NFL Concussion Settlement vs NHL Concussion Settlement

By Jeff Nixon
Nov. 15, 2018

The NHL and its former players have reached a settlement over the concussion lawsuits, but it falls far short of what we were able to achieve in our Settlement with the NFL. The New York Times reported that the Settlement will cost the NHL only $19 million.

We had a handful of players that died with CTE that received more than that! And, unlike the NFL Settlement, Death with CTE was not even covered under the NHL Settlement. Right now, the NFL Concussion Settlement is on track to exceed over one billion in total costs.

The NHL Settlement will pay just a little under 7 million to 318 former players - which comes to $22,000 per player. I can hear the NHL owners popping Champaign bottles all the way up in Canada.

So, what happened?

First and foremost, the “apathy” of former hockey players is what happened.

One thing that made a huge difference in the NFL Settlement was the number of players that filed lawsuits. We had over 5,000 plaintiff’s – many who were Hall of Fame players and other high profile players.

The hockey players didn’t seem to give a puck - only 146 guys filed lawsuits, although another 172 are included in the Settlement as “unfiled” claimants who retained counsel before the effective date of the Settlement.

Charles Zimmerman, the lead lawyer for the retired hockey players said “They denied the link between neurocognitive problems and the game of hockey, and felt that the players were not injured and wouldn’t participate in large numbers. They were right on that.”

An ESPN article quoted Daniel Carcillo, who played nine seasons in the NHL and posted several messages of displeasure with the settlement on his Twitter account. In one of his tweets he asked Hall of Famer Wayne Gretzky for help, saying that "lack of pressure from former players is a direct result of this insulting attempt at a settlement."

He's right, but I have a feeling that insulting one of the greatest players in NHL history for not being more vocal, will do nothing for the hockey player’s cause.

The low number of hockey players filing lawsuits probably didn’t do much to impress the judge who ruled against giving the lawsuits “Class Action” status. Had the hockey players succeeded, more than 5,000 former players would have been allowed to join the case.

“The N.H.L. case makes the N.F.L. settlement look like a grand slam times 10,” said Paul Anderson, a sports lawyer in Kansas City, Missouri “But the facts in the N.F.L. case were far more egregious, the total number of players at the N.F.L. level was larger, and there was nonstop media reporting about it.”

That’s all true, but the reason there was non-stop media about our lawsuit was because former NFL players and our lawyers were proactive in getting our message out!

Deadspin compared the NFL and NHL Settlements saying that the $1 billion NFL Settlement was infinitely more than what the NHL players are getting and they attributed that to the NFL’s fear that their ex-players would be certified as a class.

Yes, former NFL players and the lawyers representing us were also smart enough to know that the risks and fears went both ways. We could have gone the distance - as some guys urged us to do - but if we had not Settled the case when we did, our fate might have been similar to that of the NHL players.

On top of the class action issue, we also had other rulings that could have sunk our ship before we even got out of port - legal hurdles like Preemption, Statute of Limitations and Assumption of Risk.

Former NHL players can still opt of the Settlement, but if too many of them do that, the NHL has the right to terminate the Settlement – just as NFL owners had that right under our Settlement.

The NHL settlement also calls for the creation of a “Common Good Fund,” which will provide $2.5 million to benefit the health and welfare of retired players of the NHL. If that sounds familiar it’s because the NFL did the same thing when we sued them for using our images in the “Publicity Rights” case. The only difference - we got $42 Million deposited by the NFL in our Common Good Fund!

I should also note that the NHL Settlement states: “In the event the Administrative Expenses, including the fees and expenses of the Claims Administrator and/or Lien Administrator, exceed $750,000.00, the excess amount shall be paid from the Common Good Fund and the payment of Administrative Expenses from the Common Good Fund shall have priority over any other payments from the Common Good Fund.” How long do you think it will take these administrators to eat up $750,000 and then start draining the Common Good fund?

The good news for the NHL players that agree to the Settlement is that each one of them will get $22,000 and the opportunity to be tested. If a neurologist and neuropsychologist find that they have cognitive impairments, they could receive up to $75,000 in prescriptions and medical treatment. It’s not a lot of money, but I guess it’s better than nothing – which is what the other 5,000 former NHL players that didn’t file lawsuits will be getting.

This is one of the reasons why I urged former NFL players to file lawsuits - there is no guarantee that you will be included in a Settlement.

I know that some former NFL players who hired a lawyer to file a lawsuit on their behalf are upset that they now have to pay that lawyer if they receive an award – whereas other former players that did not file a lawsuit, or hire an attorney, are eligible for the same exact benefits.

The 5,000 former NFL players that hired lawyers and filed lawsuits were the ones that created the momentum we needed to get the attention of the NFL owners. It was a sacrifice that eventually allowed another 15,000 players to be included in the Settlement.

There is strength in numbers. It’s easy to break one pencil in half, but try doing it when you are holding 20 pencils.

Former NHL players had to learn this the hard way.