Case: 1:15-cv-10989 Document #: 63 Filed: 01/13/20 Page 1 of 38 PageID #:278

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
----------------------------------------------------------x
PAUL MONTADOR, Executor and Estate
:
Trustee of the Estate of STEVEN R.
:
MONTADOR, Deceased,
:
:
Plaintiff,
:
Case No. 1:15-cv-10989
:
v.
:
:
NATIONAL HOCKEY LEAGUE and
:
NATIONAL HOCKEY LEAGUE BOARD
:
OF GOVERNORS,
:
:
Defendants.
:
-----------------------------------------------------------x

MEMORANDUM OF LAW IN SUPPORT OF
DEFENDANTS’ MOTION TO DISMISS AND/OR FOR
SUMMARY JUDGMENT PURSUANT TO RULES 12(c) AND 56

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TABLE OF CONTENTS
Page
PRELIMINARY STATEMENT .................................................................................................... 1
STATEMENT OF FACTS ............................................................................................................. 2
A.

The Parties .............................................................................................................. 2

B.

The NHL/NHLPA Collective Bargaining Agreement ............................................ 2

C.

The Complaint ........................................................................................................ 4

ARGUMENT .................................................................................................................................. 5
I.

II.

PLAINTIFF’S CLAIMS ARE COMPLETELY PREEMPTED BY SECTION 301 ......... 5
A.

U.S. Supreme Court and Seventh Circuit Precedent............................................... 6

B.

The Decisions In Boogaard v. NHL ...................................................................... 10

C.

Plaintiff's Claims Are Completely Preempted By Section 301 ............................ 14

D.

The Preempted Claims Must Be Dismissed.......................................................... 19

EVEN IF NOT PREEMPTED, THE COMPLAINT FAILS TO STATE A
CLAIM FOR RELIEF UNDER ILLINOIS LAW............................................................ 21
A.

B.

Plaintiff’s Negligent Misrepresentation Claim (Counts I And III) Is Not
Adequately Pled .................................................................................................... 21
1.

Plaintiff Does Not Allege That The NHL Assumed A Duty To
Study Or Disclose The Long-Term Effects Of Concussions .................... 22

2.

Plaintiff Does Not Plausibly Allege That the NHL Made A False
Statement................................................................................................... 23

3.

Plaintiff Fails to Plead Detrimental Reliance............................................ 24

Plaintiff’s Promotion of Violence Claim (Counts II And IV) Is Not
Facially Plausible. ................................................................................................. 25
1.

The Promotion Of Violence Claim Is Barred By The First
Amendment. .............................................................................................. 25

2.

The Complaint Does Not Plausibly Allege A Duty Not To Promote
Violence .................................................................................................... 27

3.

The Complaint Does Not Plausibly Allege Proximate Cause .................. 28

4.

Even if Illinois Law Applied, Any Non-Preempted Claims Would
Be Barred by the Illinois Workers’ Compensation Act ............................ 29

CONCLUSION ............................................................................................................................. 30

i

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TABLE OF AUTHORITIES
Page(s)
CASES
Allis-Chalmers Corp. v. Lueck,
471 U.S. 202 (1985) ...............................................................................................................6, 7
Am. Booksellers Ass’n v. Hudnut,
771 F.2d 323 (7th Cir. 1985) .............................................................................................25, 26
Ashcroft v. Iqbal,
556 U.S. 662 (2009) ...........................................................................................................13, 21
Baker v. Kingsley,
387 F.3d 649 (7th Cir. 2004) .................................................................................................8, 9
Boogaard v. Nat’l Hockey League,
126 F. Supp. 3d 1010 (N.D. Ill. 2015) ............................................................................. passim
Boogaard v. Nat’l Hockey League,
211 F. Supp. 3d 1107 (N.D. Ill. 2016) ...................................................................12, 13, 17, 18
Boogaard v. Nat’l Hockey League,
255 F. Supp.3d 753 (N.D. Ill. 2017) ..................................................................................13, 14
Boogaard v. Nat’l Hockey League,
891 F.3d 289 (7th Cir. 2018), cert. denied, 139 S. Ct. 601 (2018) ................................6, 10, 14
Brandenburg v. Ohio,
395 U.S. 444 (1969) .................................................................................................................26
Brown v. Entm’t Merchs. Ass’n,
564 U.S. 786 (2011) ...................................................................................................................5
Caterpillar Inc. v. Williams,
482 U.S. 386 (1987) ...................................................................................................................6
Christianson v. APV Crepaco, Inc.,
178 F.3d 910 (7th Cir. 1999) ...................................................................................................20
Crosby v. Cooper B-Line, Inc.,
725 F.3d 795 (7th Cir. 2013) .....................................................................................................7
Davis v. Allhands,
268 Ill. App. 3d 143, 643 N.E.2d 856 (1995) ..........................................................................28

