealment.................47
NHL Concealed Risks of Head Trauma.....
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.................43
................45
VI.
NHL REFUSES TO REDUCE HEAD TRAUMA RISKS
..48
NHL's Role
for Players.
..48
Unsafe Player Equipment and Rink....
49
as Caretaker
Unsafe Helmets....
11.
49
Unsafe Hard Plastic Body
Armor......
....................52
iii
C.
Unsafe Playing Rules........
55
VII.
INEFFECTIVECONCUSSIONPROTOCOL
62
VIII.
THE NHL SPURNS CALLS FOR CHANGE
65
A.
65
Max Pacioretty Incident in 2011................
x.
TOLLING OF THE STATUTES OF LIMITATIONS..
69
X.
CLASS ACTION ALLEGATIONS
70
COUNT I
COUNT II
COUNT III
7l
NEGLIGENCE.......
MEDICAL MONITORING..
73
INTENTIONAL HARM
76
COUNT V
UNJUST ENRICHMENT....
MISREPRESENTATION
COUNT VI
- NEGLIGENT
DECLARATORY RELIeF
COUNT VII
-
FRAUDULENT CONCEALMENT
77
PRAYER FOR RELIEF...
82
JURY TRIAL DEMAND..
82
COUNT IV
ll
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79
79
81
The above-captioned plaintiffs ("Plaintif"), by and through multiple undersigned

counsel, bring this complaint against the National Hockey League, and allege, upon facts and
information and belief, except for the allegations concerning Plaintiff s own actions, as follows.
INTRODUCTION
1.
This action arises from the debilitating effects of head trauma, including mild
traumatic brain injuries ("MTBI"), caused by the concussive and sub-concussive impacts that
have afflicted former professional hockey players in the
NHL. For many decades,
evidence has
linked repetitive MTBI to long-term neurological problems in many sports, including hockey.
The NHL, as the orgarizer, marketer, and face of the world's premiere hockey league, in which
MTBI is a regular occuffence and in which players are at risk for MTBI, was aware of the
evidence and the risks associated with repetitive traumatic brain injuries virtually at the inception
of the league, but deliberately ignored and actively concealed the information from the Plaintiffs
and all others who participated in organized hockey at all levels.
2.
Ice hockey is a fast-paced and often physical game. But NHL hockey is
characterized
by
extreme violence and f,rghting not seen
in other elite-level ice hockey
orgarizations, like collegiate hockey, European ice hockey leagues and the Olympics.
3.
The NHL has expressly and regularly acknowledged that NHL hockey features
extreme violence, including hghting:
o In 1988, The Miami Herald quoted then NHL President John Ziegler as stating,
"'Violence will always be with us in hockey."'1
In a 2007 press conference, NHL Commissioner Gary Bettman similarly boasted

that "[flighting has always had a role in the game . . . [W]e're not looking to have
a debate on whether f,rghting . . . should be part of the ame."z
Jerry Crowe, NHL President Ziegler Denies Problems of League, THE
1988.
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MIAMI HERALD, NIay 16,
4.
Other hockey leagues, such as European hockey leagues and the Olympics, have
nearly eliminated much of the extreme violence featured in NHL hockey, including fighting.
Those leagues, especially the Olympics and other international competitions, play with the same
level of talent, and many of the same players, as the NHL.
5.
The NHL, which generates billions of dollars in revenue each year, has marketed
the violence of hockey, profited from the violence of hockey, and fostered the violence of
hockey through lax rules. For example:
o
The NHL has frequently admitted that it keeps violence in the game to raise
revenue because "[o]ur fans tell us that they like the level of physicality in our
game" and "our fans -- who continue to attend our games in new record numbers .
. . -- want fthe game] to be physical"
The NHL's rules are not successful in defeating concussions: a recent study of
NHL concussions found that most NHL concussions resulted from "legal" actions
1993 academic study of the NHL's profits from violence found that "there is a
significant and positive relationship between aggregate measures of violence
(total penalty minutes) and attendance for games played in both American and
Canadian cities."3
where the aggressor was not assessed a penalty, fine or suspension.
6.
observed in
Studies show that various forms
of
head trauma, including concussions, are
NHL players at epidemic levels. Many of these concusslons result from extreme
forms of violence, including hghting, and inadequate NHL rules, equipment, and concussion
protocols
Fighting not up for debate: Bettman, CBC Sports (Mar.26,2007),

http:i/www.cbc.calsports/hockey/fighting-not-up-for-debate-bettman-1.661551.
Jones, J. C. H., Ferguson, D. G. and Stewart, K. G. (1993), Blood Sports and Cherry Pie. American
Journal of Economics and Sociology, 52:63-78. doi: l0.l llllj.1536-7150.1993.tb02742.x (emphasis
removed).
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7.
The science has long been clear that concussions are highly dangerous to players'
health, but the NHL has refused to take steps to reduce violence in the game in part for fear that
doing so would hurt its profits.
8.
Despite the fact that the NHL's violent game design induces head trauma,
including concussions, the NHL has failed and continues to fail to warn its players of the risks to
their lives and the devastating and long-term negative health effects. While the NHL has held
itself out to players and the public as an educator on the health risks of concussions, and claims
to have kept abreast of scientific research in order to convey that research to players, the NHL
has affrrmatively concealed scientific evidence about the health risks and
associated with playing in the
9.
consequences
NHL from players, including head injuries.
The NHL even concealed the results of its own study of NHL player concussions
conducted between 1997 and 2004. The NHL collected expansive data on player concussions
between 1997 and2004, but the NHL refused to release any data or findings from this study until
2011, to the detriment of players who could have made more intelligent game-play, equipment,
and back-to-play decisions
if they had
learned the results of this study earlier. When the NHL
finally released a report on this study in 2011, the authors acknowledged that the report
contained vital information that could help players make better decisions about concussions.
10. Not only has the NHL concealed
facts about concussions, but
it
has also
downplayed the head-injury risks of the violent aspects of the game, including f,rghting. For
example:
o In 2011, Commissioner Bettman explained that the rise in concussions was the
result of"accident events" and "not from head hits."4 In fact, a subsequent study
http://www.cbc.calsportsihockey/pacioretty-injury-part-of-game-bettman- L 1 008959 &

http://www.cbc.ca./news/canaday'montreal/pacioretty-released-from-hospitalJ
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I .999400
showed that only 4.9Yo of concussions during this time period were the result
unintentional contact.
of
o ln20ll,
Commissioner Bettman said of fighting: "Maybe it is [dangerous] and

maybe it's not. You don't know that for a fact.") Mr. Bettman further said it is
premature to draw a connection between fighting in hockey and chronic traumatic
encephalopathy, or CTE.
l.
Plaintif seek damages, including punitive damages, ffid equitable relief on
behalf of the Class. Among other things, Plaintiffs ask this Court to order the NHL to institute a
medical monitoring program that appropriately cares for former and current NHL players, who
have and
will suffer lifelong health problems
and risks as a result of the
NHL's misconduct.
JURISDICTION AND VENUE
12.
This Court has subject matter jurisdiction over this matter pursuant to 28 U.S.C.
$1332(d), in that the matter in controversy exceeds the sum or value of $5,000,000 exclusive
of
interest and costs, and is a class action of more than 100 potential Class members in which at
least one Plaintiff is acitizen of a State different from the
13.
NHL.
This Court has personal jurisdiction over the NHL because the NHL
has
substantial and continuous business contacts with the State of New York.
14.
Venue is proper in this District under 28 U.S.C. $1391. The NHL resides, is
found, and has its principal place ofbusiness, has an agent, or has transacted substantial business
within the Southem District of New York and the NHL is an entity with an unincorporated
association subject to personal jurisdiction in this District. Further, a substantial part of the
events giving rise to the claims alleged herein occurred in the Southern District of New York.
http ://www.nhl.com/ice/news.htm?id:605
08
I
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THE PARTIES
15.
Plaintiff Dan Fritsche is a resident and citizen of the state of Ohio. Mr. Fritsche
played in the NHL at various times from 2003-2009. Mr. Fritsche played in over 250 NHL
games and suffered several concussions during
NHL play. The last of these
concussions
occurred on September 22,2009 during a preseason game for the Columbus Blue Jackets, a NHL
team. He was released from the Blue Jackets 10 days later.6 His
concussions gave him
headaches and disorientation and continue to pose the risk of future serious health risks.
16.
Plaintiff Chris Ferraro is a resident and citizen of the state of New York. He was
drafted in the 1992 NHL Draft by the New York Rangers and played in the NHL at various times
between 1995 and 2001. Mr. Ferraro played over 70 NHL games for the Rangers, Pittsburgh
Penguins, Edmonton Oilers, New York Islanders and Washington Capitals. He suffered several
concussions during NHL play and suffered various negative health effects from the concussions,
including headaches and disorientation and has an increased risk of future serious health issues
due to his concussions and head trauma.
17.
Defendant NHL, which maintains its principal place of business at 1185 Avenue
of the Americas, New York, New York 10036, is an unincorporated association consisting of 30
franchised member clubs. The NHL posted $3.23 billion in total revenue for the 20lI-2012
season, the last
full
season before the lockout-shortened the 2012-2013 campaign.T
In 2012-
2013, when each team played 48 regular-season games instead of the usual 82, the league has
6
7
http://www.rotoworld.com/recenlnhl/ 1 684idan-fritsche
Christopher Botta, NHL fleshes out three-year plan, SPORTS BUS. JOURNAL, (Sept. 9, 2013),
http://www.sportsbusinessdaily.com/Journal/Issuesl2013l09/09/Leagues-and-Governing-BodieslHLreorg.aspx.
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projected $2.4 billion in total .everue.8 The average NHL team is worth $413 million according
to
Forbese and the
broadcasting rights.
18.
NHL recently signed a multi-billion television contract for
Canadian
10
The NHL is in the business of, among other things, operating the sole major
professional hockey league
in the United States and Canada. As such, the NHL
promotes,
organizes, and regulates the sport of professional hockey in the United States and Canada.
SUBSTANTIVE ALLEGATIONS
I.
NHL MARI(ETS AND PROFITS FROM EXTREME VIOLENCE
19.
The NHL has expressly and regularly acknowledged that
it has capitalized
on
extreme violence, including fighting. In 1988, The Miami Herald quoted then NHL President
Joltn Ziegler as stating, "'Violence
will
always be with us
in hockey."'ll In a 2007 press
conference, NHL Commissioner Gary Bettman similarly boasted that "ff]ighting has always had
a role
in the game . . . [W]e're not looking to have a debate on whether hghting . . . should be
part of the game."r2
20.
One reason the
NHL keeps fighting and violence in the game is in order to market
the game to fans who like violence. ln2011, Commissioner Bettman highlighted fan support as
a reason why fighting and other extreme violence has not been eliminated from NHL hockey:
"Our fans tell us that they like the level of physicality in our game, and for some people it's an
issue but
it's not
as
big an issue in terms of fans and people in the game to the extent that other
8
e
Id.
http://www.forbes.comisites/mikeo zanianl2}l3llll25lthe-nhls-most-valuable-teams/
r0 http://sports.nationalpost.comi20l 3ll1l2lnhl-rogers-reach-12-year-5-2-billion-broadcast-deal-thatwould-see-cbc-keep-hockey-night-in -canada/ .
rr Jerry Crowe, NHL President Ziegler Denies Problems of League,THE MIAMI HERALD, l/.ay 16,
l 988.
t2 Fighting
not up for debate: Bettman, CBC Sports (Mar.26,2007),
http://www.cbc.calsports/hockey/fighting-not-up-for-debate-bettman-1.661551.
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people suggest
it is," Bettman
said, discussing
fighting.t' In a
1989 interview with The Walt
Street Journal, former NHL president Ziegler explained the NHL would not put an end to
fighting because "[t]he main question about fighting is, 'Does the customer accept
it?'
The
answer, at present, seems to be yes."l4
2I.
The NHL regularly features violent hits and fights in commercials for the game,
and other advertising, and features such violence prominently on its website. For example, in
2012, the NHL gave "feature billing on the league's website" to a video of an infamous brawl in
Madison Square Garden involving six experienced fighters hghting at once.ls An article from
the Canadian Press states that the NHL "apparently liked" the brawl, given the feature billing on
the website and the fact that NHL gave "no fines or suspensions" to those involved. The brawl
involved six experienced fighters, "which made it more dangerous to the combatants because
with six players fighting at once and only two linesman on hand to intervene, the chances of
serious injury are increased."l6
22. NHL's Deputy Commissioner William
Daly acknowledged to Congress on
March 13,2014 that the NHL earns revenue from the game's violence:
[O]ur fans -- who continue to attend our games in new record numbers
almost every year (at least 20 million in attendance in every full season
since the turn of the century) -- want [the game] to be physical.rT
t'
Bettman discusses fighting, CTE in remarks at BOG (NHL.com staff writer) (Dec. 6, 20ll),
http ://www.nhl.com/ice/news.htm?id:605 0 I I
la Frederick Klein, On Sports: Less Brswl, More Teams, WALL S. J., Nov. 17,1989.
15
Despite talk of fighting ban, NHL players, coaches enjoyed Rangers-Devils brawl,
http ://www.nhl.com/ice/news.htm? id:623202.
tu Id.
17
Availabl e athttp:l/democrats.energycommerce.house.gov/sites/defaulVfiles/documents/TestimonyDaly-CMT-Sports-Safety -20 I 4-3 -13 .pdf
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23.
Empirical studies have conhrmed the positive relationship between violence in
hockey and revenue. For example,
in a
1993 study published
in the American Journal of
Economics and Sociology, the authors concluded that "there is
a significant and positive
relationship between aggregate measures of violence (total penalty minutes) and attendance for
games played in both American and Canadian cities."ls
24.
The NHL has long recognized that extreme violence, including fighting, generates
extensive profits for the league. For example, in a 1986 Sports Illustrated article, the author
noted how important and profitable fighting was for the NHL:
[M]any NHL executives are scared to death that if fighting were banned
from hockey, thousands of season-ticket holders who get their jollies from
watching grown men in short pants in a quasi-legal, bare-knuckle battle
would bail out on the spot. Violence sells. That's not news, so does sex.
If that's what's important, why doesn't the league hire a bunch of bikiniclad bimbos to skate around behind the Zambonis holding up placards
showing each team's penalty totals?le
25.
Former
NHL President
NHL's goal is to increase support
Clarence Campbell expressly acknowledged that the
at the box office through whatever means necessary:
[I]t is the business of conducting the sport in a manner that will induce or
be conducive to the support of it at the box office . . . . Show business, we
are in the entertainment business and that can never be ignored. We must
put on a spectacle that will atlractpeople.20
tt
Jones, J. C. H., Ferguson, D. G. and Stewart, K. G. (1993), Blood Sports and Cherry Pie. American
Journalof Economics and Sociology, 52:63-78. doi: l0.1lllli.1536-7150.1993.tb02742.x(emphasis

removed).
tn E.M Swift, Hockey? Call It Sockey: Hockey's
designated hit men are making a travesty of the game

It's high time to get rid of all the goons, SPORTS ILLUSTRATED, Feb. 17,1986.
20
McMurtry, supra, at 18.
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26.
William McMurtry,
a Canadian
lawyer who was appointed by the Ontario Cabinet
to issue a report on violence in minor hockey in 1974,2r concluded in his official report:
In talking to numerous players in the NHL and V/HA, they all feel that
most advertising and selling of the game is over-emphasizing the fighting
and brawling at the expense of educating the crowds about the skill and
finesse. This past season the advertising for the NBC Game of the Vy'eek,
showed a film clip of a hockey fight. Can you conceive of any other sport
promoting itself in this fashion?22
II.
EXTREME VIOLENCE AND FIGHTING IS PREVALENT IN THE NHL
A.
Extreme Violence Is A Prevalent Part of NHL Hockey
27.
Extreme violence, in excess of the violence that exists in other highly competitive
and successful hockey leagues, has long been an integral part of the
NHL, and remains
so today.
28. ln 1975, Bobby Hull, considered among the greatest NHL players of all time,23
staged a one-game strike in protest of the
NHL's commodification of violence, stating:
"It's time we took some action because, if something isn't done soon, it
will ruin the game for all of us. I've never seen so much stuff like this. I
never thought it could be so bad. It's becoming a disaster," he said. "The
idiot owners, the incompetent coaches, the inept players are dragging the
game into the mud. They're destroying it with their senseless violence.
The idiot owners, the incompetent coaches, the inept players are dragging
the game into the mud. They're destroying it with their senseless
violence. The game is no pleasure any more. It's an ordeal."24
2't Helen Burnett, McMurtry Knownfor Taking on Impossible Cases,LAW TIMES (Feb. 26,2007),
http://www.lawtimesnews.com/20070226l400lheadline-news/mcmurtry-known-fortaking-on-
"
,,
to
impossible-cases.
Willia* R. McMurtry, Q.C., INVESTIGATION AND INQUIRY INTO VIOLENCE IN AMATEUR
HOCKEY (Aug.2l,1974) ("McMurtry"), at p. 18,

https ://archive.org/details/investigatamhock00onta.
1OO NHL PLAYERS OF ALL TIME

(McClelland and Stewart 1998).
Neil Campbell, After 22 Years as superstar Hull quits as player, stays as executive, THE GLOBE
MIcHAEL ULMER, THE HoCKEY NEwS, THE TOP
AND MAIL (CANADA), Nov. 2,1978.

