This Note focuses on the preemptive effect of section 301 of the Labor Management Relations Act (LMRA) (1) in the suit against the National Hockey League (NHL) by the Estate of former NHL player Derek Boogaard. (2) The Note will contrast Boogaard v. National Hockey League, in which section 301 preempted the Estate's negligence claims, with several National Football League (NFL) cases. Boogaard will also be contrasted with In re National Hockey League Players' Concussion Injury Litigation, a similar case brought by a class of NHL players in which the court declared that section 301 did not preempt claims for negligence at the motion to dismiss stage. (3) The following analysis of section 301 preemption and Boogaard will reveal inequities and flaws inherent in section 301 preemption that should be removed by Congress. It also analyzes avenues future litigants may pursue to circumvent section 301 preemption altogether.
First, this Note will discuss Derek Boogaard's career as an NHL enforcer. Then, it will explain the history of the LMRA and section 301 preemption. A synopsis of relevant NFL cases will follow and provide examples of when section 301 has, and has not, preempted negligence claims brought by former players. Next, the Note will analyze Boogaard and contrast its outcome with the aforementioned NFL cases. An analysis of Concussion Injury will follow that discusses why its outcome differed from Boogaard. Finally, this Note will argue that the preemptive effect of section 301 did not serve its intended purpose in Boogaard and that Congress should place restrictions in its application--such as extending the statute of limitations period--and show how future NHL players can apply lessons learned from Boogaard and Concussion Injury to circumvent section 301 preemption in state-law tort claims.
Meet the Boogeyman, Derek Boogaard
During the 1987-88 NHL season, players engaged in an astounding 1,183 fights in 841 games--an average of approximately 1.31 fights per game. (4) The number of fights has decreased significantly over the years, with a fight occurring only about once in three NHL games during the 2015-16 season. (5) Many of these bouts are fought by enforcers, players who "are seen as working-class superheroes--understated types with an alter ego willing to do the sport's most dangerous work to protect others. And they are underdogs, men who otherwise might have no business in the game." (6)
In a 2011 poll, NHL players voted Minnesota Wild enforcer Derek Boogaard as the league's toughest player. (7) Known as "The Boogeyman" since his days as a minor league hockey player, (8) the intimidating and physically imposing 6'7", 265 lb. Boogaard almost didn't make the NHL. (9) But after making his NHL debut in 2005, Boogaard proceeded to play in the NHL for six years with the Minnesota Wild and New York Rangers. (10) During that time, Boogaard played in 277 NHL games, logging three goals and thirteen assists and amassing 589 penalty minutes--an impressive number for someone who played sparingly in a limited number of games. (11) On May 13, 2011, Boogaard's life and NHL career came to a tragic end when he died of an accidental pain medication overdose at the age of twenty-eight. (12)
Like other enforcers, Derek Boogaard struggled with injuries and attempted to conceal the many concussions he likely sustained during his NHL career. (13) His troubles with pain medication addiction began during the 2007-08 season with the Minnesota Wild, when doctors prescribed Boogaard pain medicine for his ailing back. (14) Engaging in fights and exposing himself to the dangers inherent in playing in the NHL only exacerbated the issue, as "Derek would have teeth knocked out and be prescribed vast amounts of painkillers by team doctors." (15) The following year, doctors prescribed Boogaard with Percocet (a combination of acetaminophen and oxycodone) after he underwent surgery on his nose and shoulder. (16) Whether as a result of medication or concussions, Boogaard's mental state began to suffer. (17) Later in 2009, "a doctor asked Boogaard to name every word he could think of that began with the letter R. He could not come up with any. (18)
NHL team physicians "prescribed Boogaard a total of 1,021 pills during the 2008-09 season with the Minnesota Wild." (19) Boogaard's drug addiction ultimately led to his admittance into the NHL's Substance Abuse Behavioral Health Program (SABH) in 2009. (20) Yet even while enrolled in the SABH, "there was little communication between doctors, so [Boogaard] would get a prescription from one doctor and then go to another for more pills." (21)
