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Like the NFL before it, the NHL has settled ongoing litigation regarding concussions suffered by former players. But unlike the NFL, the NHL did it for a pittance. The NFL's settlement committed the league to spending almost $1 billion in total damages, medical reimbursements, and future medical and psychological care. The NHL looks to be on the hook for about two percent of that -- around $19 million.
"The NHL does not acknowledge any liability for the Plaintiffs' claims in these cases," the league's statement announcing the settlement read. "However, the parties agree that the settlement is a fair and reasonable resolution and that it is in the parties' respective best interests to receive the benefits of the settlement and to avoid the burden, risk and expense of further litigation."
So, why the discrepancy?
The NFL's billion-dollar settlement will payouts to around 20,000 retired players and families. The NHL's tentative deal, on the other hand, will only cover 318 former players, just 146 of whom joined the lawsuit as plaintiffs. This is because the player-plaintiffs failed in their attempt to certify their claims as a class action lawsuit, which could have covered thousands of former hockey players.
There are certain elements that must be met, however, before a judge will certify a class action, one of which is "commonality" among the plaintiffs' claims. This was a sticking point for Judge Susan Nelson of the U.S District Court for Minnesota, mostly because the NHL litigation involved 26 separate lawsuits filed in several different jurisdictions, as Sports Illustrated Michael McCann pointed out:
While all of the players' claims center on a failure to warn and a failure to provide adequate medical monitoring, the claims invoked different states' laws that diverged on questions of medical monitoring. For instance, Michigan has rejected any independent claim for medical monitoring. Yet in Arizona and Massachusetts certain plaintiffs can recover for the costs of medical monitoring, albeit under different kinds of circumstances. Judge Nelson noted that states' laws on medical monitoring are simply too disparate for all of the former players to be in one class action. Although Judge Nelson acknowledged "sympathy" to the "the significant cost and the likelihood of duplicative proof in trying this case many times, for each individual player," she was left with no choice ... but to deny the proposed class.
Turning the Page
Without class action certification, the players had less pressure to exert on the league, and were always likely to settle for far less. Under the settlement, the NHL allocate $7 million to players who opt in, giving each plaintiff up to $22,000, and reimbursing qualified players up to $75,000 in medical treatment expenses. The league also agreed to set aside over $2.5 million for a "common good" fund for all retired players to pay for health and welfare matters. Overall, the settlement puts the NHL on the hook for around $18.9 million.
Again, nothing like the NFL's concussion settlement. The other side to not gaining class action certification, though, is that this settlement does not foreclose future concussion litigation for the league. Some players involved in these lawsuits may not opt in to the settlement, and therefore will be able to continue their litigation against the NHL along with the vast majority of retired NHL players who were not at all involved in this litigation.
So, while this particular legal chapter is over, the book on NHL concussion lawsuits may not be closed.