By Jeff Birren, Senior Writer
Steven Montador played in the National Hockey League (NHL) for 11 years. He suffered a number of concussions and passed away two years after he retired. His Estate filed a lawsuit against the NHL that asserted a number of tort claims. But on November 24, 2020 the United States District Court of the Norther District of Illinois dismissed many of the claims with prejudice. It declined to exercise supplemental jurisdiction over the two remaining state law claims and dismissed those claims without prejudice (Paul Montador, Executor and Trustee of the Estate of Steven R. Montador, Deceased v. National Hockey League and National Hockey League Board of Governors, (“NHL”) Order, U.S. District Court, Northern District of Illinois, Eastern Division, Case No. 15 C 10989, (“Montador”) at 1 (11-24-20)).
Underlying Facts
Montador grew up in Toronto and played in the Ontario Hockey League. He was not drafted by an NHL team, but signed with the Calgary Flames in 2001 and began an 11-year career as a defenseman. He played for six different NHL clubs, and participated in 571 regular season games and 43 playoff games (Id. at 2). When the 2004 labor dispute ended the 2004-2005 NHL season, he played in France. By the 2012-2013 lockout, he was part of the NHLPA’s negotiating committee.
During his career he “suffered numerous concussions,” … “but his team at the time allowed him to return to play (after) only a few days.” His last NHL team was the Chicago Blackhawks. Montador played in 52 games for Chicago in 2011-2012 until a concussion ended his season. It took him over a year to recover and in the 2012-2013 season he played for Chicago’s AHL affiliate before Chicago bought out his contract. Montador ended his career in Zagreb, playing in eleven games.
He retired from hockey in 2013 and passed away on February 15, 2015 at the age of 35. A post-mortem examination showed that he “had suffered from chronic traumatic encephalopathy (‘CTE’).” During Montador’s NHL career the employment relationship was governed by Collective Bargaining Agreements (“CBA”) that included provisions “related to a player’s health, injuries, and disability” (Id. at 3). Fitness to play was “delegated to club physicians for determining whether a player was fit to play or disabled from playing” (Id. at 3/4).
The Estate filed a 37-page lawsuit on December 8, 2015 and “asserted negligence claims under the Illinois Survival Act, 755 Ill. Comp. Stat 5/27-6 and the Illinois Wrongful death Act, 740 Ill. Comp. Stat. 180/1.” When Montador passed away, the NHL denied any responsibility. “We do not agree that the reports and allegations establish any link between Steve’s death and his NHL career” (Courthouse News Service, Lorraine Bailey “Dead at 35” (12-9-15)). The case was transferred to Minnesota District Court. In its Answer, the NHL insisted that: “Any injury or damage sustained by (Montador) was caused, in whole or in part, by (Montador’s) own lack of due care and fault, and/or by pre-existing conditions; and/or the lack of due care of others for whom the NHL has no responsibility or control” (Doc. #27 (6-28-19)). One wonders if at least one of his clubs filed a grievance against Montador for not following the directives of the club’s treating physicians or trainers.
The case was subsequently transferred back to Chicago Federal Court where it had been filed. The NHL moved for judgment on the pleadings, or, in the alternative, for summary judgment, asserting that the claims were preempted by section 301 of the Labor Management Relations Act, 20 U.S.C. §185 (“LMRA”) (Doc. #62 (1-13-20)). The NHL relied on the relevant CBAs in their motion. Since those agreements were not attached to the Complaint or referenced in it, the Court treated it as a motion for summary judgment (Montador at 2, FN 1).
The Court’s Analysis
The Court stated that it will grant the motion if “there is not a genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law” (Id. at 4). The non-moving party is given the benefit of conflicts in the evidence and reasonable inferences that may be drawn from the evidence, and the Court “must not make any credibility determinations or weigh conflicting evidence” (Id. at 4/5).
