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Introduction
This Note focuses on the preemptive effect of section 301 of theLabor Management Relations Act (LMRA) (1) in the suit against theNational Hockey League (NHL) by the Estate of former NHL player DerekBoogaard. (2) The Note will contrast Boogaard v. National Hockey League,in which section 301 preempted the Estate's negligence claims, withseveral National Football League (NFL) cases. Boogaard will also becontrasted with In re National Hockey League Players' ConcussionInjury Litigation, a similar case brought by a class of NHL players inwhich the court declared that section 301 did not preempt claims fornegligence at the motion to dismiss stage. (3) The following analysis ofsection 301 preemption and Boogaard will reveal inequities and flawsinherent in section 301 preemption that should be removed by Congress.It also analyzes avenues future litigants may pursue to circumventsection 301 preemption altogether.
First, this Note will discuss Derek Boogaard's career as anNHL enforcer. Then, it will explain the history of the LMRA and section301 preemption. A synopsis of relevant NFL cases will follow and provideexamples of when section 301 has, and has not, preempted negligenceclaims brought by former players. Next, the Note will analyze Boogaardand contrast its outcome with the aforementioned NFL cases. An analysisof Concussion Injury will follow that discusses why its outcome differedfrom Boogaard. Finally, this Note will argue that the preemptive effectof section 301 did not serve its intended purpose in Boogaard and thatCongress should place restrictions in its application--such as extendingthe statute of limitations period--and show how future NHL players canapply lessons learned from Boogaard and Concussion Injury to circumventsection 301 preemption in state-law tort claims.
I. Meet the Boogeyman, Derek Boogaard
During the 1987-88 NHL season, players engaged in an astounding1,183 fights in 841 games--an average of approximately 1.31 fights pergame. (4) The number of fights has decreased significantly over theyears, with a fight occurring only about once in three NHL games duringthe 2015-16 season. (5) Many of these bouts are fought by enforcers,players who "are seen as working-class superheroes--understatedtypes with an alter ego willing to do the sport's most dangerouswork to protect others. And they are underdogs, men who otherwise mighthave no business in the game." (6)
In a 2011 poll, NHL players voted Minnesota Wild enforcer DerekBoogaard as the league's toughest player. (7) Known as "TheBoogeyman" since his days as a minor league hockey player, (8) theintimidating and physically imposing 6'7", 265 lb. Boogaardalmost didn't make the NHL. (9) But after making his NHL debut in2005, Boogaard proceeded to play in the NHL for six years with theMinnesota Wild and New York Rangers. (10) During that time, Boogaardplayed in 277 NHL games, logging three goals and thirteen assists andamassing 589 penalty minutes--an impressive number for someone whoplayed 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 ofan accidental pain medication overdose at the age of twenty-eight. (12)
Like other enforcers, Derek Boogaard struggled with injuries andattempted to conceal the many concussions he likely sustained during hisNHL career. (13) His troubles with pain medication addiction beganduring the 2007-08 season with the Minnesota Wild, when doctorsprescribed Boogaard pain medicine for his ailing back. (14) Engaging infights and exposing himself to the dangers inherent in playing in theNHL only exacerbated the issue, as "Derek would have teeth knockedout and be prescribed vast amounts of painkillers by team doctors."(15) The following year, doctors prescribed Boogaard with Percocet (acombination of acetaminophen and oxycodone) after he underwent surgeryon his nose and shoulder. (16) Whether as a result of medication orconcussions, Boogaard's mental state began to suffer. (17) Later in2009, "a doctor asked Boogaard to name every word he could think ofthat began with the letter R. He could not come up with any. (18)
NHL team physicians "prescribed Boogaard a total of 1,021pills during the 2008-09 season with the Minnesota Wild." (19)Boogaard's drug addiction ultimately led to his admittance into theNHL's Substance Abuse Behavioral Health Program (SABH) in 2009.(20) Yet even while enrolled in the SABH, "there was littlecommunication between doctors, so [Boogaard] would get a prescriptionfrom one doctor and then go to another for more pills." (21)
After participating in an "Aftercare Program" uponrelease from the SABH, Boogaard ultimately relapsed in 2010. (22)Despite being notified of the relapse by Boogaard's father, NHLphysicians still prescribed Boogaard 366 pills during the 2010-11season. (23) After six positive urine tests for Oxymorphone,Hydromorphone, and Hydrocode, the NHL finally admitted Boogaard into theSABH's Authentic Recovery Center for opioid dependence. (24) Eventhough Boogaard "resisted treatment and showed indifference intherapy sessions," he was released on his own recognizance "toattend 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 ChronicTraumatic Encephalopathy (CTE), a progressive neuro-degenerativedisease. (27) CTE is likely caused, at least in part, by concussions.(28) The tests revealed that CTE mostly affected the areas ofBoogaard's brain that "controlled judgment, inhibition, mood,behavior, and impulse control." (29)
Boogaard's Estate filed state-law negligence claims inIllinois against the NHL for failure to prevent over-prescription ofaddictive medications, failure to provide Boogaard with a chaperone uponhis temporary release from the Authentic Recovery Center, and failure towarn Boogaard of the risks associated with leaving the facility. (30)The Estate also alleged that the NHL negligently monitored Boogaard forbrain trauma during his career, ultimately leading to Boogaard'sdeath. (31) On a motion to remand the case to state court, the courtanalyzed two of the Estate's claims and held that section301--which provides an avenue for an employee to bring suit againsttheir employer for a breach of contract between the employer and theemployee's labor union--completely preempted those claims. (32)Because the NHL's Collective Bargaining Agreement (CBA) governedplayer safety, the preempted claims would need to be based on a breachof contract under section 301. (33) After the subsequent court inBoogaard determined that the remaining claims were also preempted bysection 301, the Estate was left with no recourse or relief on thoseclaims because the statute of limitations had already run. (34)
II. History of the LMRA
Congress enacted the National Labor Relations Act (NLRA) "togive employees the right to collective bargaining." (35) It canpreempt state regulation when such regulation "interferes with therights and duties of parties to a collective bargaining agreement."(36) Section 301 of the LMRA provides an avenue for an employee to suetheir employer for a violation of a CBA. (37) By enacting section 301,Congress intended to provide federal courts with jurisdiction to enforceCBAs and to "compel uniformity in the application of federal laborlaw." (38)
Congress's power to preempt is derived from the CommerceClause of the United States Constitution, which allows Congress "toregulate labor relations in industries affecting interstatecommerce." (39) Preemption occurs where "a local regulation' ... conflicts with federal law or would frustrate the federalscheme.'" (40) Therefore, section 301 preempts a "staterule that purports to define the meaning or scope of a term in acontract suit" to ensure uniformity of enforcement. (41) Forinstance, "when resolution of a state law claim is substantiallydependent upon analysis of the terms of an agreement made between theparties in a labor contract, that claim must either be treated as a[section] 301 claim ... or dismissed as pre-empted by federallabor-contract law." (42)
Initially, section 301 only preempted suits that alleged contractviolations. (43) However, as the Court in Allis-Chalmers Corp. v. Lueckelucidated, "if the policies that animate [section] 301 are to begiven their proper range ... the pre-emptive effect of [section] 301must extend beyond suits alleging contract violations." (44) ThatCourt worried that litigants could otherwise circumvent the applicationof section 301 by masking contract claims as tort claims, therebyevading the uniform application of federal labor law. (45) For instance,in Lingle v. Norge Division of Magic Chef Inc., the plaintiff arguedthat her employer retaliated against her for fding a worker'scompensation claim, which constituted a state-law tort. (46) The SeventhCircuit held that section 301 preempted the plaintiffs retaliatorydischarge claim because "the facts underlying that claim were thesame as those applicable to a grievance under the just cause provisionof 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 laborcontract (such as a CBA) provides an employee with "a remedy forconduct that also violates state law." (49) Instead, preemption isonly limited to circ*mstances in which courts are required to interpretthe CBA to resolve the claim. (50) That is, if resolution of the claimrequires the court to interpret the CBA itself, then the claim ispreempted; however, if the claim can be resolved without interpretingthe CBA, then the claim will not be preempted. (51) As the Court inAllis-Chalmers asserted, section 301 will preempt a tort claim that is"inextricably intertwined with consideration of the terms of thelabor contract." (52)
Thus, the analysis appears to be straightforward--whenever astate-law claim, including claims for tortious conduct, necessarilyrequires an interpretation of the CBA's provisions in order to beresolved, the claim is preempted by section 301. However, as thefollowing analysis of NFL cases and Boogaard will demonstrate, section301 preemption can result in unforeseen and likely unintended negativeconsequences for litigants.
III. Differing Results Regarding Section 301 Preemption forState/Common Law Causes of Action in NFL Cases
Prior to Boogaard, several NFL players or their estates filed suitagainst the NFL and their respective teams for tortious conduct,including their failure to warn about the risks of concussions. (53)Many of these claims alleged that the NFL was negligent, and severalcases demonstrated that even with a CBA in place, section 301 may notpreempt those claims when a lack of connection exists between the claimsand the CBA. Reasons that negated section 301 preemption included: 1)the NFL's duties owed to the players did not arise out of the CBA;(54) 2) the CBA did not require a player to receive treatment at an NFLteam's facility; (55) and 3) while the NFL's duty owed to theplayer could be ascertained by examining the NFL's legalrelationship with the player as established by the CBA, a separatestate-law claim also clearly defined the duties owed by the NFL to theirplayers, independent of the CBA. (56)
However, section 301 preempted the state-law claims in other cases.(57) Section 301 preemption prevailed for the following reasons: 1) theextent of the duties allegedly breached by the NFL--by virtue of beingthe NFL player's employer--required an analysis and interpretationof the CBA; (58) 2) because a sports league does not owe a common-lawduty to protect players from mistreatment by individual teams, theextent of the duties voluntarily assumed by the league required ananalysis and interpretation of the CBA; (59) and 3) consultation of theCBA was required because the player failed to show that his injurieswere sustained when a CBA was not in effect. (60) An analysis of thecases in which section 301 did and did not preempt the claims followsbelow.
