By John M. Burnor
Derek Boogaard was one of the most feared players in the NHL. Playing for the Minnesota Wild and the New York Rangers, Boogaard was an enforcer whose unofficial role was to fight: to protect his teammates and to settle points of honor for the team. Over the course of his NHL career, Boogaard racked up 589 minutes in the penalty box. Boogaard was found dead in a hotel room May 13, 2011 from an overdose of painkillers and alcohol. He was 28 years old.
Enforcers such as Boogaard play one of the most dangerous roles in hockey, as any given fight can cause career ending injuries. By his family’s estimate, Boogaard sustained dozens of concussions, although only a few were ever identified and treated as such. More often, he and others with similar injuries are simply prescribed painkillers to keep playing.
In May of this year, Derek Boogaard’s family filed a lawsuit against the National Hockey League alleging that the NHL breached its duty of care to Boogaard by not monitoring his injuries and his intake of pain killing medication. The family further alleges that the NHL breached its duty of care to keep Boogaard “reasonably safe” and to “refrain from causing addiction to controlled substances.”
According to William Gibbs, the lawyer representing the Boogaard family, teams will have up to eight physicians who, despite working for the same team will have little communication with each other. He claimed that, at the time of the filing, “there are no checks in place to make sure all those doctors are in proper communication with each other in the way they administer pills.”
This account is partially supported by the first person testimony of Justin Bourne, a minor league player whose career was ended by a puck to the jaw. His story, describes the massive amounts of painkillers that are legitimately prescribed in hockey, the lack of supervision over those drugs, and the long-term effects of such drugs. Well-intentioned doctors can prescribe drugs to a player who is truly in pain but over time such prescriptions can lead to addiction if not monitored. Essentially the pain is so bad and the players so large that very large doses are prescribed. Without communication between doctors, a player, seeking relief while being encouraged to continue playing, may seek prescriptions from multiple doctors, possibly knowing the danger or assuming that the doctors were aware of the other prescriptions.
The new Collective Bargaining Agreement (CBA) signed by the NHL and the Players Association addresses this issue. Article 34.3(b)(i) provides that clubs are required to input medical and health records to be maintained in an Athlete Health Management System. Furthermore, 34.3(b)(ii) states that reports of treatments must be exchanged between teams when injuries are treated by other clubs’ physicians. Finally, and most importantly, article 34.7 provides that every club has to identify one individual who is “responsible for monitoring on an ongoing basis, or auditing on a regular basis, prescription drugs that have been given to each Player on the Club.” While it may still be possible for a player to receive painkillers “off the books” this is an important step towards monitoring the use of drugs and the NHL claiming ownership of the problem.
The problem of painkiller abuse is by no means unique to the NHL or even professional sports. However, given the injuries sustained by professional hockey players it is a problem that the NHL cannot ignore. The outcome of the Boogaard’s family suit remains undetermined, but hopefully, the new changes to the CBA, addressing the issue of communication between physicians, will lead to a more open dialogue that will protect players in the future.
John M. Burnor is a recent graduate of Quinnipiac University Law School and is a guest columnist for Connecticut Sports Law.