Part One: The Growing Costs of Opioids in the Workplace – An NHL Tragedy

Over the coming weeks we will be delving into the lengthy saga that involves Derek Boogaard, his estate, the National Hockey League (the NHL), and the National Hockey League Players’ Association (the NHLPA).

This first installment of our three part series will lay the foundation of Boogaard’s career in the NHL, his tragic death, and the tension that erupted as a result of an employee’s prescription drug use and the employer’s oversight of said use. The second installment will discuss the deluge of litigation that occurred as a result of Boogaard’s death, including breach of duty claims against both the NHLPA and the NHL. The third and final installment will explore the recent trends in employee prescription drug use and, as unfortunately evinced by the situation surrounding Boogaard, the plethora of ways it affects the workplace, including employee safety and workers’ compensation costs.

Part One

From 2005 to 2011, Derek Boogaard played in the NHL and is better remembered as a fighter than a prolific goal scorer. Known as an “enforcer” on the ice, Boogaard dropped gloves to brawl 66 times over the course of 277 regular season games with the Minnesota Wild and New York Rangers.

Predictably, this led to more than a few injuries; Boogaard accordingly began receiving prescribed pain medications, sleeping pills, and painkiller injections by his respective NHL team physicians. As a result, he ultimately developed an addiction to some of these drugs and was later enrolled into the NHL’s Substance Abuse and Behavioral Health Program (the “SABH” program).  Through this program, Boogaard entered into a rehabilitation facility in 2009 and was released thereafter.

Unfortunately, upon his release, Boogaard suffered a relapse, causing the SABH program to reenroll him into a rehabilitation facility in California for treatment of this recurring opioid addiction. While undergoing treatment through this program, Boogaard was permitted to occasionally leave the premises without supervision; on the second of such occasions, he ingested a Percocet and was found dead by accidental overdose on May 13, 2011. As if not tragic enough, it was also discovered post mortem that Boogaard additionally suffered from chronic traumatic encephalopathy, colloquially known as CTE.

This begs a question — wherein lies the proper relationship between the NHL and its players when it comes to prescription drug use? In a typical employer-employee relationship, employers generally try to monitor employee drug use and oftentimes require passage of a drug screen test as a condition prior to offering employment. Likewise, employers often continue to test employees for drug use throughout employment, and any failed drug test risks either the revocation of an offer or total dismissal altogether.

In contrast, as seen in the case of Boogaard, the relationship between the NHL and its players is quite the opposite. One hypothesis as to the rationale is that, at its heart, the NHL lives and dies as per its success in the entertainment industry. In the never-ending pursuit of more loyal viewers, the NHL permits fighting during games – albeit with a visit to the penalty box afterwards — and as such, there exists an arguable direct connection between these “enforcers” like Boogaard and the NHL’s revenue stream.

Thus, the responsibility of the NHL and its teams to keep its players like Boogaard protected remains clouded, particularly when these injuries result in encouraged consumption of prescription drugs. In our forthcoming second part of this series, we will explore the Boogaard litigation and how it seeks to demystify what exactly this responsibility is.

 

 

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