LMRA section 301 “provides a federal rule for contract disputes” and it “overrides all possible applicable state law.” It is thus a “rule of complete preemption.” The goal is to “ensure uniform interpretation” of CBAs and “to promote the peaceable, consistent resolution of labor-management disputes” (Id. at 5). To determine if a claim is preempted, a court “must look beyond the face of plaintiff’s allegations” in order to “evaluate the substance of plaintiff’s claims” (Id. at 6), (emphasis in the original). Preemption is found when a provision of the CBA is the subject of the dispute “or the dispute is substantially dependent upon an analysis” of the terms of the CBA. If a claim is inextricably intertwined with consideration” of the CBA it is preempted (Id. at 6), (emphasis in the original).
Preempted Claims
Montador asserted that the NHL had “voluntarily assumed certain duties to him and later breached them.” Whether this happened “is necessarily a fact-specific inquiry” that is based on the totality of the circumstances. The question is whether the voluntary-undertaking theory is “inextricably intertwined with consideration of the 1995 and 2005 CBAs.” It quoted a Supreme Court decision and then turned to cases that were “[c]loser to home.” In Boogaard v. NHL, 891 F.3d 289 (7th Cir. 2018), the decedent died of a drug overdose. His estate sued the NHL for “breaching its duties to treat Boogaard’s drug addiction and to warn him of the risks associated with drug overdoses” (Id. at 7/8). The theory was that the NHL had “voluntarily undertaken such duties when it established its substance-abuse program, which was incorporated in the CBA, and had breached them by failing to comply with the program’s requirements” (Id. at 8). That court found the claims were “completely preempted” as “the voluntary undertaking claim by necessity is inextricably intertwined” with analyzing the CBA.
The Court then discussed Duerson v. NFL, Inc. No. 12 C 2513, 2012 WL 1658353 (N.D. Ill. May 11, 2012)). After Duerson retired from the NFL, he “began to suffer symptoms of CTE” and later “committed suicide.” His widow sued the NFL asserting various tort claims, but the District Court found that “a determination of the scope of the NFL’s duties would require interpreting the health and safety provisions in the CBA” and “dismissed the negligence claim based on preemption.”
Montador similarly asserted that the NHL had voluntarily undertaken various duties which it subsequently breached. Those duties included “promulgating rules and policies to ensure player safety” and “warning players of the health risks of concussions” (Id. at 9). Montador also argued that the CBA described a club’s duties to the player, but the CBA had “no bearing on the duties owed to him by the NHL.” Montador claimed that the NHL did have such duties. Thus, although the CBAs stated that the clubs he played for had a duty to provide him with his complete medical records, “this did not mean that the NHL did not also have a duty to advise Montador of the inherent dangers in his employment, including CTE.” The NHL responded by stating that to the extent these duties were imposed on the clubs, “Montador lacks basis to impute these duties on the league” (Id.).
The Court found that “these opposing arguments underscore the appropriateness and need for preemption here.” Since the CBAs “govern pertinent aspects of a player’s safety, health, injury and disability, ‘ascertaining the scope of the [NHL’s] voluntarily assumed duties would require interpreting the CBA,’” quoting Boogaard 891 F.3d at 1020-21). Montador also relied on Dent v. NFL, Inc., 902 F. 3d 1109 (9th Cir. 2018) where a “putative class” sued the NFL asserting various tort theories related to the distribution of controlled substances. The Ninth Circuit found that “no examination of the CBAs is necessary to determine that distributing controlled substances is an activity that gives rise to a duty of care” (Id. at 10). Conversely, here, “the duties that form the basis” of the tort claims “hinge on assumed duties that are inextricably intertwined with the provisions of the CBAs.”
Montador’s final argument was that his claims “accrued after he was retired and no longer a member of the NHLPA” so his claims cannot be preempted. To the Court, this “is incorrect.” The LMRA’s rationale “is to promote federal uniformity in the interpretation of labor contracts.” “[S]o long as a former player’s claim is based upon events that occurred while he or she was a member of the collective bargaining unit and subject to the CBA, the need for uniformity in interpreting the CBA remains,” citing Smith v. NFL Players Ass’n, No. 4:14CV01559 ERW, 2014 WL 6776306, at 7. Those claims “were preempted because the defendant’s alleged conduct occurred during his NFL career” (Id. at 10/11).