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29. In a
1980 Congressional hearing, then NHL President John Ziegler and
Representative Henry
J. Hyde acknowledged that NHL hockey is much more violent than
Olympic hockey (which remains true today):
Hyde: You have stated that you subscribe to the theory that roughness is a
basic part of the game, and that occasional fights occur as an outlet for
pent-up emotions. How do you reconcile this with the fact that the
Olympic hockey games, which were magnificent, were played without
such an outlet?
Ziegler:. First of all, there were some outlets, if you will examine, when
there were confrontations and the outlets were this gesturing when they
came together, and there were a number. Second, they were playing on a
bigger ice surface, and you do not have the intensity of competition on a
bigger ice surface. You have much more time to execute. You play a
different game. You do not use the boards as much as part of defense and
offense.2s
30.
Violence in NHL hockey has only increased since then. In 2011, Mario Lemieux
spoke against what the media described as "the growing violence that has gripped the National
Hockey League."
26
Mr. Lemieux is the owner of the Pittsburgh Penguins and was described
as,
apart from Wayne Gretsky, "probably the most respected hockey player of the last 35 yeats."z1
In response to the NHL's failure to discipline players following a fight-filled game between the
Pittsburgh Penguins and New York Islanders in 2011, Mr. Lemieux said in a letter posted on the
Pittsburgh Penguins website
Hockey is a tough, physical game, and it always should be. But what
happened Friday nght on Long Islnd wasn't hockey. It was a travesly.
It was painful to watch the gme I love turn into a sdeshow like that...
The NHL had a chance to send a clear and strong message that those
kinds of actions qre unacceptable and embarrassing to the sport. h
failed... We, as a league, must do a better job of protectng the integrity
2s
Hearings Bere the Subcommittee on Crime of the Committee on the Judiciary House of
Representatives on H.R. 7903: Excessive Violence in Professional Sports,9th Cong. 134-163 (1980).
2
http://www.myentertainmentworld.c a/20lll02lmario-lemieux-speaks-out-alone/.
27 http:llwww.myentertainmentworld.cal20lll02lmario-lemieux-speaks-out-alone/.
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of the game and the safety of our players. We must make it clear that
those kinds of actions will not be tolerated and will be met with
meaningful disciplinary action... If the events relatng to Friday nght
reflect the state of the legue, I need to re-think whether I want to be
part of it.28
31.
An article discussing Lemieux's remarks criticized the NHL's continuing decision
to keep violence in the game:

Violence in hockey persists for one simple reason: Today, as in 1975, the
men who control the game have no interest in eliminating it. Forget all the
familiar rationalizations and explanations. Any reasonable analysis would
conclude that players should not be policed by other players, that the
threat of retaliation should not be used to enforce good behaviour, that
infractions of the rules should not be used to market a sport.2e
32.
The violent dynamic of the NHL is unique to the
NHL. Other elite and
professional ice hockey leagues have a different style of play, including Olympic and European
ice hockey, where violence is a much less prevalent part of the game and fighting is nearly
30the
enforcement of
eliminated. The difference is largely attributable to the rules of the game,
those rules, and rink conditions3l and equipment.
33.
NHL rules permit and encourage violence. For example, prior to the 2010-11
season, bodychecking another player
28
with the head as the primary point of contact was legal, and
http://www.myentertainmentworld.cal20l1l02lmario-lemieux-speaks-out-alone/.
29
http:i/sports.nationalpost .coml20lll02l20lfighting-hockey-violence-a-losing-battle/
30
James Christie, Taking Risks On the Job, THE GLOBE AND MAIL (CANADA), Mar. 18, 1981
(discussing how NHL owners passed up the opportunity to rid hockey of fighting around 1976); James
Christie, Viewpoint NHL Stickhandles Around Problem,THB GLOBE AND MAIL (CANADA),
June 12,1980 (discussing how the NHL affirmed that one-on-one fighting is permitted in the game)
31
David Shoalts, Shanahan Advocate Larger lce Surfaces Narrow Confines Cause Injuries, Star Says,
THE GLOBE AND MAIL (CANADA) , Dec. 12, 1996, at Cl3 Smith: Enlarging the Crease Could
Cut Hockey Violence, THE GLOBE AND MAIL (CANADA), Feb. 2,1983.
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other forms of violent body checking remain legal today.32 R.rle changes introduced since 2010
ostensibly to reduce head injuries in the NHL have been ineffective in reducing head injuries,
according to a 2013 study analyzing the effect of those changes.33 Rather, the study found that
between 2009-2011 "most NHL concussions resulted from legal actions" where the aggressor
was not "assessed a penalty, fine or suspension."34
B.
Fighting Is Prevalent and Accepted By the NHL
i.
34.
NHL Considers Fighting to be Part of the Game
The NHL is unique among professional sports
in that it
condones and has
encouraged bare-knuckle f,rst-fighting and, unlike collegiate and Olympic hockey, the NHL
boasts that fighting is part of its game.
35.
Several decades ago, former NHL President Campbell acknowledged that a rule
on the books against fighting was so rarely enforced that he was "not surprised" that an avid
follower of the game had not seen it enforced once in 25
36.
years.3s
In a 1989 interview with The Wall Street Journal, then NHL president Ziegler
explained why the NHL would not put an end to fighting:
"If you did that, you wouldn't be commissioner for long,"
said he. "The

view of the 21 people who own the teams, and employ me, is that hghting
is an acceptable outlet for the emotions that build up during play. Until
they agree otherwise, it's here to stay." He added: "The main question
32
Donaldson L, Asbridge M, Cusimano MD (2013) Bodychecking Rules and Concussion in Elite

Hockey. PLoS ONE 8(7): e69122. doi:10.l371ijournal.pone.0069122, available at
http://www.plosone.org/articlelinfoYo3Adoi%o2F10.137l%2Fjournal.pone .0069122. This study also
found that in a random sampling of NHL concussions in 2009-11, "[t]he most common cause of NHL
concussion was bodychecking, with and without head contact(64.2%)."
33
Id.
34
Id.
" McMurtr,, sr,tpra, at20-21.
t2
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about fighting is, 'Does the customer accept

seems to be yes."36
37.
it?'
The answer, at present,
Current NHL Commissioner Gary Bettman, at a2007 press conference broadcast
on CBC Sports, concurred that hghting is essential to the game: "Fighting has always had a role
in the game . . . [W]e're not looking to have a debate on whether frghting is good or bad or
should be part of the game."31
38.
In2013, in response to the uproar caused when a goaltender "was not suspended
is nothing in the rule book to use
for pummeling [an opposing player]
because there
precedent,"38 Bettman again praised
the role of fighting in the NHL, calling fighting
as
"thermostat" in hockey that helps cool things down when tensions run high.3e
39.
On March 13,2014, Deputy Commissioner Daly acknowledged in congressional
testimony that "fighting remains a small part of our game."4O
40.
Although fighting has long been forbidden at other high levels of play, including
the Olympics and the NCAA, the NHL has refused to follow suit, despite incontrovertible
evidence that eliminating hghting would significantly reduce concussions. While fighting can
earn minor penalties in the NHL, the rules, as enforced, are not effective in reducing fighting,
and the league has consistently declined to implement stricter sanctions

game disqualifications
such as automatic
used in other leagues that can and do reduce or eliminate fighting.
36
Frederick Klein, On Sports: Less Brawl, More Teams, WALL S. J., Nov. 17, 1989.
" Fighting not up for debate: Bettman, CBC Sports (Mar.26,2007),
38
http://sports.nationalpost.com/2013llll11lnhl-commissioner-gary-bettman-says-debate-over-fightinggetting-too-much-attention/.
3e
http://sports.nationalpost.com/2013lIll11lnhl-commissioner-gary-bettman-says-debate-over-fightinggettin g-too-much-attention/.
oo
Statement of William L. Daly Bere the House of Representatives Committee on Energlt and
Commerce ("Daly Statement"), Subcommittee on Commerce, Regarding Concussions in Sports
(Mar. 13, 2014), https://energycommerce.house.gov/hearing/improving-sports-safety-multifacetedapproach.
13
325365tv1/014353
ii.
41.
Fighting Occurs at Epidemic Levels in the NHL
According to hockeyfights.com, as of the end of the 2013-2014 regular season,
fighting occurred with alarming regularity in NHL games, measured by the number of times that
at least one player received a
"fighting major" penalty during a gme (which underrepresents the
number of actual fights per game), as shown by the following charts:
al
R':qulr Sirsn Stats
1$'4+
201914
o.38
469
2012-13
29.7
78
o.[E
2M
3.
34.
98
0.44
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o.52
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't
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'17
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,f0.
171
0.6,t
41.
't73
66,1
o.54
38.
113
497
0.lO
3f.
87
46
0.38
29.
80
789
0.fi4
41.1
11"
668
0.54
464
37.
13S
0.85
519
42
172
0.56
469
38.1
155
http://www.hockeyfi ghts.com/stats/
t4
325365tv11014353
78
o.38
2011-12
114
29.
341
276
321
Presemn Stals
Seaon Gamee
Fhts'
Fhts Per
Gamce
16
Gamc
With Fhts
tllith Fhts
of G*rnce
2013-14
104
100
B.S6
5S
58.7396
2t1 'l-12
1B
72
tl 7
Game With
llore Thn
On Firrht
dp
20
149
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115
183
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115
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E7
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74
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?7
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1
These tables also make clear that fighting is not decreasing: for example, the 2013-14 season saw
more fights than the 2005-06 season. A NHL general manager, who has been identified in the
media as a proponent of f,rghting in the league, acknowledged recently that fighting is worse now
than it used to be.a2
42.
The NHL continues to permit fighting, and remains undecided on how to handle
f,rghting in the league, as acknowledged by Deputy Commissioner Daly in recent congressional
testimony on March 13,2014:
The role of fighting

fF]ighting remains a small part of our game
continues to be a hot topic in our game and one which engenders a broad
spectrum of opinions and debate. As a League, we continue to search for
a consensus as to how best to serve the interests of all constituent groups
in the game on the issue -- including our fans, our teams, and our Players.
a2
http://www.nhl.com/ice/news.htm?i d:413255. The article quotes Toronto GM Brian Burke as saying:

"It used to be that if you got hit like that you'd come back to the bench and your teammates would say,
'Keep your head up, what were you thinking?' Now somebody fights for you. It used to be maybe
only one player on every team got that level of protection, now it's any teammate that gets hit."
15
3253651v11014353
rs
who foughto
To this point, that consensus has proved elusive, including with and
as
among our Players.a3
43.
Specific recent examples of fighting set forth herein illustrate the current nature,
prevalence and tolerance of fighting in the league.
44.
Former NHL president Campbell once acknowledged the type of pressure facing
players to fight:
McMurtry: And right now it is extremely difficult for the player who is
being provoked and being pushed to turn his back and appear to be
running. ...
***
McMurtry: To
have the sanction there
of being embarrassed
and
ridiculed and to be discussed among your peers and your coach and many
millions of fans, that is not one of the most difficult decisions in the world
for a person, to turn his back and not fight?
Campbell:
didn't say it wasn't dfficult.
said
it is an alternative.
(Italics in original.)
McMurtry:
Then if you will agree it is a very diffrcult alternative,

apparently what you call the free alternative. (Italics in original.)
it
is
Campbell: All right. (Italics in original.)
McMurtry:
There is incredible pressure and duress on that player not to

turn his back - is that not true?
Campbell: I don't think it is as great as you
say, but
it is real. (Italics in
original.)
McMurtryz There a real pressure and duress on that plaver to stand

h sround and to fisht?
Campbell: I think so, ves. ves. (Italics in original.)aa
o' Daly Testimony, supra, available at

http://democrats.energycommerce.house.gov/sites/defaullfiles/documents/Testimony-Daly-CMTSports- Safety -20
'o
I 4 -3 - 13
.pdf .
McMrrrtry, sLtpra, at 19-20.
l6
325365tv1/014353
III.
DANGERS OF HEAD TRAUMA IN NHL
45.
Studies confirm that concussions occur at epidemic levels in the NHL, leaving
players with severe disabilities and the risk of further disabilities. The examples of debilitating
head trauma in NHL hockey players described in this complaint further illustrate the scope and
nature of the crisis faced by the league. The crisis is exacerbated by the NHL's refusal to
eliminate fighting, and other excessive violence, from the game.
A.
Epidemic Levels of Head Trauma in NHL
46.
Recent studies have confirmed that there is a head-trauma epidemic in the NHL.
In 2011, the NHL published a report on the incidents of concussions during regular season play
between 1997-2004. The results were staggering: team physicians reported 559 concussions
during this seven year period, excluding concussions sustained in preseason, playoffs, and
practice.as
47.
An academic study published in 2008 conservatively estimated the number of
concussions suffered in each of the previous 10 NHL seasons.o6 These estimates were based on
sources such as media reports, rather than internal NHL data, because, as the authors lamented,
the NHL was still refusing to publish any part of its internal data from the NHL's 1997-2004
concussion study at that time. The study's estimates of concussions were as follows:
as http://www.ncbi.nlm.nih. gov/pmc/articles/PMC3 09 I 898/

a6 Wennberg RA, Tator CH (2008) Concussion incidence and time lost from play in the NHL during the
past ten years. Can J Neurol Sci 35: 647-51, available at
http://cjns.metapress.com I contentl96l0466p85w93 5 5 I /fulltext.pdf
t7
325365tv1/O14353
Scson
Corrucsin-sf
nu
iteluhiest
Medan {nreanl
missed per concu*sior
Pouier Flaysr
'2
16,899
I 1,4{t5
98-99
t,7?3
l(6.9)r ll-4
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t4,144
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l,437
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t 1,935
{l0ll * l5-2
6(l3.ll+18.3
6?
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Another academic study, published in2013, made a "conservative estimate" that
the following numbers of concussions or suspected concussions were suffered during the 200920 12 r e gular seasons
47
:
Concussions
&
Suspected Concussions
2009-10 NHL Regular Season
68
2010-11 NHL Regular Season
107
20II-12 NHL Regular
49.
120
Season*o
Statistics from the 2010-2011 season showed that every position is affected by
concussions and that players are concussed at epidemic levels:ae
a7 Donaldson L, Asbridge M, Cusimano MD (2013) Bodychecking Rules and Concussion in Elite

Hockey. PLoS ONE 8(7): e69122, available at
http://www.plosone.org/articlelinfoYo3Adoi%2F10.1371%2Fiournal.pone .0069122#pone.0069122Wennbergl
at Of the 120 concussions and suspected concussions in2011-12 season, 86 were categorized as
concussions.
ae
http://www.diehardsport.com/featured/concussions-continue-cripple-nhl-statistics/
18
3253651v11014353
NHL Players
5u ering
ast One
ies
21
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50.
The 2013-14 season began with a 30%o increase in concussions over the prior year
through the hrst three weeks of the season. During that time, from October l-20,2013, at least
l0 NHL players suffered concussions or apparent
51.
concussions.50
Many of these statistics on the frequency of concussions in NHL underestimate
the actual number of concussions because teams are not equipped, or motivated, to properly
diagnose and report concussions. For example, the following chart shows the number of
concussions reported by NHL teams in 2010-201 1:
s0 http://o.canada.com/sports/nhl-hit-with-30-increase-in-concussions-this-season
t9
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52.
Only one team reported 10 concussions, the NY Islanders reported 6 concussions,
and the rest of the league reported 5 or less concussions.
It is highly unlikely that players in
Colorado were at least twice as likely to sustain head injuries. For more likely and plausible,
other teams are not equally well equipped to properly diagnose and report concussions.
53.
The following concussions from iust the first 3
season underscore the severity

a
ofthe current crisis:
Oct. 1, 2013 George Parros, Montreal, concussion sustained during frght with
Colton Orr of Toronto.
20
325365lvt/014353
of the most recent NHL
a,
FHtT: [.rari0 rislrl,,tifitrel,]s7tt

f1lttreBl Llnrjns r:r:rgs Firrrs
fslls 'ln the
ir-:
afler:r fllht +iith T,lt,lnlo [,]lFlE LsJf-.. ll':!ltn rr
Oct.4,2013: Roman Josi, Nashville, initially listed as an upper-body injury, was

concussed by controversial hit from Steve Downie, Colorado, who got a charging
minor.
Oct. 8, 2013: Rick Nash, New York Rangers, concussed by an elbow from Brad
Stuaft, San Jose.
Oct. 13, 2013: Ryan Clowe, New Jersey, on injured reserve listed as head injury,
thought to be a concussion. Was hit with elbow to the head from Winnipeg's
Jacob Trouba.
Oct.14,2013: Keith Ballard, Minnesota (upper body) has missed four games after
being hit in the face with a puck. Concussion hasn't been confirmed but is
suspected.
Oct. 15, 2013: Dan Boyle, San Jose, pushed face first into dasher board by Maxim
Lapierre, St. Louis. Boyle was placed on injured reserve with head injury.
Oct.17,2013: Niklas Kronwall, Detroit, concussion after being boarded by Cody

