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

UNITED STATES DISTRICT COURTSOUTHERN DISTRICT OF NEW YORK

DAN FzuTSCHE and CHRIS FERRARO onbehalf of themselves and those similarlysituated,

Plaintiffs,

NATIONAL HOCKEY LEAGUE,

Defendant.

ECF Case

Civil ActionNo.:

Jury Trial Demanded

CLASS ACTION COMPLAINT

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

TABLE OF CONTENTS

INTRODUCTION

JURISDICTION AND VENUE

THE PARTIES ...

SUBSTANTIVE ALLEGATIONS

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

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

B. Fighting Is Prevalent and Accepted By the NHL

i. NHL Considers Fighting to be Part of the Game .

ii. Fighting Occurs at Epidemic Levels in the NHL .

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

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III. DANGERS OF HEAD TRAUMA IN NHL......... l7

A. Epidemic Levels of Head Trauma in NHL..... ...................17

B. Scientific Evidence of Dangers of Head Trauma

C. Scientif,rc Evidence of Dangers of Fighting inNHL ..35

Iv THE NHL's KNOWLEDGE OF HEAD TRAUMA RISKS AND NHL'SDUTY 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 4I

V. NHL DOIWNPLAYS AND CONCEALS RISKS OF HEAD TRAUMA 43

A. The NHL Downplayed Risks of Head Trauma .................43

B. The NHL Concealed Risks of Head Trauma..... ................45

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

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VI. NHL REFUSES TO REDUCE HEAD TRAUMA RISKS

NHL's Role as Caretaker for Players.

Unsafe Player Equipment and Rink....

Unsafe Helmets....

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B 49

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iiiUnsafe Hard Plastic Body Armor...... ....................52

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C. Unsafe Playing Rules........

VII. INEFFECTIVECONCUSSIONPROTOCOL

VIII. THE NHL SPURNS CALLS FOR CHANGE

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

TOLLING OF THE STATUTES OF LIMITATIONS..

CLASS ACTION ALLEGATIONS

COUNT II - MEDICAL MONITORING..

COUNT III - INTENTIONAL HARM

COUNT IV - FRAUDULENT CONCEALMENT

COUNT V - UNJUST ENRICHMENT....

COUNT VI - NEGLIGENT MISREPRESENTATION

COUNT VII - DECLARATORY RELIeF

PRAYER FOR RELIEF...

JURY TRIAL DEMAND..

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COUNT I - NEGLIGENCE.......

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The above-captioned plaintiffs ("Plaintifß"), 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 boastedthat "[flighting has always had a role in the game . . . [W]e're not looking to havea debate on whether f,rghting . . . should be part of the ¿ame."z

Jerry Crowe, NHL President Ziegler Denies Problems of League, THE MIAMI HERALD, NIay 16,1988.

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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 raiserevenue because "[o]ur fans tell us that they like the level of physicality in ourgame" and "our fans -- who continue to attend our games in new record numbers .

. . -- want fthe game] to be physical"

o

o The NHL's rules are not successful in defeating concussions: a recent study ofNHL concussions found that most NHL concussions resulted from "legal" actionswhere the aggressor was not assessed a penalty, fine or suspension.

6. Studies show that various forms of head trauma, including concussions, are

observed in 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

A 1993 academic study of the NHL's profits from violence found that "there is asignificant and positive relationship between aggregate measures of violence(total penalty minutes) and attendance for games played in both American andCanadian cities."3

2 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. AmericanJournal of Economics and Sociology, 52:63-78. doi: l0.l llllj.1536-7150.1993.tb02742.x (emphasisremoved).

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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 consequences

associated with playing in the NHL from players, including head injuries.

9. 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 theresult of"accident events" and "not from head hits."4 In fact, a subsequent study

a http://www.cbc.calsportsihockey/pacioretty-injury-part-of-game-bettman- L 1 008959 &http://www.cbc.ca./news/canaday'montreal/pacioretty-released-from-hospital- I .999400

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showed that only 4.9Yo of concussions during this time period were the result ofunintentional contact.

o ln20ll, Commissioner Bettman said of fighting: "Maybe it is [dangerous] andmaybe it's not. You don't know that for a fact.") Mr. Bettman further said it ispremature to draw a connection between fighting in hockey and chronic traumaticencephalopathy, or CTE.

I l. Plaintifß 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 NHL.

13. 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.

5 http ://www.nhl.com/ice/news.htm?id:605 0 8 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

http://www.rotoworld.com/recenlnhl/ 1 684idan-fritscheChristopher Botta, NHL fleshes out three-year plan, SPORTS BUS. JOURNAL, (Sept. 9, 2013),http://www.sportsbusinessdaily.com/Journal/Issuesl2013l09/09/Leagues-and-Governing-BodiesÀlHL-reorg.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 NHL recently signed a multi-billion television contract for Canadian

broadcasting rights. 10

18. 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 Id.e http://www.forbes.comisites/mikeo zanianl2}l3llll25lthe-nhls-most-valuable-teams/r0 http://sports.nationalpost.comi20l 3ll1l2ílnhl-rogers-reach-12-year-5-2-billion-broadcast-deal-that-would-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 numbersalmost every year (at least 20 million in attendance in every full seasonsince 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 Ila 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/Testimony-Daly-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 bannedfrom hockey, thousands of season-ticket holders who get their jollies fromwatching grown men in short pants in a quasi-legal, bare-knuckle battlewould 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 bikini-clad bimbos to skate around behind the Zambonis holding up placardsshowing each team's penalty totals?le

25. Former NHL President Clarence Campbell expressly acknowledged that the

NHL's goal is to increase support at the box office through whatever means necessary:

[I]t is the business of conducting the sport in a manner that will induce orbe conducive to the support of it at the box office . . . . Show business, weare in the entertainment business and that can never be ignored. We mustput 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. AmericanJournalof Economics and Sociology, 52:63-78. doi: l0.1lllli.1536-7150.1993.tb02742.x(emphasisremoved).tn E.M Swift, Hockey? Call It Sockey: Hockey's designated hit men are making a travesty of the gameIt'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:

II.

In talking to numerous players in the NHL and V/HA, they all feel thatmost advertising and selling of the game is over-emphasizing the fightingand brawling at the expense of educating the crowds about the skill andfinesse. 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 sportpromoting itself in this fashion?22

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, itwill ruin the game for all of us. I've never seen so much stuff like this. Inever thought it could be so bad. It's becoming a disaster," he said. "Theidiot owners, the incompetent coaches, the inept players are dragging thegame into the mud. They're destroying it with their senseless violence.The idiot owners, the incompetent coaches, the inept players are draggingthe game into the mud. They're destroying it with their senselessviolence. 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-impossible-cases.

