There is a large number of mediation examples in international practice, especially in U.S. practice, that have ended in reaching a settlement. One of those examples will be presented in this article, a case known as the Concussion Lawsuit.
The case is about a proceeding between the NHL (National Hockey League) and a large number of current and former ice hockey players who play or have played in the NHL.
The NHL is one of the largest sports leagues in the USA and Canada, consisting of 31 hockey clubs, and it is the most important and most successful hockey league in the world.
The dispute in question began at the end of 2013, and the motive for initiating the proceeding was the death of three famous players in the summer of 2011. Those three players who died prematurely, as well as many others who joined the lawsuit, were the so-called enforcers – players whose main task in hockey is to fight with the opposing team. Enforcers, but also other ice hockey players due to the very nature of the sport suffer frequent head injuries and often experience concussions. In particular, the players who filed the lawsuits were of the opinion that the NHL as their league should have better prevented head injuries in players and warned their players of the possible consequences, especially given the general promotion of violent play which then caused such injuries to players.
Of the initial 10 players who filed a lawsuit by 2018, the number of plaintiffs has grown to more than 150 claiming compensation from the NHL for the health consequences suffered after playing hockey professionally.
In the period from 2013 when the initial lawsuit was filed until 2018 when mediation began, the NHL resisted any settlement or acknowledgment of any liability.
However, over 150 players who initially filed the lawsuit and the NHL were referred to mediation, and other players who would like to join the process will have to do so in a separate lawsuit or the mediation will be extended to them if a settlement is reached.
Thus, NHL players claim that during the game in NHL clubs they suffered concussions or head injuries which then caused a traumatic brain injury or increased the risk of such a traumatic brain injury. It is a serious injury that temporarily or permanently impairs brain function, and the consequences are memory loss, Alzheimer’s disease, depression, anxiety, suicidality and more. Such injuries are typical of professional athletes, especially those with frequent blows to the head, such as NFL players or American football players, which are also quite aggressive sports. One of the more controversial traumatic brain injuries thus was chronic traumatic encephalopathy from which former American football players often suffered.
Specific to such traumatic brain injuries is that the symptoms will appear to a greater extent only when the player stops active play, i.e. as a rule they do not appear while the player is still returning to the game, but only after retirement.
The basic question in this process was – Do players consciously take risks when they enter the game as professional athletes?
One of the basic principles for exemption from liability for damage is the consent of the injured party. A classic example of the consent of the injured party and thus release from liability is precisely participation in a sports game in which it is possible to suffer injuries, for example a boxer is aware that entering the ring and following all regulations can still suffer such a blow that can seriously damage health or even cause death. The same principle applies in the United States and according to the same principle, it is considered that an ice hockey player, which is in itself an extremely violent and aggressive sport, takes the risk that the sport plays in a professional game in one of the clubs within the NHL.
However, the situation is different if the sports league, in this case the National Hockey League, is aware of the potential health risk that may result from a particular game and does not choose to share it with the players.
The basis of the hockey players’ lawsuit is precisely the NHL’s alleged negligence, i.e. the NHL’s alleged failure to educate and warn players about the possible consequences of professional play and frequent concussions that can result in permanent neurodegenerative diseases.
Why would it be better to resolve this dispute in mediation than in court?
From a player’s perspective, the advantage of mediation is certainly the significantly shorter duration of mediation, as well as lower costs given the significant amounts of day in court in the United States. From the NHL’s perspective, there is certainly interest as one of the world’s biggest sports leagues to end the process without too much media attention. However, if the NHL admits its possible responsibility for negligence and failure to warn hockey players about the possible consequences of the game, this could open the door to players in other hockey leagues, but also in other sports (boxing, etc.) in which athletes also suffer frequent head injuries which can even alter the basic principle of exemption from liability for damage mentioned at the outset.
In November 2018, it was announced in the media that a settlement had been reached between the NHL and almost 320 former players after more than four years of litigation, and that part of the settlement included the establishment of a fund to test and treat injuries sustained during the game, with the aim of preventing the recurrence of such injuries in players.
Iva Babić, Attorney at Law