Mcleod, Colorado.
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3253651v11014353
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17
Oct. 19, 2013: Danny Brire, Montreal, concussion after hit to the head from Errc
Nystrom, Nashville.
Oct. 19, 2013: Lubomir Visnovsky, New York Islanders, on injured reserve with
concussion after hit from Riley Nash, Carolina.
Oct.20,2013: Dustin Penner, Anaheim, concussion after being laid out on high
hit by Ryan Garbutt of Dallas Stars.5r
In addition to these incidents, several players ended the 2013-14 season unable to
54.
play because of concussions suffered during the 2011 season, including:
sr
Chris Pronger, Philadelphia, has not played since Nov. 19,2011 due to postconcussion syndrome after three separate hits, and Flyers GM Paul Holmgren
says his career is over.
Michael Sauer, Rangers, has not played after suffering a concussion as a result of
a hit by Dion Phaneuf on December 5,201I.
Marc Savard, Boston, has not played since Jan. 23,2011 because of concussions.
hfip:llo.canada.com/sports/nhl-hit-with-30-increase-in-concussions-this-season
22
325365lv1/014353
55.
game, even
The concussion epidemic in the NHL is not new and has always been a part of the
if
concussions and head trauma were not diagnosed as frequently in the past. In
1998, a Canadian news article documented how frequent concussions were for NHL players at
the time, stating:
Concussions have become an epidemic in the NHL over the past several
years, striking everyone from marquee players to fourth-line checkers.
***
According to statistics provided by the NHL, 60 players had concussions
last season during the regular season and the playoffs. As of early
February this seasn , 56 plyers already had received concussions.s2
B.
Scientific Evidence of Dangers of Head Trauma
56.
Medical science has known for many decades that repetitive and violent janing of
the head or impact to the head can cause MTBI with a heightened risk of long term, chronic
neuro-cognitive sequelae.
57.
The NHL has known or should have known for many years that the American
Association of Neurological Surgeons (the "AANS") has defined a concussion as "a clinical
syndrome charucterized by an immediate and transient alteration in brain function, including an
alteration
of mental status and level of
consciousness, resulting from mechanical force or
trauma." The AANS defines traumatic brain injury ("TBI") as:

a blow or jolt to the head, or a penetrating head injury that disrupts the normal
function of the brain. TBI can result when the head suddenly and violently hits an
object, or when an object pierces the skull and enters brain tissue. Symptoms of a
TBI can be mild, moderate or severe, depending on the extent of damage to the
brain. Mild cases may result in a brief change in mental state or consciousness,
while severe cases may result in extended periods of unconsciousness, coma or
even death.
t'
Maureen Delany, NHL struggles with efforts to prevent concussions Bell Ringers / They don't
make plyers see stars. They can end a season, or even a career, THE GLOBE AND MAIL
(CANADA), Mar. 24,1998, at S1 l.
23
325365tv11014353
just
58.
The NHL has known or should have known for many years that MTBI generally
occurs when the head either accelerates rapidly and then is stopped, or is rotated rapidly. The
results frequently include, among other things, confusion, blurred vision, memory loss, nausea,
and sometimes unconsciousness.
59.
Medical evidence has shown that symptoms of a concussion can reappear hours or
days after the injury, indicating that the injured party has not healed from the initial blow.
60.
According to neurologists, once a person suffers a concussion, the person is up to
four (4) times more likely to sustain a second one and each successive concussion increases the
seriousness of health risks and the likelihood
of future concussions. Additionally, after suffering
even a single concussion, a lesser blow may cause the injury, and the injured person requires
more time to recover.
61.
Clinical and neuropathological studies by some of the nation's foremost experts
have demonstrated that multiple concussions sustained during an NHL player's career can cause
severe cognitive problems such as depression and early-onset dementia.
62.
Repeated head trauma can also result
in so-called "Second Impact Syndrome," in
which re-injury to a person who has already suffered a concussion triggers swelling that the skull
cannot accommodate.
63.
Repeated instances
of head trauma also frequently lead to Chronic Traumatic
Encephalopathy ("CTE"), a progressive degenerative disease of the brain.
64.
CTE involves the build-up of toxic proteins in the brain's neurons. This build-up
results in a condition whereby signals sent from one cell to thousands of connecting cells in
various parts of the brain are not received, leading to abnormal and diminished brain function.
24
3253651v11014353
65.
CTE is found in athletes (and others) with a history of repetitive concussions.
Conclusive studies have shown this condition to be prevalent in retired professional hockey
players who have a history of head injury.
66.
This head trauma, which includes multiple concussions, triggers progressive
degeneration of the brain tissue. These changes in the brain can begin months, years, or even
decades after the last concussion
or the end of active athletic involvement. The brain
degeneration is associated with memory loss, confusion, impaired judgment, paranoia, impulse-
control problems, aggression, depression, and eventually progressive dementia.
67. In a study at the Boston University
Center
for the Study of
Traumatic
Encephalopathy and the Veterans Affairs Boston Healthcare System, in collaboration with the
Sports Legacy Institute, neuropathologists confirmed CTE in four deceased NHL players who
died after exhibiting signs of degenerative brain disease.
68.
For almost a century, while unnecessary violence, including brutal fighting, has
permeated NHL games, the NHL has been on notice that multiple blows to the head can lead to
long-term brain injury, including, but not limited to, memory loss, dementia, depression, and
CTE and its related symptoms. There have been legions of studies throughout the eras proving
these negative health consequences.
69. In
1928, pathologist Harrison Martland described the clinical spectrum of
abnormalities found in "almost 50 percent of fighters [boxers] . . . if they ke[pt] at the game long
enough" (the "Martland study"). The article was published
in the
Journal
of the American
Medical Association. The Martland study was the first to link sub-concussive blows and "mild
25
3253651v11014353
concussions" to degenerative brain disease.t3 There were many subsequent studies published
regarding the dangers of athletic head trauma.
70.
For example,
Dementia Puglilistica.sa
Boxing.ss
ln
in
In
1937, the US. Naval Medicine Bulletin published a paper titled
1941, JAMA published an article titled The Medical Aspect
1952, JAMA published
a study of encephalopathic changes in those suffering
repeated blows to the head, focusing on professional boxers.56 That same year,
published
of
article
in the New England Journal of Medicine recommended a three-strike rule for
concussions in hockey (1.e., recommending that players cease to play hockey after receiving their
third concussion).
71. In 1956, the Journal of Neurology, Neurosurgery

paper titled Diffuse Degeneration of the Cerebral White Matter
Head
Injury.t' ln
1959, the Journal
in
and Psychiatry published a

Severe Dementia Following
of Mental Science published a paper titled Observations on
the Pathology of Insidious Dementia Following Head Injury.58 In 1959, the Canadian Medical
Association Journal published a study titled Puck Aneurysm, in which it stated:
Although it is well known that to be struck in the head by a hockey puck

cannot be an entirely benign event, it is perhaps insufficiently appreciated
that a regulation hockey puck weights 165 grams and may travel at a
velocity in excess of I20 feet per second. When such a missile strikes the
head, delayed as well as immediate sequelae cannot be wholly unexpected.
In the cases reported here, it may be felt that the patients got off lightly,
but on the other hand, it can be pointed out that in both instances the
s3 Harrison S. Martland, M.D., Punch Drunk,gl JAMA I103 (192S).
to J. A. Millspaugh, Dementia Pugilistica,3s U.S. NAVAL MED. BULLETIN 297 (1937).
s5
Ernst Joki, M.D., The Medical Aspect of Boxing,l l7 JAMA 25 (1941)
56
Ewald W. Busse, M.D., Albert J. Silverman, M.D., Electroencephalographic Changes in Professional
Boxers,l49 JAMA 1522 (1952).
57 Sabina J. Strich, Dffise Degeneration of the
Cerebral llhite Matter in Severe Dementia Following
Head Injury, 19 J. NEUROL., NEUROSURG. AND PSYCHIATRY 163 (1956).
tt J.A.N. Corsellis, JB Brierley, Observations on the Pathologt of Insidious Dementia Following Head
Injury,105 J. MENTAL SCI. 714(1959).
26
325365tv11014353
Case 1:14-cv-05732-SAS Document 1-1 Filed 07/25/14 Page 1 of 29
injuries could have been prevented by the wearing of a suitably designed

protective helmet.se
72. In 1962, JAMA published an article titled Protection

Sports, in which
it
concluded, "Helmets for use
of the Head and Neck in
in one sport might not be satisfactory for
another. Individual design of the helmet for each sport is mandatory if maximum protection is to
be obtained."60
In
1966, the Journal
of Neurotogt published a paper titled
Concussion
Amnesia.6t In 1968, the Journal of Neurochirurgia published a paper titled. Brains of Boxers.62
In 1968, the Canadian Medical Association Journal published
a study titled Severe Brain
Injury
and Death Following Minor Hockey Accidents: The Effectiveness of the "Safety Helmets"
Amateur Hockey Players. The study noted the death of NHL player
of
Bill Masterton resulting
from head trauma he suffered during an NHL game.63
73.
The article then concluded:
The ideal protective hockey helmet, therefore, should be able to protect

the players against blows and falls. The shell and the suspension
apparatus of the helmets should be able to cushion enough of the impact of
falls and blows to reduce the transmitted accelerating or decelerating
velocity of the head blow by the 30 ft. per second danger threshold found
by White and associates, and below the 425lbs per sq. in. pressure found
by Gurdjian. Apparently 30 ft. per second is the upper limit of impact
velocity which the human brain can suffer without experiencing cerebral
concussion. Likewise, 425 lbs. per sq. in. is the approximate upper limit
of pressure which the human skull can withstand without fracture.6a
tn
Hill, M.D., PuckAneurysm, 32 CAN. MED. ASS'N

(19s9).
J.923
60
ES Gurdjian, M.D., HR Lissner, M.S., LM Patrick, M.5., Protection of the Head and Neck in Sports,
6l
62
63
uo
J.S. Campbell, M.D., Pierre Fournier, M.D., D.P.
182 JAMA s09 (1962).

C. Miller Fisher, Concussion amnesia,l6 NEUROLOGY 826 (1966).
EE Payne, Brains of boxers,5 NEUROCHIRURGIA 173 (1968).
John F. Fekete, M.D., Severe Brain Injury and Death Following Minor Hockey Accidents,99 CAN
MED. ASS',N 1.99 (t968) 1234.
Id. at
lz3.
27
325365tv1/014353
74. In 1969, JAMA published an article, titled lce Hockey Can be Safer, noting the
imminent risk of head trauma to ice hockey players.65 The article stated:
Physicians have played some role in making the wearing of protective
helmets compulsory in amateur hockey on this continent. But we must not
presume that this regulation of itself can eliminate serious head injury or
death. Patently, not all the helmets in use are sufficient. W'e must
encourage, support, or initiate research to produce more effective
equipment.66
75. In 1969, the British Journal of Psychiatry published a paper titled Organic
Psychosyndromes due to Boxing.67
Damage
in Boxers: A study of
In 1969, Anthony
Roberts published a study titled. Brain
of
traumatic encephalopathy among ex-
the prevalence
pr ofe s s i o nal b oxe r s .68
76. ln 1970, The Lancet published a paper titled Retrograde
Memory Immediately
After Concussion.6e In 1970, Medical & Science in Sports published an article titled The
effectiveness
of a special ice hockey
helmet
to reduce head injury in collegiate intramural
hockey.To
77.
In
1973, a disabling and sometimes deadly condition involving the second impact
concussion occurring before symptoms of a first concussion was described by R.C. Schneider.
This later was coined the "Second Impact Syndrome" in 1984.
65
ln
1973, Psychology Medicine
Ice Hockey Can be Safer,207 JAMA 1706 (1969).

Id.
67
John Johnson M.D., M.R.C.P.E., D.P.M., Organic Psychosyndrome due to Boxing,l l5 THE BRIT. J.
PSYCHTATRY 4s (1969).
U' ANTHoNY HERBERS RoBERTS, BRAIN DAMAGE IN BoXERS: A STUDY oF THE
PREVALENCE OF TRAUMATIC ENCEPHALOPATHY AMONG EX-PROFESSIONAL
BOXERS, London: Pitman Med. & Scientific Publ'g Co.,Ltd.,1969.
un
PR Yarnell, S Lynch, Retrograde Memory Immediately After Concussion,2gl TFIE LANCET 863
(1e70).
to Jess F. Kraus, Bruce D. Andersonm, C.E. Mueller, The effectiveness of a special ice hockey helmet to
reduce head injury in collegiate intramural hockey,2 MED. & SCI. IN SPORTS 162 (1970).
66
28
325365tv11014353
published a study titled The A/iermath of Boxing.T'
ln 1974, the Journal of Brain published a
paper titled, Cerebral Concussion and Traumatic Unconsciousness: Conelation of experimental
and clinical observations of blunt head injuries .72

Traumatic Encephalopathy in
In
I97 4, The Lancet published a study titled
a Young Boxer.13 That same year,
The Lancet also published a
study titled, Delayed Recovery of Intellectual Function After Minor Head Injury.Ta
Lancet published an article titled Cumulative Effect of Concussion.Ts
In
In
1975, The
1975, the Minerva
Medical Journsl published an article titled lce Hockey Accidents, discussing, inter alia,
concussions.T6
In
1978,
Aging published a study titled Posttraumatic Dementia.Tt The next year,
the British Journal of Sports Medicine published a study titled lssociation Footbqll Injuries to
the Brain: A Preliminary Report.18
78. In 1980, the Canadian Journal of Applied
Sports Science published an article
titled, Puck Impact Response of Ice Hockey Face Masks.Te
79. In sum, as the NHL extracted
vast sums of money by selling its violent
commodity, numerous studies were published in scores of peer-reviewed journals warning of the
dangers of single concussions, multiple concussions, and contact sports-related head trauma from
multiple concussions. These studies collectively and conclusively established that:

'71
J.A.N. Corsellis, CJ Bruton, D Freeman-Browne, The Aftermath of Boxing,3 PSYCHOLOGICAL

MED. 270 (t973).
" AKOmmaya, TA Gennarelli, Cerebral Concussion and Traumatic (Jnconsciousness: Correlation of
Experimental and Clinical Observations of Blunt Head Injuries,9T BRAIN 633 (1974).
t' PK Harvey, JN Davis, Traumatic Encephalopathy in a Young Boxer,2THE LANCET 925 (1974).
to D Gronwall, P Wrightson, Delayed Recovery of Intellectual Function After Minor Head Injury,304
THE LANCET 60s (1974).
15
D Gronwall, P Wrightson, Cumulative Effect of Concussion,306 THE LANCET 995 (1975).
76
P Muller, K Biener, Ice Hockey Accidents,66 MINERVA MED. 1325 (1975).
77
J.A.N. Corsellis, Posttraumatic dementia,7 AGING 125 (1978).
78
A Tysvaer, O Storli, Association Football Injuries to the Brain: A Preliminary Report,15 BRIT. J. OF
SPORTS MED. 163 (r981).
7e RW
Nornam, PJ Bishop, MR Pierrynowski, Puck impact response of ice hockeyface masks,5 CAN. J
APPLTED SPORT SCr.208 (1980).
29
325365tv11014353
repetitive head trauma in contact sports, including boxing and football, has potential
dangerous long-term effects on brain function;
encephalopathy (dementia pugilistica) is caused in boxers by repeated sub-concussive

and concussive blows to the head;
acceleration and rapid deceleration
of the head that results in brief loss of
consciousness in primates also results in a tearing of the axons (brain cells) within the
brainstem;
with respect to mild head injury in athletes who play contact sports, there is
relationship between neurologic pathology and length of the athlete's career;
immediate retrograde memory issues occur following concussions;
mild head injury requires recovery time without risk of subjection to further injury;
head trauma is linked to dementia;
a hockey player who suffers a concussion requires significant rest before being
subjected to further contact; and,
minor head trauma
cara
lead to neuropathological and neurophysiological alterations,
including neuronal damage, reduced cerebral blood flow, altered brainstem evoked
potentials and reduced speed of information processing.
80.
Rule 4.2.14
of the World Boxing Council's Rules and Regulations
states:
"[b]oxers that suffered concussion by KO floss of consciousness], should not participate in

spaning sessions for 45 days and no less than 30 days after concussive trauma, including but not
limited to KO's, and should not compete in a boxing match in less than75 days."
81.
At the end of
1991, the Colorado Medical Society published concussion research
that they had been working on since the death of a high school student from second impact
30
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syndrome. The paper outlined clear guidelines on the appropriate response to
suspected
concussrons.
82.
According to the Colorado Medical Society guidelines, a Grade
consists of confusion only, Grade
III
and
II includes confusion
concussion
and post-traumatic amnesia, and Grades
IV involve a loss of consciousness. By these guidelines, an athlete who has suffered a
concussion may return
to sports after having been free of symptoms, both at rest and during
exercise, as follows:
(a)
Grade I - first concussion: 15 minutes; second concussion: one week.
(b)
Grade
II - first concussion: one week; second concussion: two weeks (with
physician approval).
(c)
Grade
IIIa
(unconscious
for
seconds)
- first concussion: I
month;
second
six months;
second
concussion: six months (with physician approval).
(d)
Grade
IIIb
(unconscious
for minutes)
- first concussion:
concussion: one year (with physician approval).
83.
In response to the publication of the Colorado Medical Society guidelines,
the
NCAA and high school teams almost immediately adopted the new, stricter guidelines on how to
care for injured players.
84.
In 2000, the Clinical Journal of Sport Medicine published an article titled Risk of
Head and Neck Injuries in Ice Hockey with Full Face Shields or Half Face Shields.
85. In 2001, The International Ice Hockey
Federation,
in
partnership with the
Federation Internationale de Football Association Medical Assessment and Research Center and
the International Olympic Committee Medical Commission, organized the first International
Symposium on Concussion in Sport, and convened in Vienna.
3t
3253651v11014353
86.
Faced with the increasing incidence
of
concussions and head injuries
hockey and other sports, the International Symposium on Concussion
in ice
in Sport gathered
the
leading medical experts from all parts of the world and from a wide sampling of different sports,
experienced in dealing with sports-related head injuries. The objective of the symposium was to
understand, as completely as possible, what actually takes place when severe blows to the head
occur, with the goal of eliminating concussions in all sports.
87.
One of the papers presented at the first International Symposium on Concussion
in Sport 2001, titled Procedures After Minor Traumatic Brain Injury nTBI In lce Hockey
to
Prevent Neurological Sequelae, noted that, during the 15 years preceding the symposium, the
proportion of mTBI (mild traumatic brain injury) to the overall number of injuries in the sport of
ice hockey generally increased from2%o to 20Yo, and in the
in the 1989-1990 season to
8%o
in
NHL specifically, increased from2o/o
1999-2001 seasons. The authors recommended that any
confused player with or without amnesia should be taken off the ice and not be permitted to play
again for at least 24 hours.
88. In 2004, the International Symposium
on Concussion in Sport reconvened in
Prague with the aim of providing recommendations for the improvement of the safety and health
of athletes who suffer concussive injuries in ice hockey, rugby, football, and other sports
based
on the most up-to-date research. These experts reconmended that a player never be returned to
play while symptomatic, and coined the phrase, "when in doubt, sit them out."
32
3253651v1/014353
89. ln 2004, the Clinical Joumal of Sport Medicine published an article titled Head
Injuries Presenting to Emergency Departments in the United States From 1990 to 1999 for Ice
Hockey, Soccer, and Football.s0 The results of the study found:
There were an estimated 17,008 head injuries from ice hockey,86,697

from soccer, and 204,802 from football that presented to US EDs from
1990 to 1999. The total number of concussions presenting to EDs in the
United States over the same period was estimated to be 4820 from ice
hockey, 21,7I5 from soccer, and 68,861 from football. While the rates of
head injuries, concussions, and combined concussions/internal head
injuries/skull fractures presenting to EDs per 10,000 players were not
always statistically similar for all 3 sports in each year data were available,
they were usually comparable.sl
90.
The study concluded: "While the total numbers of head injuries, concussions, and
combined concussions/skull fractures/internal head injuries presenting