" Willia* R. McMurtry, Q.C., INVESTIGATION AND INQUIRY INTO VIOLENCE IN AMATEURHOCKEY (Aug.2l,1974) ("McMurtry"), at p. 18,https ://archive.org/details/investigatamhock00onta.,, MIcHAEL ULMER, THE HoCKEY NEwS, THE TOP 1OO NHL PLAYERS OF ALL TIME(McClelland and Stewart 1998).to Neil Campbell, After 22 Years as superstar Hull quits as player, stays as executive, THE GLOBEAND 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 abasic part of the game, and that occasional fights occur as an outlet forpent-up emotions. How do you reconcile this with the fact that theOlympic hockey games, which were magnificent, were played withoutsuch an outlet?

Ziegler:. First of all, there were some outlets, if you will examine, whenthere were confrontations and the outlets were this gesturing when theycame together, and there were a number. Second, they were playing on abigger ice surface, and you do not have the intensity of competition on abigger ice surface. You have much more time to execute. You play adifferent game. You do not use the boards as much as part of defense andoffense.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 whathappened Friday níght on Long Islønd wasn't hockey. It was a travesly.It was painful to watch the gøme I love turn into a sídeshow like that...The NHL had a chance to send a clear and strong message that thosekinds of actions qre unacceptable and embarrassing to the sport. hfailed... We, as a league, must do a better job of protectíng the integrity

2s Hearings Beþre the Subcommittee on Crime of the Committee on the Judiciary House ofRepresentatives on H.R. 7903: Excessive Violence in Professional Sports,9th Cong. 134-163 (1980).

2ó 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 thatthose kinds of actions will not be tolerated and will be met withmeaningful disciplinary action... If the events relatíng to Friday níghtreflect the state of the leøgue, I need to re-think whether I want to be øpart 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, themen who control the game have no interest in eliminating it. Forget all thefamiliar rationalizations and explanations. Any reasonable analysis wouldconclude that players should not be policed by other players, that thethreat of retaliation should not be used to enforce good behaviour, thatinfractions 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

eliminated. The difference is largely attributable to the rules of the game, 30the enforcement of

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 with the head as the primary point of contact was legal, and

http://www.myentertainmentworld.cal20l1l02lmario-lemieux-speaks-out-alone/.http:i/sports.nationalpost .coml20lll02l20lfighting-hockey-violence-a-losing-battle/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); JamesChristie, 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 CouldCut 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. NHL Considers Fighting to be Part of the Game

34. 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 years.3s

36. 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. "Theview of the 21 people who own the teams, and employ me, is that hghtingis an acceptable outlet for the emotions that build up during play. Untilthey 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 EliteHockey. PLoS ONE 8(7): e69122. doi:10.l371ijournal.pone.0069122, available athttp://www.plosone.org/articlelinfoYo3Adoi%o2F10.137l%2Fjournal.pone .0069122. This study alsofound that in a random sampling of NHL concussions in 2009-11, "[t]he most common cause of NHLconcussion was bodychecking, with and without head contact(64.2%)."

33 Id.34 Id." McMurtr¡,, sr,tpra, at20-21.

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about fighting is, 'Does the customer accept it?' The answer, at present,seems to be yes."36

37. 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

for pummeling [an opposing player] because there is nothing in the rule book to use as

precedent,"38 Bettman again praised the role of fighting in the NHL, calling fighting a

"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 - such as automatic

game disqualifications - 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),

http://www.cbc.calsports/hockey/fighting-not-up-for-debate-bettman-1.661551.38 http://sports.nationalpost.com/2013llll11lnhl-commissioner-gary-bettman-says-debate-over-fighting-

getting-too-much-attention/.3e http://sports.nationalpost.com/2013lIll11lnhl-commissioner-gary-bettman-says-debate-over-fighting-

gettin g-too-much-attention/.oo Statement of William L. Daly Beþre 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-multifaceted-approach.

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ii. Fighting Occurs at Epidemic Levels in the NHL

41. 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 g¿ìme (which underrepresents the

number of actual fights per game), as shown by the following charts: al

R':qulôr SÈirsûn Stats

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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:

fF]ighting remains a small part of our game The role of fightingcontinues to be a hot topic in our game and one which engenders a broadspectrum of opinions and debate. As a League, we continue to search fora consensus as to how best to serve the interests of all constituent groupsin 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 maybeonly one player on every team got that level of protection, now it's any teammate that gets hit."

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To this point, that consensus has proved elusive, including with and asamong 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 isbeing provoked and being pushed to turn his back and appear to berunning. ...

***

McMurtry: To have the sanction there of being embarrassed andridiculed and to be discussed among your peers and your coach and manymillions of fans, that is not one of the most difficult decisions in the worldfor a person, to turn his back and not fight?

Campbell: I didn't say it wasn't dfficult. I said it is an alternative.(Italics in original.)

McMurtry: Then if you will agree it is a very diffrcult alternative, it isapparently what you call the free alternative. (Italics in original.)

Campbell: All right. (Italics in original.)

McMurtry: There is incredible pressure and duress on that player not toturn his back - is that not true?

Campbell: I don't think it is as great as you say, but it is real. (Italics inoriginal.)

McMurtryz There ß a real pressure and duress on that plaver to standhß sround and to fisht?

Campbell: I think so, ves. ves. (Italics in original.)aa

o' Daly Testimony, supra, available athttp://democrats.energycommerce.house.gov/sites/defaullfiles/documents/Testimony-Daly-CMT-Sports- Safety -20 I 4 -3 - 13 .pdf .

'o McMrrrtry, sLtpra, at 19-20.

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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 athttp://cjns.metapress.com I contentl96l0466p85w93 5 5 I /fulltext.pdf

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48. Another academic study, published in2013, made a "conservative estimate" that

the following numbers of concussions or suspected concussions were suffered during the 2009-

20 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 Season*o 120

49. 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 EliteHockey. PLoS ONE 8(7): e69122, available athttp://www.plosone.org/articlelinfoYo3Adoi%2F10.1371%2Fiournal.pone .0069122#pone.0069122-Wennberglat Of the 120 concussions and suspected concussions in2011-12 season, 86 were categorized asconcussions.

ae http://www.diehardsport.com/featured/concussions-continue-cripple-nhl-statistics/

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18


NHL Players 5u ering ast One

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 concussions.50

51. 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

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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 of the most recent NHL

season underscore the severity ofthe current crisis:

Oct. 1, 2013 George Parros, Montreal, concussion sustained during frght withColton Orr of Toronto.