A. Instances of No Preemption under Section 301
1. Green v. Arizona Cardinals Football Club LLC
In Green v. Arizona Cardinals Football Club LLC, three formerfootball players and their wives sued the Arizona Cardinals and allegedthat the team owed the players a duty to maintain a safe workingenvironment, a duty not to expose them to unreasonable risks of harm,and a duty to warn them about the existence of concealed dangers afterthey sustained multiple concussions. (61) The court ruled that theCardinals' duties owed to the players did not arise out of the CBAand therefore could be evaluated without its interpretation. (62)
The court determined that the players' negligence claimsexisted independently of the CBA and derived from common law duties tomaintain a safe working environment, to refrain from exposing theplayers to unreasonable risks of harm, and to warn the players aboutdangers that were not reasonably foreseeable. (63) Despite the existenceof a Joint Committee on Player Safety and Welfare established within theCBA, the court stated that "[m]ere reference to part of a CBA isinsufficient for preemption; the relevant inquiry is whether theresolution of the claim depends upon the meaning of the CBA." (64)
Green highlights an important aspect of section 301 preemption--although a CBA may appear to define certain duties owed to an employee(thus invoking preemption), preemption may be precluded due topreexisting common law duties derived from an employer-employeerelationship. (65) Importantly, the court ruled that the CBA may not beused as a defense by the Cardinals to limit their duty of care. (66)That is, a CBA may not limit a duty of care (and invoke section 301preemption) that is already prescribed by common law.
2. Bentley v. Cleveland Browns Football Co.
In Bentley v. Cleveland Browns Football Co., Cleveland Brownsplayer LeCharles Bentley filed a complaint against the Browns allegingfraud and negligent misrepresentation. (67) After relying onrepresentations by the Browns that their training facility was worldclass, Bentley used the Browns' training facility to receivephysical therapy treatment and subsequently received a staph infection.(68)
The court held that Bentley's claims did not implicate the CBAand were not dependent upon an analysis of the CBA. (69) The fact that"nothing in the CBA required Bentley to use the ClevelandBrown's facility" proved to be central to the court'sreasoning. (70) The court noted that Bentley was free to choose anyrehabilitation facility in the country and that doing so would not havecontravened the CBA. (71)
Bentley introduces an important aspect to section 301 preemption:if a player is free to receive rehabilitation services at facilitiesunaffiliated with the team/league, then interpretation or analysis ofthe CBA is not required even when a player ultimately chooses to receiverehabilitation treatment from the team/league.
3. Williams v. National Football League
In Williams v. National Football League, the NFL suspended severalplayers after they tested positive for a banned substance. (72) Theplayers' union alleged a breach of contract under the LMRA by theNFL, a violation of the Minnesota Drug and Alcohol Testing in theWorkplace Act (DATWA), and a violation of the Minnesota ConsumableProducts Act. (73)
DATWA afforded an opportunity for employees to explain a positivedrug test and have it verified by a confirmatory test before an employercould impose discipline. (74) DATWA specifically addressed CBAs, notingthat it did not limit parties from agreeing to a drug testing programthat met or exceeded the minimum standards set forth in DATWA. (75) TheNFL argued that section 301 preempted the players' DATWA claimbecause the court would necessarily be required to "construe theterms" of the NFL's policy banning the use of certainsubstances "in order to determine whether its protections forplayers 'meets or exceeds' DATWA's protections."(76)
The court disagreed, explaining that if a CBA met or exceeded theprotections set forth in DATWA, then an employee simply retains twopossible claims--one for breach of contract under section 301 and oneunder DATWA. (77) Thus, section 301 preemption did not apply. (78)Williams is significant because it recognizes that separate state-lawclaims that clearly proscribe conduct by an employer may be litigatedwithout section 301 preemption. Further, even if a violation of astate-law claim (such as DATWA) also constitutes a breach of the CBA,section 301 does not preempt the state-law claim so long as the claimdoes not require CBA interpretation--instead, the employee may retaintwo separate causes of action.
B. Instances of Preemption under Section 301
1. Williams v. National Football League
In Williams, the court found that claims for breach of fiduciaryduty, negligence, and gross negligence were preempted by section 301.(79) The players alleged that the NFL knew that a certain productcontained the banned substance bumetanide and failed to disclose thisfact to the players. (80) The players asserted that the NFL's dutyto disclose this information arose from their fiduciary duty as anemployer under Minnesota law. (81) However, the court found that"whether the NFL or the individual defendants owed the Players aduty to provide such a warning cannot be determined without examiningthe parties' legal relationship and expectations as established bythe CBA and the Policy." (82)
2. Dent v. National Football League
In Dent v. National Football League, NFL players sued the NFL andasserted several claims relating to improper administration of painmedications including fraud, negligent misrepresentation, and negligenthiring of medical personnel. (83) The NFL argued that the fraud andnegligence claims were preempted by section 301. (84) The court foundthat no common law duty existed for a sports league to protect playersfrom alleged mistreatment by individual teams (85) and concluded that todetermine the extent of the NFL's negligence in failing to overseethe clubs' medication abuse, "it would be essential to takeinto account the affirmative steps the NFL has taken to protect thehealth and safety of the players, including the administration ofmedicine." (86) Because the CBA contained the duties owed to itsplayers and the affirmative steps the NFL undertook, section 301preempted the common law negligence claims. (87)
3. Duerson v. National Football League, Inc.
In Duerson v. National Football League, Inc., David Duersoncommitted suicide after sustaining multiple concussions during his NFLcareer. (88) The complaint alleged that the NFL failed to educateDuerson about the risks of sustaining concussions and continuing to playfootball after sustaining concussions. (89) Although the NFL contendedthat the estate's claims were dependent upon analysis of two of itsCB As, (90) the estate asserted that neither CBA was relevant becauseits allegations referenced a time period in which neither CBA was ineffect. (91)
The court recognized that the complaint used the words"throughout his career" (92) and referred to other concussiveepisodes that occurred at unspecified times; therefore, the estate couldnot prove that CTE resulted from concussions sustained only when theCBAs were not in effect. (93)
The court then turned to whether the CBAs had to be interpreted toresolve the estate's claims. (94) The NFL identified severalprovisions within its CBA that outlined the NFL's duty, including aprovision that required an NFL club's physician to advise theplayer of health problems and a provision that required clubs to have aboard-certified orthopedic surgeon as a club physician. (95)
The court concluded because these provisions might "impose aduty on the NFL's clubs to monitor a player's health andfitness to continue to play football," (96) the CBA provisionswould require interpretation. Although the court agreed with the estatethat a duty to keep NFL players reasonably safe may have arisen apartfrom the CBA, section 301 still preempted the estate's claimbecause the CBA required interpretation to determine the exact standardof care the NFL undertook. (97)
In contrast, the court noted that if the scope of a league'sduty of care, such as that in Brown v. National Football League, isbased upon rules and manuals that are not contained within a CBA, thensection 301 might not preempt the plaintiff s claim. (98)
IV. Analyzing Why Section 301 Preempted the Estate'sNegligence Claims in Boogaard
Although the court in Boogaard found that section 301 preempted allof the Estate's claims, similar claims of negligence against theNHL alleged by a class of former NHL players in Concussion Injurysurvived section 301 preemption at the motion to dismiss stage. (99) Acomprehensive analysis of Boogaard and how its outcome differed from theaforementioned NFL cases follows below. Then, an in-depth analysis willexamine why the courts reached different conclusions on the negligenceclaims in Boogaard and Concussion Injury.
Boogaard's Estate first brought a claim against the NationalHockey League Players' Association (NHLPA) for failing to file agrievance with the New York Rangers on the Estate's behalf afterthe Rangers refused to pay out the remainder of Boogaard'scontract. (100) The NHLPA, as stipulated by the CBA, had only sixty daysto file a grievance with the Rangers. (101) After the NHLPA advised theEstate that it would not be filing a grievance on its behalf, the Estatethen had just six months to bring a claim against the NHLPA for a breachof their duty of fair representation. (102) When the Estate brought thisclaim against the NHLPA, the court dismissed it because the six-monthstatute of limitations had already run. (103) The Estate then fdedstate-law negligence claims against the NHL, which are explained indetail below. (104)
A. Boogaard v. National Hockey League
Boogaard's Estate originally fded suit against the NHL in2014. (105) The court found that the Illinois tort claims against theNHL for negligently failing to monitor and cure Boogaard's painmedication addiction while Boogaard was enrolled in the SABH Programwere completely preempted by section 301 because the CBA incorporatedthe SABH Program. (106) Even after the case was removed to federal courtand Minnesota state-law claims were added, the court in Boogaard stillfound that section 301 completely preempted the Estate's remainingclaims. (107) Further, the court granted summary judgment to the NHLbecause even if the court analyzed the Estate's claims as section301 breach of contract claims under the LMRA, the statute of limitationshad already run. (108) As a result, section 301 preemption left theEstate without any recourse or relief on its original negligence claims.
The court utilized section 301 preemption analysis (109) andreiterated that the Estate's tort claims would only be preempted ifthey required CBA interpretation. (110) The Estate, like the plaintiffsin the NFL cases, argued that its claims--aside from Counts III and IV,which were already preempted by section 301--did not require anyinterpretation of the CBA. (111)
1. Counts V through VIII
Counts V through VIII alleged that the NHL voluntarily assumed aduty to "keep [players] reasonably safe." (112) The courtquickly concluded that Counts V through VIII were preempted by section301. (113) The court reasoned that because "[s]tate tort lawgenerally does not impose any duty to act to protect others fromharm," the CBA would need to be interpreted to determine the dutiesand their scope that the NHL voluntarily assumed to protectBoogaard's health. (114)
To support the conclusion that the NHL voluntarily assumed a dutyto keep Boogaard reasonably safe, the Estate referenced actions taken bythe NHL that, on the surface, do not appear to require anyinterpretation of the CBA. (115) For instance, the NHL penalized highsticking, kicking, tripping, and required helmets to be worn. (116)However, the court distinguished between voluntarily assuming a duty tokeep players reasonably safe and voluntarily assuming a duty to protectplayers from specific harms. (117) It reasoned that because the CBA"exhaustively detailed] each party's specific obligations tothe others," it required interpretation to determine the scope ofthe duties the NHL assumed. (118)
The Estate also argued that the NHL was negligent for failing toinstitute a '"bench concussion assessment protocol' andfor allowing players to return after a concussion without first beingcleared by an independent doctor as well as a team doctor." (119)The NHL countered that because the CBA gave it no power over individualteam doctors and the medical standards they used, it did not assumegeneral duties to keep players reasonably safe and prevent brain trauma.(120) The court agreed, noting that "it is unlikely that the NHLwould have assumed responsibility for 'keeping players reasonablysafe' and 'preventing brain trauma' while simultaneouslyadopting a [CBA] that prohibited them from taking steps necessary tomeet those responsibilities." (121)
The Estate then argued that the NHL should have altered the ruleson fighting to further protect its players. But the NHL again counteredby asserting that the CBA precluded the NHL from changing the rulesunilaterally without consent from the NHLPA. (122) The court againagreed, noting that the NHL's voluntarily assumed duties did notinclude an obligation to alter the playing rules to make the game safer.(123) Therefore, the court concluded that Counts V and VI werecompletely preempted by section 301 because the CBA requiredinterpretation to ascertain the scope of the NHL's voluntarilyassumed duties. (124) The court likewise concluded that Counts VII andVIII were completely preempted by section 301 because the NHL plausiblyasserted that the CBA prevented it from prohibiting team doctors toadminister Toradol. (125) Therefore, the court ruled that Counts Vthrough VIII were preempted by section 301. (126)
2. Counts I and II
Ordinarily, it is a general rule that one is under no duty to actto protect another from harm. (127) While counts V through VIII allegedthat the NHL voluntarily assumed a duty to protect Boogaard, Counts Iand II alleged that the NHL "owed a duty to [Boogaard] to keep himreasonably safe during his NHL career and to refrain from causing anaddiction to controlled substances." (128) Because the Estate didnot allege that the NHL voluntarily assumed this duty, the court soughtto find how the NHL might be charged with upholding this duty to protectBoogaard under the special relationship doctrine. (129)
Under the special relationship doctrine, the NHL might have had aduty to protect Boogaard because of the custodian-protectee exception.(130) Whether the NHL qualified as a custodian and Boogaard as aprotectee depended on the NHL's "ability to control[Boogaard's] behavior and circ*mstances." (131) The courtnoted that because both the NHL and the Estate disputed the amount ofcontrol the CBA afforded the NHL over Boogaard, it would be necessary tointerpret the CBA to "determine whether the NHL actually had a dutyto protect Boogaard from addiction." (132) As a result, the courtconcluded that Counts I and II were also completely preempted by section301. (133)
B. How Boogaard Differs from the NFL Cases
The NFL cases discussed in Part IV offer further explanation of whythe court preempted the Estate's claims, as the court in Boogaardreferenced and distinguished several of these cases. For instance, thecourt suggested that an employer-employee relationship did not exist inBoogaard (134) and no state law imposed a duty on the NHL to protectBoogaard. (135) While the court did not reference all of the NFL cases,their outcomes may explain some of the court's reasoning, which isdiscussed in greater detail below.
