Posted by John Vrooman on Monday, November 12, 2018 in National Hockey League.

Interview with AP / USAToday. 

Followup AP / Second Class Settlement?

We are hoping someone like yourself can walk us through how the NFL and NHL concussion settlements are different and why. The NFL agreed to a billion-dollar settlement. It seems the NHL players got just $19 million (we are still working to confirm that number on the record, but that’s what we are hearing.) Why is there such a discrepancy?

That’s close. I saw elsewhere that the NHL settlement was reported at $18,922,000. There are several economic, legal and political reasons for the difference with the NFL reported concussion settlement of $1 billion.

First the NFL is the largest sports league in the world with total annual revenues of about $15 billion, 3 times the size of the NHL’s annual revenues of $5 billion.

Second, the NFL settlement covers all current and past NFL retirees which is in excess of 5,000 former players. Current and future NFL players are not included in the settlement. So the NFL is protected against future litigation (for 65 years). The NHL settlement has been limited to 318 NHL players who were actual litigants in the suit.

These NHL players must sign a Release of Claims form to get their settlement benefits. “Any claims you had, have or might in future have against the NHL or any NHL related person or entity, having to do with health or injury, are forever waived.” 

The third and more political reason derives from the divergent public relations response of the two leagues to the brutal nature of their games and more importantly, the acknowledgement of brain damage systematically inflicted on their own players.

The NFL decided to settle its concussion suit during its ongoing chronic public image nightmare of the mercenary treatment of its players. By comparison, the NHL chose to fight the damage claims with a lame excuse of owner ignorance of the established medical connection of player brain damage and life and death on the NHL ice.

“The NHL does not acknowledge any liability for any of Plaintiffs’ claims in these cases. 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.”

The judge in this case ruled against making the NHL lawsuit a class-action suit. Is that a factor?

Yes it severely limited the damages to the NHL owners and benefits to the NHL players. This decision essentially forces the 318 players involved in the suit to settle and prevents the participation of all other potential litigants.

So it will seem that both sides “won” in a positive-sum (win-win) settlement but it was really a lopsided negative-sum victory for the owners. A minor fraction of the NHL players collectively won modest concessions that they would have had zero chance in obtaining in one-on-one isolation v. the League. But the NHL owners skated away with a major victory by gaining current and future protection from liability claims by its current and future players.

In this “scorched earth” settlement, the hear-no-evil strategy is for NHL owners to deny, deny and deny any prior knowledge of and responsibility for the established link between concussions on NHL ice and chronic neurological brain damage.

Unfortunately, the classic tactic in labor negotiations is for NHL owners on almost all bargaining issues to divide and conquer players past, present and future against themselves along seniority lines. This is usually done by offering a minor voting segment of the NHL players the illusion of modest concessions at the greater expense of non-voting players. Divide and conquer is a negative sum game for the players that creates a positive sum long-term profit for the owners.

What does this settlement mean, if anything, for retired players who might be staring at years of dementia, etc.

They still face the stone-cold truth of the chronic repercussions of concussions on life, neurological trauma and death after the NHL.