THE NHL, BRAINS, AND LAWYERLY DENIAL

Back in 1988, the Surgeon General of the United States issued a report about the addictive qualities of tobacco. In summary form, its “Major Conclusions” were:

“1. Cigarettes and other forms of tobacco are addicting.

2.  Nicotine is the drug in tobacco that causes addiction.

3. The pharmacologic and behavioral processes that determine tobacco addiction are similar to those that determine addiction to drugs such as heroin and cocaine.” — The Health Consequences of Smoking: Nicotine Addiction: A Report of the Surgeon General.

All of that had been obvious to many smokers who’d tried unsuccessfully to quit — and to many others who had watched their efforts. But six years later, the presidents and CEOs of the seven major tobacco companies faced a continuing avalanche of tobacco-related lawsuits. Appearing jointly before a congressional committee on the health effects of tobacco, Congressman Ron Wyden posed a question that he asked each of them to go down the line and answer:

“Do you believe nicotine is not addictive?”

With only minor variations in word choice, one-by-one they replied, “I believe nicotine is not addictive.”

It became an iconic scene of corporate denial. Three years later, the companies did an abrupt about-face and settled the largest class action and government cases against them.

Not Quite Today’s “Tobacco Moment”

The tobacco episode came to mind as I read Senator Richard Blumenthal’s first two questions to Gary Bettman, commissioner of the National Hockey League. But there’s a critical difference: The tobacco executives stood together as one against the onslaught; Bettman and the NHL are all alone.

In a March 2016 congressional hearing, Representative Jan Schakowsky asked Jeff Miller, the NFL’s senior vice-president for health and safety, whether there was a link between football and degenerative brain disorders like chronic traumatic encephalopathy (CTE).

“The answer to that is certainly, yes,” Miller said.

It seemed reasonable to ask similar questions about hockey, and Blumenthal posed these two (among others) in a letter to Bettman:

  1. Do you believe there is a link between CTE and hockey? If you do not, please explain how head trauma in hockey differs from head trauma in football.
  2. Do you dispute that the documented CTE of former NHL players, like Derek Boogaard, is linked to injuries sustained while playing in the NHL?

Bettman reframed the first question and ignored the second one.

A Lawyerly Treatment

Bettman is a graduate of NYU Law School. The league’s litigation attorneys probably drafted his 24-page response to Blumenthal. But he signed what is essentially a legal brief outlining the NHL’s defenses to former players’ pending litigation against the NHL.

Bettman’s reframing of the first question is subtle: “The core of your letter goes to the question of why the NHL has not acknowledged a ‘link’ between playing hockey and developing CTE if an NFL executive may have done so with respect to football.”

Then he recites in great detail the scientific community’s failure to reach consensus on the causation between concussions in contact sports and CTE. Scientific consensus is the way experts approach research issues. But it has never been the standard by which ordinary, everyday people decide whether to engage in an activity. For example, it takes far less than a reasonable degree of medical and scientific certainty — the legal standard implicit in Bettman’s letter — for a parent to make a decision about what is best for a child.

For starters, a scientific study requires a sufficiently large sample size. For CTE, the sample is tiny and will be for a long time. Confirmation of CTE occurs only by examination of a deceased person’s brain. To date, only 200 brains with CTE have been analyzed. As athletes die, the sample size will increase, but it’s a slow process. Even in brains found to have CTE, isolating all variables to identify the specific contribution of contact sports is a daunting task that will take years, assuming it happens at all.

Here’s another way of reframing Bettman’s position on this issue: The NFL shouldn’t have acknowledged the link, either.

And Another Thing…

Bettman then suggests that the key difference between football and hockey is the frequency of hits to the head. That’s why for years boxers were the exclusive subjects of brain injury studies. Interestingly, footnote 37 of his letter defends fighting as an essential element of hockey:

“Outside the context of ‘staged fighting,’ we note also that players (not just Club General Managers) believe that some types of fighting — though penalized — play a useful and worthwhile role in protecting ‘skilled players’ from being targeted by more aggressive opponents because any such ‘targeting’ activity is capable of being appropriately ‘policed’ by a teammate… [S]pontaneous fights — which, of course, are also penalized — provide a ‘safety valve’ that enables players to confront opposing players in a less dangerous fashion than they might otherwise engage in through dangerous ‘stick work’ or cheap shots.”

But not to worry. Bettman notes that only two of the league’s video-analyzed concussions resulted from fights. And please, let’s not discuss NHL Deputy Director Bill Daly’s 2011 email: “Fighting raises the incidence of head injuries/concussions, which raises the incidence of depression onset, which raises the incidence of personal tragedies.”

And Another Thing…

Finally, Bettman says that the NHL has educated players on the dangers of concussions. But he says it’s premature to provide a formal warning about CTE. In fact, he suggests, it could even be dangerous to do so. Players might decide they have an irreversible brain disease when they have only depression or other treatable disorders that have similar symptoms.

He concludes with an example. Rather than respond to Blumenthal’s question about Derek Boogaard, Bettman turns to another former player, Todd Ewen. After Ewen committed suicide. his autopsy showed no CTE. Because his widow said that she and Todd “were sure Todd must have had CTE,” Bettman leaps to an absurd conclusion: “This, sadly, is the type of tragedy that can result when plaintiffs’ lawyers and their media consultants jump ahead of the medical community.”

The Real Troublemakers

For Bettman, the villain in “the current public dialogue about concussions in professional sports (as well as youth sports)” seems to be “media hype driven in part by plaintiffs’ counsel.”

In December 1994, another NYU Law School graduate, NFL Commissioner Paul Tagliabue said: “On concussions, I think this is one of those pack journalism issues, frankly…The problem is a journalist issue.”

Twenty years later, what Bettman describes as the absence of medical consensus about the causal relationship between concussions and CTE didn’t stop the NFL from agreeing to a $1 billion class action settlement with 5,000 former players claiming brain injury. On the sliding scale of monetary awards to those victims, former players who died “with CTE” are in the second highest dollar recovery category — with a maximum of $4 million.

The NHL is only two decades behind.

3 thoughts on “THE NHL, BRAINS, AND LAWYERLY DENIAL

  1. If fighting is needed in the NHL to protect more skillful players from being roughed up, why does no other professional sport–or college hockey or international hockey–permit it?

  2. As a long time player, coach and fan at the amateur level, I will safely say Bettman is a highly overpaid dweeb and a dolt. Bettman should be on the receiving end of an illegal and vicious crosscheck from behind into the glass….Maybe then he would re-evaluate how to address what happens when your brain bounces around inside your skill. He, like, Goodell, do not live in the world with the players’ best interests at heart….just sayin’

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