Unlike Green v. Arizona Football Club LLC, the NHL's dutiesdid not arise out of an employer-employee relationship and instead aroseout of a CBA. (136) Because individual NHL teams (and not the NHLitself) employs players, an employer-employee relationship between theNHL and Boogaard likely did not exist. (137) Although a specialrelationship between the NHL and Boogaard may exist under acustodian-protectee relationship, the court concluded that CBAinterpretation would be required to determine whether this specialrelationship existed. (138)
In Bentley v. Cleveland Browns Football Co., section 301 preemptiondid not apply because state law imposed a duty--independent of the CBAonthe NFL team not to misrepresent the quality of the training facilitywhere Bentley was treated. (139) Unlike Bentley, the NHL's SABHProgram mandated Boogaard's treatment. (140) The court in Boogaarddid not analyze this mandated requirement in the context of Bentley.However, its silence on the issue suggests that the SABH's presencein the CBA--coupled with the absence of Illinois or Minnesota state lawthat would impose a similar duty (as noted in Bentley) on NHL teams ordoctors independent of the CBA--also differentiates Boogaard fromBentley.
In Williams v. National Football League, the players argued thatthe NFL violated a state statute (DATWA) that imposed duties on the NFLindependent of the CBA. (141) In effect, the claims that directlyrelated to the breach of those duties outlined in the statute were notpreempted by section 301. (142) In contrast, Boogaard's Estate didnot allege any violation of a state statute that identified dutiesseparate and distinct from those in the CBA, and therefore the court didnot address Williams.
In Dent v. National Football League, the players alleged that theNFL improperly managed the administration of pain medications, includingToradol. (143) Similarly, Boogaard's Estate alleged in Counts VIIand VIII that the NHL negligently failed to prevent team doctors frominjecting Boogaard with Toradol. (144) While the court in Boogaard didnot address Dent, the Dent court asserted that "no decision in anystate ... has ever held that a professional sports league owed such aduty to intervene and stop mistreatment by the league's independentclubs." (145) Therefore, like the NFL in Dent, the NHL is likelynot bound by a separate duty independent of the CBA to protect Boogaard.Instead, the Boogaard court found that because the CBA established theright to medical care for Boogaard, it would need to be interpreted toresolve the claims. (146)
Finally, in Duerson v. National Football League, Inc., theplayer's estate argued that the NFL violated a duty--separate andindependent of the CBA--to keep Duerson reasonably safe. (147) While thecourt agreed that this duty may have been imposed on the NFL, section301 still preempted the claim because the CBA would need to beinterpreted to identify the actual standard of care undertaken by theNFL. (148) Importantly, the Duerson court referenced a separate case(Brown v. National Football League) in which section 301 did not preemptthe claim because the scope of the NFL's duty of care was definedby reference to rules and manuals that were not contained within theCBA. (149)
Like Duerson, Boogaard's Estate also argued that the NHLviolated a duty to keep Boogaard reasonably safe. (150) Although thecourt in Boogaard did not directly address Duerson, it referenced anddistinguished Brown v. National Football League, which did not allegethe violation of a voluntarily assumed duty by the NFL to keep Brownsafe. (151) Instead, Brown asserted that the NFL violated a duty not tounreasonably harm him. (152) Brown might also be influential becauserules and manuals helped define the scope of the NFL's duty, andthose rules and manuals were not contained within the CBA. (153)
Like Brown and the NFL, the NHL's CBA does not include therules of play. (154) However, the NHL asserted that a clause in the CBAspecifically prevents it from altering the rules of play without consentfrom the NHLPA, and the court in Boogaard concluded that CBAinterpretation would therefore be required to "ascertain[] thescope of the NHL's voluntarily assumed duties." (155) Becausethe NHL's CBA is very specific and detailed, it is more likely thatthe CBA will either define the scope of any duty that the NHL assumes orat least provide an argument by the NHL that it defines the scope of aduty. (156)
As evidenced, the NFL cases cited differ from Boogaard in manyrespects, and they provide insight as to why the court concluded thatsection 301 preempted all of the Estate's claims. However, a casethat also asserted negligence claims against the NHL reached a differentoutcome than Boogaard at the motion to dismiss stage. (157) An analysisof that case is presented below.
C. In re National Hockey League Players' Concussion InjuryLitigation
In Concussion Injury, a class of former NHL players brought suitagainst the NHL for breaching its duty of reasonable care for playersafety. (158) The players alleged that the NHL knew or should have knownof evidence linking brain trauma to long-term neurological problems andthat the NHL failed to protect the players and inform them of suchdangers. (159) To support their contention, the players alleged that theNHL assumed this duty to protect players against head-trauma "byvirtue of instituting a helmet requirement in 1979 and creating aConcussion Program in 1997 to research and study brain injuries inplayers." (160) The court denied the NHL's motion to dismiss,noting that section 301 preemption did not apply (yet) at this stage ofthe proceedings. (161)
The similarities between Boogaard and Concussion Injury areapparent: both alleged that the NHL breached its duty to keep playersreasonably safe. Yet one case resulted in the invocation of section 301while the other did not. Count III in Concussion Injury alleged that theNHL was negligent in ensuring the safety of NHL players. (162) Likewise,Boogaard's Estate alleged that the NHL breached its duty to keepBoogaard reasonably safe. (163) Like Boogaard, the NHL in ConcussionInjury argued that if a duty to keep the class of NHL players reasonablysafe existed at all, then the CBA created that duty. (164)
The NHL contended that "the helmet requirement was implementedpursuant to a CBA between the NHL and the Player's Union and [was]thus 'necessarily' based on a CBA." (165) As for theConcussion Program, the NHL asserted that because it implemented theprogram via an agreement with the NHLPA, it was therefore based on theCBA. (166) The court disregarded these arguments (167) because theplayers' complaint did not reference any CBA and the NHL did"not cite to any CBA provisions that purportedly imposed a dutyupon which Plaintiffs' claims are based." (168)
The court also noted that because many of the plaintiff NHL playerswere retired, it was unclear which CBAs might apply to them; in effect,more discovery would be required. (169) Importantly, the court noted theplayers' efforts to show that the NHL's duty to protect themdid not arise from the CBA. (170) The players acknowledged that whilethe NHL referenced CBA provisions regarding player health, safety,rules, and discipline, sources outside of the CBA evidenced anindependent duty assumed by the NHL to keep the players reasonably safe.(171) For instance, the players referenced a presentation made to theNHL Board of Governors by the NHL Department of Player Safety whichstated that "'[t]he NHL has always assumed the responsibilityof making the game safer through rule changes, medical treatmentpolicies, equipment analysis, enhancements to the playing environment,and supplemental discipline.'" (172)
Given that neither the pleadings nor the documents referenced bythe players referenced a CBA, the court could not determine at thisstage in the proceedings that interpretation of the CBA would berequired to resolve the claims. (173) The court reasoned that:
[T]he mere fact that a CBA creates rights or duties similar to those on which a state-law claim is based, or that the parties involved in the dispute are subject to a CBA, or that the event giving rise to the dispute may be subject to a CBA's grievance procedures, is not sufficient to trigger preemption. (174)
The court also analyzed and distinguished Boogaard. Although theduties the Estate alleged the NHL violated in Boogaard "hadrelevant and direct counterparts in the CBA--i.e., the duty to preventpainkiller addiction versus the CBA's Prescription MedicationProgram," (175) the players in Concussion Injury alleged that theNHL breached a duty that "runs straight from Defendant to theplayers." (176) Therefore, the claims did not (preliminarily)require CBA interpretation. (177)
D. Result of Boogaard: a Different Kind of Boogeyman
Although the Boogaard court concluded that section 301 preemptedall of the Estate's claims, the case did not end there. (178) Thecourt then attempted to analyze the preempted claims under the LMRA andsection 301 as a breach of the CBA. (179) The CBA provided that theNHLPA must either first bring suit on the Estate's behalf or notifythe Estate that it would not bring suit (180)--only then may the Estatebring its own claim against both the NHL for breach of the CBA andperhaps against the NHLPA for a breach of its duty of fairrepresentation (this type of suit is called a hybridcontract/duty-of-fair representation claim). (181)
Because the CBA required arbitration to resolve a disputeconcerning issues that involve the CBA, the Estate's claims couldonly survive as a hybrid claim. (182) Unfortunately for the Estate, asix-month statute of limitations--which began when the Estate learnedthat the NHLPA would not file a grievance on its behalf--applies tohybrid claims. (183) In addition to the six-month statute oflimitations, the CBA itself mandated that the NHLPA must file agrievance on behalf of the player within sixty days of learning factsthat gave rise to the claim. (184) The statute of limitations would havetherefore barred the Estate's claims against the NHL eight monthsafter Boogaard's death. (185) Because the Estate did not initiateclaims against the NHL until almost two years after Boogaard'sdeath, the statute of limitations precludes the Estate from initiatingsection 301 claims against the NHL. (186)
After the ruling in Boogaard, the Estate fded an amended complaintwith additional claims that it argued were not preempted by section 301.(187) Because the statute of limitations on state-law tort claims hasnot yet run, the Estate may fde amended complaints which allegedifferent causes of action that do not require interpretation of theCBA. Therefore, while the Estate is precluded from receiving relief onsection 301 claims and on its original negligence claims that werepreempted by section 301, it may prevail in asserting that the NHLviolated or breached duties that are not dependent upon interpretationof the CBA. (188) On June 5, 2017, the court dismissed the Estate'sremaining claims with prejudice, in part due to the Estate'sfailure to show that the NHL owed Boogaard any legal duties. (189)
V. Proposal to Change Section 301 and Strategies to CircumventSection 301 Preemption in Future Litigation
A. Proposal to Change Section 301 Statute of Limitations
As the Boogaard case demonstrates, section 301 preemption mayresult in an ironic scheme in which the LMRA may not afford relief thatthe plaintiff could otherwise receive under a state-law tort claim.(190) Because state-law tort claims are subject to a much longer statuteof limitations period than section 301 claims, the Estate could notreceive relief on its original claims against the NHL. (191) Ironically,the LMRA was designed --in part--to produce the opposite effect.Congress passed the LMRA to:
