Guest blogger: Marc Weissman … on concussions and lawsuits


(Editor’s note: The opinions in this guest blog post belong solely to the author)

By Marc Weissman

Well, first off, I’m not surprised in the least that legal action against the league has become more prevalent.

When Derek Boogaard died from an overdose of Oxycontin — while having undergone treatment within the NHL’s rehab program, btw — it immediately raised doubts in my mind about whether he was solely responsible for his own death or perhaps the league’s program was somehow negligent for not being aware of telling symptoms earlier on. Then when Rick Rypien and Wade Belak died moths later — with causes being labeled as depression and suicide — the idea that the league was now facing a “chronic” problem and not just an exception to the rule — especially given all three players were known “enforcers” — that definitely foretold potential litigation coming from, at the very least, the deceased players’ families.

Rangers Report logoThe fact is, more and more well-documented, scientific evidence has been published about the short and long-term, life-debilitating effects of concussions, regardless of their severity. And despite all the “marketed” steps the NHL has taken towards reducing the incidence of hits to the head and fights (aka “repeated blows to the head”), the bottom line is these action do still occur, and at relatively alarming rates compared to most sports, with the possible exception of football. And since the NHL has obviously yet to ban fighting outright, any so-called “good” lawyer can easily argue that the league has not done nor did not do all it could to reduce those incidences, and thus can be held at least partially responsible for a player’s reduced quality of life or, tragically, his death. So again, not surprised that the number of law suits has grown in number more recently.

Now, for those using the argument: “Well, these players KNEW what they were getting into by playing pro hockey in the first place” or “If they didn’t want to get injured, just pick another line of work”, from a legal standpoint, it’s not as simple as that. Yes, hockey is a dangerous job. And so is construction work, for example. Or welding. Or working in a nuclear power plant (think Erin Brockovich.) But no matter what “dangerous” job is considered, the onus to make the working conditions “as safe as possible” lies on BOTH the employee AND the employer. Quite simply, that’s why workmen’s comp exists. If you are hurt on the job — even while falling from a dangerous scaffold on a construction site — you, the employee, are STILL potentially entitled to workmen’s comp if you can show that the scaffolding was unsafe in some way or perhaps your helmet was not certified, etc.

The point is, there are unique circumstances for every injury’s occurrence while doing ANY job, and the known level of risk for a particular job is but one factor in the overall case(s). How well the employer does at mitigating those risks is another factor and ALWAYS debatable, especially when you consider a sport like professional hockey.

So again, can’t say I’m surprised that it has become as litigious as it has … nor that it will continue to be as more and more “victims” come forward. That’s just the reality of the medical, legal and business scenarios are they exist today.

Photo by Getty Images.


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  1. Marc, Thanks for bringing and important topic to the bonehead blog, but please read up no workers’ compensation insurance and New York Labor Law before discussing them in your article.

    First, Workers’ Compensation Insurance is a “no-fault” coverage with a few exceptions, such as self-inflicted injury or injury incurred while under the influence of self-administered alcohol or other drugs. This was designed to remove employee lawsuits from the clogged courts during the turn of the century. Concussion clearly comes under coverage of workers’ compensation laws, which vary state-to-state (a NY Ranger could bring a claim in another state, let’s say Illinois if the injury occurs during a Blackhawks game) if the benefits are greater…it’s complicated, but at the same time, very simple. Workers’ Compensation is what we call a “statutory coverage” and the insuring agreement in any workers’ compensation policy states “we shall pay the benefits as proscribed by law”.

    Second, NY State is the only state in the U.S. currently with a “work at height” law, the NY Labor Laws. I will not get into the pros and cons (it does create serious problems of insurance supply for those organizations that have employees working at height in or on a man-made structure, and causes much confusion about what insurance coverage is adequate to protect employers) and it is a complex, challenging issue. What you are proposing by analogy would be to allow individual players to sue the NHL for negligence if they suffer a diagnosed concussion, and bypass the no-fault benefits accorded under the workers’ compensation law. This does create all sorts of problems for the NHL and its teams beyond the price and availability of workers’ compensation insurance, for the insurance policy responding would be its general liability policy.

    In your scheme, the teams would have to obtain general liability coverage with the *employee exclusion* deleted (every policy’s standard wording excludes certain scenarios that are properly covered (and accounted for by their actuaries through statistical rate analysis, including injury by a fellow employee, which is normally covered on a workers’ compensation policy.) This would cause liability insurance premiums for hockey teams to skyrocket. Yes, it would draw more attention to concussions, but is more likely to cause financial problems to the league and is possibly akin to using a sledge when a ball pein hammer would do the trick.

