Former hockey pros and the NHL are locked in a legal war over head trauma

Once, in a game against the Calgary Flames, Los Angeles Kings star forward Bernie Nicholls was elbowed in the face so hard he broke his jaw.

Once, in a game against the Colorado Avalanche, a stick to the face split Nicholls’ head open for 25 stitches on his forehead.

Once, in a game in San Jose, Nicholls was left dizzy and dazed after Gary Roberts kicked his feet out from underneath him.

Nicholls was never diagnosed with a concussion. He finished all three games. Years later, the now 54-year-old battles daily dizziness, vertigo, headaches and a fleeting memory that "seems to be getting worse every day." After more than 1,200 combined regular season and playoff games in the NHL, the repeated hits to the head from a violent sport have taken their toll.

Nicholls isn’t alone.

For many NHL alumni, the damage done by repeated head trauma presents a harsh reality. That’s why more than 200 former players are pursuing litigation against the league they claim didn’t do enough to warn them of the potential long-term health risks. After watching the NFL and its former players reach a $765 million settlement over head trauma this April, NHL players decided to come forward, according to the lawyers for the former players. Originally, several players launched individual lawsuits, but they have since formed into a class action suit due to the commonality of their efforts.

With the NHL players' suit now in discovery, newly unsealed documents and depositions from the likes of commissioner Gary Bettman, NHL executive vice president Colin Campbell, Boston Bruins owner Jeremy Jacobs and Kings owner Philip Anschutz, among others, are shedding light on the NHL's internal policy on concussions. Among the documents, an email in 2009 from NHL Deputy General Counsel Julie Grand to Bettman discusses future plans for the handling of concussions and suggests the NHL "leave the dementia issues up to the NFL!" Another reportedly details that, during the 2010-11 season, 31 of 86 players who suffered concussions returned to the game, while an internal memo sent to the NHL's Board of Governors outlines the league's position that it has "no desire to engage in" settlement discussions, and criticizes the NFL for prematurely settling its case before entering the discovery phase.

The NHL didn’t respond to multiple requests for comment on concussions and the litigation but has argued that the lawyers for the plaintiffs have been "feeding perhaps interesting but legally irrelevant information to reporters," according to TSN’s Rick Westhead.

Stephen Grygiel, a co-lead counsel in the case, said the litigation is about helping to support the players with assessment and treatment costs. "To get monitoring for brain function, to get monitoring and brain testing for incipient Alzheimer’s, neuro-degenerative diseases, dementia, all the results that come from a lot of hits to the head, that stuff requires medicine, requires treatment, and the players need to be able to get that," Grygiel said. "That’s really what it’s about: taking care of the retirees. I would hope that’s not a controversial proposition."

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The players' suit alleges that lives were ruined because the league didn’t properly educate and inform players of the potential consequences of concussive and sub-concussive hits. As Nicholls and others have argued, the effects of their head trauma aren’t just physical, either. They’ve changed. He’s changed.

As an assistant coach with the Kings during their 2012 Stanley Cup run, Nicholls was forced to attend anger management sessions. There, the doctor asked him to lock up his guns. He admits to having "snapped" and had "violence issues," something he said is new. "I don’t remember as a younger person ever being really violent or anything like that," he said.

This change in personality is common in those who have suffered head trauma, according to Dr. David M. Reiss, a practicing professional sports psychiatrist and author of papers such as "Head Injury, Stress and Reactions to Medications and Drugs." Blows to the head can often cause depression or anxiety while also dulling a person’s cognitive ability. "It can make you more prone to bad decisions," Reiss, who has treated NHL players, said. Add in drugs or alcohol and those affected by long term post-concussion issues can turn violent, too. "You may do okay one time, it may put you into a rage another time," Reiss said.

Matthew Holahan, an associate professor in neuroscience at Carleton University, is currently in the midst of studying varsity athletes’ reactions to concussions. His project has found that blows to the head impede judgment and make it harder to distinguish between right and wrong. After a player suffers a concussion, their brain has a difficult time acknowledging "when you see this, don’t do that," according to Holahan.

For many players, their status post-concussion is both scary and fragile. Stuart Davidson, another of the lawyers representing players in the suit, fears for his clients’ safety. "They call me very depressed, they call me literally at their wits' end not knowing what life has in store for them," Davidson said. He encourages them to seek professional help but some retirees have said that the insurance provided by the Players’ Association is too expensive, forcing them to go without the help they need.

"I kid you not that what they’re dealing with is the depression you would not wish on your worst enemy," Davidson said. "They talk to me about how they just drove home that night and actually considered just driving their car right into a wall. And these people have kids, they have wives, they have parents, and it’s scary as hell."

Down the line, the 18-year veteran Nicholls says he and his fellow retirees are going to need "serious help." To that end, Nicholls and a growing swell of former players are speaking out about their struggles in their own words. Past and present NHL players such as Rich Clune, Malcolm David, Mike Peluso, Gary Leeman and Daniel Carcillo have written about the toll head trauma has taken on them and their colleagues. Carcillo has started the Chapter 5 Foundation, an organization dedicated to helping former players transition to life after hockey.

With increasingly vocal discussion, the retired players' class action suit has been gaining support. Last week, four more retired players joined the litigation. One of them, former enforcer Krzysztof Oliwa, suffered more than a dozen concussions during his playing career, according to the complaint. Oliwa claims he does not remember playing in some games, even after watching highlights, according to court filings. Another player, Rudy Poeschek, joined the litigation this week and suffers from "insomnia, short term memory loss, anxiety, mood swings and anger issues, forgetfulness, and general frustration." In his 364 career NHL games, Poeschek was in 90 fights. He points to blackouts and feeling spacey following altercations with Craig Berube, Mark Tinordi, Donald Brashear, Dave Brown and others.

"The only treatment Mr. Poeschek received for each of his concussions was an ice bag on head and stitches, if needed," the filing said.

The conversation about how the NHL handles concussion protocol is a vital one. According to a Journal of the Canadian Chiropractic Association paper, concussion incidents are actually on the rise as players grow bigger and stronger, with a mean of 64 reported concussions between the 2005-06 and 2011-12 season, the data peaking in the final year of the study. Still, Nicholls appreciates the changes the NHL has taken to protect players, including a recent step to introduce mandatory concussion spotters at every game and moves towards sending players for ‘quiet room’ testing when a hit to the head is sustained.

"I think what they’ve done now is awesome," the three-time NHL all-star said. "You watch the game today, if you get hit in the head in any way, it could be as innocent as you think, right away you’re sent to the quiet room and you have to pass a concussion test before you can play again."

But these protocols didn’t exist when Nicholls laced up. "There was no support when I played," he said. "No team doctor or trainer ever said when guys get hit in the head, 'you know what, I don’t know if you should continue to play, you’ve had a concussion so you better sit this out.'"

Stitches, a broken jaw and hundreds of hits later, Nicholls is worried about his health. "When you fall back onto the ice and hit your head, there’s nothing worse than that," he said, taking a deep breath.