[P]romote the full flow of commerce, to prescribe the legitimate rights of both employees and employers in their relations affecting commerce, to provide orderly and peaceful procedures for preventing the interference by either with the legitimate rights of the other, to protect the rights of individual employees in their relations with labor organizations whose activities affect commerce, to define and proscribe practices on the part of labor and management which affect commerce and are inimical to the general welfare, and to protect the rights of the public in connection with labor disputes affecting commerce. (192)
In Boogaard, the Estate must have filed suit against the NHL for abreach of the LMRA under section 301 within six months of receivingnotification that the NHLPA did not file a grievance on its behalf.(193) As explained above, many of the Estate's claims simplyalleged state-law tort claims against the NHL, which would haveotherwise been subject to a two-year statute of limitations period.(194) But because these claims were preempted by section 301 and filedafter the six-month statute of limitations period ran, the Estate couldnot prevail. (195)
When parents learn that their child has died of an accidental drugoverdose, the notion of complex litigation may not arise for months.Even after six months, families of deceased players are likely stillgrieving the loss of their loved ones, and the prospect of bringing suitmay not materialize. (196) Like the Estate, many families may spendmonths simply trying to seek answers. (197) The original purposes of theNLRA and section 301 are not being enhanced via a six-month statute oflimitations on hybrid claims, which could otherwise be filed as commonlaw negligence claims subject to a statute of limitations of two yearsor more. (198) Instead of protecting and granting more power toindividual employees, section 301--through its preemptiveeffect--provides even more power to the employer. (199) To be clear, theEstate's claims of negligence against the NHL were subject to asix-month statute of limitations only because the CBA meticulouslydetailed the extent of the NHL's voluntary duties to keep Boogaardsafe and included an arbitration provision which required the NHLPA toact first on the Estate's behalf. (200)
One counterpoint to section 301 's negative preemptive effectis that it may encourage employers to draft more extensive and specificCBAs. In being more specific and detailed, employers may voluntarilyassume particular duties of care, reduce ambiguities in disputesinvolving the CBA, and take a more active role in the welfare of theiremployees. On the other hand, common law negligence claims are morelikely to be preempted by section 301 and transformed into claims forbreach of contract. (201)
Therefore, the NHL may argue that it assists players like Boogaardby assuming certain duties to protect, such as providing a medicaltreatment and rehabilitation program. (202) But the notion that a breachof this duty should result in a shorter statute of limitations merelybecause the CBA outlines the scope of that duty is untenable. In passingsection 301, Congress aimed to ensure that federal courts retainjurisdiction over CBAs and uniformly apply federal labor law instead ofinconsistent local state laws. (203) It is doubtful that a shortsix-month statute of limitations period was a chief concern among theframers of the LMRA in ensuring that courts consistently apply federallabor law. Congress can still ensure that courts consistently apply thelaw by simply extending the section 301 statute of limitations period totwo years. (204)
B. The Sixty-Day CBA Provision Should Be Prohibited
Certain CBA provisions should be prohibited as void as againstpublic policy. For instance, the NHL CBA provided that before the Estatecould fde a grievance/claim against the NHL, the NHLPA must first file agrievance on behalf of the Estate within sixty days. (205) While thisprovision may be appropriate in circ*mstances relating directly tobusiness operations (for instance, when a player disputes the method oramount of salary/bonus paid or if the player disputes a suspensionlevied against him), it hardly seems appropriate in cases of death. Whena player dies, it is highly questionable that the deceased's estateshould be prohibited from filing a grievance/claim on behalf of thedeceased until the NHLPA has done so first. Even though the NLRA wasenacted to expand the rights of employees to collectively bargain, itallows for the inclusion of inequitable CBA provisions that unreasonablyrestrict not only the rights of employees, but the rights of theemployees' families to bring suit. (206)
The NHL's CBA provides more power to the players' unionat the expense of the individual employee. Because Congress passed theNLRA in part "to curtail certain private sector labor andmanagement practices, which can harm the general welfare ofworkers," it appears that the provision at issue directly countersCongress's intent. (207) The sixty-day statute of limitations alsoeffectively means that unless the player or the player's estatefdes suit in court within eight months of the event upon which thegrievance is based, the claims that require CBA interpretation areforever barred as section 301 claims.
C. How NHL Players Can Circumvent Section 301 Preemption onNegligence Claims
The cases analyzed throughout this Note provide insight into themethods players can employ to circumvent section 301 preemption. Asevidenced, the paramount and most obvious method of circumventingsection 301 preemption is to assert a claim that will not requireinterpretation of the CBA. However, this is easier said than done.Concussion Injury shows that, at the very least, players can survive amotion to dismiss when the face of the complaint does not include anyreference to a CBA.20X For negligence claims, this may be difficult ifthe CBA is very specific regarding the duties that are voluntarilyassumed by the league. (209) Therefore, the complaint must specificallynote that the general duties of care assumed by the NHL either aroseindependently of any CBA provision or arose solely under state law.(210)
Although the CBA may contain provisions that outline the NHL'svoluntarily assumed duties of care, players can attempt to invoke theseduties by instead referring to other sources that also define theirscope. (211) For instance, leaked e-mails by the NHL reveal that theyconducted and then ceased a Concussion Study Group. (212) Players maytherefore be able to show that the NHL assumed a duty of careindependent of the CBA by specifying outside documents that purport toidentify the scope of the NHL's duty. This strategy was successfulin Brown v. National Football League, where the player referenced rulesand manuals that were not contained within the CBA. (213) However, theEstate attempted this same method when it pointed to NHL rules thatpenalized high sticking and fighting to no avail. (214)
Despite the Estate's attempt, the court still concluded thatthe claims were preempted by section 301 because they required CBAinterpretation to determine whether the NHL's duties were limitedto protecting players from high sticks or whether the NHL's dutieswere more expansive. (215) However, Concussion Injury shows thatreference to other documents may suffice, at least at the motion todismiss stage. Additionally, instead of alleging that the NHL breached aduty to keep players reasonably safe, players can allege that the NHLactively took steps to harm individual players. (216) The Estateemployed this method in its amended complaint, which survived section301 preemption. (217)
Players can also attempt to circumvent section 301 preemption byalleging that the NHL violated a state law or statute. The court inWilliams concluded that even if a CBA defines the scope of a duty ofcare that directly matches or exceeds the duty of care outlined in astate law or statute, then the employee simply retains two possibleclaims--one for a breach of contract under section 301 and one under thestate law or statute. (218) Williams went even further and clarifiedthat even if the league asserts that the CBA requires consultation todetermine if the statute governs the league's conduct, section 301preemption still doesn't apply because mere reference to orconsultation of the CBA is not enough to warrant preemption. (219)
If the plaintiffs are retired players, they can attempt tocircumvent section 301 preemption by showing that the CBA was not ineffect at the time their cause of action accrued. (220) However, theplayers must be careful to specify the exact time period in which theinjuries were sustained. If the complaint refers to the entireplayer's career, references a time period in which a CBA was ineffect, or is otherwise ambiguous as to when the injuries weresustained, the court is likely to conclude that the claims are preemptedby section 301. (221)
Conclusion
Derek Boogaard died due to an accidental overdose of prescriptionpainkillers. (222) Because of section 301's preemptive effect, theEstate's negligence claims were transformed into breach of contractclaims, which are subject to only a six-month statute of limitations,when they otherwise would have been subject to a two-year statute oflimitations period. (223) The court converted an otherwise common lawtort claim to a section 301 claim--a claim under the NLRA, whichCongress theoretically passed to enhance the power and rights ofemployees. (224)
Unfortunately, section 301 preemption resulted in detrimentaleffects that Boogaard likely did not bargain for when he signed on tothe CBA, and effects that the Estate likely did not foresee whenBoogaard died. For the Estate and others, section 301 preemptionrepresents a boogeyman that deteriorates the rights of employees.Congress can utilize their power to correct this wrong and restore thevision and purpose of the LMRA by extending the six-month statute oflimitations and prohibiting certain CBA provisions as void as againstpublic policy. Otherwise, players can utilize various methods tocircumvent section 301 preemption.
In entering a final judgment against the Estate and in favor of theNHL, the judge asserted "[ajlthough judgment is entered in theNHL's favor, this opinion should not be read to commend how the NHLhandled Boogaard's particular circ*mstances--or the circ*mstancesof other NHL players who over the years have suffered injuries fromon-ice play." (225) Admonishing the actions of the NHL does notsuffice; Congress and the courts would be wise to alleviate the burdensNHL players (and others) face when they attempt to bring tort claimsagainst their employers.
Tyler V. Friederich *
* J.D. (2018), Washington University School of Law; B.S. (2007),University of Illinois at Urbana-Champaign. Thank you to the editors ofthe Washington University Law Review for their tireless work,contributions, and thoughtful suggestions to this Note. I would alsolike to thank my wife, Katherine, for her love, support, and patienceduring the writing process.
(1.) Section 301(a) of the LMRA provides an avenue for an employeeto sue their employer for breach of a contract, such as a collectivebargaining agreement. Section 301 provides: "Suits for violation ofcontracts between an employer and a labor organization representingemployees in an industry affecting commerce as defined in this chapter,or between any such labor organizations, may be brought in any districtcourt of the United States having jurisdiction of the parties, withoutrespect to the amount in controversy or without regard to thecitizenship of the parties." Labor Management Relations(TaftHartley) Act [section] 301(a), 29 U.S.C. [section] 185(a) (2012).
