Monthly Archives: April 2013

Fierce NHL Enforcer’s Lawsuit Dismissed on a Technicality

(Editor’s Note: This article first appear on Paul Anderson’s blog: http://nflconcussionlitigation.com. Mr. Anderson, nationally recognized for his coverage and analysis of the lawsuits filed by former NFL players against the NFL, also serves as editor of Concussion Litigation Reporter.)

The late Derek Boogaard tragically died of an apparent overdose on May 13, 2011.

At the time of his death, Boogaard still had three years remaining on his guaranteed contract with the New York Rangers.

After his family learned the NHLPA was not going to file a grievance on Derek’s behalf to recover the $4.8 million remaining on his contract, the family sought legal counsel elsewhere.

Instead of pursing a claim for medical malpractice against the various team doctors whom, on multiple occasions, allegedly overprescribed Boogaard with painkillers (See, John Branch’s hard-hitting reporting), the family apparently received more suspect legal advice.

On September 21, 2012, Boogaard’s family filed a lawsuit against the NHLPA and Roman Stoykewych, the associate general counsel for the NHLPA.

The lawsuit was doomed from the beginning.

The family asserted a breach of the duty of fair representation (DFR) claim against the NHLPA for allegedly failing to pursue a grievance against the Rangers.

A DFR claim is extremely difficult to win. The Boogaard family had to prove that the NHLPA and/or Stoykewych acted arbitrarily or in bad faith.

But, before you can even get to the merits of the case, a party must have filed the DFR claim within 6 months from the date “a plaintiff learns or should have learned about the union’s decision” not to pursue a grievance.

The Boogaard family waited more than 6 months – they first learned that the NHLPA was not going to pursue a grievance on December 2, 2011.

Thus, it was too late, and the NHLPA’s motion to dismiss — converted to a summary judgment motion — was granted.

Even a plea for equitable relief was unavailing.

The court, according to documents first obtained by NFLConcussionLitigation.com, stated that the Boogaard’s “quest for an attorney was lackluster at best.”

Geez, talk about rough justice — never mind the fact that the parents were likely still grieving over the death of their child. I’m sure the last thing on their mind was filing a lawsuit. Sometimes, however, the law can just be plain rough, but the judge applied the law and he got it right, although it may seem unfair.

Despite this and other allegations asserted by the Boogaard family, the court found that “no extraordinary circumstances existed” to excuse the family for not filing suit within 6 months.

Therefore, Boogaard’s lawsuit was barred by the statute of limitations and his case was dismissed with prejudice.

In other words, the NHLPA and Stoykewych won on a “technicality.” Though, it’s unlikely the Boogard family would have been successful on their DFR claim, in any event.

Although their lawsuit was dismissed, I still think they have[1] a potential wrongful death suit against the NHL and various team doctors – assuming the New York Time’s report is true.

At only 28 years old, Boogaard, a fierce enforcer, was diagnosed with CTE.

It’s certainly conceivable the multiple fisticuffs to the head, masked by the deadly concoction of painkillers, mixed with the gross negligence of others were the contributing causes of Derek’s death.

Unfortunately, without the benefit of a meritorious lawsuit and the discovery process, we may never know whether others were, at least partially, responsible for Derek’s tragic and untimely demise.


[1] Though time is quickly running out. New York’s wrongful death statute of limitations is two years. In other words, it may expire on May 13, 2013.

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Was Referee at Fault for Waving Off Trainer After Wambach Got Hit in the Head?

Late in a soccer game between the Washington Spirit and the Western New York Flash, iconic women’s soccer player Abby Wambach got hit in the head by a soccer ball that a teammate was clearing. She fell to the ground in a heap. After a minute or so, she got up and the referee put his hand up to wave off the trainer. Wambach continued play.

The provocative Website Slate.com described the scene and included the video.

It was startling that Wambach, the greatest American female soccer player ever, was not ordered off the field, and that referee Kari Seitz, a veteran of four women’s World Cups and three Olympics, may have actually blocked that from happening. To be fair, no one knows if Wambach said something to dissuade him from doing the right thing.

But what we do know is what happened next.

“Play resumed,” wrote journalist Stefan Fatsis, who attended the game with his daughter. “The Flash moved the ball downfield and, in a last-second attempt to break a 1-1 tie, Wambach tried to score off of a corner kick. Using her head.

“At the final whistle, Wambach dropped to her knees. Spirit goalkeeper Ashlyn Harris waved for help. ‘I could tell she was pretty dazed,’ Harris said afterward. ‘I said, “Are you all right?” She was mumbling. That’s not a good sign.’”

Fatsis contacted Roberrt Cantu about the incident, who said it was “absurd” that she wasn’t yanked off the field. At the same time, he said athletes must be responsible, too. “Athletes have to know the symptoms and be willing to pull themselves out when they have them,” he said.

To see the article and video, click here: http://slate.me/15PcrD8

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Sports Lawyers to Examine Concussions at Annual Meeting Next Month

Not surprisingly, concussions will be the prime topic at the annual Sports Lawyers Association meeting in Atlanta May 16-18.

On May 16, Robert E. Wallace, a Partner at Thompson Coburn LLP in Saint Louis, MO will moderate a session called “Legal Impact of Head Trauma on Professional Athletes.”

Joining Wallace, a former general counsel for the St. Louis Rams, on the stage will be Kevin E. Crutchfield, MD, Director, Comprehensive Sports Concussion Program, LifeBridge Health in Baltimore, MD; Tim English, NFLPA, Washington, DC; and Lawrence P. Ferazani, Senior Labor Litigation Counsel, NFL, New York, NY.

For more information on the conference, visit: http://www.sportslaw.org/events/2013_conference_brochure.pdf

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