Boogaards v. NHLPA: Implications of Ninth Circuit Ruling in Peterson v. NFLPA

Oct 19, 2012

By Ellen Webking
Len and Joanne Boogaard In Re decedent, Derek Boogaard v. The National Hockey League Players’ Association (hereinafter, NHLPA) was a highly publicized and controversial case when it was filed in 2012. In fact, there were multiple New York Times articles detailing the decedent’s life and the lawsuit itself.
Derek Boogaard was 28 years old when he died from an accidental prescription drug and alcohol overdose. He died with three years left on his multi-million dollar contract with the New York Rangers. No one questions that his accidental death was tragic. However, his parents question whose fault his death actually was.
The current lawsuit stems from Boogaard’s parents’ attempt to file a grievance with the NHLPA after his death to recover the $6.5 million remaining on his contract. Their claim was that, although his death was accidental, the NHL is actually to blame for his addiction to prescription drugs and, subsequently, his death. The grievance, however, was never filed.
Now, because the grievance was not filed, his parents are suing the NHLPA for breach of duty of fair dealing, breach of implied contract, and breach of fiduciary duty in an attempt to recover $4.8 million in salary and $5 million in punitive damages.
In a similar Ninth Circuit case involving the NFL, Peterson, the plaintiff, filed a complaint alleging that “the NFLPA breached its duty of fair representation for erroneously advising him to file an injury grievance and by failing to rectify its error while there was still time to do so.” Peterson v. Kennedy, 771 F.2d 1244 at 1251 (1985). The court ultimately ruled in favor of the NFLPA. It is likely that the holding in Peterson v. Kennedy will present a roadblock in the Boogaards’ case against the NHLPA.
Derek Boogaard’s Life and Career
Canadian-born Derek Boogaard was widely known as one of the most intimidating enforcers in the league. He played first for the Minnesota Wild and then for the New York Rangers, where his career and life ended in 2011.
After sustaining many injuries, he was prescribed painkillers and sleeping pills. Boogaard developed an addiction to prescription drugs and eventually enrolled in the league’s substance-abuse program.
The Boogaards believe their son’s death in May of 2011 was ultimately caused by his addiction. The night Derek died, his brother gave him a pill and the two went out drinking. When they returned home, Derek retreated to the bathroom and, soon thereafter, passed out, leaving his brother to believe he had fallen asleep. The next morning, he was lifeless due to a drug and alcohol overdose.
After his death, his parents chose to file a grievance to retain the rest of his contracted salary. After the union failed to file the grievance, the Boogaards filed a lawsuit against the NHLPA.
The Lawsuit
The Boogaards’ claim alleges a breach of the duty of fair dealing, a breach of implied contract, and a breach of fiduciary duty. S.C.L.A. BC492588.
Officially, the Boogaards are suing the NHLPA for denying them the chance to file a financial claim for the drug and alcohol related death of their son. The claim states that the NHLPA breached its duty when it: (1) failed to meet with the plaintiffs to discuss a grievance within a timely manner, (2) failed to properly investigate the issues of the grievance within a timely manner, (3) failed to properly calculate the necessary time period within which to file a grievance, (4) failed to properly investigate the law which would govern the grievance, and (5) did not timely file a grievance on behalf of Boogaard despite the credibility of his claim. Id.
The Boogaards filed these claims based on the alleged facts that: (1) Roman Stoykewych, the head labor attorney for the NHLPA, promised he would take legal action by way of filing a grievance on their behalf; (2) they relied on Stoykewych to do so; and (3) Stoykewych ultimately did not file the grievance before the 60-day statute of limitations expired. Because of these allegations, the Boogaards were denied their chance to receive financial relief from the NHL. Id.
Peterson v. Kennedy and the Duty of Fair Representation
Peterson v. Kennedy is about an NFL player. Peterson, the plaintiff in the case, played for the Tampa Bay Buccaneers. Peterson v. Kennedy, 771 F.2d 1244 (1985). He believed he was cut from the team because of a knee injury he suffered in the 1976 season. Id. at 1248. Because of this, he believed that the “injury protection” clause in his contract required the Bucs to pay him his full salary for the next two football seasons. Id. The Bucs disagreed. Id.