(2.) Boogaard v. Nat'l Hockey League, 126 F. Supp. 3d 1010(N.D. 111. 2015).
(3.) In re Nat'l Hockey League Players' Concussion InjuryLitig., 189 F. Supp. 3d 856 (D. Minn. 2016).
(4.) NHL Fights per Game. Year-hy-Year, Drop your Gloves,http://dropyourgloves.com/Fi ghts/FightsPerGameChart.aspx?League=l (lastvisited Aug. 18,2017).
(5.) Id. There were 395 fights in 1,230 NHL games--an average of0.32 fights per game.
(6.) John Branch, Derek Boogaard: Blood on the Ice, N.Y. TIMES(Dec. 4, 2011), http://www.nytimes.com/201l/12/05/sports/hockey/derek-boogaard-blood-on-the-ice.html?pagewanted=4&_r=0.
(7.) The Best and Worst, A Hockey Players' Poll, The globe andMail (Jan. 30, 2011, 10:20 PM),https://www.theglobeandmail.com/sports/hockey/ahockey-players-poll/article564149/ (asking 318 players a set of questions).
(8.) See Neil Davidson, The Sad Rise and Fall of Derek Boogaard,The Canadian Press, Global news (Oct. 7, 2014),http://globalnews.ca/news/1603417/the-sad-rise-and-fall-of-hockeys-derekboogaard/ (describing how scouts for a Western Hockey League team, theRegina Pats, claimed Boogaard's junior rights and nicknamed him"The Boogeyman"); see also Branch, supra note 6 (stating thatwhen Boogaard played for the Houston Aeros of the American HockeyLeague--an affiliate of the Minnesota Wild and one rung below the NHLlevel--the Aeros would replay Boogaard's fights on the video board,labeled the "Boogeyman Cam").
(9.) Branch, supra note 6 ("Boogaard had size anddetermination, but not much else, when the Wild chose him in the seventhround of the 2001 N.H.L. draft. He trained with a Russian figure skater.He continued lessons to bolster his boxing. He was sent for seasoning inthe minor leagues, where Wild officials told the coaches to moldBoogaard into an N.H.L. enforcer.... 'We didn't give him achance, and we were the guys trying to help him,' said Matt Shaw,who coached Boogaard in the minor leagues and the N.H.L. 'Give himcredit. This guy willed his way to the N.H.L.'").
(10.) Derek Boogaard, NHL,https://www.nhl.com/player/derek-boogaard-8469647?stats=career-r-nhl&season=20102011 (last visited Aug. 18, 2017). Boogaard playedfor the Rangers during the 2010-11 season after playing five seasonswith the Minnesota Wild. Id.
(11.) Id.
(12.) Davidson, supra note 8.
(13.) See Branch, supra note 6 ("There is no incentive todisplay weakness. Most enforcers do not acknowledge concussions, atleast until they retire. Teams, worried that opponents will focus onsore body parts, usually disguise concussions on injury reports assomething else. In Boogaard's case, it was often'shoulder' or 'back,' two chronicailments....").
(14.) Id. Boogaard's back troubles likely began in the minorleagues, where "his back was so perpetually sore that he once couldnot stand up after lacing his skates." Id.
(15.) Davidson, supra note 8.
(16.) Branch, supra note 6. Boogaard had nose surgery, then surgeryon his shoulder seven days later. Id.
(17.) Id. At one point, "a neurologist asked Boogaard toestimate how many times his mind went dark and he needed a moment toregain his bearings after being hit on the head, probable signs of aconcussion. Four? Five? Boogaard laughed. Try hundreds, he said."Id.
(18.) Id.
(19.) Melanie Romero, Check to the Head: The Tragic Death of NHLEnforcer, Derek Boogaard, and the NHL's Negligence--How EnforcersAre Treated as Second-Class Employees, 22 Jeffrey S. Moorad sports L.J.271,274 (2015).
(20.) Id. at 282.
(21.) Davidson, supra note 8. At one point, "Boogaard had atleast 25 prescriptions for oxycodone and hydrocodone, a total of 622pills from 10 doctors--eight Wild doctors, an oral surgeon inMinneapolis and a doctor from another team." Id.
(22.) Romero, supra note 19, at 282. See also John Branch, InHockey Enforcer's Descent, a Flood of Prescription Drugs, N.Y.Times (June 4, 2012), http://www.nytimes.eom/2012/06/04/sports/hockey/in-hockey-enforcers-descent-a-flood-of-prescription-drugs.html (noting that Boogaard's father spoke with a Rangers seniorofficial in October, 2010 about Boogaard's "renewed drugproblem.").
(23.) Id.; see also Davidson, supra note 8 (Boogaard was"still getting pills from Wild doctors" after he signed withthe Rangers).
(24.) Romero, supra note 19, at 282-83.
(25.) Id at 283. However, it is interesting to note that an NHLsubstance abuse counselor exchanged seven texts with Boogaard the nightbefore he died. Davidson, supra note 8.
(26.) Romero, supra note 19, at 283.
(27.) Boogaard v. Nat'l Hockey League, 126 F. Supp. 3d 1010,1015 (N.D. 111. 2015).
(28.) Mayo Clinic Staff, Chronic Traumatic Encephalopathy, mayoclinic, http://www.mayoclinic.org/diseases-conditions/chronic-traumatic-encephalopathy/basics/definition/co n-201 13581 (last visited Aug. 18,2017). Note that "CTE is a very controversial condition that isstill not well understood. Researchers do not yet know the frequency ofCTE in the population and do not understand the causes." Id.
(29.) Boogaard, 126 F. Supp. 3d at 1015-16.
(30.) Nelson v. Nat'l Hockey League, 20 F. Supp. 3d 650, 655(N.D. 111. 2014).
(31.) Id. at 653.
(32.) Id. at 652. The court only analyzed Counts III and IV todetermine whether to remand the case to Illinois state court. Becausethe court found that Counts III and IV were preempted by section 301, itdenied the Estate's motion to remand. Id. at 658 59."Complete" preemption occurs where "certain federalstatutes are construed to have such 'extraordinary' preemptiveforce that state-law claims coming within the scope of the federalstatute are transformed, for jurisdictional purposes, into federalclaims--i.e., completely preempted." Sullivan v. Am. Airlines,Inc., 424 F.3d 267, 272 (2d Cir. 2005). Complete preemption differs from"ordinary" preemption in that a case cannot be removed fromstate court to federal court if the defendant raises an ordinarypreemption defense. Id. at 273; see also Caterpillar Inc. v. Williams,482 U.S. 386, 393 (1987).
(33.) Id. at 657-58.
(34.) See infra notes 183 and 186; see also Boogaard, 126 F. Supp.3d at 1027.
(35.) Robert E. Oakes, Miller v. AT&T Network Systems: TowardConsistency in Collective Bargaining Agreement Preemption of State LawCauses of Action, 21 Pac. L. J. 201,204 (1989).
(36.) Id. at 205.
(37.) Tara Selver, Labor Law--The United States Supreme CourtAlters National Labor Policy: Bowen v. United States Postal Service, 16N.M. L. REV. 153, 153 (1986) (noting that "Section 301 of the LaborManagement Relations Act provides the basis for an employee's rightto sue the employer for violation of a collective bargainingagreement."); see also Martha E. Lipchitz, Section 301 of LaborManagement Act Preempts State Discrimination Claims RequiringInterpretation of Corresponding Agreements--Fant v. New England PowerService Co., 239 F.3d 8 (1st Cir. 2001), 35 suffolk U. L. Rev. 429, 429(2001) (stating that section 301 "provides a federal cause ofaction in suits alleging violations of a collective bargaining agreement(CBA)").
(38.) Oakes, supra note 35, at 206; see also Local 174 v. LucasFlour Co., 369 U.S. 95, 104(1962) (concluding that "in enacting[section] 301 Congress intended doctrines of federal labor law uniformlyto prevail over inconsistent local rules").
(39.) Oakes, supra note 35, at 202-03. The Supremacy Clause alsoprovides Congress with the power to preempt. Allis-Chalmers Corp. v.Lueck, 471 U.S. 202, 208 (1985) ("Congress' power to preemptstate law is derived from the Supremacy Clause of Art. VI of the FederalConstitution.").
(40.) Allis-Chalmers. 471 U.S. at 209 (quoting Malone v. WhiteMotor Corp., 435 U.S. 497, 504 (1978)).
(41.) Id. at 210.
(42.) Id. at 220. Section 301 enjoys a particularly broad scopebecause it was designed to favor arbitration. Arbitrators, and not thecourts, are vested with authority to interpret labor contracts.Therefore, the "preference for arbitration further ensures thatfederal rather than state law will govern the construction of laborcontracts." Stephen F. Befort, Demystifying Federal Labor andEmployment Law Preemption, 13 LAB. L. 429, 435 (1998).
(43.) Allis-Chalmers, 471 U.S. at 202.
(44.) Id. at 210. According to the Court, "questions relatingto what parties to a labor agreement agreed, and what legal consequenceswere intended to flow from breaches of that agreement, must be resolvedby reference to uniform federal law, whether such questions arise in thecontext of a suit for breach of contract or in a suit alleging liabilityin tort." Id. at 211. In Allis-Chalmers, the plaintiff brought astate-law tort claim against her employer, Allis-Chalmers, for bad-faithhandling of an insurance claim. Id. at 205-06. Plaintiff filed adisability claim with the insurance company after getting injured on thejob. Id. at 205. His claim was approved, and he received disabilitybenefits, but Allis-Chalmers allegedly interfered with the payments. Id.
(45.) Id. at 212.
(46.) 486 U.S. 399, 399(1988).
(47.) Befort, supra note 42, at 435.
(48.) Lingle, 486 U.S. at 409-10.
(49.) Befort, supra note 42, at 435.
(50.) Id. Claims typically preempted by section 301 include:"a. Claims concerning benefits provided under the terms of acollective bargaining agreement; b. Contract claims alleging that theemployer breached a promise to an employee covered by a collectivebargaining agreement; c. Tort claims alleging a failure of a union tofulfill duties under a collective bargaining agreement to maintain asafe working environment; and d. Claims alleging a breach of an impliedcovenant of good faith and fair dealing." Id. at 436.
(51.) See Cramer v. Consolidated Freightways, Inc., 255 F.3d 683,691 (9th Cir. 2001) (en banc) ("If the plaintiffs claim cannot beresolved without interpreting the applicable CBA ... it is preempted.Alternatively, if the claim may be litigated without reference to therights and duties established in a CBA ... it is not preempted.").