The Court thus held that “with the exception of the two narrow claims discussed below, Counts I, II, III and IV are completely preempted under section 301 of the LMRA” (Id. at 11). Furthermore, Montador had not asserted that he had grieved or arbitrated the “preempted claims as required by the CBAs” and thus “any claim under section 301” was premature. Finally, “to the extent that Montador advances a hybrid section 301/duty-of-fair-representation claim it is barred by the six-month statute of limitations” (Id. at 11/12).
The Two Surviving Claims
Montador asserted two negligence claims under the Illinois Survival Act and the Illinois Wrongful Death Act. He claimed that the “NHL unreasonably promoted a culture of violence, which, in turn, caused him to get into on-ice fights with opposing players” and that these “fights then caused him to develop CTE, which ultimately led to his death.” He pointed to NHL-produced films “that focused on the hardest on-ice hits, featured stories about on-ice fights on its website, produced segments on the NHL Network called ‘Top 10 Hits of the Week’ and licensed video games that included fighting and vicious body-checking” (Id. at 12).
Montador’s second theory was that the “NHL unreasonably caused him harm by implicitly communicating that the head trauma he suffered was not dangerous.” He alleged that the “NHL boasted to its players that it was diligently studying repetitive concussive and sub-concussion brain traumas, which in turn caused NHL players to reasonably believe that the NHL’s findings would inform them of any associated long-term risks.” However, it “did not report its findings for 14 years and, when it did, it produced only vague, unhelpful conclusions.” It also “negligently misrepresented to its players that it was keeping them informed of all medical and scientific advancements related to repetitive head trauma” and that the players “relied” on these assurance “to continue their play” (Id. at 13).
Similar claims had not been “completely preempted by the LMRA” in Boogaard. That court “observed” that every “person has a duty not to act unreasonably in a way that injures others; the court need not interpret the CBA to determine the existence or scope of that duty, and so claims on a breach of that duty are not preempted” (Id.) Here, the “duties upon which Montador relies on for these two claims—a duty to not unreasonably promote violence and the duty to refrain from misrepresentative statements—are not grounded in the CBAs, but, to the extent that they exist at all, do so in common law.” Therefore, those claims “are not preempted” and the NHL’s motion for summary judgment is denied as to them.”
Consequently, “the Court lacks subject matter jurisdiction as to the two remaining claims.” They did “not raise a federal question and there is not dispute that complete diversity is lacking.” The NHL “invite[d]” the Court to “exercise supplemental jurisdiction” over the remaining two claims (Id. at 13/14). The Court looked at the three factors identified by the Seventh Circuit for a court to exercise supplemental jurisdiction over state law claims. Those factors are that “the statute of limitations has run, thus precluding” a state court case; “the court has already expended considerable judicial resources such that sending the case to state court would mean ‘a substantial duplication of effort’”; or when it was “absolutely clear” how the “claims can be decided” (Id. at 14).
“None of those factors are at play here.” Montador filed the case “promptly on heels of accrual.” The case was before the Court on a motion to dismiss that the Court “converted to a summary judgment motion” so “significant judicial resources have not yet been expended” and Montador “may seek to amend his pleadings with additional facts and legal theories to maximize his chance of success on these two particular claims and the claims themselves will likely raise issues of state law and it is not at how clear how they will be decided” (Id at 14/15.). The Court thus declined to exercise supplemental jurisdiction over the two remaining state law claims, so the “case is hereby terminated” (Id. at 15).
Author’s Editorial Conclusion
The Court’s analysis was undoubtedly correct. However, it raises a significant issue. Montador’s theories are based on duties that, if they exist at all, would be owed to all NHL players, though those duties, and breaches of such a duty, could be different for every NHL season. Sending the case to state court could lead to wildly differing outcomes based on the exact same set of facts. There must be a more consistent way to handle these cases.
For most of its history the NHL actively promoted on-ice violence. To now place the blame solely on the players is alarmingly disingenuous. Just try to imagine a single NHL coach ever telling Montador that he hit an opposing player too hard.
Montador’s death became the subject of a book written by former NHL great Ken Dryden, Game Change: The Life and Death of Steve Montador, and the Future of Hockey (10-17-1 7). Whatever may happen in the lawsuit, it is a sad story.
The author would like to thank David Stern, Esq. of Blaney McMurtry, LLP of Toronto for his continued assistance.
