Nelson v. Nat'l Hockey League

Decision Date20 February 2014
Docket Number13 C 4846
Citation20 F.Supp.3d 650
PartiesRobert D. Nelson, Personal Representative of the Estate of Derek Boogaard, Deceased, Plaintiff, v. National Hockey League, National Hockey League Board of Governors, and Commissioner Gary B. Bettman, Defendants.
CourtU.S. District Court — Northern District of Illinois

Thomas A. Demetrio, William T. Gibbs, Corboy Demetrio, Chicago, IL, for Plaintiff.

Howard Z. Robbins, Joseph Baumgarten, Proskauer Rose, New York, NY, Paul L. Langer, Michael Frederik Derksen, Proskauer Rose LLP, Chicago, IL, for Defendants.

Memorandum Opinion and Order

Gary Feinerman, United States District Judge

The personal representative of Derek Boogaard's estate, who for ease of reference will be called “Boogaard” unless context requires otherwise, brought this suit in the Circuit Court of Cook County, Illinois, against the National Hockey League and its Board of Governors and Commissioner (collectively, NHL). Doc. 1–1. The complaint characterizes Boogaard's claims as arising under Illinois law. The NHL removed the case to this court under 28 U.S.C. § 1441, asserting that federal question jurisdiction lies under 28 U.S.C. § 1331 because Boogaard's purported state law claims are completely preempted by § 301 of the Labor Management Relations Act (LMRA), 29 U.S.C. § 185, and thus in fact are federal claims.* Doc. 1. Boogaard has moved to remand the case to state court, arguing that his claims are not completely preempted by the LMRA and thus are true Illinois law claims. Doc. 23. Because at least some of Boogaard's claims are completely preempted, the motion is denied.


The following facts, taken primarily from the complaint, are assumed true at this stage of the proceeding. From 2005 through 2011, Boogaard played in the NHL for the Minnesota Wild and the New York Rangers; his role was that of “an Enforcer/Fighter,” meaning “a player that engages in fist-fights with players from the opposing team, on the ice, during a game.” Doc. 1–1 at ¶ 2. The National Hockey League Players Association (NHLPA) represents NHL players and negotiated the 2005 Collective Bargaining Agreement (2005 CBA”) with the NHL, which was in effect during Boogaard's entire career. Id. at ¶ 28; Doc. 1 at ¶ 3.

In his 277 regular season games, Boogaard scored three goals, participated in at least 66 fights, and sustained numerous painful physical injuries, for which NHL team physicians, dentists, trainers, and staff provided him “copious amounts of prescription pain medications, sleeping pills, and painkiller injections.” Doc. 1–1 at ¶¶ 2–6, 16. Boogaard eventually became addicted to some of those drugs and was enrolled in the NHL's Substance Abuse and Behavioral Health (“SABH”) Program. Id. at ¶¶ 1, 9–12. The terms of the SABH Program are set forth in a document that takes the form of an agreement signed by the NHL's commissioner and the NHLPA's executive director. Doc. 1–3. The agreement's first paragraph states that the SABH Program “is a comprehensive effort to address substance abuse among NHL players and their families, to treat those with a substance abuse problem in a confidential, fair and effective way, and to deter such abuse in the future,” and adds that the Program “has the full support of the League and the Players' Association and will be incorporated into the Collective Bargaining Agreement.” Id. at 3. Through the SABH Program, Boogaard entered The Canyon, a rehabilitation facility, in September 2009 for in-patient treatment of his opioid and sleeping pill addiction. Doc. 1–1 at ¶ 13.

After his release from The Canyon, Boogaard signed with the New York Rangers and suffered a relapse. Id. at ¶¶ 15–19. In early April 2011, the SABH Program directed Boogaard to enter Authentic Rehabilitation Center (“ARC”) in California for treatment of his opioid addiction. Id. at ¶ 20. Despite knowing that Boogaard was not complying with his treatment regimen, the NHL allowed Boogaard to be temporarily released from ARC without a chaperone on two occasions. Id. at ¶¶ 21–23. On the first night of his second release, Boogaard ingested a Percocet

and was found dead the next day, on May 13, 2011. Id. at ¶¶ 24–25. The cause of death was determined to be an accidental drug overdose. Id. at ¶¶ 141–143.

After his death, Boogaard's parents and estate unsuccessfully sued the NHLPA in California for breach its duty of fair representation. Boogaard v. Nat'l Hockey League Players Ass'n, 2013 WL 1164301 (C.D.Cal. Mar. 20, 2013). Boogaard's personal representative then filed this suit against the NHL. Counts I and II of the complaint allege the NHL failed to prevent the over-prescription of addictive medications to Boogaard. Doc. 1–1 at ¶¶ 43–101. Counts III and IV allege that the NHL breached its voluntarily undertaken duty to curb and monitor Boogaard's drug addiction during the time he was enrolled in the SABH Program, including by failing to provide Boogaard with a chaperone for his second temporary release from ARC and by failing to warn him of the risks associated with leaving the facility. Id. at ¶¶ 102–200. Counts V and VI allege the NHL was negligent in monitoring Boogaard for brain trauma

during his career. Id. at ¶¶ 201–226. And Counts VII and VIII allege the NHL was negligent in permitting team doctors to inject Boogaard with Toradol, an intramuscular analgesic. Id. at ¶¶ 227–267.