(52.) Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 213 (1985).
(53.) See Michael Telis, Plaving Through the Haze: The NFLConcussion Litigation and Section 301 Preemption, 102 GEO L.J. 1841,1855 (2014).
(54.) Green V.Arizona Cardinals Football Club LLC, 21 F. Supp. 3d1020, 1028 (E.D. Mo. 2014).
(55.) Bentley v. Cleveland Browns Football Co., 958 N.E.2d 585, 590(Ohio Ct. App. 2011).
(56.) Williams v. Nat'l Football League, 582 F.3d 863, 875-76(8th Cir. 2009).
(57.) See cases cited infra notes 58-60.
(58.) Williams, 582 F.3d at 881.
(59.) Dent v. Nat'l Football League, No. C 14-02324 WHA, 2014WL 7205048, at *3-4 (N.D. Cal. Dec. 17,2014).
(60.) Duerson v. Nat'l Football League, Inc., No. 12 C 2513,2012 WL 1658353, at *2-3 (N.D. III. May 11,2012).
(61.) Green v. Arizona Cardinals Football Club LLC, 21 F. Supp. 3d1020, 1024 (E.D. Mo. 2014). The players further alleged that the team"knew or should have known 'for many years' that the sortof brain trauma to which the Players were exposed can lead toneurological impairments, including Chronic Traumatic Encephalopathy(CTF.)." Id.
(62.) Id. at 1020.
(63.) Id. at 1027.
(64.) Id. at 1028.
(65.) Id. at 1029. According to the court, "the terms of theCBAs would not be part of the plaintiffs claims, which derive from andcan be adjudged in accordance with standards set forth in the Missouricommon law." Id.
(66.) Id. at 1030. Notably, the court determined that theplayers' status as employees provided them with a right to rely onthe Cardinals' absence of a warning about the dangers of theirprofession, and that "[a]ny contractual terms that alter thesecommon law rights would take the form of a defense and could not serveas the basis for removal." Id.
(67.) Bentley v. Cleveland Browns Football Co., 958 N.E.2d 585, 585(Ohio Ct. App. 2011).
(68.) Id. at 587. Bentley alleged that the Browns' headathletic trainer said the facility was a "'world classfacility' with a strong track record for successfullyrehabilitating other Cleveland Browns players." Id.
(69.) Id. at 589. The court followed precedent established inJurevicius v. Cleveland Browns Football Co.. LLC, 958 N.E.2d 585 (OhioCt. App. 2011), in which Jurevicius filed suit against the Browns forfraud and negligent misrepresentation after also receiving a staphinfection at the Browns' training facility.
(70.) Id. at 590.
(71.) Id.
(72.) Williams v. Nat'l Football League, 582 F.3d 863, 863(8th Cir. 2009).
(73.) Id
(74.) Id. at 874-75. "DATWA governs drug and alcohol testingin the Minnesota workplace by imposing 'minimum standards andrequirements for employee protection' with regard to anemployer's drug and alcohol testing policy.... DATWA also requiresthat an employer provide an employee, who tests positive for drug use,with 'written notice of the right to explain the positivetest' ... and the ability to 'request a confirmatory retest ofthe original sample at the employee's or job applicant's ownexpense ...."' Id. at 874.
(75.) Id. at 875.
(76.) Id.
(77.) Id. at 875-76.
(78.) Id. at 876.
(79.) Id. at 881.
(80.) Id.
(81.) Id
(82.) Id.
(83.) Dent v. Nat'l Football League, No. C 14-02324 WHA, 2014WL 7205048, at *1 (N.D. Cal. Dec. 17, 2014). The pain medicationsincluded "opioids, Toradol, and other non-steroidalantiinflammatory medications, local anesthetics, and combinationsthereof--all in an effort to return players to the game, rather thanallow them to rest and heal properly from serious, football-relatedinjuries." Id. The other claims asserted included declaratoryrelief, medical monitoring, fraudulent concealment, negligence per se inrelation to several federal and state laws, loss of consortium, andnegligent retention of medical personnel. Id.
(84.) Id. at *2.
(85.) Id. "There is simply no case law that has imposed upon asports league a common law duty to police the health-and-safetytreatment of players by the clubs." Id. at *3.
(86.) Id. at *7.
(87.) Id. "The NFL addressed the problem of adequate medicalcare for players in at least one important and effective way, i.e.,through a bargaining process that imposed uniform duties on allclubs--without diminution at the whim of individual state tortlaws." Id.
(88.) Duerson v. Nat'l Football League, Inc., No. 12 C 2513,2012 WL 1658353, at *1 (N.D. 111. May 11, 2012). Duerson allegedly'"sustained at least three (3) documented concussive braintraumas, in 1988, 1990 and 1992, as well as numerous undocumentedconcussive brain traumas,'" and "played through theconcussions because he was unaware that doing so could cause anyharm." Id. at *1.
(89.) Id.
(90.) Id. at *2. The NFL referred to the 1982 CBA, which was ineffect until 1986, and the 1993 CBA, which was in effect until 2000.
(91.) Id. Specifically, Duerson alleged that his complaint'sallegations related "only to 1987 through 1993, years during whichthe CBAs were not in effect." Id.
(92.) Id. Duerson's complaint alleged that "'[t]heNFL failed to prevent, diagnose, and/or properly treat DAVEDUERSON's concussive brain traumas in 1988, 1990 and 1992throughout his career."" Id.
(93.) Id. The court stated that "it would be exceedinglyimplausible to contend that CTE was caused only by trauma suffered from1987 through early 1993, and not by trauma from 1983 to 1986 or later in1993. Any attempt to exclude head trauma suffered on certain dates fromthe claim would thus likely fail. Accordingly, the CBAs were in effectduring at least some of the events alleged in the complaint." Id.at *3.
(94.) Id.
(95.) Id. at *4.
(96.) Id.
(97.) Id. "But preemption is still possible even if the dutyon which the claim is based arises independently of the CBA, so long asresolution of the claim requires interpretation of the CBA." Id.
(98.) Id. at *5. In Brown v. National Football League, 219F.Supp.2d 372 (S.D.N.Y. 2002), "the court held that a claim againstthe NFL for negligently overseeing a referee who threw a penalty flaginto the plaintiff s eye was not preempted" because the scope ofthe NFL's duty was contained in rules and manuals, which were notcontained within the CBA. Duerson, 2012 WL 1658353 at *5.
(99.) In re Nat'l Hockey League Players' ConcussionInjury Litig., 189 F. Supp. 3d 856, 880 (D. Minn. 2016).
(100.) See Boogard [sic] v. Nat'l Hockey League PlayersAss'n, No. 2:12-cv-9128-ODW(FFM), 2013 WL 1164301, at *1 (C.D. Cal.Mar. 20, 2013). Three seasons remained on Boogaard's four-yearcontract with the New York Rangers.
(101.) Id. at *1.
(102.) Id. at *2. The NHLPA opted not to file a grievance afterthey learned that the treatment facility used by Boogaard refused todisclose Boogaard's medical records without a court order. Id. Alawyer for the NHLPA advised Boogaard that the "NHL was freezingthem out and that [the] NHLPA would have to take legal action againstthe doctor refusing to produce Boogaard's medical records."Id.
(103.) Id. at *5. The NHLPA advised Boogaard's Estate onDecember 2, 2011 that it would not be filing the grievance.Boogaard's Estate filed the claim against the NHLPA on September21, 2012.
(104.) Boogaard v. Nat'l Hockey League, 126 F. Supp. 3d 1010(N.D. 111. 2015).
(105.) Nelson v. Nat'l Hockey League, 20 F. Supp. 3d 650 (N.D.111. 2014).
(106.) Id. at 655, 657.
(107.) Boogaard, 126 F. Supp. 3d at 1014.
(108.) Id.
(109.) See supra, Part II discussion.
(110.) Boogaard, 126 F. Supp. 3d at 1017. The court quotedAllis-Chalmers Corp. v. Lueek, 471 U.S. 202, 213 (1985), in assertingthat a state-law claim will be preempted if it is "inextricablyintertwined with consideration of the terms of [a] labor contract."Id.
(111.) Id. at 1018.
(112.) Id. at 1019 (alteration in original).
(113.) Id. at 1018.
(114.) Id. The court explained that "Illinois and Minnesotalaw recognize an exception to the general rule, called the voluntaryundertaking doctrine, which provides that 'liability can arise fromthe negligent performance of a voluntary undertaking.' ... Simplystated, the doctrine provides that if a person sets out to help someone,she assumes a duty to do so reasonably." Id. (quoting Pippin v. ChiHousing Auth., 399 N.E.2d 596, 599 (1979)).
(115.) Id
(116.) Id. at 1019. Specifically, the NHL penalized high stickingin 1929, kicking in 1932, tripping in 1934, prohibited players on thebench from joining a fight in 1959, prohibited body contact duringface-offs in 1964, and required helmets to be worn in 1979. Id.
(117.) Id. "Such an inquiry would entail considering all ofthe NHL's relevant acts to determine whether it undertook to'keep [players] reasonably safe during their NHL careers,' asBoogaard contends, or whether it undertook only to protect players frommore specific harms, such as high sticking, kicking, and tripping."Id. (alteration in original).
(118.) Id. "Thus, the specific acts by the NHL that Boogaardinsists represent a broader and more generalized commitment to protectplayers from harm must be interpreted in context with the hyperspecificcommitments that the NHL made in the CBA itself." Id.
(119.) Id.
(120.) Id. at 1020. Article 16.11(e) of the CBA required the teamdoctor to "certify that a player was eligible for Injured Reserve.That could plausibly be taken to provide that teams were free to developtheir own 'medical standards' for diagnosing injuries,including concussions, without the NHL's interference." Id.(citation omitted).
(121.) Id.
(122.) Id. Article 30.3 of the CBA provides: "The NHL and itsClubs shall not ... amend or modify the provisions (or portions thereof)of the League Rules or any of the League's Playing Rules inexistence on the date of this Agreement which affect terms or conditionsof employment of any Player, without the prior written consent of theNHLPA which shall not be unreasonably withheld." Id.
(123.) Id. "And if Article 30.3 meant that the NHL could nothave more severely punished fighting without first haggling with theNHLPA, then it is unlikely that the NHL's voluntarily assumedduties included an obligation to change the rules of play to make thegame safer by not changing the rules of play to further discouragefighting." Id.