    Sorry, I’m a fourth generation insurance broker (with my own firm) and have taught a course on workers’ compensation insurance for wilderness recreation providers…While I couldn’t ignore these technical flaws in your guest column, I do agree with your premises that concussions must be dealt with much more seriously by the league, and failure to do so will result in long term problems; however, insurance is not the way to do this, unless you can impose outside industry standards that the teams must abide by to comply with insurance underwriter loss control recommendations (with the threat of losing their insurance for non-compliance).

  2. One quick correction to my obvnoxious epistle…the exception is for *intentionally* self-inflicted injury, and NY Labor Law (ther “scaffolding law”) allows employees to sue a building owner, as well as their employer.

    This means that the hockey players could sue the venue, including MSG and possibly a municipality, a real estate holding company, etc. While this may seem like a good thing to you (in terms of the players’ leverage to sue for head injuries) it would cause havoc on the insurance side, and send rates unnecessarily through the roof, possibly making liability insurance coverage unattainable for smaller market teams.

    The other problem regarding workers’ compensation is that, as mentioned previously, it covers on a state-by-state basis, and the laws in the U.S. are different than the laws in Canada.

    I think you have your heart in the right place and have the right idea about removing head injury from the game; however, you need to look a little deeper before proposing an insurance-based solution.

  3. Good morning, boneheads!

    Well written, Marc, Thank you.

    Not surprised about the increased amount of legal actions against the NHL either. But don’t expect too many changes any time soon.
    Gary Bettman on that issue: “There isn’t a lot of data, and the experts who we talked to, who consult with us, think that it’s way premature to be drawing any conclusions at this point”. Translation? It’s a big money making proposition, and hitting and fighting is a huge part of it. The NHL will not be making any drastic changes any time soon. They will hire more lawyers and medical experts. They will fend off some of the legal cases, they will pay to settle some of them.

    From a scientific/medical perspective, the situation isn’t that straightforward either. Scientist from Sports Legacy Institute in Boston, known to have the most advanced studies on CTE and its connection with depression, dementia, and suicidality, have their hands full. There aren’t enough cases statistically to confirm a clear-cut connection. And each case has some doubts. For example, is it possible that Boogaard’s behavioral changes were related to his drug abuse and not to his CTE? Rick Rypien, apparently, has suffered from depression since his early adolescence. Etc, etc. It will take years, and many more cases until what appears to be obvious to most of us becomes a proven scientific evidence. Until then, the NHL will not change.

  4. iManny-O-War on

    Wild places: I assume that the laws would be enforced differently in each state, as all personal injury claims in the US are. Without a particular law being passed by the NY State Legislature, there would be no way to bypass no fault in NY. In my opinion, I don’t see that happening.

    Well thought out everyone. Should be an interesting debate today!

  5. Marc…small point of information, I believe Erin Brokovitch was the PGE litigation legal aide in a case where chromium was discovered as the cause of a serious cancer cluster near their facility in California.

    You may be thinking of Karen Silkwood, the union activist who fought the industry management at the nuclear plant where she worked in Oklahoma.

    Otherwise, you make excellent points well taken…and the NHL does not seem to take this grave issue seriously. Thank you for this guest column!

  6. The very existence of today’s topic is quintessential epitome of the summer emptiness. IMHO.

  7. Old ranger Fan on

    It would be interesting to see data (if any exists) from European leagues where fighting is rare and the larger ice surface reduces the number of violent collisions along the boards. Intuitively, one would expect there to be less concussions. I wonder if this is actually the case.

  8. I’m not sure there is ANY concussion or injury data for over this side of the pond. From my experience the bigger rinks and the general style of puck-possession (over a dump-and-chase or crash-the-net) leads to fewer hits per game. Players tend to abort entries into the zone and pass backwards to avoid giving up possession.

    There are still fights, some a bit more wild than others:–nhl.html

  9. Doodie Machetto on

    The post is written well. That’s all I’m going to say. I am not going to comment on the substance one bit.

  10. Rob in Beantown on

    And I’ll take that advise under cooperation, alright? Now, let’s say you and I go toe-to-toe on bird law and see who comes out the victor?

  11. Doodie Machetto on

    You know, I don’t think I’m going to do anything close to that and I can clearly see you know nothing about the law. Seems like you have a tenuous grasp on the English language in general.

  12. Doodie Machetto on

    That lawyer guy, okay. He totally besmirched me today, and I demand satisfaction.

  13. Jeff in South Dakota on

    Carp, awaiting moderation for using the colloquial for Richard. Please release my comment. Thanks.

  14. Marc Weissman on

    All I can say is WOW!

    Thanks so much to everyone for your incredibly well-thought-out responses, esp wildplaces’, whose comments provided a huge amount of insight. And I would be remiss, too, if I didn’t thank Rick for posting my guest column in the first place.