As noted above, the NHL premises federal subject matter jurisdiction on the ground that Boogaard's claims, which Boogaard characterizes as arising under Illinois law, are completely preempted by § 301 of the LMRA. The complete preemption doctrine “converts an ordinary state common-law complaint into one stating a federal claim.” Caterpillar Inc. v. Williams, 482 U.S. 386, 393, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987). “Once an area of state law has been completely pre-empted, any claim purportedly based on that pre-empted state law is considered, from its inception, a federal claim, and therefore arises under federal law” for purposes of 28 U.S.C. §§ 1331 and 1441(a). Crosby v. Cooper B–Line, Inc., 725 F.3d 795, 800 (7th Cir.2013) (internal quotation marks omitted); see also Ne. Rural Elec. Membership Corp. v. Wabash Valley Power Ass'n, 707 F.3d 883, 894 (7th Cir.2013).

Settled precedent holds that § 301 the LMRA completely preempts state law claims “founded directly on rights created by collective-bargaining agreements, and also claims substantially dependent on analysis of a collective-bargaining agreement.” Caterpillar, 482 U.S. at 394, 107 S.Ct. 2425 (internal quotation marks omitted); see also Nelson v. Stewart, 422 F.3d 463, 467–69 (7th Cir.2005) ; In re Bentz Metal Products Co., Inc., 253 F.3d 283, 285–86 (7th Cir.2001) (en banc). Complete preemption under § 301 “covers not only obvious disputes over labor contracts, but also any claim masquerading as a state-law claim that nevertheless is deemed ‘really’ to be a claim under a labor contract.” Crosby, 725 F.3d at 797. [T]o determine whether a purported state-law claim ‘really’ arises under Section 301, a federal court must look beyond the face of the plaintiff's allegations and the labels used to describe her claims and ... evaluate the substance of plaintiff's claims.” Id. at 800 (internal quotation marks omitted). [A] state-law claim is ‘completely preempted’ only when it is inextricably intertwined with consideration of the terms of the labor contract.” Ibid. (internal quotation marks omitted).

The substance of Counts III and IV of the complaint, which allege that the NHL breached its voluntarily undertaken duty to properly care for and address Boogaard's drug addiction during his enrollment in the SABH Program, makes clear that those claims are completely preempted by § 301 of the LMRA. Counts III and IV allege, in relevant part, the following facts:

• Boogaard “was enrolled in the NHL's SABH Program.” Doc. 1–1 at ¶ 103.
• The SABH Program “was granted exclusive, unsupervised control of player abuse issues by the NHL.” Id. at ¶¶ 104–105.
• The SABH Program “is supposed to operate according to a defined regimen,” under which players are initially placed in “Stage One” and then are demoted to “Stage Two,” “Stage Three,” and “Stage Four,” with progressively more serious penalties at each stage, if they fail to comply with the Program's requirements. Id. at ¶ 111.
• On October 9, 2009, shortly before his release from The Canyon, the SABH Program instructed Boogaard as part of his “Aftercare Program” that “he was to refrain from all opioid and Ambien

drug use” and warned that he could be permanently suspended from the NHL if he failed to comply, though Boogaard “would come to learn that this was an idle threat.” Id. at ¶ 113.

• Despite the instructions imposed by his Aftercare Program, Boogaard received Ambien

and other drugs from NHL team physicians, dentists, trainers, and staff. Id. at ¶ 120.

• Although from January 2011 through March 2011 Boogaard violated the Aftercare Program and his urine tested positive for prohibited substances on several occasions, Boogaard was not placed in Stage Two or Stage Three of the SABH Program's progressive disciplinary regimen.Id. at ¶¶ 121–127.
• After Boogaard was admitted to ARC in early April 2011, the NHL knew or should have known that he was not complying with his treatment regimen. Id. at ¶¶ 130–133.
• The SABH Program paid for Boogaard's first temporary release from ARC, but did not provide him with a chaperone, and during his release he purchased $4,000 of opioids on the street in New York. Id. at ¶¶ 134–136.
• Boogaard returned to ARC on May 4, 2011, and on May 12, 2011, Boogaard left on his second temporary release from the facility to attend his sister's graduation; the NHL did not provide Boogaard with a chaperone, did not provide him with an Aftercare Program or follow-up care instructions, and did not warn him of the risks of leaving the facility. Id. at ¶¶ 137–140.
• On May 12 and 13, 2011, Boogaard ingested Percocet

and numerous...

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