On the heels of the NFL $765 Million Concussion lawsuit settlement comes a proposed class action filed by 10 former NHL players.
This high profile lawsuit seeks damages based on allegations that the NHL fraudulently concealed or otherwise kept relevant data about concussive risks from its players and further that the league failed to take reasonable safety precautions in the face of ever growing knowledge about traumatic brain injury. You can click here to read the NHL Concussion Class Action Complaint
While none of the claims have been proven in Court the lawsuit will, at the very least, result in a prolonged scrutiny of concussions in hockey, the league’s knowledge of these risks and their actions (or inaction) in the face of this knowledge. The allegations are founded in fraud. If proven true these allegations can work to get around limitation periods and expose the league to significant damages.
Whether there is any merit in this claim or not, there is a lesson to be learned from the recent wave of sports concussion lawsuits and it comes down to informed consent. Yes contact sports and combat sports are dangerous. Yes some of these risks are obvious. Others are less so such as the accumulation of trauma from a career of subconcussive impacts. Combat sport promotions should ensure that their athletes have an up to date understanding on the connection between concussive/multiple sub concussive impacts and long term brain injury. As previously pointed out, retired Canadian MMA fighter Nick Denis demonstrated that not all fighters agree to carry on with a career in MMA after learning of these risks. Failing to facilitate athlete’s appreciation of CTE and other long term consequences not only undermines informed participation, it can also lead to the legal troubles that are now plaguing the NHL.
The UFC has already turned their mind to this issue and built lawsuit waivers into their fighter contacts where combatants agree that MMA is an “inherently and abnormally dangerous activity” which gives rise to many health risks including “irreversible neurological trauma” . While it is good to work this into the fine print the message needs to be clear and consistent. Waivers are not iron clad. Allegations of fraud can be used to undermine these. It is in the long term interests of all stakeholders in the MMA community to have a real and honest appreciation of the risks that come with participation. Doing so can enhance participant safety, ensure informed consent and minimize the risk of future litigation.