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Mediation

NHL, former players enter mediation over concussion claims

Circumstances will likely have to change before former professional hockey players can hope to come to a mediated settlement with the National Hockey League (NHL) over their concussion-related claims, Toronto mediator Bernard Morrow tells AdvocateDaily.com.

The Associated Press recently reported that the league and former players have entered mediation as part of a U.S. lawsuit brought by ex-players, but NHL Commissioner Gary Bettman downplayed the development.

"The judge asked us to go into mediation and so we're complying with the judge's request," he told the news agency, adding that "we also think the lawsuit doesn't have merit." 

Morrow, principal of the full-service dispute resolution firm Morrow Mediation, says Bettman's attitude suggests the chances of a settlement at this point are low. 

"For mediation to have a reasonable chance of resulting in a settlement the disputing parties need to be invested in the process," he explains. "That said, I’m encouraged by the judge’s recommendation and Bettman’s willingness to follow it.

"Even at this early stage, mediation offers a valuable opportunity for the exchange of interests and information, which can serve to set the stage for ongoing dialogue, risk assessment and future negotiations," Morrow says. "Even if mediation doesn’t result in a settlement now, it may be a first step towards creating a foundation for further settlement discussions." 

The Toronto Star recently contrasted the fortunes of ex-hockey players pursuing damages for head injuries suffered while playing the game with their counterpart retirees from the National Football League (NFL).

While the NFL agreed to a $1-billion settlement for former players suffering from neurological and cognitive damage back in 2013, the NHL shows no sign of backing down and recently won a big victory when a U.S. judge denied its former players class-action status.

Morrow says that ruling helped put meaningful mediation further out of sight in the hockey concussion fight.   

Part of what makes a case like this ripe for mediation is the ability of a number of parties with similar interests to exert collective pressure on the other side to sit down and talk,” he says. “In light of the denial of class-action status, the hockey players are now stuck advancing individual claims. There’s no formal way to bring the players together at mediation. It will be interesting to see how the players and the mediator address this challenge at the mediation table."

Morrow says there are a number of key distinctions between the claims of players in the two sports that help illustrate the different legal paths they have followed.

For example, the Star reports that more than 5,000 former players filed claims against the NFL ahead of the settlement, claiming league administrators knowingly hid from them the dangers of repeated hits to the head.

Meanwhile, the Star says just 140 hockey players have launched actions in the last four years, with each claim being met by a robust legal defence from the NHL, questioning the legitimacy of scientific evidence linking physical hits to brain trauma.

Morrow says the NHL’s approach may be influenced by Bettman’s reputation as a hard-nosed New York litigator. On the other hand, he says the hockey players may also have found public sympathy for their plight watered down by divisions in the ranks of retired professionals.

He says there is no shortage of “old-school” players who view concussions and other injuries as part of the game. In addition, many of the league’s front-office roles are filled by former players, further blurring the lines between the two camps.

“If any of those 140 players want to pursue a case, they’re going to face a certain degree of alienation and ostracization from some of their fellow retirees,” Morrow says.

In the case of the NFL, he says the amount of money at stake, the collective pressure of the players and the weight of public opinion all combined to make settlement a more attractive option than continuing with the litigation — even if they could demonstrate a valid defence.

“I don’t think the NHL is there yet,” Morrow says, adding the league clearly understands the concept of BATNA — best alternative to a negotiated agreement — an idea he frequently explains to parties appearing before him.

“My sense is that Bettman and the NHL are playing their BATNA. They bet on the players not getting certification at the risk of some public relations fallout, and they won,” Morrow says. “They’re still playing the legal card while monitoring the public-relations landscape. 

“There may come a time when a hue and cry from fans changes the league’s view and they start looking seriously at a mediated settlement, but so far, it doesn’t seem to be affecting interest or attendance at games. If and when that changes, so too might Bettman’s attitude towards mediation and settlement,” he adds.

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