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Len Boogard; Joanne Boogard; and the Estate of Derek Boogaard v. the National Hockey League Players Association; Roman Stoykewych; and

March 20, 2013


The opinion of the court was delivered by: Otis D. Wright, II United States District Judge

O JS-6



Derek Boogaard, a former New York Rangers hockey player, died tragically on May 13, 2011.*fn1 At the time of his death, Boogaard still had three seasons remaining on his contract with the Rangers. When the National Hockey League Players Association ("NHLPA") refused to file a grievance for the remaining compensation under the contract, Boogaard's estate and his parents Len and Joanne Boogaard brought suit. Plaintiffs assert that NHLPA breached its duty of fair representation by failing to file a grievance with the National Hockey League. Defendants filed a Motion to Dismiss with this Court on the grounds that the duty-of-fair-representation claim is barred by the six-month statute of limitations. (ECF No. 19.) Upon review of the parties' arguments and evidence, the Court found it necessary to convert Defendants' Motion to Dismiss into a motion for summary judgment under Federal Rule of Civil Procedure 12(d), because the issue of equitable tolling requires findings of fact beyond the pleadings. (ECF No. 29.) For the reasons explained below, NHLPA's converted motion for summary judgment is GRANTED.*fn2


Boogaard entered into a guaranteed four-year standard player contract to play with the New York Rangers for the 2010--2014 seasons.*fn3 (FAC ¶ 9.) Boogaard was a member of the NHLPA. (FAC ¶ 8.) NHLPA and the National Hockey League ("NHL") have in place a collective bargaining agreement ("CBA").*fn4 (FAC ¶¶ 1, 3.)

During his professional hockey career, Boogaard became addicted to the narcotics and sleeping pills prescribed to him for his hockey-related injuries. (FAC ¶ 10.) Plaintiffs allege that the team doctors and trainers prescribed these drugs recklessly, knowing that he was addicted. (Id.) Boogaard died in his sleep on May 13, 2011, from a mixture of drugs and alcohol. (FAC ¶ 12.) At Boogaard's death, three seasons remained under his contract. (Opp'n 10.)

Roman Stoykewych, associate counsel for NHLPA, contacted Plaintiffs on July 1, 2011, regarding their rights of compensation under Boogaard's contract, insurance payments, and other rights under the CBA. (FAC ¶ 13.) Stoykewych was Plaintiffs' primary contact with NHLPA, and their communications continued through December 2011. (See FAC ¶ 22.)

NHLPA learned that the New York Rangers would not be paying anything further on Boogaard's contract on July 27, 2011. (FAC ¶ 14.) Stoykewych immediately contacted the commissioner of the NHL to obtain documentation, including Boogaard's medical records, to be used as evidence in a possible grievance to enforce compensation payment. (Id.; FAC Ex. A.)

Under the CBA, a complaint for the failure to pay a player's compensation must be heard by way of a grievance, which can only be initiated by NHL or NHLPA. (FAC ¶¶ 15, 16). NHLPA had sixty days from the Rangers' notice of refusal to pay to file a grievance with NHL. (FAC ¶ 17.) Plaintiffs allege NHLPA failed to file a grievance in that period and never informed them of the sixty-day filing period. (FAC ¶¶ 18, 21.)

In October 2011, after the expiration of the sixty-day period, Stoykewych updated Plaintiffs via email about the NHL-NHLPA treatment facility's refusal to disclose medical records without a court order. (FAC ¶ 20.) Stoykewych informed Plaintiffs that NHL was freezing them out and that NHLPA would have to take legal action against the doctor refusing to produce Boogaard's medical records. (Id.) The correspondence between Stoykewych and Plaintiffs regarding NHLPA's progress continued through November 2011. (Opp'n 2.)

Stoykewych finally notified Plaintiffs in a letter dated December 2, 2011, that NHLPA had concluded that no viable grievance could be prosecuted and thus, would not pursue a grievance for the payout of the remainder of Boogaard's contract. (Stoykewych Decl. ¶ 6, Ex. 3.) Stoykewych never advised Plaintiffs that if they believed NHLPA had acted arbitrarily or in bad faith in failing to pursue a grievance, they would have six months to bring a breach of duty of fair representation claim ("DFR claim"). (FAC ¶ 21.) In a follow-up letter, Stoykewych advised Plaintiffs to investigate a potential workers'-compensation claim, informed them about the statute of limitations for such a workers'-compensation claim, and referred them to a workers'-compensation attorney. (Boogaard Decl. Ex. E.)

Plaintiffs believed that Stoykewych was acting as their legal counsel at all times. (FAC ¶ 30.) They relied upon Stoykewych's advice and contacted the workers'-compensation attorney he recommended. (Boogaard Decl. ¶ 16.) They received no response. (Id.) Plaintiffs then asked NHLPA to recommend a second attorney, who ultimately referred them to a third attorney. (Id.) Finally, in July 2012, Plaintiffs retained counsel. (Opp'n 4.) Plaintiffs filed the Complaint on September 21, 2012, alleging that NHLPA breached ...

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