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FHtTù: [.rari0 ¡rislËrl,,tifitreål,]s7ÊttÈf1lùtìtreBl Llðn¡rj¡Èns r:Èr:ìrgs Firrrús fslls 'ln the ir-:¿ afler:r fl¡lht +iith T,lt,lnlo [,]lðFlE LsJf-.. ll':!lt¡n Ürr

Oct.4,2013: Roman Josi, Nashville, initially listed as an upper-body injury, wasconcussed by controversial hit from Steve Downie, Colorado, who got a chargingminor.

Oct. 8, 2013: Rick Nash, New York Rangers, concussed by an elbow from BradStuaft, 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'sJacob Trouba.

Oct.14,2013: Keith Ballard, Minnesota (upper body) has missed four games afterbeing hit in the face with a puck. Concussion hasn't been confirmed but issuspected.

Oct. 15, 2013: Dan Boyle, San Jose, pushed face first into dasher board by MaximLapierre, St. Louis. Boyle was placed on injured reserve with head injury.

Oct.17,2013: Niklas Kronwall, Detroit, concussion after being boarded by CodyMcleod, Colorado.

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Oct. 19, 2013: Danny Briére, Montreal, concussion after hit to the head from ErrcNystrom, Nashville.

Oct. 19, 2013: Lubomir Visnovsky, New York Islanders, on injured reserve withconcussion after hit from Riley Nash, Carolina.

Oct.20,2013: Dustin Penner, Anaheim, concussion after being laid out on highhit by Ryan Garbutt of Dallas Stars.5r

In addition to these incidents, several players ended the 2013-14 season unable to

play because of concussions suffered during the 2011 season, including:

O

54.

o

a

Chris Pronger, Philadelphia, has not played since Nov. 19,2011 due to post-concussion syndrome after three separate hits, and Flyers GM Paul Holmgrensays his career is over.

Michael Sauer, Rangers, has not played after suffering a concussion as a result ofa hit by Dion Phaneuf on December 5,201I.

a Marc Savard, Boston, has not played since Jan. 23,2011 because of concussions.

sr hfip:llo.canada.com/sports/nhl-hit-with-30-increase-in-concussions-this-season

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22


55. The concussion epidemic in the NHL is not new and has always been a part of the

game, even 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 severalyears, striking everyone from marquee players to fourth-line checkers.

***

According to statistics provided by the NHL, 60 players had concussionslast season during the regular season and the playoffs. As of earlyFebruary this seasõn , 56 plãyers 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 normalfunction of the brain. TBI can result when the head suddenly and violently hits anobject, or when an object pierces the skull and enters brain tissue. Symptoms of aTBI can be mild, moderate or severe, depending on the extent of damage to thebrain. Mild cases may result in a brief change in mental state or consciousness,while severe cases may result in extended periods of unconsciousness, coma oreven death.

t' Maureen Delany, NHL struggles with efforts to prevent concussions Bell Ringers / They don't justmake pløyers see stars. They can end a season, or even a career, THE GLOBE AND MAIL(CANADA), Mar. 24,1998, at S1 l.

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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.

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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

3253651v11014353

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concussions" to degenerative brain disease.t3 There were many subsequent studies published

regarding the dangers of athletic head trauma.

70. For example, in 1937, the US. Naval Medicine Bulletin published a paper titled

Dementia Puglilistica.sa In 1941, JAMA published an article titled The Medical Aspect of

Boxing.ss ln 1952, JAMA published a study of encephalopathic changes in those suffering

repeated blows to the head, focusing on professional boxers.56 That same year, aî article

published 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 and Psychiatry published a

paper titled Diffuse Degeneration of the Cerebral White Matter in Severe Dementia Following

Head Injury.t' ln 1959, the Journal 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 puckcannot be an entirely benign event, it is perhaps insufficiently appreciatedthat a regulation hockey puck weights 165 grams and may travel at avelocity in excess of I20 feet per second. When such a missile strikes thehead, 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 HeadInjury,105 J. MENTAL SCI. 714(1959).

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injuries could have been prevented by the wearing of a suitably designedprotective helmet.se

72. In 1962, JAMA published an article titled Protection of the Head and Neck in

Sports, in which it concluded, "Helmets for use 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" of

Amateur Hockey Players. The study noted the death of NHL player 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 protectthe players against blows and falls. The shell and the suspensionapparatus of the helmets should be able to cushion enough of the impact offalls and blows to reduce the transmitted accelerating or deceleratingvelocity of the head blow by the 30 ft. per second danger threshold foundby White and associates, and below the 425lbs per sq. in. pressure foundby Gurdjian. Apparently 30 ft. per second is the upper limit of impactvelocity which the human brain can suffer without experiencing cerebralconcussion. Likewise, 425 lbs. per sq. in. is the approximate upper limitof pressure which the human skull can withstand without fracture.6a

tn J.S. Campbell, M.D., Pierre Fournier, M.D., D.P. Hill, M.D., PuckAneurysm, 32 CAN. MED. ASS'NJ.923 (19s9).

60 ES Gurdjian, M.D., HR Lissner, M.S., LM Patrick, M.5., Protection of the Head and Neck in Sports,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 CANMED. ASS',N 1.99 (t968) 1234.

uo Id. at lz3ï.

6l62

63

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

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 protectivehelmets compulsory in amateur hockey on this continent. But we must notpresume that this regulation of itself can eliminate serious head injury ordeath. Patently, not all the helmets in use are sufficient. W'e mustencourage, support, or initiate research to produce more effectiveequipment.66

75. In 1969, the British Journal of Psychiatry published a paper titled Organic

Psychosyndromes due to Boxing.67 In 1969, Anthony Roberts published a study titled. Brain

Damage in Boxers: A study of the prevalence of traumatic encephalopathy among ex-

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. ln 1973, Psychology Medicine

Ice Hockey Can be Safer,207 JAMA 1706 (1969).Id.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 THEPREVALENCE OF TRAUMATIC ENCEPHALOPATHY AMONG EX-PROFESSIONALBOXERS, 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 toreduce head injury in collegiate intramural hockey,2 MED. & SCI. IN SPORTS 162 (1970).

65

66

67

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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 In I97 4, The Lancet published a study titled

Traumatic Encephalopathy in a Young Boxer.13 That same year, The Lancet also published a

study titled, Delayed Recovery of Intellectual Function After Minor Head Injury.Ta In 1975, The

Lancet published an article titled Cumulative Effect of Concussion.Ts In 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 PSYCHOLOGICALMED. 270 (t973).

