TORONTO — $18.9 million. $1 billion.
After years of legal wrangling, the N.H.L. and hundreds of its retired players announced a settlement to the players’ concussion lawsuit last Monday. $18.9 million. In 2013, after years of similar wrangling, the N.F.L. and its players announced their settlement. $1 billion. There are other details, some of them significant, but this is the one that stands out.
Lawsuits are about power. The power of legal argument. The power of money. The power of time. The power of circumstance.
Those who have power know when they’ve got it, and they know, especially, when the other guy doesn’t. The game was over earlier this year when Judge Susan Nelson denied the players’ bid for class-action status. N.H.L. Commissioner Gary Bettman knew it. The players’ lawyers knew it. The rest was a rush to settlement.
The result was a blowout.
The biggest problem is that the settlement has nothing to do with the essential problem. It does, or seems to, if you are an N.H.L. team owner and you are looking for predictability in costs and risks. But it doesn’t if you are a player, past, present or future, with memory problems, depression, anxiety, anger, difficulty in solving even simple problems, let alone C.T.E. or some other neurodegenerative disease.
It also doesn’t if you are a child, or the parent of a child, who wants to play but isn’t sure, and who might do lots of other interesting, exciting things instead of play hockey. And it doesn’t if you are a government decision-maker and have some responsibility for the safety and well-being of the public. If you move beyond the immediate glow of victory, it doesn’t even for any N.H.L. team owner willing for a moment to hang his owner’s hat on a hook, put on his real-life person’s hat and choose to know the life of the brain-injured person — and not just the player — he once employed. Or still does. The settlement doesn’t take away hits to the head. It doesn’t say anything or do anything about the game itself.
Hockey has never been played better by more skilled and exciting players. Always the world’s fastest game, because of sprint-short shifts of 35 to 40 seconds, it’s gotten faster. And yet, as if overnight, the dexterity of the players’ hands and the creativity of their minds have caught up with the speed of their feet. Everything suddenly is in sync. It’s because of the 11 months a year of training, even for kids; the increase in games and practices; the specialty coaches and the all-sports networks whose highlight clips show kids and other N.H.L. players what, until that moment, was impossible. The combination passing plays are breathtaking. So too, the mid-ice hits, with the immediate thrill of their impact, and the slightly delayed cringe that follows.
A court settlement doesn’t mean these brain injuries didn’t happen, or won’t continue to happen. It means that the courts aren’t the best instrument to resolve these matters.
Many thought they were. Awareness, media outcry, governmental flailings hadn’t worked. The courts surely would. They had to. Hundreds of millions of dollars or more were at stake. Insurers, who don’t like to be on any hook, would apply pressure on the league. But even the N.F.L. settlement, many multiples that of the N.H.L.’s, its financial liabilities divided by many billion-dollar teams over many years, represented barely a ripple in an ocean. In the end, these lawsuits are about settling the past, not about making the future. They were always, like an improved helmet, the answer that has never been the answer. The answer because it had to be and nothing else is.
The real answer is what it’s always been. Nearly a century ago, penalties were introduced in hockey for high-sticking and elbowing, recognizing the special vulnerability of the head. The rules need only be extended to other hits to the head. The brain doesn’t distinguish whether it is struck by a stick, elbow, shoulder or any other part of the body. Or whether a hit is intentional or accidental, legal or illegal. The damage is the same. As Terry Gregson, a longtime N.H.L. referee and former head of the league’s officiating, has said, go into the N.H.L. rule book, find Rule 48.1, “Illegal Check to the Head,” and delete one word. There should be no such thing as a “legal” hit to the head.
The players will adapt. They do it a hundred times a game, they’ve done it their whole lives. Coaches, too. For Bettman and his advisers: See the game that is played on the ice there in front of you and on every community rink everywhere in the world. Don’t see the game still played in your own minds. It doesn’t exist.
The players have moved way past it. Don’t get in their way. Don’t allow headhunting or head-reckless players who are the exceptions to determine the game. Just watch the best players in the sport, like Sidney Crosby and Alex Ovechkin, and the new great stars, like Connor McDavid and Auston Matthews, and the next 50 best, and the next 100, and 200, and 400 — they play tough, they play bruising, they play head-smart. To play this game of today and of tomorrow, players need their full physical capacities, and they need the full capacities of their brains.
Now comes the next interesting stage. The head hits continue. The concussions and brain injuries continue. Their life-affecting, life-diminishing symptoms continue. It’s not that as science knows more, it will reveal that these hits are less of a problem, or that new diagnoses, treatments and protocols will result in injured players being doctored back to full, or near-full health. There’s not one doctor or researcher who believes that. What we will come to know about the impact of these injuries in the future will make what we now know seem benign.
So if the media and the courts aren’t the answer, that leaves governments, and more intense, and less-forgiving, public scrutiny. The problem is no longer one of awareness. There is plenty of awareness. The problem is a commissioner who doesn’t take the awareness, and act.
The 12th of November seemed like a very good day for Bettman. He was inducted into the Hockey Hall of Fame on the same day that the court settlement was announced. He was very generous in his induction speech, as you expect he would be. He has been the N.H.L.’s commissioner for more than 25 years. It was a career-affirming moment.
At times like this, many who are being honored will say something like, “Thank you. I will work to earn this great honor for the rest of my life.” They will say that because it’s a nice thing to say, because they know of lots of others who have done similar things but have gone unnoticed, and because deep down inside them, where the generous words of others can’t reach, they know what they’ve done, and they know what they haven’t done. During Bettman’s years as commissioner, the N.H.L. has expanded from 24 to 31 teams, its footprint in the United States has broadened, franchise values have increased, the league has created a salary cap. But legacies are tricky things. Bettman’s full legacy is still to be written.
The brain doesn’t pay attention to lawsuits and settlements, to who won and who lost, to celebrations and honors. The brain doesn’t care. And games are played tomorrow.
This is about power. For Gary Bettman and the N.H.L., they had the power to win. Now it’s about the power to do what’s right. It’s about the power to do what needs to be done.
Ken Dryden played for the Montreal Canadiens from 1970-79. He is a member of hockey’s Hall of Fame, a former cabinet minister and a former member of Canada’s Parliament, and the author of “Game Change: The Life and Death of Steve Montador, and the Future of Hockey.”
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