Thereafter, Peterson’s agent, Mangiarelli, testified that he contacted the NFLPA in order to get assistance in enforcing the injury protection clause. Id. at 1249. Mangiarelli stated that Kennedy, a union representative, gave him instructions to send an injury grievance to the club. Id. Mangiarelli also testified that the union told him it would handle the grievance, so Peterson relied on the union to do so. Id.
The union had very different testimony. Id. Kennedy testified that he never spoke with Peterson or his agent. Id. The union agent who received the grievance six months after Peterson said he sent it determined that Peterson should have filed a non-injury grievance instead. Id. Although the union representative tried to “re-channel” the original claim into a non-injury claim, it was past the allotted 60-day period in which Peterson could have timely filed the grievance. Based on the untimeliness of the grievance, the arbitrator dismissed the case. Id.
After his complaint was dismissed, Peterson filed an amended complaint that claimed “the NFLPA had breached its duty of fair representation by erroneously advising Peterson to file an injury grievance and by failing to rectify its error while there was still time to do so.” Id. at 1251.
The court ruled that the union did not breach its duty of fair representation. Id. The court stated, “[a] union breaches its duty of fair representation only when its conduct toward a member of the collective bargaining unit is ‘arbitrary, discriminatory, or in bad faith.’” Id. at 1253. In this case, the issue was whether the union acted arbitrarily. Id. at 1254. A union acts arbitrarily when it “simply ignores a meritorious grievance or handles it in a perfunctory manner.” Further, “a union’s unintentional mistake is ‘arbitrary’ if it reflects a ‘reckless disregard’ for the rights of the individual employee, but not if it represents only simple negligence violating the tort standard of due care.” Id.
Additionally, in cases where the court determined there was a breach of the duty of fair representation based on arbitrary conduct, “the union failed to perform a procedural or ministerial act, that the act in question did not require the exercise of judgment and that there was no rational and proper basis for the union’s conduct.” Id. (emphasis added).
The court also stated that “unions must retain wide discretion to act in what they perceive to be their members best interest” and “courts should ‘accord substantial dereference’ to a union’s decisions.” Id. at 1253
Based on these rules and principles, the court concluded that Peterson did not establish that the NFLPA breached its duty of fair representation. Id. at 1255. The court concluded that any error by the union was simply one of judgment. Id. Despite the error, the court was “unwilling to subject unions to liability for such errors in judgment.” Id.
The Boogaards v. NHLPA in Comparison to Peterson v. Kennedy
These cases are similar. Because the court seems to be very reluctant to hold unions liable for “judgment calls” and the fact the mere negligence is not enough to warrant liability, it will be an uphill battle for the plaintiffs to prove that the NHLPA breached its duty of fair representation.
The Boogaards would have to prove that the NHLPA acted in an arbitrary, discriminatory, or bad faith manner. If they cannot prove discrimination or bad faith, which they have provided no evidence of, they will likely claim the union acted arbitrarily.
In that case, they would have to prove that the NHLPA failed to perform a procedural act, that the act did not require exercise of judgment, and that there was no rational and proper basis for the union’s conduct.
The Boogaards will likely be able to show that the union failed to perform a procedural act when the grievance was not filed on time. However, it will be very difficult to prove the last two elements. It is likely that the union will have a “reason” for not filing the grievance. Further, most decisions require a certain level of judgment which makes the second element very difficult to prove. The decision not to file something can be seen as a “judgment” in and of itself.
Accordingly, the Boogaards will be required to present extraordinary facts indicating that the union acted arbitrarily. It seems that, if the Los Angeles Superior Court follows the opinion set forth in Peterson v. Kennedy, the plaintiffs will have a tough time prevailing in their suit against the NHLPA.


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