The NHL concussion litigation – a second-class settlement?

On 12 November 2018, it was announced[1] that the National Hockey League (NHL or League) had agreed a tentative settlement with several hundred former players who had sued the League on the basis that it had not done enough to protect them from the dangers of head trauma.  In short, the lawsuit alleged that the NHL had negligently:

1. failed to warn its players of the short/long-term consequences of repeated concussions and head trauma,
2. failed to sufficiently care for its players after such injuries, and
3. promoted gratuitous violence, precipitating those very head injuries.

Although the terms of the settlement are subject to a 75-day “opt-in” period for the individual claimants (and would also need to receive judicial approval), comparisons are already being made with the National Football League (NFL) litigation settlement.[2]

Despite the apparent similarities, however, there are key differences between the NHL and NFL cases that have ultimately meant that – in raw economic terms – the corresponding settlements are chalk and cheese.   In this article, the author will consider:

• the terms of the NHL settlement (including how and why they differ from the NFL settlement);
• who might be considered the winners and losers in the NHL settlement;
• the significance of “class-action” status in US proceedings; and
• the relevance of the NHL and NFL lawsuits should similar proceedings arise in the courts of England and Wales.