" AKOmmaya, TA Gennarelli, Cerebral Concussion and Traumatic (Jnconsciousness: Correlation ofExperimental 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,304THE LANCET 60s (1974).D Gronwall, P Wrightson, Cumulative Effect of Concussion,306 THE LANCET 995 (1975).P Muller, K Biener, Ice Hockey Accidents,66 MINERVA MED. 1325 (1975).J.A.N. Corsellis, Posttraumatic dementia,7 AGING 125 (1978).A Tysvaer, O Storli, Association Football Injuries to the Brain: A Preliminary Report,15 BRIT. J. OFSPORTS MED. 163 (r981).

7e RW Nornam, PJ Bishop, MR Pierrynowski, Puck impact response of ice hockeyface masks,5 CAN. JAPPLTED SPORT SCr.208 (1980).

15

76

77

78

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o repetitive head trauma in contact sports, including boxing and football, has potential

dangerous long-term effects on brain function;

o encephalopathy (dementia pugilistica) is caused in boxers by repeated sub-concussive

and concussive blows to the head;

o 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;

o with respect to mild head injury in athletes who play contact sports, there is a

relationship between neurologic pathology and length of the athlete's career;

o immediate retrograde memory issues occur following concussions;

o mild head injury requires recovery time without risk of subjection to further injury;

. head trauma is linked to dementia;

o 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 I concussion

consists of confusion only, Grade II includes confusion and post-traumatic amnesia, and Grades

III and 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

concussion: six months (with physician approval).

(d) Grade IIIb (unconscious for minutes) - first concussion: six months; second

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

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86. Faced with the increasing incidence of concussions and head injuries in ice

hockey and other sports, the International Symposium on Concussion 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 NHL specifically, increased from2o/o

in the 1989-1990 season to 8%o in 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 reconìmended that a player never be returned to

play while symptomatic, and coined the phrase, "when in doubt, sit them out."

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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,86,697from soccer, and 204,802 from football that presented to US EDs from1990 to 1999. The total number of concussions presenting to EDs in theUnited States over the same period was estimated to be 4820 from icehockey, 21,7I5 from soccer, and 68,861 from football. While the rates ofhead injuries, concussions, and combined concussions/internal headinjuries/skull fractures presenting to EDs per 10,000 players were notalways 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 to EDs in the United

States are different for ice hockey, soccer, and football for the years studied, the yearly rates for

these injuries are comparable among all 3 sports "82

91. 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

84concusslons

80 J. Scott Delaney, Head injuries presenting to emergency departments in the (Jnited States from 1990to 1999for ice hockey, soccer, andfootball, l4 CLINICAL J. SPORTS MED. 80 (2004.).

8t Id.t' Id.83 Martin ly'rrazik, et al., Sport-related concussions: lmowledge translation among minor hockey coaches,

2l cLrNrcAL J. SPORTS MED. 3ls (201l).to Id.

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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, 8most studies suggest that multiple concussions can lead to permanentfunctional impairment as a result of cumulative brain trauma. In mosthead injuries occurring during athletic activity, there is a significantacceleration, and diffuse damage may occur even if the coverings of thebrain are not broached . . .

V/e feel that the medical profession needs to raise awareness and toadvocate for a "no head-checking" rule, for stricter rule enforcement andmore vigorous penalization. The proposed "no head-checking rule"should be implemented in all levels of hockey and in all locations whereice hockey is played. Everyone must send the message that there is norole for the head as a target in ice hockey. We simply must have a "nohead-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:

Overall, 49.7% of all respondents (80/161) reported I acknowledged,unreported, or potential concussion. The unreported rate was lower thanprevious high school studies; however, the potentially unrecognized rateremains high and should be clinically conceming. These findings suggesteducational interventions targeting collegiate student-athletes shouldremain and continue to focus on identifuing concussion symptoms anddispelling the common misconception that 'bell ringers' and 'dings' arenot concussions.ss

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 l CLINICAL J. SPORTS MED211 (2001).tu Id.

8? Tracy Llewellyn, et al., Concussion reporting rates at the conclusion of an intercollegiate athleticcareer,24 CLINICAL J. SPORTS MED. 76 (2014).tt Id.

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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 conìmon cause of NHL concussion was bodychecking, with and withouthead 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 theplayers injured in this manner resulting also in facial fractures were not wearing avisor at the time (6 of 7 cases).

c. 51.2% of all incidents involved a secondary contact of the head after the initialimpact, most commonly to the boards or ice

C. Scientific Evidence of Dangers of Fighting in NHL

95. In addition to the articles above, other scientific evidence demonstrates the

dangers of hghting in the NHL, even though the NHL continues to deny that there is any danger.

A 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," aÍtd that, when a concussion resulted, ths "most common penalty called was

fighting (32.3%)." The study found it "notable" that "hghting and bodychecking causing

secondary contact 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.

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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 of

having concussions. They found that of 2l diagnosed concussions, 5 were the result of

fïghts."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.

e I http ://www.nhl.com/iceinews.htm?id:605 08 Ie2 http://www.hockeywilderness.com/2 013/2lll13974249lnhl-concussion-policy-is-it-brokene3 http://www.nytimes.com l20ll 103 103/sports/hockey/03hockey.htmlea http://www.nytimes.com l20l I 103 103/sports/hockey/03hockey.html

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99. Rather than take immediate measures to protect its players from these known

dangers, 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 1997 NHL concussion study was "to examine

concussion from a scientific perspective and to better understand its natural history and

contribute new knowledge to the field." The objectives of the study "were to determine rates of

concussion and trends related to concussion in the NHL, to 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 of

concusslons.

es Id.

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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 neurologicexamination). These findinss are of use to phvsicians. medical support

b. "Time loss significantly increased for every subsequent (repeat) concussionsustained during the study period, as well as for each increase in the numberof postconcussion symptoms experienced."

ln 27Yo percent of instances of concussion in which the player continued toplay without game-time medical evaluation, more than 10 days of time lossresulted.... It is becoming more apparent that athletes with acute concussionexperience functional or cognitive impairment and reduced reaction times. Itis possible that continued exertion in the immediate postconcussion periodmay exacerbate the injury or increase a player's susceptibility to furtherinjury, which may ultimately increase severity and prolong recovery.

106. The authors concluded:

Our results suggest that more should be done to educate all involved withthe sport about the potential adverse effects associated with continuing toplay while symptomatic, failing to report symptoms to medical staff andfailure to recognize or evaluate any suspected concussion. Our findings

nu Brian W. Benson et. al, A prospective study of concussions among National Hockey League playersduring regular season games: the NHL-NHLPA Concussion Program, Canadian Medical Ass'n J.,May I1,2011,905-91l.

e7 Id.

