Canada: Could NHL Enforcers Sue The League?

Last Updated: October 5 2013
Article by A. Irvin Schein

Originally published at www.irvinschein.com.

As a lifelong fan of the Montreal Canadiens, I was as sickened as anyone else at the sight of Habs enforcer George Parros lying on the ice during the Habs home opener game against the Toronto Maple Leafs on October 1st.  

Parros was signed by the team to a contract paying him almost $1,000,000.00 for the season during this past summer. He was not signed for his scoring abilities. During his career as a professional hockey player, he has played for a variety of teams where he has served exactly one role, which is that of a professional fighter on skates. The fact that he was injured in the course of a fight to the extent that he suffered a concussion and will be out of the line-up indefinitely, should come as a surprise to no one.  

Over the course of the last year, at least three noted NHL "enforcers", retired and otherwise, have died. Those deaths gave rise to a flurry of comments from a variety of sources concerning the place of fighting in professional hockey, and particularly, whether or not additional rules should be implemented to discourage or outlaw it. The injury to Mr. Parros has sparked yet another such flurry.  

However, in an interesting article published online on TSN.ca on October 2nd, TSN Legal Analyst Eric Macramalla looked at the question of whether or not the NHL could be held liable for brain trauma sustained as a result of a career playing hockey.  

Mr. Macramalla refers to the legal action that had been commenced by a number of retired NFL players against the National Football League alleging that the League is responsible for the long-term effects of concussions which the players have suffered. The alleged basis for liability had to do with the proposition that the League was well aware of the long-term risks of brain injuries and failed to disclose those risks to players while they were active. 

In my view, there is a significant difference between the two sports when it comes to possible brain trauma. Football is an inherently violent sport. Heads collide on an ongoing basis as an integral part of play in the NFL. While equipment manufacturers have improved head protection considerably since the days of leather helmets, the other protective equipment worn by NFL players is probably equivalent to suits of armour worn by knights during the Middle Ages in terms of rigidity. If the NFL had scientific evidence as to the long-term effects of repeated collisions of this nature and deliberately withheld that information out of a concern for the future of the game, and its ability to generate revenues for team owners, that would indeed be a problem. Having said that, in professional football, it is hard to see that there are any steps at all that could be taken to prevent head trauma during play.  The only answer, as far as I can see, is to simply stop playing. 

Professional hockey does not, or at least should not, involve collisions between players' heads and other rigid surfaces as an inherent part of the game. These things do happen of course, and careers are sometimes ended as a result. However, for the most part, the most serious injuries of this nature seem to occur to those players whose main function is to fight. While fighting has always been a part of professional hockey, it does not absolutely have to be. To a significant extent, it is voluntary.  

It is theoretically possible that the NHL might well have evidence available to it that suggests that long-term brain damage can result from repeated trauma such as that suffered by NHL enforcers. If so, it is possible to construct a legal argument that might give rise to a damage claim. In my view, however, the possibility of a successful action of this nature is exceedingly remote. NHL enforcers are grown men who know what they are getting into when they sign contracts to be professional fighters on skates.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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