By Jon Heshka, Associate Professor at Thompson Rivers University
The estate of retired National Hockey League (NHL) player, Steven Montador, succeeded in September 2022 in having a concussion lawsuit against the NHL and its Board of Directors remanded to state court.
The suit was initially filed by Mondator’s father, Paul, who was the representative for the estate in the Circuit Court of Cook County in 2015. The estate claimed that Mondator’s death was at least partially caused by numerous concussions he suffered while playing professional hockey. The suit further alleged that the NHL negligently promoted violence by its players and failed to warn Montador of the risks of brain injury that the sport entails in violation of the Illinois Survival Act and the Illinois Wrongful Death Act.
The court dismissed most of Montador’s claims saying the estate’s allegations were completely pre-empted by the Labor Management Relations Act (LRMA) because those claims were inextricably intertwined with provision of the collective bargaining agreement (CBA) between the league and the NHL Players’ Association. However, the court concluded that the NHL had unreasonably promoted a culture of violence and that the league implicitly misrepresented to Montador that his head trauma was not serious. In making this determination, the court said that two of the estate’s claims were not pre-empted because they were based on common law obligations that existed independently of the CBA.
Montador reasserted the two surviving claims in a new lawsuit filed in the Circuit Court of Cook County. The NHL removed the case to the US District Court for the Northern District of Illinois, Eastern Division on the grounds that these claims are also completely pre-empted under § 301 of the LMRA.
Complete pre-emption under § 301 applies only when the determination of the state law claims is “inextricably intertwined” with the operative CBA (Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 213, 105 S. Ct. 1904, 85 L Ed. 2d 206 (1985)). “Factual overlap between a state-law claim and a claim one could assert under a CBA is not necessarily sufficient.” (Crosby v. Cooper B-Line, Inc., 725 F.3d 795, 800 (7th Cir. 2013).
The circuit court concluded that the exact claims at issue – the NHL’s purported “culture of violence” and misrepresentations concerning the long-term effects of players’ head traumas – were not completely pre-empted because they were not duties created by the CBA, but were instead grounded in common-law duties. On the other hand, the NHL contended in district court that Montador’s claims were merely disguised versions of the claims the circuit court previously preempted and ought to be similarly preempted.
However, the district court disagreed saying that the claims are certainly not inextricably intertwined, but are at most tangential to the terms of the CBA. It found that the NHL’s duty not to unreasonably expose players to gratuitous violence arises out of the common law, not the CBA.
In its decision, the district court cited Boogaard v. Nat’l Hockey League, 211 F. Supp. 3d 1107, 1112 (N.D. Ill. 2016) in which the NHL made very similar arguments saying that even if the claims that the league promoted violence contained some similar allegations to the preempted claims, they were not predicated on the NHL’s voluntarily assumed duties in the CBA, but rather alleged that the NHL took “active and unreasonable steps” to promote fighting.
The district court found that the culture of violence claim is not inextricably intertwined with the CBA, and hence not preempted, because the NHL violated its common law duties by affirmatively encouraged fighting and unreasonably promoting a culture of violence.
The court also found that the misrepresentation was not preempted saying that the lion’s share of the facts Montador offered suggested that the NHL affirmatively misled players by communicating through its conduct that head injuries were not serious.
The misrepresentation claim centered on the league’s affirmative conduct, not its failure to warn. This affirmative conduct included the league’s glorification and promotion of violence through its highlight reels and licensed video games which implicitly represented that head trauma could not cause severe long-term health complications as well as the false security created by the league’s misleading research which downplayed the health consequences of head trauma.
Since these issues also were not inextricably intertwined with the CBA, the court held that the misrepresentation claims could also survive preemption.
The court remanded the case back to the Circuit Court of Cook County.
