The NHL has presented its own ‘alternative facts’ to a federal court
The NHL has horribly misrepresented communication between itself and attorneys for Boston University researchers to a federal court in the hopes of avoiding attorney fees.
A response by attorneys representing Boston University, which is engaged in a massive study of chronic traumatic encephalopahty (CTE) that includes the brains of deceased NHL players, shows just how far the NHL is willing to go to protect its interests.
As the study has been conducted, the NHL has done all it can throughout the process to interfere with the research. Fighting petitions by the league for access to all of the study’s data, to protect the privacy of the families involved and the integrity of its process, has resulted in nearly $120,000 in attorney fees for BU. Because of that, BU filed a petition of its own to force the NHL to cover its attorney costs.
The NHL expectedly rebuffed the demands BU made, but what wasn’t expected is just how low the NHL was willing to go in order to avoid having to write the check for attorney fees caused by its own meddling in the BU study.
The unethical tactics were revealed in BU’s response to the NHL’s rebuttal. Not only does the NHL use legal precedent that is completely irrelevant to the case to argue its position that it shouldn’t have to cover BU’s attorney fees, but boldly misrepresents the communication that occurred between BU attorneys and the league office.
In short, the league’s case was weak, and its attorneys obviously knew it. That’s demonstrated in that the league didn’t dispute the amount that BU was seeking. Instead, the NHL relied upon a contention that it “won its motion in part”, referring to the fact that it got some of the data from the study it originally sought. That’s like the driver of a car who got arrested for a DUI arguing that he shouldn’t have to pay a fine for that DUI because he won a street race before he got arrested. It has absolutely nothing to do with the fact that BU incurred attorney fees because of the NHL’s meddling.
What’s worse is the NHL’s attempt at outright deception of the court. The second page of BU’s response makes the NHL’s misrepresentation clear:
"The NHL’s creative use of partial quotations is noteworthy. On April 13, 2017, responding to the League’s request for information about other NHL players, University counsel wrote to the NHL’s lawyers, “I’m not sure what more can be provided when donors or their families forbid the release of information. . . . I’m not closing the door but I don’t see how the CTE Center can get around a donor’s refusal to allow third party access to information.” Doc. 870 – 29. But the NHL’s brief (Doc. 869 at 9) omits the italicized text above. This matters because courts frown on persuasion by misrepresentation."
The exclusion of very important text to understand the context of the conversation is more than an oversight by the league’s counsel, it’s intentional misrepresentation. If any media outlet covering the NHL had misrepresented a statement by a league official to the same degree, the media professionals involved would not only likely have their access revoked, but would probably be fired from their jobs as well.
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Whether or not BU will have to pay its own attorney fees remains to be seen, but the lesson for hockey fans in this drama is clear. The NHL is so concerned with protecting its public image and avoiding liability in regards to CTE that it’s willing to resort to unethical means. Ironically, it’s the meddling in the study and the scrupulous behavior in court that could be much more damaging than the results of the study and the payment of BU’s attorney fees ever could be.