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also suggest that more conservative or precautionary measures should betaken in the immediate postconcussion period, particularly when an athletereports or experiences a post-concussion headache, low energy or fatigue,amnesia, recurrent concussion or many different postconcussionsymptoms, 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 andidentifying many of the conìmon visible signs and symptoms of aconcussion so that Players will recognize when they, or a teammate, maybe at risk. . . . It is our strong belief that the Players' health and safety willbe enhanced if all relevant personnel clearly understand the latest scienceregarding 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

" Benson BW, Meeuwisse WH, Rizos J, Kang J, Burke CJ (2011) A prospective study of concussionsamong National Hockey League players during regular season games: the NHL-NHLPA ConcussionProgram. CMAJ 183: 905-11. doi: 10.1503/cmaj .092190, availqble athttp://www.ncbi.nlm.nih .govlpmclarticles/PMC3091898/ (emphasis added).

ee Testimony of William Daly, March 13,2}l4,available athttp://democrats.energycommerce.house.gov/sites/defaullfiles/documents/Testimony-Daly-CMT-Sports- Safety -20 1 4 -3 - 1 3 .pdf

100 Wennberg RA, Tator CH (200S) Concussion incidence and time lost from play in the NHL during thepast 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 thepublic.").

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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 The report disclosed the other symptoms collected, and the total number of players reporting to havethose symptoms, but no other underlying data. Id. App. 4. More than 50Yo of concussion-victimsreported the following symptoms, none of which was analyzed: "Don't Feel Right," "Feeling like 'in afog,"' and "Feeling Slowed Down." The report also disclosed other limitations, including thatphysicians may have underreported concussions and no data was collected for practice, exhibition, andplayoff games.

102 Id.

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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 testimony on March 13,2014, Deputy Commissioner Daly

acknowledged that the 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 a

leadership role in teaching others about the dangers of concussions. For example, the league

states that education has been a 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. The NHL Downplayed Risks of Head Trauma

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 head

impacts on football players and made it an institutional repository of accumulated knowledge

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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 to players, and the

associated health risks therefrom, was 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

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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. The NHL Downplayed Risks of Head Trauma

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.

b. In a 2007 press conference Commissioner Bettman acknowledged that thetopic 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 havea 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 oneon March 21, 2007, when Colton On of the New York Rangers fought withTodd Fedoruk of the Philadelphia Flyers and ended up knocking Fedorukunconscious.

c. In response to calls in congress to legislate stricter protections for players afterthe horrific injury to Max Pacioretty in 2011, Commissioner Bettman flatlysaid there is no need to "over-legislate" head hits.l0a V/hile Bettmanacknowledged that concussions were on the rise, he inaccurately tried toexplain this away as the result of "accident events" and "not from headhits."1o5

d. 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

r03 Al Strachen, lntervention Spoils Sport, THE GLOBE AND MAIL (CANADA) Nov. 26, 1980r0a http://www.cbc.ca./sports/hockey/pacioretfy-injury-part-of-game-bettman- I . 1008959r05 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

In response to proposed congressional legislation in 1980 to curb violence inprofessional sports, NHL presidentZiegler was quoted.as stating that the NHLi'did.r't need tñe federal Government to interfere."l03

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continue to monitor."106 Bettman said it is premature to draw a connectionbetween hghting in hockey and chronic traumatic encephalopathy, or CTE.107The remarks were made in regponse to questions about the deaths of threeformer NHL players in 2011 who were prominent fighters, and a New YorkTimes article discussing the link between fighting and CTE. Bettman said hethought "in this whole area there is probably entirely too much speculationand 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 Hefurther explained "people need to take a deep breath and not overreact" andnot "over-conclude when the data isn't there yet."tt0

e. After a hght-induced concussion in 2013, and other fights, sparked league-wide dialogue about the issue, Bettman said fighting incidents "get moreattention than they probably warrant" and called the incident "a small pebblerelative to a beach full of sand, which is seeing an incredibly entertainingseason."lll In one incident, a goaltender "was not suspended for pummeling[an opposing player] because there is nothing in the rule book to use asprecedent."ll2 In response to the uproar, Bettman again praised the role offighting in the NHL, calling hghting a "thermostat" in hockey that helps coolthings 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:

a. Until at least 2009, a shoulder hit to the head was not even penalized.lla

b. Prior to 2013, the NHL encouraged players to remove head gear during fightsand penalized players for wearing a face shield while instigating a fight. TheNHL recently acknowledged in congressional testimony that these rules werebad because (a) if fighting occurs, head protection should be wom and (b)

I 06 http ://www.nhl.com/ice/news.htm?id=605 0 8 II 07 http ://www.nhl.com/ice/news.htm?id:605 0 8 1108

109

ll0

Id.rd.Id.

rlrhttp://sports.nationalpost.com/20l3llll11lnhl-commissioner-gary-bettman-says-debate-over-fighting-getting-too-much-attention/

r12 http://sports.nationalpost.com/201 3llllll/nhl-commissioner-gary-bettman-says-debate-over-fighting-getting-too-much-attentior/

rr3 http://sports.nationalpost.com/2013111111/nhl-commissioner-gary-bettman-says-debate-over-fighting-getti ng-too-much-attentiorV

rra http://sports.nationalpost.com/20l3llll11lnhl-commissioner-gary-bettman-says-debate-over-fighting-gefting-too-much -attentiorV

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hard head protection discourages players from fighting in the first place.llsOpposite rules were adopted in2013.

In Congressional testimony this year, the NHL recognized that "fightingremains 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 decidedhow 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 it is the NHL's "strong belief that the Players' health and safety will be

enhanced 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 of players and the chagrin of other scientific

researchers in the 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.

"t Daly 2014 testimonyr16 Testimony of William Daly, March 13,2\l4,available at

http://democrats.energycommerce.house.gov/sites/default/files/documents/Testimony-Daly-CMT-Sports- Safe ty -20 I 4 -3 - 13 .pdf

rr7 Wennberg RA, Tator CH (200S) Concussion incidence and time lost from play in the NHL during thepast 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 thepublic.").

c

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126. Between the time the NHL began its concussion study in 1997 and published

results from it in 2011, the NHL experienced increasingly devastating and highly publicized

career-ending concussions in its players. Many of 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.

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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

' ll9on 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.lte 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 onMonday, 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).

121 Id.122 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-discusses-lengthy-recovery-road-from-concussions-safety-oÊthe-game/articlel4l18504/ (last visitedMar.28, 2014).

r2a Angie Carducci, Crosby Talks Concussion, Blindside Hits, Inside Hockey (Jan. 8, 20ll),http://insidehockey.com/crosby-talks-concussion-blindside-hits (last visited }l4ar.28,2014).

