The Concussion Crisis in the National Hockey League

By Miller, John J.; Wendt, John T. | Journal of Contemporary Athletics, January 1, 2015 | Go to article overview

The Concussion Crisis in the National Hockey League


Miller, John J., Wendt, John T., Journal of Contemporary Athletics


Litigation against the National Hockey League

Presently, the culture of sports praises athletes who persevere through injury and personal hardship. As a result, an athlete may do whatever it takes to achieve recognition, thereby reducing the importance of possible future consequences as being inconsequential. A prime example of an athlete doing whatever it takes to make it in professional sports may be the case of NHL hockey player, Derek Boogaard.

Boogard v. National Hockey League (2013)

Athletes have been known not to report their own concussions because of the win at all cost mentality, their desire to continue to play or worry about losing a spot on the team (Shoalts, 2011). The machismo culture of many sports which has been described as -uniformly aggressive and humourlessly chauvinistic" (Giulianotti, 1999, p. 155), could contribute to athletes being over-motivated thereby pushing themselves beyond their normal physical capabilities. On numerous occasions, players, coaches, or broadcasters refer to the warrior mentality of the athletes. Often those who incur a concussion and do not report it or return to play too soon are portrayed as -the hardest worker on the team" or determined to prove himself -to be the best." However, that mindset can work against such a player during a violent, collision activity such as hockey.

Derek Boogaard was a tough hockey player who died of a prescription drug overdose in Minneapolis, Minnesota on May 13, 2011 at the age of 28. His parents, Len and JoAnne Boogard (last name spelled differently than their son) have sued the NHL Players Association alleging that the NHL was negligent in monitoring Derek Boogaard for brain trauma during his NHL career. The complaint further states that the brain trauma caused chronic traumatic encephalopathy (CTE) as well as pain and suffering and loss of a normal life (Boogard v. National Hockey League, 2013). According the complaint, Boogaard was specifically drafted as an -enforcer" on the ice and not for skill in skating or shooting a hockey puck. An enforcer is a person on a hockey team whose main assignment is to engage in fist fights with players from the opposing team (Boogard v. National Hockey League, 2013). The complaint alleges that Boogaard was drafted by an NHL team because of his ability fight which, in turn, would enhance ratings, earnings and exposure of the sport of professional hockey. In fact one hockey team owner once quipped, -We're gonna have to do something about all this violence, or people are gonna keep buying tickets" (Darby, 1994, B9). After years of fighting on the ice of hockey rinks, Boogaard turned to the team doctors who dispensed pain pills without conditions so he could deal with his pain. The complaint further alleged that once Boogaard became addicted to these narcotics, the NHL promised his family that it would take care of him and it did not (Corboy & Demetrio, 2013).

Alleged Negligence

The Boogard complaint alleged that the NHL was negligent in its dealing with Boogaard and other players in the league. According to the Restatement of Torts (1965), negligence is -conduct which falls below the standard established by law for the protection of others against unreasonable risk of harm" (p. 282). A negligent situation is generated when an unreasonable risk of harm through inadvertence is present (Dobbs, 2000). To prove negligence four elements must exist: 1) duty; 2) breach of that duty; 3) proximate cause; and 4) damage. All four elements must exist for negligence to be present (Dobbs, 2000).

Duty

A duty is a special relationship betweenn two or more parties that may be created by statute, contract, or common law (Dobbs, 2000). Regarding the duty that an organization has for professional athlete, the court in Turcotte v. Fell (1986) reported that the duty of care owed to a professional sports participant was to avoid reckless or intentional conduct, not negligence. The Boogard complaint alleges that the NHL had a duty to inform players about the high rate of injuries resulting from playing professional hockey and the higher rate of injuries sustained by enforcers in the NHL. …

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