Case 1:14-cv-05732-SAS Document 1 Filed 07/25/14 Page 1 of 29 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ECF Case x Civil ActionNo.: DAN FzuTSCHE and CHRIS FERRARO on behalf of themselves and those similarly Jury Trial Demanded situated, Plaintiffs, CLASS ACTION COMPLAINT vs NATIONAL HOCKEY LEAGUE, Defendant. x 325365tv11014353 Case 1:14-cv-05732-SAS Document 1 Filed 07/25/14 Page 2 of 29 TABLE OF CONTENTS Page INTRODUCTION ............1 JURISDICTION AND VENUE ............4 THE PARTIES ... ............5 SUBSTANTIVE ALLEGATIONS ............6 I. NHL MARI(ETS AND PROFITS FROM EXTREME VIOLENCE.... ............6 III. EXTREME VIOLENCE AND FIGHTING IS PREVALENT IN the NHL................9 A. Extreme Violence Is A Prevalent Part of NHL Hockey... 9 B. Fighting Is Prevalent and Accepted By the NHL t2 i. NHL Considers Fighting to be Part of the Game . t2 ii. Fighting Occurs at Epidemic Levels in the NHL . l4 III. DANGERS OF HEAD TRAUMA IN NHL......... l7 A. Epidemic Levels of Head Trauma in NHL..... ...................17 B. Scientific Evidence of Dangers of Head Trauma ..23 C. Scientif,rc Evidence of Dangers of Fighting inNHL ..35 Iv THE NHL's KNOWLEDGE OF HEAD TRAUMA RISKS AND NHL'S DUTY 36 A. NHL's 1997 Concussion Program Study 37 B. Other Sources for NHL's Knowledge of Head Trauma Dangers..........................40 C. The NHL Downplayed Risks of Head Trauma 4I V. NHL DOIWNPLAYS AND CONCEALS RISKS OF HEAD TRAUMA 43 A. The NHL Downplayed Risks of Head Trauma .................43 B. The NHL Concealed Risks of Head Trauma..... ................45 C. Crosby's Head Trauma Exemplifies Dangers of NHL's Concealment.................47 i 325365Iv11014353 Case 1:14-cv-05732-SAS Document 1 Filed 07/25/14 Page 3 of 29 VI. NHL REFUSES TO REDUCE HEAD TRAUMA RISKS ..48 A NHL's Role as Caretaker for Players. ..48 B Unsafe Player Equipment and Rink.... 49 Unsafe Helmets.... 49 11. Unsafe Hard Plastic Body Armor...... ....................52 iii C. Unsafe Playing Rules........ 55 VII. INEFFECTIVECONCUSSIONPROTOCOL 62 VIII. THE NHL SPURNS CALLS FOR CHANGE 65 A. Max Pacioretty Incident in 2011................ 65 x. TOLLING OF THE STATUTES OF LIMITATIONS.. 69 X. CLASS ACTION ALLEGATIONS 70 COUNT I - NEGLIGENCE....... 7l COUNT II - MEDICAL MONITORING.. 73 COUNT III - INTENTIONAL HARM 76 COUNT IV - FRAUDULENT CONCEALMENT 77 COUNT V - UNJUST ENRICHMENT.... 79 COUNT VI - NEGLIGENT MISREPRESENTATION 79 COUNT VII - DECLARATORY RELIeF 81 PRAYER FOR RELIEF... 82 JURY TRIAL DEMAND.. 82 ll 325365tv11014353 Case 1:14-cv-05732-SAS Document 1 Filed 07/25/14 Page 4 of 29 The above-captioned plaintiffs ("Plaintifß"), by and through multiple undersigned counsel, bring this complaint against the National Hockey League, and allege, upon facts and information and belief, except for the allegations concerning Plaintiff s own actions, as follows. INTRODUCTION 1. This action arises from the debilitating effects of head trauma, including mild traumatic brain injuries ("MTBI"), caused by the concussive and sub-concussive impacts that have afflicted former professional hockey players in the NHL. For many decades, evidence has linked repetitive MTBI to long-term neurological problems in many sports, including hockey. The NHL, as the orgarizer, marketer, and face of the world's premiere hockey league, in which MTBI is a regular occuffence and in which players are at risk for MTBI, was aware of the evidence and the risks associated with repetitive traumatic brain injuries virtually at the inception of the league, but deliberately ignored and actively concealed the information from the Plaintiffs and all others who participated in organized hockey at all levels. 2. Ice hockey is a fast-paced and often physical game. But NHL hockey is characterized by extreme violence and f,rghting not seen in other elite-level ice hockey orgarizations, like collegiate hockey, European ice hockey leagues and the Olympics. 3. The NHL has expressly and regularly acknowledged that NHL hockey features extreme violence, including hghting: o In 1988, The Miami Herald quoted then NHL President John Ziegler as stating, "'Violence will always be with us in hockey."'1 In a 2007 press conference, NHL Commissioner Gary Bettman similarly boasted that "[flighting has always had a role in the game . [W]e're not looking to have a debate on whether f,rghting . should be part of the ¿ame."z Jerry Crowe, NHL President Ziegler Denies Problems of League, THE MIAMI HERALD, NIay 16, 1988. 