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Has the NFL concussion settlement set precedent for the NHL lawsuit?

Filed only months apart, the NFL's concussion settlement is in the final stages while NHL's continues. 

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In this Sep 25, 2015 file photo Manitoba Winnipeg Jets defenseman Ben Chiarot body checks Edmonton Oilers left wing Taylor Hall. The National Hockey League is in the throes of a legal fight over concussions with more than 100 former pro hockey players in a similar class-action lawsuit seeking $5 million.

Bruce Fedyck/USA Today Sports/File

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In May, the National Football League settled a class-action lawsuit over concussions, agreeing to pay about $1 billion over 65 years to more than 20,000 retired NFL players.

The National Hockey League is also in the throes of a legal fight over concussions with more than 100 former pro hockey players in a similar class-action lawsuit seeking $5 million.

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Is this an indication that professional sports leagues generally are coming to terms with a serious injury issue – and ultimately will make their games safer? Maybe. But the way the NHL concussion lawsuit is being handled suggests that distinct differences – and tactics are emerging.

For example, the public concern over concussions is already influencing how youth football is taught and played. 

And the NFL, as required in their settlement, is to "provide $10 million in funding to support education programs promoting safety and injury prevention with respect to football players, including safety-related initiatives in youth football."

Andrew Brandt, director of the Jeffery S. Moorad Center for the Study of Sports Law at Villanova University, says "There has been a positive trajectory in the NFL, starting in 2009 with those congressional hearings, which really called the NFL on the carpet." 

By 2014, the NFL had already committed $45 million to its Heads Up football program for youth leagues founded to "advance player safety in the game of football."  As of July 1, 2016 the program has helped lower concussion and injury rates in the participating high school football teams. 

And that's reflected down the line in youth football. For example, the El Paso Park and Recreation Department in Texas is limiting the number of games each player can play in per week and eliminating championship games in 6-7 year-old leagues to lower the risk of concussions. 

But changes to youth hockey – or the pro game – to make it safer are no part of the NHL case, at least so far.

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Players from both sports say their professional leagues have long been in denial. While the NFL now accepts there may be a connection between how the game is played and serious head injuries, the NHL isn't there yet. 

“One of the biggest differences you see going forward is the NFL players all pointed to the MTBI committee [the NFL's Mild Traumatic Brain Injury committee founded in 1994 and was renamed in 2009 the Head, Neck, and Spine Committee] and said you lied to us,” says Thomas Buckley, assistant professor at the University of Delaware.

In March, when asked directly if there was a link between football and degenerative brain disorders, Jeff Miller, the NFL's senior vice president for health and safety policy, said, “The answer to that is certainly, yes.” The New York Times reported that "his response signaled a stunning about-face for the league, which has been accused by former players and independent experts of hiding the dangers of head injuries for decades."

Mr. Buckley says that “NHL players are in large parts saying the same thing to the league, that you mislead us, you hid this information...." But he adds that the former NHL players don’t have the same type of evidence that the NFL players had.

While Buckley points out one of the main differences, Reed Larson, a former captain of the Detroit Red Wings, says that the main similarity between the lawsuits is "the type of injury and effect of the injury on your personal life after you're done."

"The difference is, I think the NFL finally recognized that it was a problem and they wanted to say 'hey what can we do to help?'" Mr. Larson says in a phone interview. 

But unlike the NFL, so far the NHL isn't trying to make the game safer – for professional or youth hockey – as a result of this concussion lawsuit, says Stuart Davidson, a lead attorney representing the NHL former players.

The NHL lawsuit opened up a court-ordered window on league officials' view of the problem by making public internal emails.

“There is an internal NHL email from the NHL [senior vice president of communications] Gary Meagher where he clearly chastises his own people in saying we the NHL have never been in the business of trying to make the game safer at these levels,” says Mr. Davidson.

Meagher's email says that the difference between the NFL and NHL is that the football league "is in the business of selling that they are making the game of football safer at all levels." 

One reason the NHL may not be ready to concede any changes in how the game is played is that NHL officials reject the idea that there's any connection between fighting during a hockey game and concussions.

In 2011, Gary Bettman, League Commissioner, said making such a connection was premature. 

"With respect to what Boston University might find on CTE, they're still looking at a very limited database and in those particular cases there is no control element because you have to look at everything that went on in the person's life before you make a judgment on what a brain may show when you open it up," Bettman said in response to John Branch's three-part New York Times series about former NHL player Derek Boogaard, titled "Punched Out: The life and death of a hockey enforcer."

In May 2016, Mr. Bettman reiterated the view that the medical evidence of concussions leading to CTE isn't conclusive yet.

But even some NHL team owners disagree with this stance.

Nashville Predators owner Tom Cigarran wrote in one of the NHL emails released via court order that “As I have tried to get across, ANY hit to the head MUST be a Major penalty and result in a suspension. We would be the last league to take this position so this is not a RADICAL concept. The cost of our delay is huge in financial terms and In terms of damage to player careers as well.... Our incremental approach to change to mollify them has gone on too long. I intend to bring this up at every owners meeting until the changes are made. Enough is enough.”

While some say the NFL’s concussion settlement sets a precedent and the criterion for making other sports safer, Buckley says that it may have just opened the door to more lawsuits between sports leagues, their players, and former players.

“This is inevitable. This will be in rugby, it will be in soccer, it will be in lacrosse,” Buckley said. “Hopefully moving forward we are doing a better job of this ... but I think [concussion lawsuits] are going to become quite commonplace.”

NHL lawsuit has been in the litigation process for more than two years, starting on Nov. 25, 2013, just a few months after the start of the NFL lawsuit.  Why is the case taking this long? 

"Maybe the NHL feels they have a stronger case, maybe they feel they can wait it out longer than the football players," says Prof. Brandt at Villanova.

Larson, the former NHL player, says he hopes all the players who are struggling get the help they need. 

"As good a job as Gary Bettman and the League has done progressing this sport of hockey whether its on TV, radio, the marketing, the jobs for players that are hired, it's great but how can they be so negligent about this type of injury?" Larson says. "Not every person is going to suffer from it, not every post player or veteran player, retired player. None of us want it. We hope we never get it. But for the guys that have it, there should be help."