Welcome to our second installment of a three part series discussing Derek Boogaard, a former National Hockey League (NHL) player that died from an accidental drug overdose after leaving rehab. In the first part our series, we discussed Boogaard’s career in the NHL, his tragic death, and the tension that exists as a result of an employee’s prescription drug use and the employer’s oversight of said use. Here, we will discuss the deluge of litigation that occurred as a result of Boogaard’s death, including breach of duty claims against both the National Hockey League Players’ Association (the NHLPA) and the NHL.
Claim for Payments under Boogaard’s Player Contract
At the time of Boogaard’s death on May 23, 2011, he was a party to a four-year contract to play for the New York Rangers for the 2010-2014 seasons. Soon after his passing, the NHLPA learned that the Rangers did not intend to pay Boogaard’s estate for the remaining period of his contract. In response, Boogaard’s parents contacted the NHLPA in an effort to compel the Rangers to pay the remaining balance owed.
A complaint for failure to pay a player compensation must be heard by way of a grievance under the collective bargaining agreement (the CBA). A new CBA has subsequently been negotiated between the NHL and NHLPA that governs the terms and conditions between the parties from 9/16/12-9/15/22, but at the time of the Rangers’ failure to pay the rest of Boogaard’s contract value, the previous CBA was still in effect.
Article 17.2 of the CBA governs grievances and states that a grievance may be initiated by the NHL or the NHLPA only. Additionally, a grievance must be initiated within 60 days from the date of the occurrence or non-occurrence of the event upon which the grievance is based, or within 60 days from the date on which the facts of the matter became known or reasonably should have been known to the party initiating the grievance, whichever is later. After some investigation, the NHLPA informed the Boogaards on December 2, 2011 that it would not file a grievance to enforce payment under the contract. The NHLPA also suggested that Boogaard might want to consider pursing a workers’ compensation claim.
Duty of Fair Representation Claim
As a result, on September 21, 2012, the Boogaards filed a complaint in a federal court in California against the NHLPA alleging it breached its duty of fair representation (DFR) in the handling of a potential grievance under the CBA. Since the CBA only allowed for the NHL or the NHLPA to file a grievance, the Boogaards were unable to file a grievance themselves.
Accordingly, the Boogaards alleged the NHLPA breached its DFR by not filing a grievance. The NHLPA’s position was that there was no CBA violation, and that was why no grievance was filed. While it is true that a union need not file a grievance where it believes there is no CBA violation, the timeline of events clouds the circumstances. The occurrence of the alleged CBA violation was in July 2011, when the Rangers confirmed it would not pay Boogaard’s estate the remainder of his contract value; however, the NHLPA did not inform the Boogaards of its decision to not file a grievance until December 2, 2011, clearly well after the timeframe permitted under the CBA to file grievances. Of note, untimely grievances are often dismissed without ever reaching the substance of the grievance.
Turning back to the DFR claim, such a claim is also governed by a six month federal statute of limitations. 29 U.S.C. § 160(b). The Boogaards were informed that the NHLPA would not file a grievance on December 2, 2011, meaning the statute of limitations expired on June 2, 2012. Since the claim was not commenced until September 21, 2012, it was found time- barred and therefore dismissed.
Boogaards Sue the NHL
In response, the Boogaards then filed suit against the NHL in Cook County court in 2013, alleging that Boogaard became addicted to prescription painkillers dispensed to him in an effort to mend his on-ice injuries. In July 2013, the suit was removed to federal court, and following more than a year of discovery, Judge Feinerman granted the NHL’s motion for summary judgment, ruling that the claims were preempted by § 301 of the Labor Management Relations Act (LMRA).
