By Jon Heshka — Associate Professor of Law at Thompson Rivers University & Kris Lines — Senior Lecturer at Staffordshire University
The Boogeyman will be remembered for many things — his capacity to strike fear into the hearts of opponents with his fists on the ice amongst them — but added to Derek Boogaard’s list will be the [posthumous] distinction of being the first plaintiff to file suit against the NHL alleging wrongful death due in part to concussions sustained while playing the game.
Notwithstanding that the goal of the game is to shoot the puck into the opposing team’s net more than the other way around, the NHL version of the game includes players whose job description is principally to exact street-level vigilante justice for perceived wrongs. This type of ‘goon-for-hire’ is properly characterized in Boogaard’s complaint as the Enforcer/Fighter.
Derek Boogaard played in the NHL from 2005 to 2010. Standing at 6’7” and weighing approximately 270 pounds, he earned the nickname Boogeyman for his pugilistic prowess. Over six seasons with the Minnesota Wild and the New York Rangers, Boogaard played in 277 regular season games and scored three goals. After five seasons with the Wild, he signed a four year $6.5 million contract with the Rangers. The nature of Boogaard’s offensive threat was not to put pucks into the back of the net but to be an Enforcer and fight opposing players. To that end, he was prolific at his craft participating in at least 66 fights and accruing 589 minutes in penalties.
Boogaard died of an accidental overdose of prescription painkillers and alcohol on May 13, 2011. He was posthumously found to have chronic traumatic encephalopathy (CTE) — the same disease at the core of the ex-NHL football players’ litigation.
The 55 page complaint lists a detailed litany of accusations essentially saying that the NHL was negligent in the following respects: in allowing Boogaard to be so frequently injured (including concussions which led to his CTE) in his line of work; in allowing him to return to play before he was ready; and in over-prescribing him painkillers to which he became addicted and, in combination with alcohol, over-dosed leading to his death. As William Gibbs, a lawyer for the Boogaards who is also representing Dave Duerson — a former Chicago Bears player who committed suicide in 2011 and was also found to have CTE — has described it, “The NHL drafted Derek Boogaard because it wanted his massive body to fight in order to enhance ratings, earnings and exposure. Fighting night after night took its expected toll on Derek’s body and mind. To deal with the pain, he turned to the team doctors, who dispensed pain pills like candy. Then, once he became addicted to these narcotics, the NHL promised his family that it would take care of him. It failed. He died.”
The complaint alleges that Boogaard returned to play and to fight prematurely while still recovering from concussions which subsequently caused, contributed or exacerbated his CTE. It purports that the 2005 Collective Bargaining Agreement does not address the NHL’s duties or responsibilities to its players vis-à-vis controlled substances or to keeping its Enforcers safe or to monitoring players’ general health.
The complaint lists the dozens of injuries Boogaard sustained while playing in the NHL including concussions and sub-concussions, broken noses, torn shoulder tissues, facial lacerations, contusions, muscle strains, herniated disks and teeth fractures.
A link is claimed connecting that the NHL knew, or should have known, about the high rate of injuries of hockey players, the higher rate of injuries sustained by Enforcers, the increased risk of brain damage to Enforcers due to concussions and sub-concussive blows caused by fighting and that Enforcers were particularly susceptible to addiction issues.
The lawsuit alleges that Boogaard was provided copious amounts of prescription pain medications, sleeping pills, and painkiller injections by NHL teams’ physicians, dentists, trainers and staff. For example, during the 2008-09 season Boogaard sustained a tooth fracture, underwent nasal surgery and had shoulder surgery and was prescribed 1,021 pills from ten Minnesota Wild or San Jose Sharks teams’ physicians and dentists plus 150 Oxycodone — a Schedule II controlled substance because of its high potential for abuse — pills. Various statements are made as to what the league ought to have known about the addictive qualities of the litany of the drugs to which Boogaard was prescribed.
In regards to the addiction accusations, the complaint alleges that the NHL owed Boogaard a duty to not only keep him reasonably safe but to also refrain from causing an addiction to controlled substances and breached its duty by, amongst other things, failing to monitor Boogaard’s prescriptions to prevent substance abuse, failing to establish league-wide procedures to ensure medical records were shared amongst teams, failing to track prescriptions for painkillers in the league, and failing to address improper player use of painkillers.
There are several interesting features to this complaint. First, it purports that Boogaard’s concussions were the cause for his pain and suffering prior to his death but seems to minimize and downplay the extent to which such suffering was caused by his broken noses, broken teeth, torn shoulder tissues, lacerations, contusions, muscle strains, and herniated disks.
Hockey is a fast and furious contact/collision sport in which there are ten players on a surface 30% the size of a football field skating at speeds up to 27 mph and legally checking one another with open-ice hits or into the boards. It is these elements which ought to be the starting point in describing the circumstances upon which a duty is owed in hockey. Further, players’ heads get intentionally or incidentally bludgeoned by errant elbows, smacked by sticks or bashed into the boards. These are the risks to be ordinarily assumed and should be viewed as normal and inherent to the game of hockey.
The complaint has strategically positioned itself as external to the CBA in a prophylactic effort to have the case litigated rather than go to arbitration as per the grievance procedures in the CBA. The NHL will likely argue that while the Substance Abuse and Behavioral Health (SBH) Program exists separately from the CBA, it was collectively bargained and agreed to by the league and the NHL Players Association and is thus to be regarded as something which falls under the grievance procedures of the CBA.
The case will also hinge, in part, on the extent to which a duty is owed by the NHL to be responsible and oversee prescriptions issued by doctors and dentists who are hired by the league’s franchised teams. The relationship of the doctors and dentists to the teams is far from clear and from these health care professionals to the league even less so. The effect of being independent contractors rather than employees serves to distance and potentially shield teams from liability for their actions. The complaint drifts into unchartered territory here and a positive outcome for the Boogaards is uncertain.
The lawsuit puts fighting squarely in its crosshairs and challenges the legitimacy of fighting in hockey. It alleges that it is negligent for the NHL to permit fighting and that the league breached its duty to keep Boogaard reasonably safe by encouraging Boogaard to fight. It further accuses the NHL of the following: failing to warn Boogaard about concussions; failing to ensure accurate diagnosis of concussions; failure to establish return-to-play protocols; failing to monitor practices, games, equipment and medical care so as to minimize the long-term risks associated with repetitive brain injuries.
In regards to the NHL’s approach to concussions, it is noteworthy that the NHL mandated baseline neuropsychological testing for all players beginning in 1997-98 which was well before the NFL began to do similar tests. The NHL would also likely argue that its approach to concussions has been proactive and progressive particularly in relation to what other professional sports were doing at the time.
The complaint makes no mention, however, of Boogaard’s documented fights prior to his arrival in the NHL. It is estimated that he fought 48 times while playing in the American Hockey League from 2003 and 2005 and an additional 70 times as a junior in the Western Hockey League. Given that Boogaard fought 118 on-ice fights before playing in the NHL and fought only 66 times in the NHL, the challenge will be to show that the concussions sustained and the resultant CTE was caused while playing for the Wild and Rangers.
The NHL has yet to respond to the claim. It is way too early to say whether the Boogaard lawsuit represents the first wave of an impending tsunami of concussion-related litigation in hockey. What it does show, however, is that hockey is on a collision course with the law and is not immune from the kind of lawsuits which are currently plaguing the NFL