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135. As a result of Hedman's hit on Crosby, Crosby felt additional concussion-like

symptoms the next duy.t" 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 lîthe 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 A Timeline of Sidney Crosby's Concussion and Recovery, THE CANADIAN PRESS (Sept. 7, 20ll),http ://www.nhl.com/ice/news.htm?id:5 8 7898 (last visited Mar. 28, 201 4).

,ru Id.127 Id.128 Id."'Dan 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 morerespect, WINNIPEG FREE PRESS, {pr.2,1998, at C3.

',' STATEMENT oF wILLIAM L. DALY BEFoRE THE HoUSE OF REPRESENTATIVESCOMMITTEE ON ENERGY AND COMMERCE, SUBCOMMITTEE ON COMMERCE,REGARDING CONCUSSIONS IN SPORTS, Submitted in connection with testimony on March 13,2014.

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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 internatíonal 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, J.P. Parise, remarked: "'We were not allowed to wear helmets. You would

get traded if you did. It was a no-no in no uncertain terms. You were a yellow belly if you wore

r32 No Helmet to Hang Up, New York Times (Apr. 30, 1997), available athttp://www.nytimes.com/ 1997 I 04 I 3 0 I sports/no-helmet-to-hang-up.html.

r33 Frank Fitzpatrick, Hazardous Despite A Player's Death, Helmets l|/ere Long lgnored, THEINQUIRER, (Jan. 13, 1988), http:llarticles.philly.com/1988-01-l3lsportsl262834l7_I_billmasterton-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'NL923 (r9s9).

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a helmet."l3ó 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, THEINQUIRER, (Jan. 13, 1988), http.,llarticles.philly.com/1988-01-13/sportsl262834l7_l_billmasterton-helmets-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, THEINQUIRER, (Jan. 13, 1988), http.,l/afticles.philly.com/1988-01-l3lsportsl262834l7_l_billmasterton-helmets-nhl.

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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 and winger with the Buffalo

Sabres, "was 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.tot 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 TheirHeads 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 .

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league American Hockey League, and collegiate hockey, the NHL does not mandate full face

visors or face cages, even though a study in 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 afücle 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. Unsafe Hard Plastic Body Armor

147. 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 wearingfull face shields vs half face shields. JAMA 1999;282:232812. This study and the next study citedwere conducted in part by Mr. Benson, who is listed as a consultant for the NHL in the 20ll NHLConcussion 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 athttp ://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 theUnited States as well as several Canadian hockey leagues currently have playing rules that mandatethe use of mouthguards."

"o Bodychecking Rules, s'upra, available athttp://www.plosone.org/article/info%3Adoi%2F10.1371%2F journal.pone.0069122.

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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. I s3

151. 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 concussiorì'. . . . '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 GLOBEAND MAIL (CANADA), Dec. 13, 2011, http://www.theglobeandmail.com /sports/hockey/elbow-shoulder-pads-under-scrutiny-in-bid-to-reduce-nhl-headinj uries/article4 1809461 .

r52 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/.

r53 Shoalts, supra.ts4 Id.ttt 5"" e.g., Jason Brough, Flyers owner: NHL equipment too hard (Dec. 13,2011),

http:/þrohockeytalk.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

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iii. Unsafe Rinks

I54. 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 New York Times article, NHL player Derian Hatcher was

quoted as saying: "It's hard. It doesn't move. It seems like guys will get injuries. Being hit into

,r . . , I rrl59tnls ls not run.

safety/qCK53CUq 1 upve13 SC9aidK/story.html.1tt 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

r58 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 CouldCut 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

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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 three years, until, prior to the 2000-2001

season, it adopted regulations requiring arenas with tempered glass to meet certain flexibility

standards.l6t The 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 NHL finally required all

arenas to convert the seamless glass system to a 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 Beþre 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 Cup defense, NHL.COM (Oct. 5, 2011)http://www.nhl.com/ice/news.htm?i d:59457 8.

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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: "'I was very unhappy and upset with that

hit'. . . . 'I was more upset there was nothing [in the League's rulesl to do to punish i¡.>>166

166. Prior to 2011, there was no prohibition on player checking or pushing a

defenseless opponent 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 20l3ll4

season when the league adopted a 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 EliteHockey. 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.

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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 of the NHL's rules in preventing concussions

is a recent scholarly finding that "most NHL concussions resulted from !gg! actions" not

prohibited by the rules - "[i]llegal incidents, where the aggressor was assessed a penalty, fine or

suspension, [only] accounted for 28.4Yo of cases for concussions and 36.8% of cases for

suspected concussions."1 7o

I7l. In 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 in2009 -10 than in 2010 -11 (IRR 0.61; 95% CI 0.45, 0.83), but did notincrease from 2010 - 11 to 20ll-12 (IRR 1.05;95% CI 0.80, 1.38).

'un R I" 48 - Ittegal Check to the Head, http://www.nhl.com/iceipage.htm?id:64063 (last visited onApr.4, 2014).

t1o Bodychecking Rules, supra (emphasis added), available athttp://www.plosone.org/articlelinfo%o3Adoi%2F10.1371%2Fjournal.pone .0069122.rt' Laura Donaldson, Mark Asbridge, Michael D. Cusimano, Bodychecking Rules and Concussion in EliteHockey, PLOS ONE (July 2013),http://www.plosone.org/articlelinfo%o3Adoi%2F l0.l37l%zFjournal.pone .0069122

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64.2% of NHL concussions were caused by bodychecking, and only28.4% of concussions and 36.8% of suspected concussions were caused byillegal incidents. We conclude that rules regulating bodychecking to thehead did not reduce the number of players suffering concussions duringNHL regular season play and that further changes or stricter enforcementof existing rules may be required to minimize the risk of players sufferingthese 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 orshould be part of the game," he said. "The best proof is that neither in theOlympics, nor in the world championships or in the World Cup of Hockeythere are ever any fights and no teams would imagine to carry a designatedgoon on a team filled with talented players. Hardly ever are there anyfrghts in Stanley Cup games because the stars take over when the gamesreally matter. Pre-arranged f,rghts between two goons are, according to me,revolting. If there are fans who enjoy fighting they should turn to othersports," said Fasel. "Our game should never cater to fans who go to gamesto see hghting. In an era where hockey has lowered its tolerance onrestraining fouls to in order to create a better environment for the stars, wesimply cannot tolerate Neanderthal behaviour. I 75

"' Id. at l.'t' Fighting not up for debate: Bettman, CBC Sports (Mar.26,2007),

http://www.cbc.calsports/hockey/fighting-not-up-for-debate-bettman-1.661551.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/nhl-commissioner-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 athttp://web.archive.org/webl20070929lll407lhttp://www.tsn.calnhl/news_storyl?ID:201287&hubname:

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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 thembare-f,rsted. Prior to 2013, the NHL even encouraged players to remove headgear during fights and penalized players for wearing a face shield whileinstigating a frght. The NHL recently acknowledged in congressionaltestimony that these rules encouraged fighting and decreased player protectionbecause (a) hard head protection discourages players from fighting_ in the firstplace and (b) if fighting occurs, head protection should be worn."u The ruleswere not overturned until 2013, but the NHL still insists that fighting is part ofthe game.

b. In 2009, the league finally announced that it "is ready to take steps towardregulating f,rghting and is currently researching the proper ways to make thepugilistic part of the game safer."l77 At a NHL meeting that year, the leaguemade a "very extensive" presentation "on our stats, the history of fighting,where we are at today, injuries," and the NHL "tried to categorize stage_4fights, fights that were responding to legal and illegal hits, a lot of things." r78

As of that time, the NHL's rules had failed "to eliminate fights after cleanhits."