States are different
for ice hockey, soccer, and football for the years studied, the yearly rates for
these injuries are comparable among
91.
to EDs in the United
all 3 sports
"82
In 2011, the Clinical Journal of Sports Medicine published an article titledSport-
Related Concussions: Knowledge Translation Among Minor Hockey Coaches.ss The study
investigated minor hockey coaches' knowledge of sport-related concussions, and found that the
majority of coaches correctly recognized and understood the issues related to sports-related
concusslons
80
8t
t'
83
to
84
J. Scott Delaney, Head injuries presenting to emergency departments in the (Jnited States from 1990
to 1999for ice hockey, soccer, andfootball, l4 CLINICAL J. SPORTS MED. 80 (2004.).
Id.
Id.
Martin ly'rrazik, et al., Sport-related concussions: lmowledge translation among minor hockey coaches,
J. SPORTS MED. 3ls (201l).
2l cLrNrcAL
Id.
JJ
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92. ln
2012, the Clinical Journal
of Sport
Medicine published an article titled
Eliminate Head-Checking in Ice Hockey.st The article states:
Although findings have not been universally confirmed or accepted, 8

most studies suggest that multiple concussions can lead to permanent
functional impairment as a result of cumulative brain trauma. In most
head injuries occurring during athletic activity, there is a significant
acceleration, and diffuse damage may occur even if the coverings of the
brain are not broached . .
V/e feel that the medical profession needs to raise awareness and to
advocate for a "no head-checking" rule, for stricter rule enforcement and
more vigorous penalization. The proposed "no head-checking rule"
should be implemented in all levels of hockey and in all locations where
ice hockey is played. Everyone must send the message that there is no
role for the head as a target in ice hockey. We simply must have a "no
head-checking rule" in all ice hockey.86
93. ln 2012, the Clinical Journal of Sports Medicine
published an article titled
Concussion reporting rates at the conclusion of an intercollegiate athletic
"areer.8t
The article
concludes:
I acknowledged,
potential
The
unreported
rate
was lower than
concussion.
unreported, or
previous high school studies; however, the potentially unrecognized rate
remains high and should be clinically conceming. These findings suggest
educational interventions targeting collegiate student-athletes should
remain and continue to focus on identifuing concussion symptoms and
dispelling the common misconception that 'bell ringers' and 'dings' are
not concussions.ss
Overall, 49.7% of all respondents (80/161) reported
94.
The authors of a 2013 scholarly article on NHL concussions also reviewed 10-
week random samples of game films for concussions between 2009-2011 and categorized the
causes
of
concussions as "blindsiding (checking from the player's blind side with primary
*t
Tom Pashby, MD, et al., Eliminate Head-Checking in lce Hockey,l
tu
211 (2001).
Id.
8?
tt
l CLINICAL
J. SPORTS MED
Tracy Llewellyn, et al., Concussion reporting rates at the conclusion of an intercollegiate athletic
career,24 CLINICAL J. SPORTS MED. 76 (2014).
Id.
34
325365tv11014353
contact to the head), other checking to the head, checking to the body, fighting, non-contact or
collision with a teammate, hit by a stick or hit by a puck."8e Among other hndings, the article
found:
a.
The most conmon cause of NHL concussion was bodychecking, with and without
head contact (64.2%). By contrast, only 4.9%o of concussions were due to
"unintentional actions."
b.
I2.2% of concussions were caused when players were hit by pucks. Most of the
players injured in this manner resulting also in facial fractures were not wearing a
visor at the time (6 of 7 cases).
c.
51.2% of all incidents involved a secondary contact of the head after the initial
impact, most commonly to the boards or ice
C.
Scientific Evidence of Dangers of Fighting in NHL
95. In addition to the articles

dangers of hghting in the
above, other scientific evidence demonstrates the
NHL, even though the NHL continues to deny that there is any danger.
2013 scholarly article analyzing NHL concussions also found that "those engaging in more
hghts were also at a higher risk of a concussion or suspected concussion."eo Fighting was a large
cause
of concussions analyzed. For example, of the 55 concussions randomly ana|yzedin2010,
7 (I2.7%) were the result of fighting. The article also found that "[i]llegal incidents, where the
aggressor was assessed
a penalty, fine or
suspension, accounted
for
28.4%
of
cases for
concussion," atd that, when a concussion resulted, ths "most common penalty called was
fighting (32.3%)." The study found

secondary contact
it
"notable" that "hghting and bodychecking causing
of the head with the boards or ice
caused more
NHL
concussions than
blindsiding, and these incidents are not covered by head checking rules in either league." The
8e
Bodychecking Rules, supra.
eo
Bodychecking Rules, suprq.
35
325365tv11014353
article suggested that"a ban on fighting or a harsher penalty for those involved in hghts" may
"need to be implemented in INHL and another league] in order to better protect the players."
96.
Derek Boogaard was the first of three current or former NHL players (with Wade
Belak and Rick Rypien) who died in the summer of 2011.
All
three players were considered
enforcers -- guys for who hght more frequently than their teammates.el According to the press,
"[o]nly Boogaard's brain was studied post mortem, and CTE was found."e2
97. A
scientific study
in
2011 concluded that hghting
is a
common cause of
concussions in youth hockey. The study "followed two Ontario junior teams over 52 games in
2009-10, with independent clinicians conducting in-game examinations of players suspected
having concussions. They found that
of
of 2l diagnosed concussions, 5 were the result of
fghts."e3 According to a press report, Dr. Michael Stuart of the Mayo Clinic, the chief medical
officer for USA Hockey and an expert on head trauma, commented on the report and "said he
was not surprised that fighting carries an increased risk of concussion."e4
IV.
THE NHL's KNOWLEDGE OF HEAD TRAUMA RISKS AND NHL'S DUTY
98.
Throughout its history, the NHL has, and should have, kept abreast of scientific
studies into the dangers of head trauma and
it knew, and should have known, the known negative
health risks of head injuries. For decades, the NHL has been aware that multiple blows to the
head can lead to long-term brain injury, including but not limited to memory loss, dementia,
depression, and CTE and its related symptoms.
http ://www.nhl.com/iceinews.htm?id:605 08 I
e2
http://www.hockeywilderness.com/2 013/2lll13974249lnhl-concussion-policy-is-it-broken
e3
http://www.nytimes.com l20ll 103 103/sports/hockey/03hockey.html
ea
http://www.nytimes.com l20l I 103 103/sports/hockey/03hockey.html
36
325365tv11014353
99.
dangers,
Rather than take immediate measures to protect its players from these known
it was not until 1997 that the NHL launched a concussion program study ostensibly to
improve the understanding of head injuries.
A.
NHL's 1997 Concussion Program Study
100. The stated purpose of the

concussion from
a scientific
1997
field."
concussion and trends related
to
examine
to better understand its natural history and
perspective and
contribute new knowledge to the
NHL concussion study was "to
The objectives of the study "were to determine rates
concussion
in the NHL, to
of
descriptively explore initial
postconcussion signs, symptoms, physical examination findings and time loss (i.e., time between
the injury and medical clearance by the physician to return to competitive play), and to assess the
utility of initial postconcussion clinical manifestations as predictors of time loss among male
professional ice-hockey players."
l0l.
The method used by the 1997 NHL concussion study was to collect concussion-
related data from NHL team doctors over seven NHL regular seasons, from 1997-2004. The
team physicians were mandated by the league to document all concussions sustained during
regular season games, using standardized injury report forms that evaluated concussion systems,
and the time when players returned to action.es
I02.
Even though the NHL concussion study began collecting data
in 1997, the NHL
did not publish any results from this study until 2011. The 2011 NHL concussion report
analyzed how some symptoms and circumstances correlated with the severity and risks
concusslons.
es
Id.
37
3253651v1/014353
of
103.
According to the report, team physicians reported 559 concussions during regular
season games.e6 The estimated incidence was 1.8 concussions
per 1000 player-hours and 5.8
concussions per playe, p", ."arot.nt
104.
The 201I report also found that almost 20o/o of players retumed to play during the
same game they suffered the concussion, and in nearly l0%o
of
cases they retumed to
play after
seeing a team physician.
105. The 20ll
report included the following findings that directly relate to how the
symptoms and circumstances of concussions contribute to health risks:
a.
Several symptoms "were found to be significant predictors of time loss

(headache, low energy or fatigue, amnesia, and abnormal neurologic
examination). These findinss are of use to phvsicians. medical support
b.
"Time loss significantly increased for every subsequent (repeat) concussion

sustained during the study period, as well as for each increase in the number
of postconcussion symptoms experienced."
106.
27Yo percent of instances of concussion in which the player continued to

play without game-time medical evaluation, more than 10 days of time loss
resulted.... It is becoming more apparent that athletes with acute concussion
experience functional or cognitive impairment and reduced reaction times. It
is possible that continued exertion in the immediate postconcussion period
may exacerbate the injury or increase a player's susceptibility to further
injury, which may ultimately increase severity and prolong recovery.
ln
The authors concluded:
Our results suggest that more should be done to educate all involved with
the sport about the potential adverse effects associated with continuing to
play while symptomatic, failing to report symptoms to medical staff and
failure to recognize or evaluate any suspected concussion. Our findings
nu Brian W. Benson et. A prospective study of concussions among National Hockey League players
al,
during regular season games: the NHL-NHLPA Concussion Program, Canadian Medical Ass'n J.,
May I1,2011,905-91l.
e7
Id.
38
325365tv11014353
also suggest that more conservative or precautionary measures should be

taken in the immediate postconcussion period, particularly when an athlete
reports or experiences a post-concussion headache, low energy or fatigue,
amnesia, recurrent concussion or many different postconcussion
symptoms, or when the athlete has an abnormal neurologic examination.es
107. In congressional
testimony from this year, the NHL recently acknowledged the
importance of this type of knowledge for players:
Our recent educational initiatives have focused on articulating and

identifying many of the conmon visible signs and symptoms of a
concussion so that Players will recognize when they, or a teammate, may
be at risk. . . . It is our strong belief that the Players' health and safety will
be enhanced if all relevant personnel clearly understand the latest science
regarding concussions.ee
108.
Players were not informed of any of these important findings until 2011 even
though the authors of the report agree that the findings were of use to players, physicians and
coaches, who could have used them to help determine the severity of their concussions and how
long they should remain out after concussions. Even researchers lamented that the data was not
released earlier.loo
109. While the 20ll
report included important safety information that should have
been disclosed much earlier to players and others, there was much left out of the report. Notably,
the NHL Concussion Program report did not take a position on the long-term effects of
concussions, and did not provide any specific recommendations as to return to play guidelines or
"
ee
100
Benson BW, Meeuwisse WH, Rizos J, Kang J, Burke CJ (2011) A prospective study of concussions
among National Hockey League players during regular season games: the NHL-NHLPA Concussion
Program. CMAJ 183: 905-11. doi: 10.1503/cmaj .092190, availqble at
http://www.ncbi.nlm.nih .govlpmclarticles/PMC3091898/ (emphasis added).
Testimony of William Daly, March 13,2}l4,available at

http://democrats.energycommerce.house.gov/sites/defaullfiles/documents/Testimony-Daly-CMTSports- Safety -20
4 -3 -
.pdf
Wennberg RA, Tator CH (200S) Concussion incidence and time lost from play in the NHL during the
past ten years. Can J Neurol Sci 35: 647-51 ("The NHL itself has accumulated data on incidence,
mechanisms of injury and return to play timelines since 1997 but has not released these data to the
public.").
39
325365lv11014353
rule changes. Nor did the report include any analysis of the causes of concussions, such
as
fighting, rules, and equipment. Further, between 1997 and2004, the NHL collected datafor 36
total symptoms, but only 10 were consistently collected each year. The 2011 NHL concussion
report analyzed only the l0 symptoms collected each year, and the NHL has still not issued any
further reports analyzing or disclosing the underlying data relating to the other symptoms.lOl
After the publication of the 2011 NHL report, the NHL continued to take the position that
additional research was needed.
110.
The NHL Concussion Program was publicized as being independent from the
NHL, consisting of a combination of the NHL's Player's Association, doctors and
researchers
from major universities.

11
1. In actuality however,
the NHL Concussion Program was not independent. It
consisted of individuals who were already afflrliated with the
NHL. For example, Brian
Benson
was the principal investigator for the study and took responsibility for the integrity of the data
and accuracy of the data analysis. Mr. Benson was on contract with the NHL as a concussion
data analyst and publication consultant.l02 The study relied on data collected and reported by
team physicians.
B.
Other Sources for NHL's Knowledge of Head Trauma Dangers
II2.
In addition to the 1997 concussion study, the NHL knew, and should have known,
of the dangers of head trauma from other sources, including player events, its knowledge of the
tot
102
The report disclosed the other symptoms collected, and the total number of players reporting to have
those symptoms, but no other underlying data. Id. App. 4. More than 50Yo of concussion-victims
reported the following symptoms, none of which was analyzed: "Don't Feel Right," "Feeling like 'in a
fog,"' and "Feeling Slowed Down." The report also disclosed other limitations, including that
physicians may have underreported concussions and no data was collected for practice, exhibition, and
playoff games.
Id.
40
325365lv11014353
scientific literature, and its participation in conferences and studies relating to concussions. The
NHL has continually presented itself
as an educator to players and others on the dangers
of head
injuries, and players have relied on its superior knowledge, so the NHL has taken on the duty to
inform players about the scientifically known risks of head injuries and to design the game in a
way that is most effective at reducing those risks.
113. In his congressional

acknowledged that the
testimony on March 13,2014, Deputy Commissioner Daly
NHL participated in, and took a leadership role, the four International
Concussion in Sport Conferences between 200I,2004,2008 and 2012, discussed above.
ll4.
Deputy Commissioner Daly also emphasized that the league has taken
leadership role in teaching others about the dangers

states that education has been a
of concussions. For example, the league
vital component of its mission since 1997, and that its "education
efforts are directed towards all relevant parties in our game, including most importantly our
Players, but also relevant Club personnel, including Club medical staff, Club owners and
executives, team General Managers and Coaches, and on-ice game Ofhcials." The NHL has also
"assisted
in the development of concussion educational programs for youth and junior
age
hockey players." As a self-appointed leader in education, the league has portrayed itself as
knowledgeable about current research in concussions and head trauma.
C.
115. At all times, the NHL's
unique historical vantage point at the apex of the sport
of
hockey, paired with its unmatched resources as the most well-funded organization devoted to the
business
of the game, has afforded it unparalleled access to data relating the effect of
impacts on football players and made
it
an institutional repository of accumulated knowledge
4l
325365Iv11014353
head
about head injuries to players. As set forth above, the NHL has trumpeted its role in educating
players on these issues and taking care of their safety.
116. The NHL's
accumulated knowledge about head injuries
associated health risks therefrom, was
to players, and the
at all times vastly superior to that available to
the
Plaintiffs.
ll7.
From its inception, the NHL unilaterally created for itself the role of protecting
players, informing players of safety concerns, and imposing unilaterally a wide variety of rules
ostensibly to protect players from injuries that were costly to the player, the game, and prohts.
From the beginning, the NHL held itself out and acted as the guardian of the players' best
interests on health and safety issues.
118. For these reasons, players and their families have relied on the NHL to intervene
in matters of player safety, to recognize issues of player safety, and to be truthful on the issue of
player safety
119.
On information and belief, since its inception, the NHL received and paid for
advice from medical consultants regarding health risks associated with playing hockey, including
the health risks associated with concussive and sub-concussive injuries. Such ongoing medical
advice and knowledge placed the NHL in position of ongoing superior knowledge to the players.
Combined with the NHL's unilateral and monopolistic power to set rules and determine policies
throughout its game, the NHL at all relevant times was in a position to influence and dictate how
the game would be played and to define the risks to which players would be exposed.
120.
As a result, the NHL unilaterally assumed a duty to act in the best interests of the
health and safety of NHL players, to provide truthful information to NHL players regarding risks
to their health, and to take all reasonable steps necessary to ensure the safety ofplayers.
42
3253651v11014353
l2l.
The NHL's voluntary actions and authority throughout its history show that, from
its inception, the NHL shouldered for itself the common law duty to make the game of
professional football safer for the players and to keep the players informed of safety information
they needed to know.
V.
NHL DOW\PLAYS AND CONCEALS RISKS OF HEAD TRAUMA
A.
122. The NHL has made, and continues to make, many
statements inaccurately
downplaying the risks of head trauma and fighting, and denying the need for reform in NHL
rules to decrease those risks.
a.
In response to proposed congressional legislation in 1980 to curb violence in

professional sports, NHL presidentZiegler was quoted.as stating that the NHL
i'did.r't need te federal Government to interfere."l03
b. In a 2007 press conference Commissioner
Bettman acknowledged that the
topic of fighting is "something we need to look at" but underscored that

"ff]ighting has always had a role in the game" and "we're not looking to have
a debate on whether fighting is good or bad or should be part of the game."
The comments were in response to a series of hghting incidents, including one
on March 21, 2007, when Colton On of the New York Rangers fought with
Todd Fedoruk of the Philadelphia Flyers and ended up knocking Fedoruk
unconscious.
c.
In response to calls in congress to legislate stricter protections for players after

the horrific injury to Max Pacioretty in 2011, Commissioner Bettman flatly
said there is no need to "over-legislate" head hits.l0a V/hile Bettman
acknowledged that concussions were on the rise, he inaccurately tried to
explain this away as the result of "accident events" and "not from head
hits."1o5
d.
r03
r0a
r05
In2011, Commissioner Bettman said of fighting: "Maybe it is [dangerous]

and maybe it's not. You don't know that for a fact and it's something we
Al Strachen, lntervention Spoils Sport, THE GLOBE AND MAIL (CANADA) Nov. 26, 1980
http://www.cbc.ca./sports/hockey/pacioretfy-injury-part-of-game-bettman- I . 1008959
http://www.cbc.calsports/hockey/pacioretly-injury-part-of-game-bettman- I . 1008959
http://www.cbc.ca./news lcanada/montreal/pacioretty-released-from-hospital-t.999400
43
3253651v110t4353
continue to monitor."106 Bettman said it is premature to draw a connection

between hghting in hockey and chronic traumatic encephalopathy, or CTE.107
The remarks were made in regponse to questions about the deaths of three
former NHL players in 2011 who were prominent fighters, and a New York
Times article discussing the link between fighting and CTE. Bettman said he
thought "in this whole area there is probably entirely too much speculation
and rumors."l08 He defended the inclusion of fighting in hockey, saying
"[o]ur fans tell us that they like the level of physicality in our game."lOe He
further explained "people need to take a deep breath and not overreact" and
not "over-conclude when the data isn't there yet."tt0
e. After a hght-induced
concussion in 2013, and other fights, sparked leaguewide dialogue about the issue, Bettman said fighting incidents "get more
attention than they probably warrant" and called the incident "a small pebble
relative to a beach full of sand, which is seeing an incredibly entertaining
season."lll In one incident, a goaltender "was not suspended for pummeling
[an opposing player] because there is nothing in the rule book to use as
precedent."ll2 In response to the uproar, Bettman again praised the role of
fighting in the NHL, calling hghting a "thermostat" in hockey that helps cool
things down when tensions run high.113
123.
The NHL has also adopted many violence-friendly rules that send the message to
players that violence and fighting are not unduly dangerous to their health:
06
07
Until at least 2009,
b.
Prior to 2013, the NHL encouraged players to remove head gear during fights
and penalized players for wearing a face shield while instigating a fight. The
NHL recently acknowledged in congressional testimony that these rules were
bad because (a) if fighting occurs, head protection should be wom and (b)
a shoulder
http ://www.nhl.com/ice/news.htm?id=605
108
Id.
109
rd.
ll0
a.
08
08
hit to the head was not even penalized.lla
Id.
rlrhttp://sports.nationalpost.com/20l3llll11lnhl-commissioner-gary-bettman-says-debate-over-fightingr12
rr3
rra
getting-too-much-attention/
http://sports.nationalpost.com/201 3llllll/nhl-commissioner-gary-bettman-says-debate-over-fighting-
getting-too-much-attentior/
http://sports.nationalpost.com/2013111111/nhl-commissioner-gary-bettman-says-debate-over-fightinggetti ng-too-much-attentiorV
http://sports.nationalpost.com/20l3llll11lnhl-commissioner-gary-bettman-says-debate-over-fighting-
gefting-too-much -attentiorV
44
3253651v11014353
hard head protection discourages players from fighting in the first place.lls
Opposite rules were adopted in2013.
c
In
Congressional testimony this year, the NHL recognized that "fighting

remains a small part of our game." The NHL also acknowledge that while
"the role of f,rghting continues to be a hot topic," the NHL still has not decided
how to move forward because a "consensus has proved elusive" on that topic.
B.
The NHL Concealed Risks of Head Trauma
124.
The NHL has ascribed to itself the role of educating its players and others about
the dangers of the game. In recent congressional testimony, Deputy Commissioner Daly said
that education has been a "vital component" of the NHL's mission and that its "education efforts
are directed towards all relevant parties
in our game, including most importantly our Players, but
also relevant Club personnel, including Club medical staff, Club owners and executives, team
General Managers and Coaches, and on-ice game Officials." In connection with this educational
mission, he said
enhanced
it is the NHL's "strong belief that the Players'
health and safety
will
be
if all relevant personnel clearly understand the latest science regarding concussions."l
16
125.
Despite this self-ascribed role as educator for the players, the NHL concealed
most of what
it knew from players. The NHL did not publish any results from its 1997 NHL
concussion study until 2011, to the detriment

researchers in the
of players and the chagrin of other scientific
field.lr7 Although the authors of the 2011 Report acknowledged the benefit to
players of learning the study's results, players were left in the dark regarding what the NHL
learned
until at least 2011.
Daly 2014 testimony