(124.) Id. at 1021. The Prescription Medication Program,incorporated in the CBA, "extensively regulat[ed] when and how teamdoctors and trainers could administer prescription medications" and"explicitly prohibited team doctors from prescribing or otherwisedispensing drugs 'merely to enhance [an employee's]performance or to reduce fatigue.' ... The Prescription MedicationProgram, together with Article 30.3's prohibition on unilateralamendments to important league rules, arguably implies that the NHLotherwise lacked the authority to direct how teams administered andtracked medications. That in turn arguably suggests that the NHL'svoluntarily assumed duties did not include prohibiting team doctors fromadministering Toradol." Id. (alteration in original).
(125.) Id.
(126.) Id. at 1022. "Whether the NHL owed Boogaard a duty totake steps that Counts V through VIII fault it for failing to takedepends largely on genuinely contested interpretations of the CBA. Thoseclaims therefore are completely preempted." Id.
(127.) Id. at 1022-23.
(128.) Id. at 1022 (alteration in original).
(129.) Id. at 1023. Under the special relationship doctrine,"a private person has no duty to act affirmatively to protectanother from criminal attack by a third person absent a 'specialrelationship' between the parties.... Historically, there have beenfour 'special relationships' which [the courts] haverecognized, namely, common carrier-passenger, innkeeper-guest, businessinvitor-invitee, and voluntary custodian-protectee." Id.(alteration in original).
(130.) Id.
(131.) Id.
(132.) Id. at 1022. "The parties dispute the amount of controlthat the NHL had over Boogaard's welfare, and the focus of theirdispute is on the terms of the 2005 CBA, so to decide whether the NHLwas Boogaard's custodian, the court would have to interpret theCBA." Id. at 1023 (citation omitted). For instance, the court notedthat the CBA included the Prescription Medication Program which, alongwith Article 30.3, "arguably could be read to divest the NHL of theauthority to control players' medical treatment." Id.
(133.) Id. at 1024. "Accordingly, whether the NHL wasBoogaard's custodian for purposes of Counts I and II dependslargely on genuinely contested interpretations of the CBA, which meansthat those counts are completely preempted." Id.
(134.) See infra note 136.
(135.) See infra note 139.
(136.) Boogaard, 126 F. Supp. 3d at 1024 (explaining that unlikeGreen, there is a question in Boogaard regarding whether the NHL isBoogaard's employer--therefore, the CBA must be interpreted tospecify the duties owed by the NHL to Boogaard); Green v. ArizonaCardinals Football Club LLC, 21 F. Supp. 3d 1020, 1028 (E D. Mo. 2014).
(137.) Collective Bargaining Agreement Between National HockeyLeague and National Hockey League Players' Association, EXHIBIT 1(July 22, 2005), http://www.letsgopens.com/NHL-2005CBA.pdf [hereinafter"2005 CBA"]; Collective Bargaining Agreement Between NationalHockey League and National Hockey League Players' Association,September 16, 2012--September 15, 2022, Exhibit 1 (Feb. 15, 2013),http://cdn.agilitycms.com/nhlpacom/PDF/NHL NHLPA 2013 CBA.pdf[hereinafter "2012 CBA"].
(138.) Boogaard, 126 F. Supp. 3d at 1023. Absent a specialrelationship, a party has no common law duty to protect others fromharm. Id. (citing Iseberg v. Gross, 879 N.E.2d 278, 284 (111. 2007)).Because the existence of a custodial relationship depends on the amountof control the custodian (NHL) maintains over the protectee (Boogaard),the court concluded that the CBA would need to be interpreted. Id.
(139.) Id. at 1024. "As the court reasoned, there was no needto interpret the [CBA] to determine whether the team had a duty not totell deliberate and material falsehoods because ... Ohio law imposedthat particular duty on everyone, independent of any [CBA]." Id.
(140.) See Romero, supra note 19, at 286. See also 2005 CBA, supranote 137, at Art. 47.3 ("All other forms of "substanceabuse" and behavioral and domestic issues requiring employeeassistance will continue to be handled through the NHL/NHLPA Program forSubstance Abuse and Behavioral Health (the "SABHProgram").").
(141.) Williams v. Nat'l Football League, 582 F.3d 863, 872-73(8th Cir. 2009).
(142.) Id. at 876.
(143.) Dent v. Nat'l Football League, No. C 14-02324 WHA, 2014WL 7205048 at *1 (N.D. Cal. Dec. 17, 2014).
(144.) Boogaard, 126 F. Supp. 3d at 1016.
(145.) Dent, 2014 WL 7205048 at *3.
(146.) Boogaard, 126 F. Supp. 3d at 1021. The court determined thatbecause the CBA incorporated the Prescription Medication Program--whichthe NHL asserted prevented it from "interfering with medicaldecisions regarding players"--the NHL therefore plausibly arguedthat its "voluntarily assumed duties did not include prohibitingteam doctors from administering Toradol." Id. As a result, thecourt concluded that "ascertaining the scope of the NHL'svoluntarily assumed duties would require interpreting the CBA" andtherefore resulted in section 301 preemption. Id.
(147.) Duerson v. Nat'l Football League, Inc., No. 12 C 2513,2012 WL 1658353 at *4 (N.D. 111. May 11, 2012).
(148.) Id. As the court in Duerson explained, "[s]howing thata duty raised in a state-law tort claim originates in a CBA is certainlysufficient to require preemption." Id. However, "[ojtherprovisions in the CBAs also address player health and safety, and may beinterpreted to impose a general duty on the NFL clubs to diagnose andtreat ongoing conditions like the concussive trauma that led toDuerson's CTE." Id.
(149.) Id. at *5 (referencing Brown v. Nat'l Football League,219 F. Supp. 2d 372 (S.D.N.Y. 2002)).
(150.) Boogaard, 126 F. Supp. 3d at 1019.
(151.) Id. at 1025. "None of the cited cases involved claims,like Boogaard's, alleging a breach of a voluntarily assumed duty(Counts III through VIII) or a free-floating duty to act (Counts I andII) in a manner that would require interpretation of a [CBA]." Id.
(152.) Id. at 1025.
(153.) Duerson, 2012 WL 1658353, at *5.
(154.) See 2012 CBA, supra note 137; Boogaard, 126 F. Supp. 3d at1020.
(155.) Boogaard, 126 F. Supp. 3d at 1021. The clause, Article 30.3of the CBA, states: "The NHL and its Clubs shall not... amend ormodify the provisions (or portions thereof) of the League Rules or anyof the League's Playing Rules in existence on the date of thisAgreement which affect terms or conditions of employment of any Player,without the prior written consent of the NHLPA which shall not beunreasonably withheld." Id. at 1020.
(156.) Id. See infra notes 199-200 and accompanying text.
(157.) In re Nat'l Hockey League Players' ConcussionInjury Litig., 189 F. Supp. 3d 856, 882 (D. Minn. 2016).
(158.) Id. at 860-61. Six named plaintiffs sought to representretired NHL players: Dan LaCouture, Michael Peluso, Gary Leeman, BernieNicholls, David Christian, and Reed Larson sought "to representClass I: All living Retired NHL Hockey Players who have not beendiagnosed with dementia, ALS, Alzheimer's, Parkinson's, CTE,or other neurodegenerative disease or conditions (collectively,'Brain Disease')." Id. at 860. Class 2 included"[a]ll living and deceased Retired NHL Hockey Players who have beendiagnosed with a Brain Disease, and their Representative Claimants andDerivative Claimants, where such Brain Disease was not diagnosed at thetime the player retired or otherwise permanently ceased playingprofessional hockey." Id.
(159.) Id.
(160.) Id. at 861. The players also alleged that the NHL causedinjuries and increased the risk of injury to the players by"refusing to cease its glorification of fist-fighting and violencein the NHL." Id.
(161.) Id. at 882.
(162.) Id. at 861-62. "Plaintiffs allege that the NHL has'historically and voluntarily assumed an independent tort duty ofreasonable care regarding player safety and head trauma'; hasassumed a duty to 'manage player safety, particularly with regardto head injuries and concussions'; and has 'a duty ofreasonable care to act in the best interests of the health and safety ofNHL players[,] to provide truthful information to NHL players regardingrisks to their health[,] and to take all reasonable steps necessary toensure the safety of players.'" Id. (alteration in original).
(163.) Boogaard v. Nat'l Hockey League, 126 F. Supp. 3d 1010,1022-23 (N.D. 111. 2015).
(164.) Concussion Injury, 189 F. Supp. 3d at 868. "Defendantargues that Count III is preempted, first, because these alleged dutiesarose, if at all, under the CBAs entered into on their behalf by thePlayers' Union, and, second, because an evaluation of the existenceand extent of those duties would require interpretation of the terms ofthe CBAs." Id.
(165.) Id.
(166.) Id.
(167.) Id. at 869. "[T]he Court cannot find from the face ofthe Amended Complaint, or any documents properly embraced by thepleadings, that Plaintiffs' negligence claims are preempted on thegrounds that the allegedly breached duties arose out of a CBA." Id.
(168.) Id. The NHL relied on documents other than the CBA incontending that a duty to keep the players reasonably safe, if itexisted at all, arose from the CBA. For instance, the NHL relied"on numerous other documents--meeting minutes, letters, memoranda,and reports dated between 1979 and 2013. But, these documents constitutecherry-picked evidence...." Id. Because these documents wereoutside the pleadings, the court concluded that it could "not relyon them as a basis for dismissing Plaintiffs' claims at this stageof the proceedings." Id.
(169.) Id. at 870. The court differentiated Allis-Chalmers Corp. v.Lueck and UnitedSteelworkers of Am. v. Rawson, noting that in thosecases the Supreme Court ruled that section 301 preemption applied to theplaintiffs' claims after full discovery ensued. Id. at 869. Incontrast, the current case "seeks dismissal of Plaintiffs'negligence claims based solely on the Amended Complaint and a handful ofcherry-picked documents that are not embraced by the pleadings. Thisrecord is insufficient to form the basis of the court's opinion onthis matter." Id. at 872. The court further noted that theplaintiff in the two cases specifically alleged that the defendantsnegligently performed a provision of the relevant CBA, whereas in thecurrent case the plaintiffs did not reference the CBA at all. Id.
(170.) Id. at 876.
(171.) Id. at 874-76. The players, for example, asserted thathealth and safety provisions in the CBA were only tangentially relatedto their claims and did not eradicate an independently assumed duty bythe NHL to inform them of other dangers. Id. at 868.
(172.) Id. at 874 (alteration in original). The players alsoreferenced a Concussion Program document that described the NHL'sformation of the Concussion Committee, a letter from the NHL to theNHLPA in which the NHL asserted that it was not required to negotiatewith the NHLPA to institute a helmet requirement, and an e-mail from theNHL Deputy Commissioner (Bill Daly) to the NHLPA asserting that the NHLcould enact rule changes without NHLPA approval. Id.
(173.) Id.
