by Ken Dryden
On July 22, Bettman responded in the form of a twenty-four-page letter, single-spaced, that included forty-one footnotes and ten bibliographical references. He began by suggesting to Blumenthal that some of his questions “appear to be premised on misconceptions that have been repeatedly promoted in the media” by the lawyers for former players now “pursuing concussion-related litigation against the NHL,” and that he, Bettman, appreciated the “opportunity to correct the record” and to share with Blumenthal “important information on these topics.”
“First and foremost,” Bettman wrote, “we want to state in no uncertain terms that the health and safety of NHL players is a top priority for the NHL and its member Clubs, as well as the National Hockey League Players’ Association.” He continued: “Without question, head injuries, including concussions, are worthy of serious medical attention and care.” The rest of his letter continued in the same tone of restrained concern.
He told Blumenthal about the actions the league and the NHLPA have taken, its “Concussion Program”—“the first of its kind in professional sports”—its Injury Analysis Panel and “Concussion Protocol”; its Department of Player Safety, “the first of its kind in professional sports,” and the league’s efforts to inform the players of the risks of head injuries. But most of his letter focused on CTE and scientific studies, and how they relate or don’t relate to hockey and the NHL. He mentioned the work of several brain experts, and most notably cited the 2012 Consensus Statement on Concussion in Sport, of which many of these experts—including Dr. Robert Cantu, he noted—are signatories, and which states, as Bettman quoted, “It was…agreed that a cause and effect relationship has not yet been demonstrated between CTE and concussions or exposure to contact sports.”
“It is this medical consensus,” Bettman explained to Blumenthal, “that has guided, and will continue to guide, the NHL on the topic of CTE, unless and until there is sound medical evidence to the contrary that can be relied on.” Further, Bettman added, no scientific study has shown a causal link between concussions suffered by players in the NHL and degenerative brain diseases of any sort.
Bettman ended with a cautionary tale. It was the story of former NHL player Todd Ewen, a “so-called ‘enforcer,’” who committed suicide, who had suffered some of the effects of concussion, including depression, but whose autopsied brain showed no signs of CTE. Bettman quoted Ewen’s wife: “[W]e were sure Todd must have had C.T.E.,” she told the media, and because symptoms don’t always mean the existence of a concrete condition, she said she hoped that anyone suffering from these kinds of effects “takes heart.” Bettman concluded:
This, sadly, is precisely the type of tragedy that can result when plaintiffs’ lawyers and their media consultants jump ahead of the medical community and assert, without reliable scientific support, that there is a causal link between concussions and CTE. Certainly, a more measured approach consistent with the medical community consensus would be a safer, more prudent course. I hope this letter satisfactorily responds to your inquiry.
Three weeks later, on August 15, Blumenthal replied. It was short, only three pages (and four footnotes) long; more angry than it was substantive. “Your letter notes concussions can cause ‘long-term lasting effects’ like ‘permanent brain injury’ and ‘permanent brain damage,’” Blumenthal wrote, and yet “the league appears unwilling to consider even the possibility that concussions cause CTE.” Later he asked Bettman, “Why is the league so seemingly indifferent to seeking more answers—choosing to sit on the sidelines and ‘monitor’ the matter instead of urging and supporting research needed to determine whether hockey players are at a heightened risk of debilitating disease?” Before suggesting what Bettman’s actions might be instead, Blumenthal again reminded him that “The NHL is a big business that produces an estimated $4 billion in annual revenue. Much of that revenue is made possible by exemptions from federal antitrust laws, and local and state support. The NHL has a duty to behave responsibly in light of its public trust.” Blumenthal then wrote, “I urge you to establish a foundation to support independent, impartial research and understanding about the science of head trauma and brain disease later in life, vigorously working to uncover the truth rather than degrading science and the game.”
Blumenthal concluded, “I invite you to re-evaluate and resubmit your response, delineating the steps you are taking to advance science instead of dismissing it.”