"t
r16
Testimony of William Daly, March 13,2\l4,available at

http://democrats.energycommerce.house.gov/sites/default/files/documents/Testimony-Daly-CMT-
rr7
Sports- Safe ty -20 I 4 -3 - 13 .pdf
Wennberg RA, Tator CH (200S) Concussion incidence and time lost from play in the NHL during the
past ten years. Can J Neurol Sci 35: 647-51 ("The NHL itself has accumulated data on incidence,
mechanisms of injury and return to play timelines since 1997 but has not released these data to the
public.").
45
325365lv1/014353
126.
results from
Between the time the NHL began its concussion study
it in 2011, the NHL experienced increasingly
career-ending concussions
in its players. Many of
in 1997 and published
devastating and highly publicized
these incidents are described
in
this
complaint.
I27.
Both before and after the beginning of the NHL concussion study in 1997, the
NHL knew that fighting and concussions in the NHL were serious risks that could result in life
altering consequences. However, at least through 2011 and beyond, the NHL continued to
withhold and suppress important and relevant information from its players, and the health and
careers of the
NHL's best players continued to be destroyed.
128.
The NHL also did not disclose to players what
it learned about
the dangers of
head trauma from its attendance at, and self-ascribed leadership role in, the four International
Concussion in Sport Conferences between 200I,2004,2008 and 2012, discussed above.
I29.
Nor did the NHL disclose to players what it learned about the dangers of head
trauma, and f,rghting, from the scientific research discussed above, which it monitored and about
which it held itself out as an educator to players.
130.
Meanwhile, the NHL claims to have issued a publication beginning in 2001 for
players regarding concussions entitled "Did You Know? Hockey Injuries Can Be Prevented,"
which falsely suggested that concussions can be prevented by doing things such as tightening
one's chinstrap.
l3l.
Players have reasonably relied on the NHL's professed superior knowledge of the
scientific research and the misleading statements made by the NHL regarding the risks of
violence, fighting and head injuries.
46
325365 lv I l0l 4353
C.
Crosby's Head Trauma Exemplifies Dangers of NHL's Concealment
132.
The NHL's concussion problem took center stage in 2011, despite the enactment
of Rule 48, discussed below, with injuries to its current star player, Sidney Crosby ("Crosby").
133.
On January l,20ll, Crosby and his NHL team played against the Washington
Capitals.lls During the game, opposing player Dave Steckel ("Steckel") landed a blindside hit
' ll9
on LrosDy.
134.
Although Crosby suffered concussion symptoms from Steckel's hit, he returned to
play in the internationally televised game.t'j This was despite the fact that the NHL had learned
from the 1997 NHL Concussion Program study (among other sources) that return to games after
a concussion was highly dangerous. The NHL, however, did not publish any results from that
study until later
in
20II.
Four days later, Crosby's team played the Tampa Bay Lightning.t"
Although Crosby had neck pain, he played in the
ga e.t" During that subsequent
game,
Crosby's head was driven into the boards by opposing player Victor Hedman ("Hedman").123
Hedman received only a minor penalty.l24
118
Pen's Crosby Returns on Monday, EDMONTON JOURNAL (ALBERTA), Nov. 21,2011, at C5.
A Timeline of Sidney Crosby's Concussion and Recovery,THE CANADIAN PRESS (Sept. 7,2011)
http://www.nhl.com/ice/news.htm?id=587898 (last visited Mar. 28,2014); Pen's Crosby Returns on
Monday, supra.
120
A Timeline of Sidney Crosby's Concussion and Recovery,TIJE CANADIAN PRESS (Sept. 7, 20ll),
http://www.nhl.com/ice/news.htm?id:5 87898 (last visited IliIar. 28, 201 4).
lte
121
Id.
Id.
'23 Josh Hargreaves, Crosby discusses lengthy recovery roadfrom concussions, safety of the game, THE
GLOBE AND MAIL (Sept. 5, 2013) http://www.theglobeandmail.com/sports/hockey/ crosby-
122
discusses-lengthy-recovery-road-from-concussions-safety-othe-game/articlel4l18504/
(last visited
Mar.28, 2014).
r2a
Angie Carducci, Crosby Talks Concussion, Blindside Hits, Inside Hockey (Jan.
http://insidehockey.com/crosby-talks-concussion-blindside-hits (last visited }l4ar.28,2014).
47
325365tv1/014353
8,
20ll),
135. As a result of Hedman's hit on Crosby, Crosby felt additional

symptoms the next
duy.t"
concussion-like
Crosby was then diagnosed by a specialist at the University
of
Pittsburgh with a concussion.l26 The specialist determined that the concussion was affecting
Crosby's vestibular system, which is the part of the brain that allows an individual to stand
upright and maintain balance.tzT
lthe
subsequent months, Crosby experienced concussion-like
symptoms.l28
VI.
NHL REFUSES TO REDUCE HEAD TRAUMA RISKS
A.
NHL's Role as Caretaker for Players
136.
The NHL publicly acknowledges that its management are "the caretakers" of its
players,l2e and that the NHL has to "do everything possible to protect [its] players."l3O NHL
deputy commissioner V/illiam L. Daly stated at a recent congressional hearing, "[T]he National
Hockey League considers the safety of our Players to be a top priority. . . the National Hockey
League has been
and
will
remain
absolutely committed
to promoting the safety of its
Players."l3l
137.
But the NHL's actions have consistently failed to protect players from known
risks of head injuries throughout the NHL's history.
125
,ru
127
128
A Timeline of Sidney Crosby's Concussion and Recovery, THE CANADIAN PRESS (Sept. 7, 20ll),
7898 (last visited Mar. 28, 201 4).
Id.
Id.
Id.
Rosen, New concussion protocol goes into ffict tonight, NHL.com (Mar. 76, 20ll),
http://www.nhl.com/ice/news.htm?i d:5 5 6289 .
Con"urrion Syndrome Rocks NHL League Puts Study on Fast Track, but players must show more
respect, WINNIPEG FREE PRESS, {pr.2,1998, at C3.
STATEMENT oF wILLIAM L. DALY BEFoRE THE HoUSE OF REPRESENTATIVES
COMMITTEE ON ENERGY AND COMMERCE, SUBCOMMITTEE ON COMMERCE,
REGARDING CONCUSSIONS IN SPORTS, Submitted in connection with testimony on March 13,
2014.
"'Dan
"'
','
48
325365tv11014353
B.
Unsafe Player Equipment and Rink
i.
Unsafe Helmets
138. It was not until 1997 that all NHL
players were required to wear a helmet,r32
decades after most minor leagues and intercollegiate and internatonal hockey leagues mandated
the use of helmets.l33 Prior to l979,no NHL players were required to wear a helmet.l3a As noted
above, the
NHL knew many decades earlier that helmets were essential to player safety.
139. In 1959, the Canadian Medical Association
Journal published a study titled Puck
Aneurysm, noting that a "hockey puck weights 165 grams and may travel at a velocity in excess
of 120 feet per second." Reporting on injuries from hockey pucks, the article concluded that "the
injuries could have been prevented by the wearing of a suitably designed protective helmet."l3s
I40.
In 1968, a NHL player, Bill Masterton, died of
a concussion from a
hit to the head
while not wearing a helmet. His death was attributed largely to his failure to wear a helmet. He
had always worn a helmet prior to joining the NHL, but he was not allowed to wear a helmet in
the
NHL. One player,
get traded
r32
r33
J.P. Parise, remarked: "'We were not allowed to wear helmets. You would
if you did. It was a no-no in no uncertain terms. You were
yellow belly if you wore
No Helmet to Hang Up, New York Times (Apr. 30, 1997), available
http://www.nytimes.com/
at
1997 I 04 I 3 0 I sports/no-helmet-to-hang-up.html.
A Player's Death, Helmets l|/ere Long lgnored, THE

INQUIRER, (Jan. 13, 1988), http:llarticles.philly.com/1988-01-l3lsportsl262834l7_I_billmastertonFrank Fitzpatrick, Hazardous Despite
helmets-nhl.
134
Id.
t" J.S. Campbell, M.D., Pierre Fournier, M.D., D.P. Hill, M.D., Puck Aneurysz, 82 CAN. MED. ASS'N
L923 (r9s9).
49
325365tv1/014353
a helmet."l3 On Jan. 17, 1968, the NHL Players Association issued a statement urging the
league to adopt mandatory helmet legislation.l3T
I4l. In 1968, the Canadian
Medical Association Journal published a study titled
Severe Brain Injury and Death Following Minor Hockey Accidents: The Effectiveness of the
"Safety Helmets" of Amateur Hockey Players, noting the death of Masterton resulting from head
trauma he suffered during an NHL game while not wearing a helmet.l3s The article concluded
that "[t]he ideal protective hockey helmet, therefore, should be able to protect the players against
blows and falls," and described the characteristics of an ideal helmet. The NHL, however, did
not require all players to wear any type of helmet for the next29 years.
142. A 1988 article criticizing the NHL's
continuing refusal to require all players to
wear helmets harkened back to the Masterton tragedy, remarking "Had
it
been so inclined, the
NHL could have required helmets immediately in the wake of the Masterton incident."l3e In
1988, NHL commissioner Clarence Campbell defending the NHL policy not to require helmets
dismissed the Masterton incident as a normal hazard of the game:
"It was a routine accident that
could have happened in any hockey game . . . a normal hazard of the occupation," Campbell said
in defense of NHL policy; "(Helmets) are optional now, and we think that is the best method of
136
http:i/www.thestar.com/sports/hockeyl20lll05l28lstar_investigation_what really_killed_nhls_bill_
masterton.html
r3t
Frank Fitzpatrick, Hazardous Despite A Player's Death, Helmets I(ere Long lgnored, THE
INQUIRER, (Jan. 13, 1988), http.,llarticles.philly.com/1988-01-13/sportsl262834l7_l_billmastertonhelmets-nhl.
t" Johtr F. Fekete, M.D' Severe Brain Injury and Death Following Minor Hockey Accidents, gg CAN.
MED. ASS',N L99 (t968) 1234.
r3e
Frank Fitzpatrick, Hazardous Despite A Player's Death, Helmets l(ere Long lgnored, THE
INQUIRER, (Jan. 13, 1988), http.,l/afticles.philly.com/1988-01-l3lsportsl262834l7_l_billmastertonhelmets-nhl.
50
3253651vt1014353
dealing with
it."
Around the time of the Masterton incident, most minor leagues and the
governing bodies for intercollegiate and international hockey mandated the use of helmets.laO
143. In the 1970s, Rick Martin, a seven-time All-Star

Sabres, "was
and winger with the Buffalo
victim of one of the sport's most notorious fouls, when Dave Farrish of the New
York Rangers hooked his neck from behind and kicked his feet away. Martin, who was not
wearing a helmet, hit his head on the ice and went into convulsions."l4l It was later discovered
that Martin "suffered the degenerative brain disease chronic traumatic encephalopathy."ta2 A
1987 article comments that Martin's head trauma could have been mitigated had Martin been
wearing a helmet, but quotes then NHL president Ziegler with a countervailing remark, "'The
league's position has been and
is right now that the wearing of a helmet is up to
the
individual."'la3
144.
When the NHL finally required all players to wear helmets
in
1997, the
NHL did
not require helmets that were safe.laa And 1997 was the first time that helmets were required to
be "certihed" on a going-forward basis.las NHL goalies didn't wear a full protective mask
covering until 1 959.146
145.
Until recently, and even today, the helmets are unsafe. The NHL only mandated
visors in 2013 and only for players with less than 25 games' experience. Unlike the minor
t4o
Id.
THE consequences of a career [...J; ANO WHILE WE'HE AT IT (sport), The Daily Mail, Jan. 9,2012,
http://www.highbeam.com/doc/ I G 1 -27 6641 492.html.
,0,
Id.
ta3
Martin suffers concussion Injury revives NHL helmet debate,THE GLOBE AND MAIL (CANADA),
Feb. 14, 1978.
'oo Gate Joyce, Hard Heads Shun Safer Helmets Heads up / Some of Hockey's Greats Continue to Sport
Helmets They Wouldn't Let Their Kids Wear. The NHL and its Players are Finally Putting Their
Heads Together, THE GLOBE AND MAIL (CANADA),Dec2,1997, at A30.
tot
Daly Congressional Testimony, supra.
146
The night Plante made goaltending history,NHl.com (Nov. 1, 2Ol2),
http //www.nhl.com/ice/news.htm?id:3 83 063 .
tot
51
3253651v11014353
league American Hockey League, and collegiate hockey, the NHL does not mandate
visors or face cages, even though a study
in
full
face
1999 showed that "time lost from participation
because of concussion was significantly greater in the half shield group" compared to those who
wore a full face shieldlaT and a study in 2002 showed that "Players who wore half face shields
missed significantly more practices and games per concussion (2.4 times) than players who wore
full face shields."la8 The "take home message" of the 2002 afcle was that "[i]t would
appear
that the lowest risk of concussion in ice hockey would be to a player wearing a full face shield
possibly with a mouthguar6>t4e The NHL still requires neither.
146.
The NHL's failure to enact stricter visor rules is troubling, especially given that
being hit in the face with the puck is a major cause of concussions in the league and, in a random
sample of concussions in 2009-2011 seasons, "[m]ost of the players injured in this manner were
not wearing a visor at the time (6 of 7 cases)."150
ii.
147.
Unsafe Hard Plastic Body Armor
The NHL has long known that hard cap plastic shoulder pads have increased the
incidence of concussions.
tot
Benson BVy', Mohtadi NG, Rose MS, et al. Head and neck injuries among ice hockey players wearing
full face shields vs half face shields. JAMA 1999;282:232812. This study and the next study cited
were conducted in part by Mr. Benson, who is listed as a consultant for the NHL in the 20ll NHL
Concussion Program study.
r48
BW Benson, M S Rose, W H Meeuwisse, The impact offace shield use on concussions in ice hockey:
a multivariate analysis, Br J Sports Med2002;36:27-32 doi:10.1136/bjsm.36.1.27, available at
http ://bj sm.bmj.com/contentl 3 6 I I I 27.full.pdf+html.
'on
Id. The article notes that, by contrast, "[a]mateur high school and college hockey (NCAA) in the
United States as well as several Canadian hockey leagues currently have playing rules that mandate
the use of mouthguards."
"o Bodychecking Rules, s'upra, available at
http://www.plosone.org/article/info%3Adoi%2F10.1371%2F journal.pone.0069122.
52
325365tv11014353
148. The NHL recognized
the risk of hard plastic capped elbow pads in 2003, when
rule changes required any hard plastic in elbow pads be covered by a layer of foam.lsl
149. NHL players have publicly
stated that harder and more protective equipment
gives player a feeling of "invincibility," which leads NHL players to play much more physically
and aggressively; extensively padded players are less concerned about injuring themselves in a
hard body check.r52
150.
Hard plastic acts as body annor and simultaneously protects an aggressive
player's shoulders, while creating a harder striking surface for the recipient of a blow, leaving
many players concussed.
151.
I s3
The NHL waited, however, until the 2010-2011 season to require foam covering
over plastic shoulder pads.lsa
152. The use of hard plastic in both elbow and shoulder pads is still permitted, despite
numerous calls to eliminate hard plastic and soften the padding worn by NHL players.ls5
153. As Boston
Bruins team president Cam Neely stated in 2012l- "'Personally, I'd
rather have a player with a separated shoulder than someone with a concussior'. . .
. 'I don't
know why it's that difficult to look at the equipment and say, 'We really need to do something
with the shoulder pads and elbow pads."'156
r5r
David Shoalts, Elbow, shoulder pads under scrutiny in bid to reduce NHL head injuries, THE GLOBE
AND MAIL (CANADA), Dec. 13, 2011, http://www.theglobeandmail.com /sports/hockey/elbowr52

r53
ts4
shoulder-pads-under-scrutiny-in-bid-to-reduce-nhl-headinj uries/article4 1809461 .

Douglas Flynn, NHL Needs to Modify Protective Equipment to Reduce Head Injurles, NESN.com,
(Mar. I 9, 201 l), http://nesn.c oml2}l I /03ithe-hits-j ust-keep-coming/.