(174.) Id. at 875.
(175.) Id. at 878.
(176.) Id. at 879.
(177.) Id. In Concussion Injury, the claims were much broader,indicating a breach of the duty of reasonable care to "act in thebest interests of the health and safety of NHL players by providingtruthful information to the players regarding the neurological risks ofhead injuries suffered while playing hockey in the NHL." Id. at878-79.
(178.) Boogaard v. Nat'l Hockey League, 126 F. Supp. 3d 1010,1025 (N.D. 111. 2015). The court noted that "[c]ompletely preemptedclaims are not automatically dismissed, but rather generally are treatedas if they alleged breach of a collective bargaining agreement inviolation of [section] 301." Id.
(179.) Id.
(180.) Id.
(181.) Id. "However, if the union either decides not to pursuea grievance or pursues a grievance and loses, the employee may bringsuit in federal court alleging both that the union breached its duty offair representation and that the employer breached the collectivebargaining agreement, in what is called a 'hybridcontract/duty-of-fair representation claim.'" Id.
(182.) Id. at 1026.
(183.) Id. The six-month statute of limitations may also begin oncethe arbitrator rules in favor of the NHL if the NHLPA did indeed chooseto file a grievance.
(184.) Id. at 1027.
(185.) Id.
(186.) Id. "There is no indication in the record that theNHLPA pursued a grievance related to these claims, and it isinconceivable that Boogaard's representatives did not learn aboutthe NHLPA's decision not to pursue a grievance until nearly a yearand a half after his death." Id.
(187.) Boogaard v. Nat'l Hockey League, 211 F. Supp. 3d 1107(N.D. 111. 2016). Boogaard's amended complaint included twelvecounts, eight of which were ruled to be preempted by section 301 becausethey were "essentially identical to the first amendedcomplaint's eight counts." Id. at 1111. The court ruled thatthe first four counts, however, were not preempted by section 301because they alleged that the NHL "actively harmed Boogaard,"reasoning that "[e]very person has a duty not to act unreasonablyin a way that injures others." Id.
(188.) Id. For instance, the Estate's amended complaintalleged that the NHL took active steps to promote violence in the NHLthrough promotions of documentaries, stories, network segments, andfilms that glorified fighting. The Estate also alleged that the NHL"actively and unreasonably harmed Boogaard by implicitlycommunicating that head trauma is not dangerous." Id. at 1112.
(189.) Boogaard v. Nat'l Hockey League, 2017 WL 2424152 (N.D.III. June 5, 2017).
(190.) Boogaard, 126 F. Supp. 3d at 1027. If not for section 301preemption, some of the Estate's claims could have survived asstate-law tort claims, in which case the statute of limitations wouldnot have run. See id. at 1018-21 (explaining that Counts V through VIIIalleged the violation of voluntarily assumed duties by NHL, which arecognizable under Illinois and Minnesota tort law); see also id. at1022-23 (explaining that Counts I and II alleged the violation of dutyto protect Boogaard by NHL due to existence of special relationship withBoogaard--both Illinois and Minnesota tort law recognize thecustodian-protectee special relationship); see also id. at 1027(recognizing that the Estate brought suit against the NHL less than twoyears after Boogaard's death); see infra note 191 (explaining thatthe statute of limitations in Illinois and Minnesota is two years fortort claims). Even if the state-law tort claims were also barred by thestatute of limitations, Boogaard's section 301 hybrid claims aresubject to a much shorter statute of limitations period of six months.See infra note 191.
(191.) The statute of limitations period for personal injuries inIllinois is two years. 735 ILL. COMP. Stat. 5/13-202 (2016). The statuteof limitations period for personal injuries in Minnesota is also twoyears. MINN. STAT. ANN. [section] 541.07 (West 2016).
(192.) National Labor Relations Act, 29 U.S.C. [section] 141 (2012)(emphasis added).
(193.) Boogaard, 126 F. Supp. 3d at 1025-26.
(194.) See supra note 191 and accompanying text.
(195.) Boogaard, 126 F. Supp. 3d at 1027.
(196.) Boogaard's father learned about five months afterBoogaard's death that doctors diagnosed Boogaard with CTE afterexamining his brain. John Branch, Derek Boogaard: A Brain 'GoingBad', N.Y. Times (Dec. 11, 2005),http://www.nytimes.com/2011/12/06/sports/hockey/derek-boogaard-abrain-going -bad.html?pagewanted=all& r=0. "It was then that LenBoogaard stopped listening. Something occurred to him that he did notexpect. For months, he could not bear the thought of his son'sdeath. Suddenly, he was forced to imagine the life his son might havebeen left to live." Id.
(197.) Id. Boogaard's father, a police officer, did not hearfrom the New York Rangers for several months after his son's death.His father instead resorted to investigating his son'srelationships, phone records, and paper trails to "link the historyof his son's prescriptions to vague diagnoses in team medicalreports." Id.
(198.) See Labor Management Relations Act: What Was the Purpose ofthe Labor Management Relations Act?, society for human resourcemanagement (June 1, 2012),https://www.shrm.org/resourcesandtools/tools-and-samples/hr-qa/pages/lmrarequirements.aspx; see also Oakes, supra note 35. Purposes of passingthe NLRA include providing employees more freedoms and rights, includingthe right to associate and self-organize. While the LMRA largely shiftedthe emphasis from protection of employee rights to enhanced restrictionson unions, section 301 was implemented to apply federal lawconsistently.
(199.) See 2012 CBA, supra note 137; Boogaard, 126 F. Supp. 3d at1019. By drafting the CBA in a "hyper-specific" manner, theNHL essentially guaranteed that many negligence claims would bepreempted by section 301 and therefore subject to a six-month statute oflimitations. See also Romero, supra note 19, at 307 ("Becausecourts have broadly interpreted CBAs and their contractual nature,claims that would normally fall under tort law are deemed to be subjectto arbitration.").
(200.) Boogaard, 126 F. Supp. 3d at 1025-26 (explaining that undersection 301 claims, because the CBA included an arbitration provision,Boogaard needed to wait until the NHLPA either filed suit on his behalfand lost or notified Boogaard that it would not file suit. Only then mayBoogaard file suit against both the NHLPA and the NHL, which would besubject to a six-month statute of limitations period).
(201.) See Boogaard, 126 F. Supp. 3d at 1019.
(202.) See 2012 CBA, supra note 137.
(203.) See Oakes, supra note 35, at 206; see also Allis-ChalmersCorp. v. Lueck, 471 U.S. 202, 209 (1985) (noting that section 301represented a "congressional mandate to the federal courts tofashion a body of federal common law to be used to address disputesarising out of labor contracts"); see also Local 174 v. Lucas FlourCo., 369 U.S. 95, 104 (1962) (asserting that "in enacting [section]301 Congress intended doctrines of federal labor law uniformly toprevail over inconsistent local rules").
(204.) The statute of limitations for the majority of states is twoyears or more for torts. See Chart: Statutes of Limitation in All 50States, NOLO (last updated Sep. 18, 2015),http://www.nolo.com/legalencyclopedia/statute-of-limitations-state-laws-chart-29941.html.
(205.) 2005 CBA, supra note 137, at Art. 17.2(a)-(b).
(206.) See Oakes, supra note 35, at 204.
(207.) National Labor Relations Act, national labor relationsBoard, https://www.nlrb.g ov/resources/national-labor-relations-act(last visited Aug. 20, 2017).
(208.) In re Nat'l Hockey League Players' ConcussionInjury Litig., 189 F. Supp. 3d 856 (D. Minn. 2016).
(209.) See Boogaard v. Nat'l Hockey League, 126 F. Supp. 3d1010, 1019 (N.D. 111. 2015); supra note 199 and accompanying text.
(210.) See Williams v. Nat'l Football League, 582 F.3d 863(8th Cir. 2009) (holding that the claims asserting violations of DATWA,a state statute, were not preempted by section 301).
(211.) See generally Concussion Injury, 189 F. Supp. 3d at 859-60.
(212.) Josh Cooper, Globe and Mail Publishes Searchable NHLConcussion Emails, Yahoo! Sports (Mar. 30, 2016 2:09 AM),http://sports.yahoo.com/blogs/nhl-puck-daddy/searchable-nhlconcussion-lawsuit-emails --correspondence-published-070940232.html.
(213.) Brown v. Nat'l Football League, 219 F. Supp. 2d 372(S.D.N.Y. 2002); see supra note 98 and accompanying text.
(214.) Boogaard, 126 F. Supp. 3d at 1018.
(215.) Id. See supra note 117 and accompanying text.
(216.) See Boogaard v. Nat'l Hockey League, 211 F. Supp. 3d1107, 1111 (N.D. 111.2016).
(217.) Id.
(218.) Williams v. Nat'l Football League, 582 F.3d 863, 875-76(8th Cir. 2009).
(219.) Id. at 876. The court quoted Lingle v. Norge Div. of MagicChef, Inc., 486 U.S. 399, 405-06 (1988), stating "Section 301preempts a state law claim if its 'resolution ... depends upon themeaning of a collective-bargaining agreement.'" Id. (emphasisadded). It further quoted Trs. of Twin City Bricklayers Fringe BenefitFunds v. Superior Waterproofing, Inc., 450 F.3d 324, 330 (8th Cir. 2006)when it asserted that '"the Supreme Court has distinguishedthose which require interpretation or construction of the CBA from thosewhich only require reference to it.'" Id. (alteration inoriginal).
(220.) See In re Nat'l Hockey League Players' ConcussionInjury Litig., 189 F. Supp. 3d 856 (D. Minn. 2016) (noting that retiredplayers may not be subject to any CBA). But see Smith v. Nat'lFootball League Players Ass'n, No. 14 C 10559, 2014 WL 6776306 at*7 (E.D. Mo. Dec. 2, 2014) (noting that "[t]he fact Plaintiffs arenow retirees does not preclude preemption of claims based on eventswhich occurred while Plaintiffs were members of the bargainingunit").
(221.) See Duerson v. Nat'l Football League, Inc., No. 12 C2513, 2012 WL 1658353 (N.D. III. May 11, 2012); supra note 92 andaccompanying text.
(222.) See Romero, supra note 19, at 272-73.
(223.) See Boogaard v. Nat'l Hockey League, 126 F. Supp. 3d1010 (N.D. 111. 2015); see also 735 ILL. COMP. STAT. 5/13-202 (2016);Minn. STAT. Ann. [section] 541.07 (West 2016).
(224.) See Labor Management Relations Act, supra note 198 andaccompanying text; Oakes, supra note 35.
(225.) Boogaard v. Nat'l Hockey League, 2017 WL 2424152 at *10(N.D. 111. June 5, 2017).
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