NHL Seeks To Have Wrongful Death Claims Checked

On November 4, 2016, the NHL sought to have Judge Gary Feinerman of the Northern District of Illinois reconsider the court’s previous decision to allow relatives of deceased hockey player Derek Boogaard to file wrongful death claims against the National Hockey League (NHL). The NHL argued the claims fell under the NHL’s Collective Bargaining Agreement (CBA) and should be preempted.

Judge Feinerman had previously agreed with the player’s family, which alleged the NHL promoted violence and implied head trauma was not dangerous and did not require interpretation of the CBA. In September, he held that four claims against the NHL could potentially be framed outside of the NHL’s duty to protect pursuant to the CBA. Those claims allege the league actively harmed Boogaard by promoting violence in the sport and remaining silent on the dangers of repeated head trauma. The judge relied, in part, on evidence including the HBO documentary “Broad Street Bullies,” which glorified Philadelphia Flyers teams of the 1970s who were known for fighting, to show how the NHL took several active and unreasonable steps that ultimately harmed Boogaard.

The NHL, which is also a defendant in pending Minnesota-based multidistrict litigation claiming the league hid the risks of repeated head injuries, argued that communications to players regarding concussions and head trauma were “the subject of collectively bargained agreements.” It further stressed that the NHL had no duty to disclose the long-term effects of concussions and that there was no evidence that Boogaard would have acted differently if he knew about the effects. The NHL also argued that the First Amendment protected any claims the league promoted a culture of violence and, therefore, was not subject to civil liability.

During his six-year career Boogaard, known as an “enforcer,” retaliated for brutal hits on his teammates and was involved in 66 fights during 277 games, including one allegedly resulting in a severe concussion. In 2013, his family filed a wrongful death lawsuit against the NHL and its commissioner alleging his death from a painkiller overdose in 2011 resulted from permanent brain damage from injuries on the ice. He was subsequently found to have suffered from chronic traumatic encephalopathy, or CTE.

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