Shoalts, supra.
Id.
ttt 5""
e.g., Jason Brough, Flyers owner: NHL equipment too hard (Dec. 13,2011),
http:/rohockeytalk.nbcsports.com l20lll12ll3lflyers-owner-nhl-equipment-too-hard/.
ttu
Fluto Shinzawa, NHL seeks improvements in equipment safety, TFIE BOSTON GLOBE, lday 20,
2012,hitp:llwww.bostonglobe.com/sporrsl2012l05/19/nhl-seeks-improvements-equipment
53
325365tv11014353
iii.
I54.
Unsafe Rinks
Olympic ice is roughly 100 feet wide, about 15 feet wider than in the NHL.r57
Many sources blame the narrow rink design and creases in NHL hockey, especially as compared
to Olympic hockey, for some of the excess violence in the game.lss One reason that the NHL
has reportedly been reluctant to switch to a larger ice surface, which would reduce hitting, is
precisely because that would tend to reduce the violence in the game.
155. Even using the NHL's violence-inducing
rink size, the NHL rink has been unduly
dangerous. In or about 1996, NHL arenas began using a seamless glass system above the rink
boards. The seamless glass eliminated the metal dividers between the rectangular panes of
independent flexible plexiglass that was standard prior to the introduction of the seamless glass.
The seamless glass allowed fans to see the game more clearly, and pucks shot around the corners
did not take as many strange bounces.
156. Players immediately began complaining,
descrihing hits against the seamless
glass as being like hitting concrete or a brick wall.
157. In a January 19,1997

quoted as saying:
,r . .
, I
tnls ls not run.
1tt
New York Times article, NHL player Derian Hatcher was
"It's hard. It doesn't move. It seems like guys will get injuries. Being hit into
rrl59
safety/qCK53CUq
upve13 SC9aidK/story.html.
JeffKlein and Stu Hackel, Otympic Hockey Is the Same, Exceptfor This and That,THENEV/ YORK
TIMES (Feb. I I , 2014) http://www.nytimes.com l20l4l02llzlsports/olympics/olympic-hockey-is-the-
same-except-for-this-and-that.html?_r:0
David Shoalts, Shanahan Advocate Larger lce Surfaces Narrow Confines Cause Injuries, Star Says,
THE GLOBE AND MAIL (CANADA), De,c. 12, 7996, at Cl3; Smith: Enlarging the Crease Could
Cut Hockey Violence, THE GLOBE AND MAIL (CANADA), Feb. 2,1983.
tte
Joe Lapointe, Players Call a New Type of Glass Around Rinks (Jnsafe,N.Y. TIMES Jan. 19, 1997,
http://www.nytimes.com l1997l0lll9lsports/players-call-a-new-type-of-glass-around-rinks-unsafe.html
r58
54
3253651v11014353
158.
When asked to respond to players' concerns regarding the seamless glass systems,
Arthur Pincus, the NHL's vice president of public relations, said, "'We have heard those feelings
and we are looking at a variety of things dealing
with injuries. There is only anecdotal evidence
about a variety of factors and we are looking into any number of factors."160
159. The NHL failed to act for another

season,
it adopted
standards.l6t The
three years, until, prior to the 2000-2001
regulations requiring arenas with tempered glass to meet certain flexibility
NHL
gave atarget deadline
for improving the safety of
seamless glass
of
December 31,2002.162
160. A scholarly article examining the cause of a random subset of concussions during
the2009-2011 seasons concluded that *5l.2yo of all incidents involved a secondary contact of
the head after the initial impact, most commonly to the boards or ice."l63
16l.
It was not until the 2011-2012
season, however, that the
arenas to convert the seamless glass system to a
NHL finally required all
flexible acrylic system.l6a
C.
Unsafe Playing Rules
162.
The NHL has adopted a series of playing rules that increase the risk of head
injuries and do nothing to abate those injuries. This is in stark contrast to other hockey leagues,
which have implemented a series of stricter rules that reduce head injuries.
'uo Id.
'u' Stot"*"nt of llittiam L. Daly Bere the House of Representatives Committee on Energy and
Commerce, Subcommittee on Commerce, Regarding Concussions in Sports (Mar. 13, 2014),
https://energycommerce.house.gov/hearing/improving-sports-safety-multifaceted-approach.
162
Transcript of media conference call with NHL Commissioner Gary Bettman, Oct. 3. 2002,
http://sportsillustrated.cnn.com/hockey/news/2002l10l03lmedia conference/.
163
Bodychecking Rules, supra.
'uo Statement of Wiltiam L. Daly, supra; NHL opens its 95th season tomorrow night with spotlight on
ll'innipeg return, B's
defense, NHL.COM (Oct.
Cup
http://www.nhl.com/ice/news.htm?i d:59457
8.
55
325365tv11014353
5,
2011)
163. It was not until 2010
when the NHL seriously began
to
implement rules
ostensibly designed to improve player safety relating to head trauma, but even those rules were
deficient.
164. Prior to the 2010-11 season, bodychecking
another player with the head as the
primary point of contact was legal.165
165.
As recently as 2010, the NHL commissioner criticized the league's rules for being
too lax in penalizing vicious hits: commenting on a vicious hit to the head on Marc Savard in
2010, NHL Commissioner Gary Bettman stated:
hit'.
..
"'I
was very unhappy and upset with that
. 'I was more upset there was nothing [in the League's
rulesl to do to punish
166. Prior to 2011, there was no prohibition on player

defenseless opponent
i.>>166
checking or pushing
in a manner that causes the opponent to hit or impact the boards violently
or dangerously.16T
167. Until last year, during icing plays (when the puck is shot by the defensive team
from its side of the rink to the other end of the rink and players chase after it in a race to touch it
first), the trailing player was permiffed to initiate contact on the leading player, often into the
boards at
full
speed, needlessly creating injuries. The rule was not changed until the
season when the league adopted a
20l3ll4
hybrid icing rule, which was ostensibly designed to reduce the
risk for damaging collisions into the walls, but is still less effective than international rules in
reducing the risk of injury.168
165
Donaldson L, Asbridge M, Cusimano MD (2013) Bodychecking Rules and Concussion in Elite

Hockey. PLoS ONE 8(7 ): e69 122. doi : I 0. I 3 7 I /j ournal.po ne.0069 122.
166
Bob Condor, Bettmsn on rule's effect on play, injury prevention,NHL.com, Mar. 25,2010,
http://www.nhl.com/ice/news.htm?i d:5227 22.
tut
Daly Congressional Testimony, supra.
'ut Daly Congressional Testimony, supra.
56
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168.
Before the start of the 2010-2011 season, the NHL created Rule 48, which made
illegal checks to the head, defined as "[a] hit resulting in contact with an opponent's head where
the head is targeted and the principal point of contact is not permitted,"l6e subject to a five-
minute major penalty and automatic game misconduct, as well as possible supplemental
discipline if deemed appropriate by the league.
169. Rule 48 did not, however, impair the ability of players to deliberately target the
head of another player during a body check, which continued to be legal under the NHI- rules
until the beginning of the 2013-2014 season.
170. A clear indicator of the inadequacy

is a recent scholarly finding that "most NHL
prohibited by the rules
I7l. In
concussions resulted from
"[i]llegal incidents, where the aggressor was
suspension, [only] accounted

suspected concussions."1
of the NHL's rules in preventing concussions
for
28.4Yo
of
cases
!gg!
actions" not
assessed a penalty,
for concussions and 36.8% of
fine or
cases for
7o
2013, researchers published an article titled, Bodychecking Rules and
Concussion in Elite Hockey.rTl The abstract of the article confirms that the various rule changes
implemented since 2010 that were ostensibly designed
to improve player health have not
protected its players:
The number of NHL concussions or suspected concussions was lower in

2009 -10 than in 2010 -11 (IRR 0.61; 95% CI 0.45, 0.83), but did not
11 to 20ll-12 (IRR 1.05;95% CI 0.80, 1.38).
increase from 2010
'un
t1o
R I" 48 - Ittegal Check to the Head, http://www.nhl.com/iceipage.htm?id:64063 (last visited on

Apr.4, 2014).
Bodychecking Rules, supra (emphasis added), available at
http://www.plosone.org/articlelinfo%o3Adoi%2F10.1371%2Fjournal.pone .0069122.
rt' Laura Donaldson, Mark Asbridge, Michael D. Cusimano,
Bodychecking Rules and Concussion in Elite
Hockey, PLOS ONE (July 2013),

http://www.plosone.org/articlelinfo%o3Adoi%2F l0.l37l%zFjournal.pone .0069122
57
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of NHL
concussions were caused by bodychecking, and only

28.4% of concussions and 36.8% of suspected concussions were caused by
illegal incidents. We conclude that rules regulating bodychecking to the
head did not reduce the number of players suffering concussions during
NHL regular season play and that further changes or stricter enforcement
of existing rules may be required to minimize the risk of players suffering
64.2%
these injuries.lT2
172.
The NHL's rules and position on fighting illustrate how out of touch the league is
with international norrns. The NHL boasts that "Fighting has always had a role in the game,"
refuses "to have a debate on whether fighting
...
should be part
of the
game,"r73 and calls
hghting a "thermostat" in hockey that helps cool things down when tensions run high.lTa
173.
The president of the International Ice Hockey Federation (IIHF) has taken the
opposite position:
Both me personally and the IIHF has never believed that fighting is or
should be part of the game," he said. "The best proof is that neither in the
Olympics, nor in the world championships or in the World Cup of Hockey
there are ever any fights and no teams would imagine to carry a designated
goon on a team filled with talented players. Hardly ever are there any
frghts in Stanley Cup games because the stars take over when the games
really matter. Pre-arranged f,rghts between two goons are, according to me,
revolting. If there are fans who enjoy fighting they should turn to other
sports," said Fasel. "Our game should never cater to fans who go to games
to see hghting. In an era where hockey has lowered its tolerance on
restraining fouls to in order to create a better environment for the stars, we
I 75
simply cannot tolerate Neanderthal behaviour.
"' Id. at l.
't' Fighting
not up for debate: Bettman, CBC Sports (Mar.26,2007),

tto
Stephen Whyno, NHL commissioner Gary Bettman says debate over fighting getting too much
attention, NATIONAL POST (Nov. I l, 2013) http://sports.nationalpost.coml20l3ll li 1l/nhlcommissioner-gary-bettman-says-debate-over-fighting-getting-too-much-attention/
r7s
Brownlee, Robin (Sept. 29 2007), "Fighting debate renewed in hockey circles," Canadian Press,
available at
http://web.archive.org/webl20070929lll407lhttp://www.tsn.calnhl/news_storyl?ID:201287&hubnam
e:
58
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I74.
Many NHL rules, unlike international hockey, encourage fighting or exacerbate
the dangers of fighting:
a.
NHL players are required to remove their gloves before hghting, leaving them
bare-f,rsted. Prior to 2013, the NHL even encouraged players to remove head
gear during fights and penalized players for wearing a face shield while
instigating a frght. The NHL recently acknowledged in congressional
testimony that these rules encouraged fighting and decreased player protection
because (a) hard head protection discourages players from fighting_ in the first
place and (b) if fighting occurs, head protection should be worn."u The rules
were not overturned until 2013, but the NHL still insists that fighting is part of
the game.
b. In 2009, the league finally announced that it "is ready to take steps toward
regulating f,rghting and is currently researching the proper ways to make the
pugilistic part of the game safer."l77 At a NHL meeting that year, the league
made a "very extensive" presentation "on our stats, the history of fighting,
where we are at today, injuries," and the NHL "tried to categorize stage_4
r78
fights, fights that were responding to legal and illegal hits, a lot of things."
As of that time, the NHL's rules had failed "to eliminate fights after clean
hits."
c.
In 2013, according to a press article, a goaltender "was not suspended for

pummeling [an opposing player] because there is nothing in the rule book to
use as precedent."lT9
I75.
leagues and
Unlike the NHL, fighting is strictly prohibited in European professional hockey
in Olympic ice hockey, resulting in automatic ejection from the game and other
sanctions, for anyone who starts a fight or is the first to intervene when a fight is in progress.l80
Similarly,
in NCAA hockey, fighters are given an automatic
game disqualification and
suspensions. As a result, hghting has been minimized in these leagues. Under Olympic rules,
t'6 Daly 2014 testimony
1" Dan Rosen, Action under way to eliminate 'staged'
fights, NHL.com (Mar. 20, 2009)
http://www.nhl.com/ice/news.htm?i d:41325 5
t" Id. The results of the NHL's study of fighting and the injuries that resulted from it have never been
disclosed to players.
ttn
Stephen Whyno, NHL commissioner Gary Bettman says debate over fighting getting too much
attention, NATIONAL POST (Nov. I l, 2013) http://sports.nationalpost.coml20l3ll l/1l/nhlcommissioner-gary-bettman-says-debate-over-fighting-getting-too-much-attentior/
tto
IIHF (2010), official Rule Book 2010-2014.
59
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for example, any player who fights receives an automatic ejection as well as a five-minute major
penalty. As
a result
of this and other differences in playing rules, Olympic fights are rare
only
eight in more than 500 games since 1960. The last one took place in 1998, between Slovakia's
Peter Bondra and Germany's Erich Goldmann.lsl The NHL does not have any rule resulting in
automatic ejection for players involved in hghting. Similarly, scientists have called for the ban
of fighting, "which is accepted in the NHL and North American junior
leagues
but illegal in
European and Olympic hockey."l82 As discussed below in connection with the Max Pacioretty
incident, the NHL routinely refuses
to suspend players for violent hits
and fighting, falsely
believing that suspensions would not deter such conduct.
176. In addition
to the differences discussed above, NHL rules differ from Olympic
rules in many other ways that make NHL hockey much more violent than international hockey,
including:
a.
Checks to head: The NHL penalizes when the head is the main point of
contact, and when such contact was avoidable. Olympic rules are stricter:
they penalize a player who directs a check to an opponent's head and neck
area or forces an opponent's head into the glass or boards.
b.
High-sticking: In the Olympics, unlike the NHL, a player who accidentally

strikes another with his stick when winding up or following through on a shot
or pass will be penalized.
c.
Protective equipment: In the NHL, if a player's helmet comes off, he can play
without it until the next stoppage. In the Olympics, he must immediately go to
the bench. Failure to do so results in a minor penalty.
"t JeffKlein and Stu Hackel, Olympic Hockey is the Same, Exceptfor This and That, THE NEW YORK
TIMES (Feb. 1 l, 2014) http://www.nytimes.com/20l4l02l12lsportslolympics/olympic-hockey-is-ther82
same-except-for-thi s-and+hat.html?_r0
Dennis rValikainen, Researcher Studies Hockey and Football Concussions: It is Time for Major
Changes? MICHIGAN TECH NEWS (Jan. 30, 2012)
http:i/www.mtu.edu/news/stories/20l2ljantarylresearcher-studies-hockey-football-concussions-timefor-maj or-chan ges.htm I
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d. Icing:
The NHL uses hybrid icing, which permits a few high-speed chases to
continue to the end boards. Olympic hockey uses no-touch icing; play stops
the moment the puck crosses the goal line.
e. Behind
the net: There is an additional two feet from end boards to goal line rn
international hockey, giving players more space in this area.l83 More space
for players means less congestion for violent hits around the goal, where hits
frequently occur.
177.
f.
Crease violations: Unlike the NHL, Olympic rules prohibit players from
standing in the crease in front of the goal, where violent hits often occur. Play
is stopped andaface-off is taken in he neutral zo.te.t8o
g.
Goaltender Trapezoid: In the NHL, a goaltender may only play the puck
behind the goal line within the trapezoidal area behind the net. This limitation
makes it more difhcult for teams to clear the puck out of the defensive end
and increases the chances of full-speed races towards the boards for a puck.
No such rule exists in intemational hockey, in which a goaltender may handle
the puck anywhere behind the goal line.
Press reports note that
"rule changes such as removing touch icing and the goalie
trapezoidare two easy ways to stop players flying full-speed towards the boards for the puck."l8s
178.
According to the New York Times, the NHL measures fall far short "of more
stringent anti-concussion rules goveming play in the International Ice Hockey Federation, which
oversees the Olympics, international toumaments and European leagues. Federation rules
penalize all contact to the head and, to guard against whiplash injuries, the neck area as far down
as the collarbone."ls6 According to the article, the "N.H.L. has not adopted these strict rules,
because many coaches and players believe that the rough and tumble
prefer
or violence, if you
is essential to hockey's being hockey." The general manager of l.{HL's team Toronto
tt' Jeff Klein

t84
and Stu Hackel, Olympic Hockey Is the Same, Except for This and That, THE NEW YORK
(Feb.
TIMES
I I, 2074) http://www.nytimes.com l20l4l02ll2lsports/olympics/olympic-hockey-is-thesame -except-for-this-and-that. html?_r:0
Id.
r85
http://www.diehardsport.com/featured/concussions-continue-cripple-nhl-statistics/
ttu
JeffKlein, No Fights. No Checking. Can This Be Hockey?, THE NEl|l YORK TIMES, (Mar. 5, 2011)
http ://www.nytimes.com I 20 I I I 03 I 06/weekinreview/06hockey.html?_r:0
6l
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Maple Leafs said of the stricter standards: ""I think it has reduced hitting in those leagues, and
I'm not in favor of that."187
VU.
INEFFECTIVECONCUSSIONPROTOCOL
179.
Academics have also criticized the NHL as being in a "state of denial when it
comes to concussion management."l88 Prior
to 1997,therc was "no protocol to follow" for NHL
players who suffered concussions and players were frequently allowed to return to play after
suffering a concussion.
I 8e
180. In 1997 , the NHL launched
its Concussion Program, which the NHL boasted
as
offering the best protocol available to players. The NHL's concussion protocol, however, was
and remains broken.
181. While scientific research has long shown that repeat concussions in short time
periods are dangerous, the NHL Concussion Program's study found that between 1997-2004,
players were routinely allowed to return to play in the same game after suffering a concussion
in
in
8Vo
of
cases where a player suffered a concussion between 1997-2004, the player returned
the same game after the player was evaluated on the bench; in ll%o of cases, the player returned
to play in the same game because the injury was not observed during the game.leO
182. The 1997 protocols had other glaring
deficiencies: for example, players were
evaluated for concussions at the bench, rather than in the locker room, by a team-paid trainer,
t*t Jeff Klein, No Fights. No Checking. Can This Be Hockey?, THE NEW YORK TIMES, (Mar. 5,
201 I)httpllwv,,w.nytimes.com l20lll03l06lweekinrevied06hockey.html?_r:0
r88
Alexander Hecht, Article, Legal and Ethical Aspects of Sports-Related Concussions: The Mewil Hoge
Story, 12 Seton Hall J. Sports & Ent. L. 17,63 (2002).
r8e
Canadian Press, Leaf Battles Backfrom Concussion, THE GLOBE AND MAIL (Canada), March 12,
tno
1998.
Benson BW, Meeuwisse WH, Rizos J, Kang J, Burke CJ (2011) A prospective study of concussions
among National Hockey League players during regular season games: the NHL-NHLPA Concussion
Program. CMAJ I 83: 905-l I . doi:
I 0.
503/cmaj .092190
62
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rather than a doctor. As one commentator noted: "[P]layers were evaluated at the bench. This
was grossly inadequate as players can easily wave the trainer away and shrug off the immediate
effects of a head shot."lel
183. On March 16,2011,
the NHL finally required players to be taken to a quiet room
for testing, by a doctor. But unlike the NFL, which requires an independent consultant and
team doctor to make return-to-play decisions, the NHL allows team-paid doctors to make the
decision.le2 This puts tremendous pressure on team-paid doctors to allow star players to return to
action, especially in important games.
184. The comerstone of the NHL's concussion
protocol has been, and remains,
"baseline testing," where players are evaluated during the preseason for baseline cognitive skills,
then tested after concussion incidents to determine whether their cognitive functioning exceeds
their baseline abilities. Players under significant pressure to remain in games easily can and do
evade this type
of testing by
commissioner recognized that

incentive to be deceptive:
"if
scoring low during the preseason.le3 Last month, NHL's
its protocol only works if players overcome their financial
a player is going
to not follow the protocol, not say exactly what
he's feeling, that's pretty difficult to address."le4
tnt
Bobby Brooks, 201I NHL Plyffi: Are the New NHL Concussion Protocols Really lVorking?
BleacherReport.com (Apr. 18, 201I ), http://bleacherreport.com/article s1669655-headcases-are-thenew-concussion-protocols-really-workin g.