A few days later, Bettman was interviewed by Jonas Siegel of the Canadian Press, and was asked about the senator’s second letter and whether he was surprised “how much Senator Blumenthal’s attacks…have gained traction.”
“[What Blumenthal said] hasn’t gained any traction,” Bettman replied. “In fact, we haven’t heard from very many people about it all.” Bettman went on to repeat that he believed “medical and scientific decisions should be made by scientists and physicians.”
Several months later, Bettman had not accepted Blumenthal’s invitation to “resubmit” his response.
The exchange between Bettman and Blumenthal presents two additional potential problems. Blumenthal’s suggestion that the league create a foundation to support independent research into head injuries allows Bettman to get off the hook with embarrassing ease, and with little effect on the problem Blumenthal seeks to abate. The NHL can commit a few or many millions of dollars to research, and while this learning happens, more players will have their future lives diminished. Science takes time. “Scientists and physicians” can only offer the best information available at the time. They can only help inform decisions made by decision-makers, who choose whether or not to be informed, and choose whether or not to understand the implications of that best information and whether they wish to apply it. Decision-makers make decisions.
Secondly, with his letter and his comments, Gary Bettman is pushing himself deeper and deeper into the wrong corner, from which he might find it easier to continue acting as his “clever lawyer” self, his least effective self. To fight back doggedly rather than deal with the embarrassment of changing his position—to his own detriment, and to that of the game and its players. Sometimes we lose when we win. Bettman can mock the weakness of the players’ position, he can sniff at a senator’s pretence of power and dance rings around him, he can delight in the incisiveness of his lawyer’s logic and win a lawyer’s fight and save his owners some money. Or he can take off his lawyer’s hat and do far more than that, because he has far more than that in him.
Look at the changes that have occurred during Bettman’s time as commissioner. Hockey has become a more international game. NHL players are now born and raised in Slovenia, Denmark, Norway, Austria, Kazakhstan, Hungary, and many other countries besides. That wasn’t possible even a decade ago. And hockey has also become a more North American game. There are NHL teams in more winter-free U.S. cities, and local kids are playing there—in California, Texas, Arizona, Florida—and making the NHL. That once wasn’t possible either.
Hockey is no longer just a Canadian game played by Canadians who fight and have no teeth. It has become a mainstream sport to more people in more places. Others, in other countries, have the right to feel—and do feel—that hockey is theirs, too. But two things stand in the way of the game’s greater possibilities. Cost—equipment, ice time, travel to faraway places for year-round tournaments and games—and, most crucially, brain injuries. More than thirty years ago, Paul Montador couldn’t resist the instincts and pleadings of his kids to play hockey. Today, more Paul Montadors and Donna Montadors do.
Again, for Gary Bettman, it doesn’t have to be this way.
Football and the NFL offer useful lessons. Football is a much more popular game in the U.S. than hockey. On Friday nights at high schools, on Saturday afternoons on college campuses, on Sunday afternoons in big-city stadiums, football offers a chance for people to gather in the same place at the same time, to feel and express the pride and community connection we all want to feel—about our high school, our colle
ge, our city, our country, not just about a game or a team. To lose football would be to lose all this. The stakes are high. This is why football needs to find an answer. But football’s answer is more difficult than hockey’s. Football requires body contact. One set of bodies must force the ball up the field; the other set of bodies must resist—and out of their athletic crouches, the players’ heads are involved in the action on almost every play. And every year, bigger bodies are harvested, learn to hit harder, and get hit harder back. Those who make decisions in football, with its much more elusive answers, can’t run away from the problem fast enough. Their biggest hope is that football is, and can be made to be, too big, too important to fail. But now, because the public won’t let them run away entirely, its decision-makers are running away by appearing to run towards the problem—by giving money for brain research, by mandating independent doctors to search out head hits from high in a stadium, by restricting body contact in practice, or for kids of younger ages. Between Monday and Thursday, in the stories we read, everything seems hopeful, if not quite promising. Then on Friday night, Saturday and Sunday afternoons, we watch, and we see the unbelievable collisions; we see Roger Goodell’s deer-in-the-headlights look of frozen fear whenever the subject of concussions comes up, and it is utterly clear: the NFL has no answers.