1 3253651v11014353 Case 1:14-cv-05732-SAS Document 1 Filed 07/25/14 Page 5 of 29 4. Other hockey leagues, such as European hockey leagues and the Olympics, have nearly eliminated much of the extreme violence featured in NHL hockey, including fighting. Those leagues, especially the Olympics and other international competitions, play with the same level of talent, and many of the same players, as the NHL. 5. The NHL, which generates billions of dollars in revenue each year, has marketed the violence of hockey, profited from the violence of hockey, and fostered the violence of hockey through lax rules. For example: o The NHL has frequently admitted that it keeps violence in the game to raise revenue because "[o]ur fans tell us that they like the level of physicality in our game" and "our fans -- who continue to attend our games in new record numbers . -- want fthe game] to be physical" o A 1993 academic study of the NHL's profits from violence found that "there is a significant and positive relationship between aggregate measures of violence (total penalty minutes) and attendance for games played in both American and Canadian cities."3 o The NHL's rules are not successful in defeating concussions: a recent study of NHL concussions found that most NHL concussions resulted from "legal" actions where the aggressor was not assessed a penalty, fine or suspension. 6. Studies show that various forms of head trauma, including concussions, are observed in NHL players at epidemic levels. Many of these concusslons result from extreme forms of violence, including hghting, and inadequate NHL rules, equipment, and concussion protocols 2 Fighting not up for debate: Bettman, CBC Sports (Mar.26,2007), http:i/www.cbc.calsports/hockey/fighting-not-up-for-debate-bettman-1.661551. Jones, J. C. H., Ferguson, D. G. and Stewart, K. G. (1993), Blood Sports and Cherry Pie. American Journal of Economics and Sociology, 52:63-78. doi: l0.l llllj.1536-7150.1993.tb02742.x (emphasis removed). 2 325365tv11014353 Case 1:14-cv-05732-SAS Document 1 Filed 07/25/14 Page 6 of 29 7. The science has long been clear that concussions are highly dangerous to players' health, but the NHL has refused to take steps to reduce violence in the game in part for fear that doing so would hurt its profits. 8. Despite the fact that the NHL's violent game design induces head trauma, including concussions, the NHL has failed and continues to fail to warn its players of the risks to their lives and the devastating and long-term negative health effects. While the NHL has held itself out to players and the public as an educator on the health risks of concussions, and claims to have kept abreast of scientific research in order to convey that research to players, the NHL has affrrmatively concealed scientific evidence about the health risks and consequences associated with playing in the NHL from players, including head injuries. 9. The NHL even concealed the results of its own study of NHL player concussions conducted between 1997 and 2004. The NHL collected expansive data on player concussions between 1997 and2004, but the NHL refused to release any data or findings from this study until 2011, to the detriment of players who could have made more intelligent game-play, equipment, and back-to-play decisions if they had learned the results of this study earlier. When the NHL finally released a report on this study in 2011, the authors acknowledged that the report contained vital information that could help players make better decisions about concussions. 10. Not only has the NHL concealed facts about concussions, but it has also downplayed the head-injury risks of the violent aspects of the game, including f,rghting. For example: o In 2011, Commissioner Bettman explained that the rise in concussions was the result of"accident events" and "not from head hits."4 In fact, a subsequent study a http://www.cbc.calsportsihockey/pacioretty-injury-part-of-game-bettman- L 1 008959 & http://www.cbc.ca./news/canaday'montreal/pacioretty-released-from-hospital- I .999400 J 325365Iv1/014353 Case 1:14-cv-05732-SAS Document 1 Filed 07/25/14 Page 7 of 29 showed that only 4.9Yo of concussions during this time period were the result of unintentional contact. o ln20ll, Commissioner Bettman said of fighting: "Maybe it is [dangerous] and maybe it's not. You don't know that for a fact.") Mr. Bettman further said it is premature to draw a connection between fighting in hockey and chronic traumatic encephalopathy, or CTE. I l. Plaintifß seek damages, including punitive damages, ffid equitable relief on behalf of the Class. Among other things, Plaintiffs ask this Court to order the NHL to institute a medical monitoring program that appropriately cares for former and current NHL players, who have and will suffer lifelong health problems and risks as a result of the NHL's misconduct. JURISDICTION AND VENUE 12. This Court has subject matter jurisdiction over this matter pursuant to 28 U.S.C. $1332(d), in that the matter in controversy exceeds the sum or value of $5,000,000 exclusive of interest and costs, and is a class action of more than 100 potential Class members in which at least one Plaintiff is acitizen of a State different from the NHL.