tn'Brigidz2, NHL Concussion Plicy: Is it Broken? Hockeywilderness.com (Feb. 11, 2013)
http://www.hockeywilderness.com/2013l2l1l13974248lnhl-concussion-policy-is-it-broken
te3
Baseline testing for concussions could be falling short, Sportingnews.com (Oct. 31, 2010)
http://www.sportingnews.com/nhl/feed/2010-l0lpominville-injury/story/baseline-testing-forconcussions-could-be-fal ling-short
rea
Mike Heika, NHL Commissioner Gary Bettman addresses several topics in his state of the union
speech, Starblog.com (June 6, 2014) http://starsblog.dallasnews.com/2014l06/nhl-commissioner-garybettman-addresses-several-topics-in-his-state-of-the-union-speech.html/
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185.
Moreover, baseline testing has drawn significant criticism from the scientific
community as being unreliable and driven more by liability concerns than science
Dr. Christopher Randolph, who works in the Department of Neurology at

Loyola University Medical Center in Maywood. Ill., thinks baseline
testing is, at best, irrelevant and that the increased use of baseline
testing is partially driven by tiability concerns. "The baseline test is so
unreliable that it's certainly possible that (the player) could be completely
normal and be categorized as abnormal or they could be completely
abnormal and be characterized as normal," Randolph said. "They're not
useful for individual decision-making. It's kind of interesting how the
press and the public have a different take on this than the science. The
l9s
science is clear.
186. In
concussion
superior
contrast, many European leagues instead require a player who suffers
to sit out for three weeks. A period of mandatory rest after a concussion is far
to ineffective and unreliable baseline testing. Among other
reasons, "Concussion
symptoms may not show up for 24-48 hours after the hit occurs, so rinkside testing may be
worthless in some cases."l96
187.
A2012 academic article criticized the NHL's concussion management policies
as
"dehcient":
One change in policy implemented by the NHL to combat the recent
concussion epidemic included the revision of its concussion management
protocols. First, a doctor, rather than a trainer, must make immediate
return to play decisions. Second, immediate examinations to detect
whether an athlete had suffered a concussion must occur in a quiet room,
free from distractions, as opposed to on the bench, where such
examinations would sometimes occur. The initial examination represents
a strong improvement in the NHL's concussion management policy, as it
increases the likelihood of concussion detection. Where the old policy
allowed a motivated athlete to insist he is okay and retum on the next
1e5
Baseline testing for concussions could be falling short, Sportingnews.com (Oct. 31, 2010)
http://www.sportingnews.cominhl/feedl20l0-l0lpominville-injury/story/baseline-testing-forconcussions-could-be-fal ling-short
'nu
Policy: Is it Broken?
Hockeywilderness.com (Feb.
http://www.hockeywilderness.com/2013l2lll13974248lnhl-concussion-policy-is-it-broken
Brigidz2 NHL Concussion
64
3253651v11014353
ll,
2013)
shift, the new policy requires a physician evaluation if an athlete exhibits

any of the following symptoms: loss of consciousness, motor
coordination or balance problems, slowness to get up following a hit to the
head, blank or vacant look, disorientation, clutching the head after a hit, or
While
a visible facial injury in combination with any of the above.
positive
changes to their concussion
both the NHL and NFL have made
management policies, the policies remain deficient.teT
188. Moreover, post-concussive
protocols are ineffective at reducing serious injury so
long as the NHL continues to refuse to minimize hits to the head. As one researcher commented
in
2011,
"It is believed that one of the causes of CTE is sub-concussive
impacts, the kind of
ordinary hits that athletes routinely take in the course of play," Johnson says. "Solving the CTE
problem
will require radical
changes
to football and hockey. It's a condition that can't be
diagnosed, doesn't have clear symptoms, and can't be treated. So, post-concussion guidelines
don't do anything about CTE."1e8
VilI.
THE NHL SPURNS CALLS FOR CHANGE
189. The NHL has paid cynical public relations lip-service to the need for change to its
violent manner, but has declined to heed many calls for change.
190. But when calls for change
came from various authorities and institutions, the
NHL was quick to retreat from its public-relations lip service.
A.
Max Pacioretty Incident in 2011
191. The NHL's continuing callous indifference to the risks of

exemplified
in its reaction to the recent Max
t"
Pacioretty incident,
concussions is
in which it
shunned the
Mitch Koczerginiski, Article: l(ho is at Fault lThen a Concussed Athlete Returns to Action?,47 Yal
U.L. Rev. 63 (2012).
rnt
Dennis Walikainen, Researcher Studies Hockey and Football Concussions: Is it Time for Major
Changes? MICHIGAN TECH NEV/S (Jan. 30, 2012)
http://www.mtu.edu/newsistories/20l2ljanuarylrcsearcher-studies-hockey-football-concussions-timefor-maj or-change s.html
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criticisms and suggestions made by Canadian govemment, NHL sponsors, NHL players, and
even a NHL franchise.
192. In March 2011, Max Pacioretty
was hospitalized with a severe concussion and
fractured vertebra after the Montreal forward was slammed into a stanchion holding the glass at
the Bell Centre in Montreal on a hit by a Boston Bruins player, who rode Pacioretty into the
boards.lee Pacioretty's head slammed into the metal support holding up the glass, knocking him
out as he fell to the ice.200 He lay motionless for several minutes after he fell:201
193. The offending player received a
five-minute major penalty and
a game
misconduct, but the NHL did not suspend or fine him.202 According to the CBC, the NHL's
decision not
to
suspend
him "sparked furious debate over the NHL's policy on
serious
injuries."2O3 For Pacioretty's part, he could not remember the incident, but after seeing the tape
lee
Pacioretty injury part of game: Bettman, CBC.ca (Mar. 10, 201l)

http://www.cbc.calsports/hockey/pacioretty-injury-part-of-game-bettman-1.1008959
200
P acioretty released from hosp ital, CBC.ca (Mar. 1 0, 201 l)
201
http://www.cbc.ca./news /canada/montreal/pacioretty-released-from-hospitalPacioretty releasedfrom hospital, CBC.ca (Mar. 10, 20l l)
.999400
http://www.cbc.calnews lcanada/montreal/pacioretty-released-from-hospital-l.999400
Pacioretty releasedfrom hospital, CBC.ca (Mar. 10, 2011)
http://www.cbc.calnews lcanada/montreal/pacioretty-released-from-hospital-I.999400
203
P acioretty released from hosp ital, CBC.ca (Mar. I 0, 201 l)
http://www.cbc.calnews lcanada/montreal/pacioretty-released-from-hospital-t.999400
202
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said that he was "disgusted" that there was no fine or suspension from the NHL.204 Pacioretty
said he was mad because the league's failure to discipline the hit would encourage other players
to make those types of vicious hits in the future: "I'm mad because if other players see a hit like
that and think it's OK, they won't be suspended."
194.
The Canadian government's strong reaction to the Pacioretty incident underscored
the seriousness ofthe event:
195.
Quebec's top prosecutor ordered an investigation into whether the hit warranted
criminal charges after he viewed video of the
game-20s Pacioretty said
charges, however, because he believed that "the incident, as ugly as
he did not want criminal
it was, was part of
a hockey
game" as the NHL has defined that game.206
196. Canadian
Prime Minister Stephen Harper called on the league
"growing number" of serious injuries and head
197. NHL's
to assess the
shots.207
sponsors also waded into the debate.
In the days after the Pacioretty
incident,
Air Canada, a
withdraw
its sponsorship unless the NHL moves to impose sanctions to reduce potentially
serious injuries.2O8
leading
NHL sponsor, sent a letter to the
spokeswoman for
league threatening to
Air Canada explained that "[t]here have been a number
of incidents regarding head shots and concussions this past season which have resulted in wide-
'oo Bob McKenzie, McKenzie: Pacioretty Not Happy Ilith Chara Or League Decision, TSN.ca
20 I l) http ://www.tsn. calcol umni sts/bob_mckenzie/?id:3 5 7 3 32
205
Pacioretty releasedfrom hospital, CBC.ca (Mar. 10,
I .999400
206
20 I I )http:/iwww.cbc.ca./news/canada/montreal/pacioretty-released-from-hospitalPacioretty injury part of game: Bettman, CBC.ca (Mar. 10, 201l)
207
Pacioretty released from hospital, CBC.ca (Mar. 10, 20ll)
http://www.cbc.ca./news/canada./montreal/pacioretty-released-from-hospital
208
-1.999400
Pacioretty releasedfrom hospital, CBC.ca (Mar. 10, 20ll)

http://www.cbc.ca./news lcanada/montreal/pacioretty-released-from-hospital-t.999400
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(Mar. 9,
spread public concem which we share."20e Commissioner Bettman brusquely dismissed the
threat, saying "that's their prerogative, just like
it's the prerogative of our
clubs that
fly Air
Canada to make other arrangements."2t0 Two sports-marketing professors said they have never
heard of sponsors going after a league because of excess violence.2ll
198. A NHL team, Montreal
Canadiens, also criticized the league's decision not to
suspend the offending player, calling the decision "a hard blow" and expressing "frustration,
disappointment and shock" over the isse.212 The
NHL team
stressed the "urgency"
of
addressing head injuries and player safety in hockey:
199.
Our organization believes that the players' safety in hockey has become a major
concern, and that this situation has reached a point of urgency. At risk are some of the greatest
professional athletes in the world, our fan base and the health of our sport at all levels. Players'
safety
in hockey must become the ultimate priority and the situation
must be
addressed
immediately.2r3
200.
The NHLPA was also critical of the rink conditions that contributed to the
severity of the Pacioretty injury: "fl]ssues involving the boards and glass in NHL arenas have
been a longstanding focus for the players. The serious nature of the injury suffered by Max
20e
Head-shot controversy touches NHL's most sensitive area: its wallet, Thehockeyne\Ms.com (Mar. 10,
20ll) http:/iwww.thehockeynews.com/articlesl3897 -Headshot-controversy-touches-NHLs-mostsensitive-area-its-wallet.html
210
Pacioretty injury part of game: Bettman, CBC.ca (Mar. 10, 2011)
http://www.cbc.calsports/hockey/pacioretty-injury-part-of-game-bettman- I . 1008959
211
Head-shot controversy touches NHL's most sensitive area: its wallet, Thehockeynews.com (Mar. 10,
20ll) http://www.thehockeynews.com/articlesl38974-Headshot-controversy-touches-NHLs-mostsensitive-area-its-wallet.html
212
Head-shot controversy touches NHL's most senstive area: its wallet, Thehockeynews.com (Mar. 10,
http://www.thehockeynews.com/articlesl3897 4-Headshot-controversy-touches-NHls-most201 I )
sensitive-area-its-wallet.html
213
Pacioretty injury part of game: Bettman, CBC.ca (Mar. 10, 201 1)
http://www.cbc.ca,/sports/hockey/pacioretty-injury-part-of-game-bettman-1.1008959
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Pacioretty in Montreal this week reinforces the importance of maximizing the safety in this area
and highlights the need to look further into the matter.D2r4
A former NHL player tweeted after
the hit that "parts of the playing surface cause the worst of the damage."2ls
201.
The NHL was defiant and dismissive of the deep concern shared by the Canadian
government, NHL's sponsors, NHL players, and an NHL franchise. Commissioner Bettman,
testifying at a congressional hearing later that week and discussing it afterward, boasted that the
NHL was "extraordinarily comfortable" with its decision not to suspend the offending player,
taking the incongmous position that further discipline would not deter future vicious hits: "It was
a
horrific injury, we're sorry that it happened in our fast-paced physical game, but I don't think
whether or not supplemental discipline was imposed would change what happened."216
IX.
TOLLING OF THE STATUTES OF LIMITATIONS
202.
Plaintiffs and members of the Class could not have discovered through the
exercise of reasonable diligence, did not know, and could not have known that the NHL was and
is committing wrongdoing, including but not limited
to: (i) subjecting
and continuing to subject
Plaintiffs and the Class to the imminent risk of head trauma and, as a result, devastating and
long-term negative health consequences; (ii) failing to and continuing to fail to warn Plaintiffs
and the Class of the risks and consequences of head trauma;
(iii) concealing material scientific
and anecdotal information from Plaintiffs and the Class about the risks and consequences from
head trauma; and
(iv) failing to institute policies
and protocols that could have and
Pacioretty injury part of game: Bettman, CBC.ca (Mar. 10, 20ll)

215
Pacioretty releasedfrom hospital, CBC.ca (Mar. 10, 20l l)
http://www.cbc.calnews lcanada/montreal/pacioretty-released-from-hospital-I.999400
216
Pacioretty injury part of game: Bettman, CBC.ca (Mar. 10, 2011)
http:/iwww.cbc.calsports/hockey/pacioretty-injury-part-of-game-bettman- 1.1008959
2ta
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will protect
Plaintiffs and the Class from suffering or exacerbating head trauma sustained during practice or
ln games.
203.
The NHL affirmatively concealed and continues to conceal its wrongdoing from
Plaintif and the Class. The NHL instituted purposefully-ineffective studies and
changes that
were solely calculated by the NHL to fool and mislead Plaintiffs, the Class and the public into
ceasing investigation into the risks and consequences
of
head trauma and the NHL's
wrongdoing. The NHL had and has superior knowledge of its wrongdoing, that there was and is
an imminent threat of head trauma for NHL players, and the risks and consequences of head
trauma to NHL players. Plaintiffs and the Class did not have this knowledge and could not have
had this knowledge through reasonable diligence.
204.
Accordingly, all applicable statutes
of limitations have been suspended with
respect to any claims by Plaintiffs and the Class and, moreover, the NHL is estopped from
relying on any statutes of limitations defenses of this action.
X.
CLASS ACTION ALLEGATIONS
205.
Plaintif brings this action their behalf and as a class action on behalf of all
former and current NHL players (the "Class").
206.
This action is properly maintainable as a class action under Rule 23.
207.
The Class is so numerous that joinder of all members is impracticable.
208.
There are questions of law and fact which are comon to the Class and which
predominate over questions affecting any individual Class member. The common questions
include, inter alia, the following:
(a) Whether the NHL breached its duty to warn and protect the Class of the risks
and consequences of head trauma.
70
325365lv1/014353
(b) Whether the NHL was unjustly enriched by its conduct in generating revenue
from extreme violence while failing to protect the Class from the risks and consequences of head
trauma.
209.
Plaintiffs' claims are typical of the claims of the other members of the Class and
Plaintiffs do not have any interests adverse to the Class.
210.
Plaintiffs are adequate representatives of the Class, have retained competent
counsel experienced in litigation of this nature and will fairly and adequately protect the interests
of the Class.
2ll.
The prosecution of separate actions by individual members of the Class would
create a risk of inconsistent or varying adjudications with respect to individual members of the
Class which would establish incompatible standards of conduct for the party opposing the Class.
212.
Plaintiffs anticipate that there will be no difficulty in the management of this
litigation. A class action is superior to other available methods for the fair and efficient
adjudication of this controversy.
213.
The NHL acted on grounds generally applicable to the Class with respect to the
matters complained of herein, thereby making appropriate the relief sought herein with respect to
the Class as a whole.
COUNT I
214.
NEGLIGENCE
Plaintiffs incorporate by reference all paragraphs, except under other Counts, as if
fully set forth herein.
215.
The
NHL held itself out as a protector of players and
about the dangers
of head injuries. Further, starting at least as early as 1997, the NHL
voluntarily and gratuitously inserted itself into the business

7I
325365lv11014353
a leader in educating players
of
studying (and subsequently
rendering expert opinions about) the relationship between repetitive head impacts in hockey and
brain injury.
216.
The NHL had and has a duty to take all reasonable steps to protect Plaintiffs and
the Class from the risks and consequences of head trauma. The NHL breached that duty to
protect Plaintiffs and the Class by creating, fostering, and promoting a culture
of
extreme
violence, including violence from fighting, where head trauma to Plaintiffs and the Class has
been and is imminent. The
NHL breached that duty to protect Plaintiffs and the Class by failing
to establish reasonable rules and protocols for preventing head trauma and minimizing the effects
of head trauma, including during games and practice. What changes the NHL made to its violent
construct were pu{posefully-ineffective and solely calculated by the NHL to fool and mislead
Plaintiffs, the Class and the public into ceasing investigation into the risks and consequences of
head trauma and the
217.
NHL's wrongdoing.
The NHL had a duty to take all reasonable steps to warn Plaintiffs and the Class
about the risks and consequences of head trauma. The NHL breached that duty to warn Plaintiffs
and the Class by failing to inform Plaintiffs and the Class about the scientihc research on the
negative health effects of head trauma and about anecdotal evidence from the negative health
effects of head trauma from its own NHL players.
218.
The NHL's failure to exercise reasonable care in its voluntarily assumed duty
increased the risk that the Plaintiffs would suffer long-term neurocognitive injuries.
219.
Given the NHL's superior and unique vantage point on the issue of head injuries
and concussions, the Plaintiffs reasonably relied to their detriment on the NHL's actions and
omissions on the subject
72
325365lv11014353
220.
Under all of the above circumstances, it was foreseeable that the NHL's failure to
exercise reasonable care in the execution of its voluntarily undertaken duties would cause or
substantially contribute to the personal injuries suffered by the Plaintiffs.
221.
As a direct and proximate result of the NHL's breach of its duties, Plaintiffs and
the Class have and will continue to suffer injuries.
222.
Plaintiffs, on behalf
of
themselves and the Class, seek damages, including
punitive damages, and equitable relief against the NHL, including but not limited to medical
monitoring program that appropriately cares for former and current NHL players, as a result of
the lifelong health problems they have and
COUNT II
223.
will suffer as a result of the NHL's misconduct.
MEDICAL MONITORING
fully set forth herein.
224.
The Plaintiffs and class members experienced repetitive traumatic brain impacts
during their respective NHL careers that significantly increased their risk
of
developing
neurodegenerative disorders and diseases, including but not limited to CTE, Alzheimer's disease,
and other similar cognitive-impairing conditions.
225.
effect on the
Repetitive MTBI during NHL practices and games has a microscopic and latent
brain. Repetitive
exposure
to
accelerations
to the head
causes deformation,
twisting, shearing, and stretching of neuronal cells such that multiple forms of damage take
place, including the release
of small
amounts
of chemicals within the brain, such as the Tau
protein. Among other things, the gradual build-up of Tau protein

causes CTE, which
sometimes over decades --
is the same phenomenon as boxer's encephalopathy (or "punch drunk
syndrome") studied and reported by Hanison Martland in 1928.