    As for the legal implications I brought up, first off, I am not a lawyer and never professed to be one. Nor am I involved in the legal profession – except with regard to patent ownership. So I very much appreciate clarification on many of the misconceptions I had about workman’s comp and how it differs from state to state. That helped immensely so thank you for that.

    Second, in no way am I advocating or not advocating that the players or their families sue the league. My point was merely that it didn’t surprise me that they would take action, misguided or otherwise.

    While I realize that there are studies that convey at least a remote link from hits to the head to post-concussion syndrome and subsequent emotional/physical changes in behavior, there are other studies that refute these findings. But again, as we all know, not having 100% proof either way does not preclude one from filing a lawsuit. It just means there is less assurance that one will win the suit. Again, I never said the suits were a slam dunk, nor did I say that they they were frivolous in any way. While I am not a professed “legal expert”, I do know there is A LOT of gray area when it comes to most legal matters. That really was my only point with regard to the increase in litigation.

    As for whether the league has, in fact, taken sufficient action to minimize or eliminate the possibility of concussions, I seem to recall HHOFer and current Tampa GM Steve Yzerman publicly questioning how can the NHL claim to be so steadfast high-and mighty – I’m paraphrasing here – against hits to the head, yet still allow fighting, which at its very core is “repeated hits to the head” – without a player being subject to immediate expulsion and/or suspension every time.

    Whether Stevie Y’s point is to eliminate fisticuffs or not really is moot. His REAL point was the lack of consistency in the league’s stance on the matter. As of now, it arguably gives the impression of the NHL talking out of both sides of its mouth, for lack of a better phrase. In other words, Yzerman’s point is either you want those types of hits removed or not. But don’t be all “they are dangerous to the game and the players” on the one hand, but then allow them as some sort of “required safety valve” on the other. THAT, I must say, can be construed as very hypocritical. And going back to the legal take on all of this, it’s borderline self-incriminating when one of the league’s OWN management reps is now documented as saying there is an inconsistency in the NHL’s view and responsibility with regard to the issue.

    Again, not saying which side is right or wrong. Just that it raises questions. Questions that some clearly feel are better hashed out in a court of law rather than at some old boy’s network, Board of Governors meeting. That’s all.

    Thanks again, everyone, for chiming in. Very much appreciated. :)

  15. Good job, Marc!

    I think, *irregardless* of opinions, the precedent is being set by the NFL.

  16. This might be my favorite bit of analysis this summer, from The Boston Globe this weekend:

    “The rearranging of money ($6,666,667 in from Richards, $5.825 million for 2014-15 out to the three RFAs, with the difference earmarked for Moore) may be a wash. But it doesn’t mean the Rangers will be as good as they were last year. They’ll probably be worse.

    The Rangers will always be competitive with HenrikLundqvist in goal. Ryan McDonagh will be a Norris Trophy finalist some day. Rick Nash is a puck-hungry behemoth. These are star players.”

  17. Marc Weissman on

    You’re right, Gravy. The NFL is definitely a large player in all of this as concussions have increased in football as well as in hockey. But I wouldn’t necessarily say they are setting the precedent per se.

    Hockey, i.e. the NHL, was actually the first pro league to legislate against hits to the head to reduce impact, which is kind of ironic given how things have transpired more recently.

    Plus, no matter what experience and knowledge is gained from the NFL, the fundamental differences b/w the 2 sports with respect to speed of the action, presence/absence of the boards, equipment design, number of collisions per game, not to mention having a stick in your hand, for goodness sakes, all come into play when looking at the issue as it relates to either the NHL or the NFL or any other sports league for that matter.

    But you raise a good point that the two leagues can definitely cross-pollinate their findings, and hopefully find a solution to the problem without significantly affecting the integrity of their respective games.

  18. Doodie Machetto on

    “The Rangers will always be competitive with HenrikLundqvist in goal. Ryan McDonagh will be a Norris Trophy finalist some day. Rick Nash is a puck-hungry behemoth. These are star players.””

    Two out of three ain’t bad.

  19. *Behemoth* is a fantastic *Metal* band from Poland. Their album, _The Satanist_ , is, to date, the best *Metal* album of 2014 (in my *opinion*)

  20. Cap hit is still 4.7 into end of 2019. Boy should fire his agent. And should get the ‘C.’

  21. ThisYearsModel on

    Concussions? Everyone has a take. Here’s mine. You cannot eliminate them from the game entirely. However, to say that you are addressing the issue of head injuries the way Bettman has, yet then gut the “Department of Player Safety” from actually suspending guys for targeting the head is a joke and a travesty. In youth hockey, head contact is at least a 2:00 minor and a 10:00 misconduct these days. Meanwhile, the NHL has a department of Head Shot Excusers that look for every opportunity to absolve the violators. Apparently, the NHL would rather pay off lawsuits than actually do something about this issue. They should either say that the head shots are a risk the players take to play in the NHL, or they should truly do something about it.