Hockey has always been in the shadow of football in the U.S.; the NHL in the shadow of the NFL. Bettman and others in hockey resent that the NFL’s dark shadow of brain injuries has spread over the NHL as well. They argue that the NFL’s problem is its reality, not the NHL’s. Yet the NHL has also benefited from this shadow. The football situation is so bad, and the NFL’s handling of it by Goodell so inept, that hockey and Bettman have come to look better—and better than they deserve—by comparison. The NHL has before it both obligation and opportunity. If it chooses to do what needs to be done to prevent brain injuries, what it is capable of doing, the NHL will be the league, not the NFL, and Bettman will be the commissioner, not Goodell, that does things right. The NHL can emerge out of its own brain injury shadow more respected, its reputation enhanced. The actions it takes might also put pressure on the NFL to do much better, an important result for everyone. And the bonus for Bettman and for the NHL, its great good fortune, is that all of this is much easier to pull off in hockey, because hockey’s answers are easier.
But first, Gary Bettman and the NHL must recognize that brain injuries are a big problem in hockey. They need truly to believe this, and to reflect it in the ambition of the actions they take. They need to approach this not as a yes, but…problem: “Yes, but…the NFL’s problem is worse”; “Yes, but…we were the first league to establish an injury committee”; “Yes, but…the scientists don’t really know yet.” Yes, but…is the wrong distracting message, and it gets us nowhere.
Bettman and the league need to recognize, too, that this is not a CTE-or-nothing problem; this is about diminished careers and diminished lives. In the First World War, soldiers who emerged from the conflict and looked fine but were somehow different were said to have suffered “shell shock”; in the Second World War it was “combat fatigue”; now it is PTSD. But they are the same thing. Many of these soldiers couldn’t cope; many became alcoholics. They were seen as weak, as cowards, unable to move on to the responsibilities of the rest of their lives. Now we know their conditions were real, that their brains were physically damaged by the concussions that came from the shock waves of exploding devices around them. Steve Montador looked fine. Keith Primeau, Marc Savard, and scores of other former NHL players look fine. But their injuries are real. Bettman and the NHL need to know this.
They also need to recognize that the game has changed. Gary Bettman has never played the game, but the hockey guys he has around him have never played this game. That is the crucial point. The game that, in their memories, moved a hundred miles an hour when they played, didn’t. The crushing hits they felt and gave that were like no others ever, weren’t. The “bell rung” they experienced is not the “bell rung” that today’s players are experiencing. These are dedicated hockey guys, but their “inside the Beltway” thinking has put the sport and its players at risk. Trust what you see, not what you know. This is a faster, more exciting, more dangerous game. The evidence is found not in our memories, it’s in the injuries we see around us. And the message of these injuries is clear: A hit to the head is a bad thing. Hard hits, frequent hits to the head, are very bad things. Head hits rattle the brain. They change the brain and change the person. Life becomes different. Steve Montador, as his dad said, lived seventy years in his thirty-five-year life. But in the last year, except at brief moments, Steve wasn’t Steve anymore. He was gone. The worst thing, what is most haunting and tragic about Steve, is that when he changed, when he died, he thought it was his fault.
Gary Bettman and the league also need to understand that the players have not changed. Players play. They will play no matter what doctors or their wives or their families tell them. And hockey players will do all this, and more, because they are hockey players. A lawyer involved in class action concussion suits in football and hockey was asked why so many more football players than hockey players sue. He said that when football players leave football, they hate the game and hate their team. When hockey players leave, they love the game and love their team.