After participating in an "Aftercare Program" upon release from the SABH, Boogaard ultimately relapsed in 2010. (22) Despite being notified of the relapse by Boogaard's father, NHL physicians still prescribed Boogaard 366 pills during the 2010-11 season. (23) After six positive urine tests for Oxymorphone, Hydromorphone, and Hydrocode, the NHL finally admitted Boogaard into the SABH's Authentic Recovery Center for opioid dependence. (24) Even though Boogaard "resisted treatment and showed indifference in therapy sessions," he was released on his own recognizance "to attend his sister's college graduation." (25) One day later, Boogaard was found dead after he overdosed on pain medications. (26)
Posthumous tests indicated that Boogaard suffered from Chronic Traumatic Encephalopathy (CTE), a progressive neuro-degenerative disease. (27) CTE is likely caused, at least in part, by concussions. (28) The tests revealed that CTE mostly affected the areas of Boogaard's brain that "controlled judgment, inhibition, mood, behavior, and impulse control." (29)
Boogaard's Estate filed state-law negligence claims in Illinois against the NHL for failure to prevent over-prescription of addictive medications, failure to provide Boogaard with a chaperone upon his temporary release from the Authentic Recovery Center, and failure to warn Boogaard of the risks associated with leaving the facility. (30) The Estate also alleged that the NHL negligently monitored Boogaard for brain trauma during his career, ultimately leading to Boogaard's death. (31) On a motion to remand the case to state court, the court analyzed two of the Estate's claims and held that section 301--which provides an avenue for an employee to bring suit against their employer for a breach of contract between the employer and the employee's labor union--completely preempted those claims. (32) Because the NHL's Collective Bargaining Agreement (CBA) governed player safety, the preempted claims would need to be based on a breach of contract under section 301. (33) After the subsequent court in Boogaard determined that the remaining claims were also preempted by section 301, the Estate was left with no recourse or relief on those claims because the statute of limitations had already run. (34)
History of the LMRA
Congress enacted the National Labor Relations Act (NLRA) "to give employees the right to collective bargaining." (35) It can preempt state regulation when such regulation "interferes with the rights and duties of parties to a collective bargaining agreement." (36) Section 301 of the LMRA provides an avenue for an employee to sue their employer for a violation of a CBA. (37) By enacting section 301, Congress intended to provide federal courts with jurisdiction to enforce CBAs and to "compel uniformity in the application of federal labor law." (38)
Congress's power to preempt is derived from the Commerce Clause of the United States Constitution, which allows Congress "to regulate labor relations in industries affecting interstate commerce." (39) Preemption occurs where "a local regulation ' ... conflicts with federal law or would frustrate the federal scheme.'" (40) Therefore, section 301 preempts a "state rule that purports to define the meaning or scope of a term in a contract suit" to ensure uniformity of enforcement. (41) For instance, "when resolution of a state law claim is substantially dependent upon analysis of the terms of an agreement made between the parties in a labor contract, that claim must either be treated as a [section] 301 claim ... or dismissed as pre-empted by federal labor-contract law." (42)
Initially, section 301 only preempted suits that alleged contract violations. (43) However, as the Court in Allis-Chalmers Corp. v. Lueck elucidated, "if the policies that animate [section] 301 are to be given their proper range ... the pre-emptive effect of [section] 301 must extend beyond suits alleging contract violations." (44) That Court worried that litigants could otherwise circumvent the application of section 301 by masking contract claims as tort claims, thereby evading the uniform application of federal labor law. (45) For instance, in Lingle v. Norge Division of Magic Chef Inc., the plaintiff argued that her employer retaliated against her for fding a worker's compensation claim, which constituted a state-law tort. (46) The Seventh Circuit held that section 301 preempted the plaintiffs retaliatory discharge claim because "the facts underlying that claim were the same as those applicable to a grievance under the just cause provision of the [CBA]." (47) However, the Supreme Court disagreed, stating:
[E]ven if dispute resolution pursuant to a [CBA], on the one hand, or state law, on the other, would require addressing precisely the same set of facts, as long as the state-law claim can be resolved without interpreting the agreement itself, the claim is 'independent' of the agreement for [section] 301 pre-emption purposes. (48) Therefore, preemption will not necessarily result when a labor contract (such as a CBA) provides an employee with "a remedy for conduct that also violates state law." (49) Instead, preemption is only limited to circumstances in which courts are required to interpret the CBA to resolve the claim. (50) That is, if resolution of the claim...