  22. Prust’s deliberate, reckless head shot on Step, as an example, should have drawn 30 games. He had to know he was gambling with #21’s career.

  23. Doodie Machetto on

    Stempniak wearing 12. Does nobody care about the legacies of Olli Jokinen and Patrick Rissmiller?

  24. Doodie Machetto on

    Speaking of Rissmiller, Piss-swiller is the best name parody I’ve ever seen.

  25. Doodie Machetto on

    If I were Tavares, I would have said “get me the most money you can on a contract that brings me right to UFA so that I can get the eff out of here ASAP.”

  26. Jean Ratelle should never have been traded and #19 should have been hanging from the roof, not worn by Richie.

  27. Doodie Machetto on

    Footnote: he still plays in Switzerland, where he has played every year since he dropped out of North America. He’s been a top 10 scorer just about every year he’s been there until two of the past three, even leading the league in scoring once. Coincidentally, the two years he was less than top 10, were our ECF and Cup Final runs.

  28. Doodie Machetto on

    Fast taking #91. Speaking of former Rangers 91s (there are only two), Grachev posted a paltry 17 points in the KHL last season. For everyone who raves about Duclair and Buchnevich as potential third round steals, I point you to Exhibit G as the example of “wait until he does it in the NHL.”

  29. *LOL* Doodie.

    I wouldn’t be surprised if Rod Gilbert dropped #7 for Danny, when he makes the team this year :)

  30. Rob in Beantown on

    Speaking of numbers, the Rangers confirmed Dan Boyle will wear #22, making everybody’s life easier.

  31. I agree Doodie. Look at St. Croix. numbers. He had a 105 & 95 pt seasons in juniors last year, and could make the AHL team last year.

    But I like DUKE’s size, and with 99 pts, he has a chance to bring that skill to the varsity in a couple of years.

  32. 76 goals in a rookie season.

    That is a record that won’t EVER be broken, with how the game has changed so much.

    But it was a nice Day Dream :)

  33. Doodie Machetto on

    I wouldn’t be surprised if nobody scored 70 in a season ever again, rookie or not.

  34. “Everyone says you should be a good loser. If you’re a good loser, you’re a loser.”
    – John Tortorella

    As Charlie Sheen says, ‘WINNING!”


  35. Did any of you read the series of articles in the Times about Boogard? There were some heartbreaking/tear jerking Moments In That piece. Not sure how to address this issue.

    Nice write-up, Marc. Thanks!

  36. iWicky
    Heard that was really good!

    August 4th, 2014 at 11:39 AM

    If we don’t resign carcillo, anyone interested in bissonette as a 12/13 fwd?

    August 4th, 2014 at 2:03 PM

    Am I BANJing?

    August 4th, 2014 at 9:04 PM

  37. clearly I WAS banjing, what the falk carp?!

    a little notice or update for falks sake!!!!!

  38. ZzZz NYR ZzZz© East Champs on




    His SLAPSHOT goal that won us the game and won me MONEY was the greatest time Ive ever felt on the blog.

  39. Good morning, boneheads!

    Excited, GregL? I remember that goal, against Washington. I’m pretty sure they lost that game though…I remember that bet of yours, forgot who was the bonehead who lost it to you.

  40. The answer is clear: we have to make it illegal to get a concussion. Tell these players we will not tolerate anymore head injuries. So stop getting concussions, guys.

  41. I read the NY Times articles on Boogaard. Incredible story, but also tragic that he was allowed to get where he was by his doctors and to a certain extent his friends, family and team-mates too.

  42. Doodie Machetto on

    I think it would be easier if we just legislated out having heads. That way, we completely eliminate the risk of concussions.

  43. Doodie Machetto on

    Tyler Dellow just got hired, probably by Edmonton.

    He literally manufactured his own dream job.

  44. SN – I have nothing today. Outside he is in a 8 week boot camp in the middle of MN, he will be in top physical shape. Then I’m thinking all the local Sioux boys gather at WeFEST this weekend, kick back and relax have a few beers and listen to some country music, and camp with 70,000 WeFEST fans. I ran into Oshie, last year as he was visiting some guys next to our camp. That was kind of cool. Met Parise earlier this year at Cullen’s event, even bought him a beer.

    But I’ve never met Kristo, Nelson, or Frattin yet.

    I’m going to take my cousins kids to meet Greene next week, on the 12th. Perhaps I’ll write a guest blog about it, I’m hoping work doesn’t get in the way.

  45. Gannett spins off. Will concentrate on, then will ruin that by editorially criticizing readers who drive.

  46. Doodie Machetto on

    @fearthefin I wish “talk about how terrible my prospective employer is for a decade” worked for me as an interview strategy

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