But a player who loves to play is a vulnerable player. He is one who, if the moment requires that he go through a brick wall, will. He can be manipulated. He can be seen as weak. He can be treated by decision-makers with contempt, not respect.
Gary Bettman and his lawyers may be right. Perhaps some of the brain damage suffered by the NHL’s players happened in junior or on a backyard rink. Perhaps this absence of certainty will affect causation and liability, at least to a degree. But if, as the NHL contends, a player does arrive in the league already damaged, if that is a real possibility, perhaps the league might take note of the importance of this, might decide that it doesn’t want any pre-existing condition to be aggravated, and implement the rules necessary to protect these players. After all, they are its players. After all, as the league likes to say, this is the “NHL family.” Whether the league has a legal obligation to do so or not, maybe it would be a good thing—the right thing—to do. And it is so doable.
All of us need to be saved from ourselves at times. Steve did. It’s why we have traffic lights. The league needs the players to go full out when it’s time to go full out. The players need the league—its doctors, rule-makers, and decision-makers—to say stop when it’s time to stop.
The NHL’s whole system of doctors, rule-makers, and decision-makers faced a test late in the 2016–17 season. In the endlessness of a regular season, players are in and out of the lineup, injuries happen, every day is a new story, nothing has visibility for long, the season goes on, and life goes on. In the playoffs, each series is its own dramatic saga. Every game is anticipated and argued about. A player’s health is scrutinized—before a game, during a game, and after a game. When a player’s injury is a concussion, all of the one-off concussions of the past seem to come together, and the experiences of Marc Savard, Keith Primeau, Steve, and others suddenly matter. The need to play, versus the need to heal. The consequences of now, versus the consequences of the future. Everything is suddenly complicated. Everything consequential. Day after day.
Clarke MacArthur, an undersized, heart-and-soul left winger from Lloydminster, Alberta had played 548 NHL games, including one season with Steve in Buffalo, but only four games since February 16, 2015 when, while chasing down Jay McClement of the Carolina Hurricanes, the two of them crashed into Ottawa Senators goalie Robin Lehner, MacArthur striking Lehner’s right shoulder face-first. It happened the day after Steve died.
MacArthur came back to play the following September, but during a pre-season game, after minor contact with teammate, Mark Fraser, his concussion symptoms returned. The symptoms were less severe this time, and he was soon back playing. But three weeks later, in a regular season g
ame against Columbus, another seemingly innocent collision put him out of action the rest of the year.
He had eleven months to heal. Then in a training camp scrimmage in September, 2016, he was caught unawares by a high, hard, but not shuddering hit from Patrick Sieloff. Again, MacArthur was shut down. He took every treatment, followed every protocol, and tried as hard off the ice as he always had on it to get himself back playing, maybe even harder this time because he was thirty-one years old and knew this might be his last chance. Harder too because he had just signed a big five-year $23.25m contract and was embarrassed not to earn it and not help his already injury-depleted team fight for a playoff spot in the tightly competitive Eastern Conference.
By January, 2017, MacArthur was feeling a little better. He was training harder, and his teammates and coaches began to believe, as he did, that he might just make it back. And what a difference that would make if he could, late in the season, in the midst of a playoff race, being the kind of player and guy he is. In mid-January, he took a baseline concussion test that he and everyone knew he would pass. But he failed. The team announced that he wouldn’t play for the rest of the year. His career seemed over.
But MacArthur kept at it—working out and skating day after day by himself. He knew that as good as he might begin to feel, he wasn’t okay unless his baseline tests said he was. “So I studied up for those tests,” he said later, “and did…all the things you can possibly do to be ready for [them].” And everyone knew that’s what he would do, because that’s who Clarke MacArthur is. He works hard in the gym, hard in practice, and if he wants something he will do what it takes to achieve it. For MacArthur, this was like a Stanley Cup game itself. The test was his opponent. What were its strengths? Its weaknesses? He had to beat it.