In 2013, according to a press article, a goaltender "was not suspended forpummeling [an opposing player] because there is nothing in the rule book touse as precedent."lT9

c.

I75. Unlike the NHL, fighting is strictly prohibited in European professional hockey

leagues and 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 testimony1" Dan Rosen, Action under way to eliminate 'staged' fights, NHL.com (Mar. 20, 2009)http://www.nhl.com/ice/news.htm?i d:41325 5t" Id. The results of the NHL's study of fighting and the injuries that resulted from it have never beendisclosed to players.

ttn Stephen Whyno, NHL commissioner Gary Bettman says debate over fighting getting too muchattention, NATIONAL POST (Nov. I l, 2013) http://sports.nationalpost.coml20l3ll l/1l/nhl-commissioner-gary-bettman-says-debate-over-fighting-getting-too-much-attentior/

tto IIHF (2010), official Rule Book 2010-2014.

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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 ofcontact, and when such contact was avoidable. Olympic rules are stricter:they penalize a player who directs a check to an opponent's head and neckarea or forces an opponent's head into the glass or boards.

b. High-sticking: In the Olympics, unlike the NHL, a player who accidentallystrikes another with his stick when winding up or following through on a shotor pass will be penalized.

c. Protective equipment: In the NHL, if a player's helmet comes off, he can playwithout it until the next stoppage. In the Olympics, he must immediately go tothe 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 YORKTIMES (Feb. 1 l, 2014) http://www.nytimes.com/20l4l02l12lsportslolympics/olympic-hockey-is-the-same-except-for-thi s-and+hat.html?_r0

r82 Dennis rùValikainen, Researcher Studies Hockey and Football Concussions: It is Time for MajorChanges? MICHIGAN TECH NEWS (Jan. 30, 2012)http:i/www.mtu.edu/news/stories/20l2ljantarylresearcher-studies-hockey-football-concussions-time-for-maj or-chan ges.htm I

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d. Icing: The NHL uses hybrid icing, which permits a few high-speed chases tocontinue to the end boards. Olympic hockey uses no-touch icing; play stopsthe moment the puck crosses the goal line.

e. Behind the net: There is an additional two feet from end boards to goal line rninternational hockey, giving players more space in this area.l83 More spacefor players means less congestion for violent hits around the goal, where hitsfrequently occur.

f. Crease violations: Unlike the NHL, Olympic rules prohibit players fromstanding in the crease in front of the goal, where violent hits often occur. Playis stopped andaface-off is taken in he neutral zo.te.t8o

g. Goaltender Trapezoid: In the NHL, a goaltender may only play the puckbehind the goal line within the trapezoidal area behind the net. This limitationmakes it more difhcult for teams to clear the puck out of the defensive endand 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 handlethe puck anywhere behind the goal line.

177. 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 - or violence, if you

prefer - is essential to hockey's being hockey." The general manager of l.{HL's team Toronto

tt' Jeff Klein and Stu Hackel, Olympic Hockey Is the Same, Except for This and That, THE NEW YORKTIMES (Feb. I I, 2074) http://www.nytimes.com l20l4l02ll2lsports/olympics/olympic-hockey-is-the-same -except-for-this-and-that. html?_r:0

t84 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

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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 8Vo of cases where a player suffered a concussion between 1997-2004, the player returned in

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 HogeStory, 12 Seton Hall J. Sports & Ent. L. 17,63 (2002).

r8e Canadian Press, Leaf Battles Backfrom Concussion, THE GLOBE AND MAIL (Canada), March 12,1998.

tno Benson BW, Meeuwisse WH, Rizos J, Kang J, Burke CJ (2011) A prospective study of concussionsamong National Hockey League players during regular season games: the NHL-NHLPA ConcussionProgram. CMAJ I 83: 905-l I . doi: I 0. 1 503/cmaj .092190

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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 a

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 scoring low during the preseason.le3 Last month, NHL's

commissioner recognized that its protocol only works if players overcome their financial

incentive to be deceptive: "if 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 Pløyffi: Are the New NHL Concussion Protocols Really lVorking?BleacherReport.com (Apr. 18, 201I ), http://bleacherreport.com/article s1669655-headcases-are-the-new-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-for-concussions-could-be-fal ling-short

rea Mike Heika, NHL Commissioner Gary Bettman addresses several topics in his state of the unionspeech, Starblog.com (June 6, 2014) http://starsblog.dallasnews.com/2014l06/nhl-commissioner-gary-bettman-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 atLoyola University Medical Center in Maywood. Ill., thinks baselinetesting is, at best, irrelevant and that the increased use of baselinetesting is partially driven by tiability concerns. "The baseline test is sounreliable that it's certainly possible that (the player) could be completelynormal and be categorized as abnormal or they could be completelyabnormal and be characterized as normal," Randolph said. "They're notuseful for individual decision-making. It's kind of interesting how thepress and the public have a different take on this than the science. Thescience is clear. l9s

186. In contrast, many European leagues instead require a player who suffers a

concussion to sit out for three weeks. A period of mandatory rest after a concussion is far

superior 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 recentconcussion epidemic included the revision of its concussion managementprotocols. First, a doctor, rather than a trainer, must make immediatereturn to play decisions. Second, immediate examinations to detectwhether an athlete had suffered a concussion must occur in a quiet room,free from distractions, as opposed to on the bench, where suchexaminations would sometimes occur. The initial examination representsa strong improvement in the NHL's concussion management policy, as itincreases the likelihood of concussion detection. Where the old policyallowed 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-for-concussions-could-be-fal ling-short

'nu Brigidz2 NHL Concussion Policy: Is it Broken? Hockeywilderness.com (Feb. ll, 2013)http://www.hockeywilderness.com/2013l2lll13974248lnhl-concussion-policy-is-it-broken

