Lawyers in concussion case want to unseal NHL records

There's a ferocious hockey fight going on in downtown Minneapolis these days. You'll find it at the federal courthouse, where some former players are suing the National Hockey League over the brain damage they suffered on the rink.

They accuse the NHL of promoting violence and turning a blind eye to the consequences: players who leave the game with shattered minds and wrecked bodies. The NHL contends it takes the problem seriously and has already changed the game to make it safer.

Whether this case ever goes to trial, or settles like the far better-known NFL players' lawsuit, is unknown. For now, the sides are scrimmaging over whether thousands of pages of internal NHL documents should be made public.

So far, those records have been shielded from view by a "protective order," a heavily used and much-abused power of judges to hide what's filed in court from public scrutiny.

Lawyers for the former players have already pounced on a number of e-mails that have emerged through the litigation, including this zinger from the NHL's deputy general counsel, discussing in 2009 the league's approach to retired players' long-term health: "I'd rather focus on the here and now and leave dementia issues up to the NFL!"

That same NHL attorney, Julie Grand, also discussed taking several actions to "appear to the players/Clubs and the public we are actively engaged in this issue."

An NHL executive, Colin Campbell, wrote in a 2010 e-mail: "let's face it Mike … we sell rivalries, we sell and promote hate and when a player hits another player legally we can't drill him because [redacted]"

Lawyers for the former players say these kinds of statements reveal blatant hypocrisy on the part of the NHL, which, they said, "has publicly stood on a soapbox and declared that it is the leader in player safety and concussions."

"The law prohibits the NHL from thrusting its public-relations spin into the public square while at the same time shielding the public from the truth under the guise of confidentiality," said the Oct. 13 motion to unseal the documents, signed by attorney Michael Cashman of Zelle Hofmann Voelbel & Mason in Minneapolis.

The NHL contends it's the ex-players and their lawyers who are driving the spin machine. The league's lawyers accuse their opponents in court of a "twisted and tortured" interpretation of innocent statements.

"It is apparent that plaintiffs improperly are seeking to publicize — and mischaracterize — the confidential material as part of their ongoing effort to litigate this case in the media, given the dearth of evidence in support of their case on the merits," NHL lawyers wrote in an Oct. 21 response filed in federal court. It's signed by Daniel Connolly of Faegre Baker Daniels in Minneapolis.

Both of these motions, curiously, are infested with large white boxes that replace the text with the same word in various type sizes: "Redacted." You would think we were dealing with matters of national security, not an entertainment that ranked sixth in the 2014 Harris Poll of Americans' favorite sports.

In their argument for unsealing the records, lawyers for the players have invoked the decision to unseal Bill Cosby's deposition in the closed lawsuit that alleged he had drugged and raped a woman in Pennsylvania.

Comparing the NHL to Cosby on the hypocrisy scale seems a stretch to me, but there's a more persuasive reason to open up the files. The public debate about concussions in sports transcends this lawsuit. The potential benefit to public health outweighs whatever embarrassment ensues for the NHL over the exposure of its internal chatter.

If the NHL has handled the issue of concussions so deftly, it should have nothing to hide.

Negotiations of what will become public and what will stay sealed are probably happening as I write this. Perhaps that's why lawyers involved in the case have not rushed to the phone to return my calls.

Actually, U.S. Magistrate Judge Janie Mayeron ruled on the motion to unseal the documents on Dec. 9, according to the federal court website. But the public can't know what that decision is yet. It's secret.

Contact James Eli Shiffer at jshiffer@startribune.com or 612-673-4116.