The crux of the Boogaards’ argument was that the NHL breached its duty to curb and monitor Boogaard’s drug addiction during the time he was in rehab through the NHL’s Substance Abuse and Behavioral Health (SABH) program, including the failure to have a chaperone with him when he overdosed. They also claimed the NHL was negligent in monitoring his brain trauma during his career and negligent in permitting team doctor’s to inject Boogaard with certain drugs. These allegations attacked the NHL’s duties under the SABH agreement; in the end, Judge Feinerman ruled these duties to be a part of the CBA.
The SABH agreement’s first paragraph states that the program “has the full support of the League and the Players’ Association and will be incorporated into the Collective Bargaining Agreement.” Additionally, the CBA’s preamble states: “This Collective Bargaining Agreement, together with all Exhibits hereto[,] … supersedes and replaces all prior collective bargaining agreements between the parties.” Furthermore, Article 33 of the CBA states: “This Agreement, together with the exhibits and side letters hereto, if any, and any existing letter agreements between the parties that are not inconsistent with this Agreement, constitutes the entire understanding between the parties, and all written communications, proposals and counterproposals (including any drafts of this Agreement) between the NHL and the NHLPA, or on behalf of them, are merged into and superseded by this Agreement and shall be of no force or effect.” Accordingly, any analysis of the NHL’s duty involved the SABH agreement, which is a part of the CBA, and, therefore, the claim was deemed to be preempted by § 301 of the LMRA. The NHL filed a motion for summary judgment and it was granted by Judge Feinerman for this reason.
Judge Feinerman allowed the Boogaards to submit an amended complaint and then a second amended complaint to revive the claim, holding that four new claims alleging the NHL actively harmed Boogaard did not fall under the dominion of the CBA and therefore were not preempted by § 301 of the LMRA. While Judge Feinerman dismissed eight other claims on the same preemption grounds as before, two of the new claims alleged that the NHL promoted violence and increased Boogaard’s risk of injury. Likewise, Judge Feinerman allowed two head trauma claims to proceed, rationalizing that players such as Boogaard allegedly believed the effects of head trauma were minor based on the league’s silence surrounding the issue.
While the NHL beseeched Judge Feinerman to reconsider, and while the parents requested that the allowed claims be remanded to state court, both desires were ultimately rendered moot – on June 5, 2017, Judge Feinerman put an end to all of the surviving claims with prejudice, including prohibiting the parents’ bid for remand to state court. In his decision, Judge Feinerman explained that the parents could not bring their wrongful death claims because, under Minnesota law, they were not named as Boogaard’s trustees within the proper period of time. While the case was heard in Illinois federal court using Illinois choice of law rules, Judge Feinerman applied Minnesota law based on the fact that Boogaard both played the majority of his NHL career and passed away in Minnesota.
Moreover, Judge Feinerman also specified that the parents again had insufficient pleadings. This time, the parents failed to actually address the NHL’s arguments, including that the league had no duty to warn of potential for injuries, how the league’s conduct violated that duty, or how the NHL was negligent in its silence surrounding head trauma. Finally, regarding the remand request, Judge Feinerman essentially pronounced that the parents need not have an additional bite at the apple – they had already attempted three separate times to plead these same claims, so a fourth would seem excessive.
Notably, Judge Feinerman himself clarified that his ruling was particular to the facts and pleadings of this case. Specifically, Judge Feinerman noted, “[a]lthough judgment is entered in the NHL’s favor, this opinion should not be read to commend how the NHL handled Boogaard’s particular circumstances – or the circumstances of other NHL players who over the years have suffered injuries from on-ice play.” Thus, as this claim hinged almost entirely on the failure to comply with Minnesota law, its influence likely will not dissuade potential plaintiffs from bringing similar suits in the near future.
Ultimately we are left with some unanswered questions. What, if any, duty does the NHLPA have under the SABH program? We may never know, unless another player brings a timely grievance under the CBA. For the moment, the NHL has also dodged state law claims alleging it is somehow culpable for promotion of violence in the sport.
The third and final part in our series will explore the recent trends in employee prescription drug use and the effects it has in the workplace on employee safety and workers’ compensation costs.