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shift, the new policy requires a physician evaluation if an athlete exhibitsany of the following symptoms: loss of consciousness, motorcoordination or balance problems, slowness to get up following a hit to thehead, blank or vacant look, disorientation, clutching the head after a hit, ora visible facial injury in combination with any of the above. Whileboth the NHL and NFL have made positive changes to their concussionmanagement 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 concussions is

exemplified in its reaction to the recent Max Pacioretty incident, in which it shunned the

t" Mitch Koczerginiski, Article: l(ho is at Fault lThen a Concussed Athlete Returns to Action?,47 YalU.L. Rev. 63 (2012).

rnt Dennis Walikainen, Researcher Studies Hockey and Football Concussions: Is it Time for MajorChanges? MICHIGAN TECH NEV/S (Jan. 30, 2012)http://www.mtu.edu/newsistories/20l2ljanuarylrcsearcher-studies-hockey-football-concussions-time-for-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)http://www.cbc.ca./news /canada/montreal/pacioretty-released-from-hospital- 1 .999400

201 Pacioretty releasedfrom hospital, CBC.ca (Mar. 10, 20l l)http://www.cbc.calnews lcanada/montreal/pacioretty-released-from-hospital-l.999400

202 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

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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 he did not want criminal

charges, however, because he believed that "the incident, as ugly as 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 to assess the

"growing number" of serious injuries and head shots.207

197. NHL's sponsors also waded into the debate. In the days after the Pacioretty

incident, Air Canada, a leading NHL sponsor, sent a letter to the league threatening to

withdraw its sponsorship unless the NHL moves to impose sanctions to reduce potentially

serious injuries.2O8 A spokeswoman for 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 (Mar. 9,20 I l) http ://www.tsn. calcol umni sts/bob_mckenzie/?id:3 5 7 3 32

205 Pacioretty releasedfrom hospital, CBC.ca (Mar. 10,20 I I )http:/iwww.cbc.ca./news/canada/montreal/pacioretty-released-from-hospital- I .999400

206 Pacioretty injury part of game: Bettman, CBC.ca (Mar. 10, 201l)http://www.cbc.calsports/hockey/pacioretty-injury-part-of-game-bettman-1.1008959

207 Pacioretty released from hospital, CBC.ca (Mar. 10, 20ll)http://www.cbc.ca./news/canada./montreal/pacioretty-released-from-hospital -1.999400

208 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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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 issùe.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-most-sensitive-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-most-sensitive-area-its-wallet.html

212 Head-shot controversy touches NHL's most sensítive area: its wallet, Thehockeynews.com (Mar. 10,201 I ) http://www.thehockeynews.com/articlesl3897 4-Headshot-controversy-touches-NHls-most-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 will protect

2ta Pacioretty injury part of game: Bettman, CBC.ca (Mar. 10, 20ll)http://www.cbc.calsports/hockey/pacioretty-injury-part-of-game-bettman-1.1008959

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

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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

Plaintifß 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. Plaintifß 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 coÍìmon 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.

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(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 - NEGLIGENCE

214. Plaintiffs incorporate by reference all paragraphs, except under other Counts, as iffully set forth herein.

215. The NHL held itself out as a protector of players and a leader in educating players

about the dangers of head injuries. Further, starting at least as early as 1997, the NHL

voluntarily and gratuitously inserted itself into the business of studying (and subsequently

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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 NHL's wrongdoing.

217. 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

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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 will suffer as a result of the NHL's misconduct.

COUNT II - MEDICAL MONITORING


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. Repetitive MTBI during NHL practices and games has a microscopic and latent

effect on the 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 - sometimes over decades --

causes CTE, which is the same phenomenon as boxer's encephalopathy (or "punch drunk

syndrome") studied and reported by Hanison Martland in 1928.

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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, to subtle and repetitive

changes 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. Like the organizers of boxing, the NHL was fully aware of the danger of exposing

all NHL 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. As noted above, by its actions and omissions and fraudulent conduct, from at least

1997 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,

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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 of the NHL's tortious conduct, the Plaintiffs have

experienced an increased risk of developing serious latent neurodegenerative disorders and

diseases, including but not limited to CTE, Alzheimer's disease, andlor other and similar

co 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, early-

onset dementia, CTE, Alzheimer-like syndromes, and similar cognitive-impairing conditions.

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237. By monitoring and testing Plaintifß, 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 losses

due to concussions and sub-concussive injuries. Without Court-approved medical monitoring as

described herein, or established by the Court, the Plaintiffs will continue to face an unreasonable

risk of continued injury and disability.

COUNT III - INTENTIONAL HARM

241. Plaintifß incorporate by reference all paragraphs, except under other Counts, as iffully 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.

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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. As a direct and proximate result of the NHL's misconduct, Plaintiffs and the Class

have and will continue to suffer injuries.





COUNT IV _ FRAUDULENT CONCEALMENT


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

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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. As a direct and proximate result of the NHL's misconduct, Plaintiffs and the Class

have and will continue to suffer injuries. The damages suffered by Plaintiffs and the Class are

not attributable to any of lack of diligence in investigation.





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COUNT V - UNJUST ENRICHMENT


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 - NEGLIGENT MISREPRESENTATION

258. Plaintiffs adopt by reference all allegations contained in the paragraphs above, as

if fully set 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"

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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. Defendant's silence, their protocol of returning players to the game after an on-ice

evaluation 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.

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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 Plaintifß addressed the concussive and sub-concussive injuries they

sustained.

COUNT VII - DECLARATORY RELIEF


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. ç 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 of neuro-degenerative

disorders and diseases, including but not limited to CTE, Alzheimer's disease and similar

co gnitive-impairing conditions ;

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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 Plaintifß' 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 Plaintifß their prejudgment interest, costs and attorneys' fees.

JURY TRIAL DEMAND

Plaintiffs demand a trial by jury on all issues so triable in this Complaint.

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Dated: New York, New YorkJuly 25,2014

SUSMAN GODFREY L.L.P.

wArun Subramanian (432096)Seth Ard (SA 1817)560 Lexington Avenue, 15ft FloorNew York, New York 10022(212) 336-8330

(wc8478)

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JohnZaremba (3958)ZAREMBA BRO\ilNELL & BROWNPLLC40 Wall Street, 27th FloorNew York, New York 10005Telephone: (212) 400-7224Email : jzar emba@zbblaw. com

Brian D. Penny (8P0718)GOLDMAN SCARLATO KARON &PENNY, P.C.101 E. Lancaster Avenue, Suite 204Wayne, PA 19087Telephone: (484) 342-07 00Email : [email protected]

Counselfor Plaintffi

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Documents

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