By Jon Heshka, Associate Dean of Law at Thompson Rivers University in Kamloops, BC Canada
Derek Boogaard played in the National Hockey League from 2005 to 2010. Standing at 6’7” and weighing approximately 270 pounds, he was a prized pugilist. Over six seasons with the Minnesota Wild and the New York Rangers, Boogaard played in 277 regular season games, scoring three goals, participating in at least 66 fights and accruing 589 minutes in penalties. After five seasons with the Wild, his final contract was a four year $6.5 million deal contract with the Rangers.
His chosen craft, however, came with a cost. Boogaard’s complaint, filed by his surviving parents, listed the dozens of injuries he 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.
The District Court noted that Boogaard was an “Enforcer/Fighter” who in the NHL fought at least 66 times often leaving him with painful injuries, which team physicians, dentists, trainers and staff treated using “copious amounts of prescription pain medications, sleeping pills and painkiller injections.”
Boogaard’s lawsuit claimed that he 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.
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 neuro-degenerative disease at the core of the now settled nearly $1 billion class action lawsuit against the National Football League.
Boogaard’s parents filed suit against the National Hockey League, its Board of Governors and Commissioner Gary Bettman (collectively, “NHL”) alleging that the NHL negligently failed to prevent Boogaard from becoming addicted to opiods and sleeping pills, that the NHL breached its voluntarily undertaken duty to curb and monitor Boogaard’s drug addiction while he was enrolled in the league’s Substance Abuse and Behavioral Health Program (“SABH Program”), that the NHL was negligent in failing to protect Boogaard from brain trauma during his career, and that the NHL breached its voluntarily undertaken duty to protect Boogaard’s health by failing to prevent team doctors from injecting him with Toradol (an intramuscular analgesic that according to Boogaard, makes concussions more likely and more dangerous).
Boogaard’s estate brought the suit in the Circuit Court of Cook County, Illinois against the NHL alleging claims grounded in tort. The NHL removed the suit to the United States District Court for the Northern District of Illinois, Eastern Division on the basis that the claims were completely preempted by §301 of the Labor Management Relations Act and thus in fact arose under federal law.
The NHL signed a collective bargaining agreement in 2005 (“2005 CBA”) with the NHL Players Association “NHLPA” which governed relations between the league, its thirty teams and the players at all relevant times. The NHL and NHLPA also negotiated a 1996 agreement establishing the SABH Program which was created to treat players with a substance abuse problem.
In a very careful analysis of §301 of the Labor Management Relations Act and its application to the 2005 CBA, the district court granted summary judgment on December 18, 2015 in favor of the NHL on the ground that all of Boogaard’s claims are completely pre-empted by §301 of the LMRA. The court evaluated the substance of Boogaard’s claims and, citing the United States Court of Appeals, Seventh Circuit in Crosby v. Cooper, found that a state-law claim is completely preempted only when it is inextricably intertwined with consideration of the terms of a labor contract.
The court was mindful that §301 preemption is not boundless and that a state law claim is not completely preempted when the defendant contending such a claim advances a frivolous or insubstantial reading of the agreement. Citing the 7th Circuit in Baker v. Kingsley, the court said that preemption applies only where the parties’ respective interpretations are arguable or plausible.
The court had previously held that the allegations concerning the NHL’s breach of its voluntarily assumed duty to monitor and cure Boogaard’s addiction according to the terms of the agreement creating the SABH Program were completely preempted because the agreement creating the SABH Program was collectively bargained and that resolving these allegations would require the court to interpret it.
Boogaard cited several decisions ostensibly showing that his claims should not be preempted. He cited several cases including Green v. Arizona Cardinals Football Club LLC where in that instance the district court there held that §301 of the LMRA did not preempt the players’ state law negligence and failure-to-warn claims concerning concussions relying instead on the team’s status as the plaintiff’s employer. The court reasoned that the Green’s negligence claims were “premised upon the common law duties to maintain a safe working environment, not to expose employees to unreasonable risks of harm and to warn employees about the existence of dangers of which they could not reasonably be expected to be aware.”
In the end, this case is significant insofar as the court having found that the main claims concerning Boogaard and the NHL and its Substance Abuse and Behavioral Health Program are to be preempted by §301 of the LMRA. While it is convenient to draw comparisons between this case and the current concussion lawsuit looming over the NHL, there are significant differences between them. Boogaard was a hard-nosed player who led with his chin and was repeatedly concussed for his efforts; he was found to have CTE after he died of an accidental overdose. Under these circumstances, the court found that all of Boogaard’s claims are completely preempted by §301 of the LMRA. The concussion lawsuit is a horse of a different color and, while appropriate to draw upon the court’s approach in Boogaard, we should be cautious about making too much out of it.