73
325365Iv1/014353
226.
The game of hockey as played in the NHL, including both practices and game
play, has exposed former players to hazardous conditions and out-of-the ordinary risks of harm.
These repetitive head accelerations to which the Plaintiffs have been exposed presented risks
of
latent but long-term debilitating chronic illnesses which are not presented to the normal
population. Absent the defendant's negligence and fraud, the Plaintiffs' exposure to the risks of
harm as described above would have been materially lower.
227.
Accordingly, the repetitive head impacts sustained by NHL players in NHL
games and practices exposed NHL players, including the Plaintiffs,

changes
to subtle and repetitive
within the brain on the cellular level. For that reasons, the environment within which
NHL players have sustained repetitive head impacts exposed them to substantive hazards.
228.
Depending on many factors, including the amount of the exposure to repetitive
head impacts and the release of Tau protein, the player/victim
will
develop a range of subtle to
significant neuro-cognitive changes over time.
229.
The latent injuries which develop over time and manifest later in life include but
are not limited to varying forms of neuro-cognitive disability, decline, personality change, mood
swings, rage, and, sometimes, fully developed encephalopathy.
230.
all NHL
Like the organizers of boxing, the NHL was fully aware of the danger of exposing
players
to
repetitive head impacts, including the repetitive sub-concussive and
concussive blows that increase the risk
to NHL players of, among other latent
injuries,
encephalopathy.
231.
1997
As noted above, by its actions and omissions and fraudulent conduct, from at least
through20ll, the NHL further
breached its duty (which
it had assumed
as
long ago as the
1930's) of reasonable and ordinary care to the Plaintiffs by failing to provide NHL players,
74
3253651v11014353
including the Plaintiffs, with necessary, adequate, and truthful information about the heightened
risks of neurological damage that arise from repetitive head impacts during NHL games and
practices.
232. As a
proximate result
experienced an increased risk

diseases, including
co
of the NHL's tortious conduct, the Plaintiffs
of developing serious latent
have
neurodegenerative disorders and
but not limited to CTE, Alzheimer's disease, andlor other and similar
gnitive-impairing conditions.
233.
The latent brain injuries from which Plaintiffs suffer require specialized testing
(with resultant treatment) that is not generally given to the public atlarge.
234.
The available monitoring regime is specific for individuals exposed to repetitive
head trauma and is different from that normally recommended in the absence of exposure to this
risk of harm.
235.
The medical monitoring regime includes, but is not limited to, baseline tests and
diagnostic examinations which
will
assist
in diagnosing the adverse health effects associated
with hockey-related MTBI. This diagnosis will facilitate the treatment and behavioral and/or
pharmaceutical interventions that will prevent or mitigate various adverse consequences of the
latent neurodegenerative disorders and diseases associated with the repetitive sub-concussive and
concussive injuries that Plaintiffs experienced in the NHL.
236. The available
monitoring regime
is
reasonably necessary according to
contemporary scientific principles within the medical community specializing in the diagnosis
of
head injuries and their potential link to, inter alia, memory loss, impulse rage, depression, earlyonset dementia, CTE, Alzheimer-like syndromes, and similar cognitive-impairing conditions.
75
325365tv11014353
237.
By monitoring and testing Plaintif, the risk that Plaintiffs will suffer long term
injuries, disease, and losses will be significantly reduced.
238.
By monitoring and testing Plaintiffs, the risk that Plaintiffs will suffer long term
injuries, disease, and losses without adequate treatment will be significantly reduced.
239.
Plaintiffs, therefore, seek an injunction creating a Court-supervised, NHl-funded
medical monitoring program which
will facilitate the
diagnosis and adequate treatment
of
Plaintiffs for neurodegenerative disorder or disease. The medical monitoring should include a
trust fund to pay for the medical monitoring and treatment of Plaintiffs as frequently and
appropriately as necessary.
240.
Plaintiffs have no adequate remedy at law in that monetary damages alone cannot
compensate them
for the continued risk of developing long-term physical and economic
due to concussions and sub-concussive
losses
injuries. Without Court-approved medical monitoring
described herein, or established by the Court, the Plaintiffs
as
will continue to face an unreasonable
risk of continued injury and disability.
COUNT III
241.
fully
INTENTIONAL HARM
Plaintif incorporate by reference all paragraphs, except under other Counts,
as
if
set forth herein.
242.
The NHL has intentionally created, fostered, and promoted a culture of extreme
violence, including violence from fighting. The NHL has known that, due to such violence, head
trauma to Plaintiffs and the Class has been and is imminent. The NHL has known that head
trauma to Plaintiffs and the Class has and
will have devastating
and long-term negative health
effects. Despite this knowledge and to maintain its revenue stream from its violent construct, the
NHL has and does intentionally subject Plaintiffs and the Class to head trauma.
76
325365tv1/014353
243.
The NHL purposefully failed to establish reasonable rules and protocols for
preventing head trauma and minimizing the effects of head trauma, including during games and
practice. What changes the NHL made to its violent construct were purposefully-ineffective and
solely calculated by the NHL to fool and mislead Plaintiffs, the Class and the public into ceasing
investigation into the risks and consequences of head trauma and the NHL's wrongdoing.
244.
The NHL failed to inform Plaintiffs and the Class about the scientihc research on
the negative health effects of head trauma and about anecdotal evidence from the negative health
effects of head trauma from its own NHL players.
245.
have and
As a direct and proximate result of the NHL's misconduct, Plaintiffs and the Class
will continue to suffer injuries.
246.
Plaintiffs, on behalf of themselves and the Class, seek damages, including
COUNT IV
247.
fully
FRAUDULENT CONCEALMENT
set forth herein.
248.
The NHL has intentionally created, fostered, and promoted a culture of extreme
violence, including violence from fighting. The NHL has known that, due to such violence, head
trauma to Plaintiffs and the Class has been and is imminent. The NHL has known that head
trauma to Plaintiffs and the Class has devastating and long-term negative health consequences.
Despite this knowledge and to maintain its revenue stream from its violent construct, the NHL
77
325365tv11014353
has failed and continues
to fail to inform Plaintiffs and the Class about the risks and
consequences of head trauma.
249.
Inter alia, the NHL failed to inform Plaintiffs and the Class about the scientif,rc
research on the negative health effects of head trauma and about anecdotal evidence from the
negative health effects of head trauma from its own NHL players.
250.
Further, between 1997 and 201I, the NHL failed to disclose the results of its
concussion study to players and others, which the study authors recognized was important for
players and others to know in order to manage and make better decisions about their concussion
symptoms.
251.
The NHL purposefully failed to establish reasonable rules and protocols for
preventing head trauma and minimizing the effects of head trauma, including during games and
practice. What changes the NHL made to its violent construct were purposefully-ineffective and
solely calculated by the NHL to fool and mislead Plaintiffs, the Class and the public into ceasing
investigation into the risks and consequences of head trauma and the NHL's wrongdoing.
252.
have and
As a direct and proximate result of the NHL's misconduct, Plaintiffs and the Class
will continue to suffer injuries. The damages suffered by Plaintiffs
and the Class are
not attributable to any of lack of diligence in investigation.
253. Plaintiffs, on behalf of themselves
and the Class, seek damages, including
78
325365tv11014353
COUNT V
254.
fully
UNJUST ENRICHMENT
set forth herein.
255. It would be inequitable for Defendant
to be permitted to retain the benefit which
Defendant obtained from their misconduct and at the expense of the Plaintiffs and members of
the Class.
256.
The Plaintiffs and members of the Class are entitled to the establishment of a
constructive trust impressed on the benehts
to Defendant from their unjust enrichment
and
inequitable conduct.
257.
Alternatively or additionally Defendant should pay restitution or its own unjust
enrichment to the Plaintiffs and members of the Class.
COUNT VI
258.
if fully
set
NEGLIGENT MISREPRESENTATION
Plaintiffs adopt by reference all allegations contained in the paragraphs above,
as
forth in this Count.
259. A special relationship
exists between Defendant and the Plaintiffs sufftcient to
impose a duty on Defendant to disclose accurate information to the Plaintiffs.
260.
Defendant long knew that repetitive head impacts in hockey games and practices
created a risk of harm to
NHL players that was similar or identical to the risk of harm to boxers
who receive repetitive impacts to the head during boxing practices and matches and football
players during games and practices.
261.
Defendant was aware of and understood the significance of the published medical
literature demonstrating the serious risk of both short-term and long-term adverse consequences
from the kind of repetitive traumatic impacts to the head to which NHL players were exposed"
79
3253651v1/014353
262.
Defendant, however, withheld this information from NHL players and ignored the
risks to NHL players.
263.
Continuing to the present, Defendant has insisted that more data is needed before
any scientifically-proven link between repetitive traumatic head impacts and later-in-life
cognitive/brain injury, including CTE and its related symptoms, can be established, a material
representation of fact and the current state of medical knowledge.
264.
Continuing to the present, Defendant has also denied the dangers of fighting and
the head trauma caused by fighting.
265.
Defendant, therefore, misrepresented the dangers the Plaintiffs faced in returning
to action after sustaining a head injury and the long-term effects of continuing to play hockey
after a head
injury and the health dangers of f,rghting.
266.
Plaintiffs justifiably relied on Defendant's silence and refusal to act in believing
that the long-term risks of permanent harm from playing professional hockey were minimal or
non-existent.
267.
Plaintiffs' reliance on Defendant's silence was reasonable, given Defendant's
superior and unique vantage point on these issues.
268.
evaluation
Defendant's silence, their protocol of returning players to the game after an on-ice
by a trainer, not a doctor, and their refusal to change any of the rules of play
supported the misrepresentations that concussions and long-term medical harm resulting from
them were not a serious issue for hockey and that present NHL players were not at an increased
risk of short-term and long-term adverse consequences if they returned too soon to an NHL
games or practices after suffering head trauma and, therefore, that former players had not been
exposed to such increased risk during their time in the NHL.
80
325365l^v11014353
269.
Defendant made these misrepresentations and actively concealed true information
at a time when it knew, or should have known, because of their superior position of knowledge
that Plaintiffs faced serious health problems if they retumed to a game too soon after sustaining a
concussron.
270.
Defendant knew or should have known the misleading nature of their silence and
refusal to act when they decided to do nothing.
271.
Defendant made the misrepresentations and actively concealed information
knowing that Plaintiffs would and did rely on the misrepresentations or omissions in, among
other things, how the Plaintif addressed the concussive and sub-concussive injuries they
sustained.
COUNT VII
272.
fully
set
DECLARATORY RELIEF
forth herein.
273.
There is a case and controversy among Plaintiffs on the one hand and Defendant
on the other. Plaintiffs have suffered injuries in fact, physical, mental and economic, traceable to
Defendant's actions and inactions and redressable by a favorable decision in this case.
274.
Pursuant to 28 U.S.C. 2201, Plaintiffs seeks a declaration as to the following:
275.
that Defendant knew or should have known, at all times material, that the
repeated, traumatic and unnecessary head impacts the Plaintiffs endured while playing NHL
hockey were likely
to
expose them
to
substantially-increased risks
disorders and diseases, including but not limited

co
gnitive-impairing conditions
81
325365tv1/014353
of
to CTE, Alzheimer's
neuro-degenerative
disease and similar
276.
that based on the NHL's voluntary undertaking
to study the issue of MBTI,
Defendant had a duty to advise Plaintiffs of that heightened risk;
277.
that the
NHL willfully and intentionally concealed material information from, and
misled Plaintiffs conceming, that risk; and
278.
that Defendant recklessly endangered Plaintiffs.
PRAYER FOR RELIEF

WHEREFORE, the Plaintiffs and the Class pray forjudgment as follows:
A.
Granting an injunction and/or other equitable relief against the NHL and in favor
of Plaintiffs for medical monitoring;
B.
Awarding Plaintiffs compensatory damages against the NHL;
C.
Awarding Plaintiffs punitive damages against the NHL;
D.
Awarding Plaintif' declaratory and such other relief as may be appropriate;
E.
Certifuing a class action, appointing Plaintiffs as Lead Plaintiffs and Plaintiffs'
Counsel as Lead Counsel; and
F.
Granting Plaintif their prejudgment interest, costs and attorneys' fees.
JURY TRIAL DEMAND

Plaintiffs demand
trial by jury on all issues so triable in this Complaint.
82
325365tv11014353
Dated: New York, New York

July 25,2014
SUSMAN GODFREY L.L.P.
(wc8478)
(432096)
Arun Subramanian
Seth Ard (SA 1817)
560 Lexington Avenue, 15ft Floor
New York, New York 10022
(212) 336-8330
83
325365tv11014353
JohnZaremba (3958)
ZAREMBA BRO\ilNELL
PLLC
&
BROWN
40 Wall Street, 27th Floor

New York, New York 10005
Telephone: (212) 400-7224
Email : jzar emba@zbblaw. com
Brian D. Penny (8P0718)
GOLDMAN SCARLATO KARON &

PENNY, P.C.
101 E. Lancaster Avenue, Suite 204
Wayne, PA 19087
Telephone: (484) 342-07 00
Email : penny@gskplaw.com
Counselfor
84
3253651v1/014353
Plaintffi

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Case 1:14-cv-05732-SAS Document 1 Filed 07/25/14 Page 1 of 29

UNITED STATES DISTRICT COURT

DAN FzuTSCHE and CHRIS FERRARO on

Jury Trial Demanded

CLASS ACTION COMPLAINT

NATIONAL HOCKEY LEAGUE,

Case 1:14-cv-05732-SAS Document 1 Filed 07/25/14 Page 2 of 29

JURISDICTION AND VENUE

THE PARTIES ...

NHL MARI(ETS AND PROFITS FROM EXTREME VIOLENCE....

EXTREME VIOLENCE AND FIGHTING IS PREVALENT IN the NHL................9

Extreme Violence Is A Prevalent Part of NHL Hockey...

Fighting Is Prevalent and Accepted By the NHL

NHL Considers Fighting to be Part of the Game

Fighting Occurs at Epidemic Levels in the NHL

DANGERS OF HEAD TRAUMA IN NHL.........

Epidemic Levels of Head Trauma in

Scientific Evidence of Dangers of Head Trauma

Scientif,rc Evidence of Dangers of Fighting

THE NHL's KNOWLEDGE OF HEAD TRAUMA RISKS AND NHL'S

NHL's 1997 Concussion Program Study

Other Sources for NHL's Knowledge of Head Trauma Dangers..........................40

The NHL Downplayed Risks of Head Trauma

NHL DOIWNPLAYS AND CONCEALS RISKS OF HEAD TRAUMA

The NHL Downplayed Risks of Head

Crosby's Head Trauma Exemplifies Dangers of NHL's Concealment.................47

NHL Concealed Risks of Head Trauma.....

Case 1:14-cv-05732-SAS Document 1 Filed 07/25/14 Page 3 of 29

NHL REFUSES TO REDUCE HEAD TRAUMA RISKS

Unsafe Player Equipment and Rink....

Unsafe Hard Plastic Body

Unsafe Playing Rules........

THE NHL SPURNS CALLS FOR CHANGE

Max Pacioretty Incident in 2011................

TOLLING OF THE STATUTES OF LIMITATIONS..

CLASS ACTION ALLEGATIONS

PRAYER FOR RELIEF...

JURY TRIAL DEMAND..

Case 1:14-cv-05732-SAS Document 1 Filed 07/25/14 Page 4 of 29

The above-captioned plaintiffs ("Plaintif"), by and through multiple undersigned

NHL. For many decades,

extreme violence and f,rghting not seen

in other elite-level ice hockey

extreme violence, including hghting:

In a 2007 press conference, NHL Commissioner Gary Bettman similarly boasted

MIAMI HERALD, NIay 16,

Case 1:14-cv-05732-SAS Document 1 Filed 07/25/14 Page 5 of 29

level of talent, and many of the same players, as the NHL.

where the aggressor was not assessed a penalty, fine or suspension.

Studies show that various forms

head trauma, including concussions, are

Fighting not up for debate: Bettman, CBC Sports (Mar.26,2007),

Case 1:14-cv-05732-SAS Document 1 Filed 07/25/14 Page 6 of 29

doing so would hurt its profits.

NHL from players, including head injuries.

learned the results of this study earlier. When the NHL

10. Not only has the NHL concealed

facts about concussions, but