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DelCostello v. International Brotherhood of Teamsters,
462 U.S. 151 (1983) .................................................................................................................20
Duerson v. National Football League,
No. 12 C 2513, 2012 WL 1658353 (N.D. Ill. May 11, 2012) .....................................15, 16, 17
F:AJ Kikson v. Underwriters Labs., Inc.,
492 F.3d 794 (7th Cir. 2007) ...................................................................................................23
Fichtel v. Bd. of Dirs. of the River Shore of Naperville Condo. Ass’n,
389 Ill. App.3d 951, 907 N.E.2d 903 (2009) .....................................................................22, 23
Franchise Tax Bd. of Cal. v. Constr. Laborers Vacation Tr. for S. Cal.,
463 U.S. 1 (1983) .......................................................................................................................6
Frye v. Medicare-Glaser Corp.,
53 Ill.2d. 26, 605 N.E.2d 557 (1992) .......................................................................................22
Givens v. Tenn. Football, Inc.,
684 F. Supp. 2d 985 (M.D. Tenn. 2010) ..................................................................................16
Healey v. Metro. Pier & Exposition Auth.,
804 F.3d 836 (7th Cir. 2015) ...............................................................................................9, 19
Homer v. Pabst Brewing Co.,
806 F.2d 119 (7th Cir. 1986) ...................................................................................................22
In re National Hockey League Players’ Concussion Injury Litigation,
189 F. Supp. 3d 856 (D. Minn. 2016) ..................................................................................4, 16
Int’l Bhd. of Elec. Workers v. Hechler,
481 U.S. 851 (1987) ...........................................................................................................6, 7, 8
Johnson v. Wal-Mart Stores, Inc.,
588 F.3d 439 (7th Cir. 2009) ...................................................................................................28
Laumann v. National Hockey League,
Nos. 12 Civ. 1817, 12 Civ. 3074 (SAS), 2012 WL 6043225 (S.D.N.Y. Dec. 5,
2012) ..........................................................................................................................................2
Lingle v. Norge Division of Magic Chef, Inc.,
486 U.S. 399 (1988) ...................................................................................................................6
McCauley v. City of Chicago,
671 F. 3d 611 (7th Cir. 2011) ..................................................................................................21
Mockbee v. Humphrey Manlift Co.,
973 N.E.2d 376 (Ill. App. Ct. 2012) ........................................................................................29

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N.Y. Times Co. v. Sullivan,
376 U.S. 254 (1964) .................................................................................................................25
Nat’l Hockey League v. Nat’l Hockey League Players’ Ass’n,
789 F. Supp. 288 (D. Minn. 1992) .............................................................................................2
Nelson ex rel. Boogaard v. Nat’l Hockey League,
20 F. Supp. 3d 650 (N.D. Ill 2014) ..........................................................................................11
NLRB v. P.I.E. Nationwide, Inc.,
923 F.2d 506 (7th Cir. 1991) ...................................................................................................18
Quinn v. McGaw Hill Cos.,
168 F.3d 331 (7th Cir. 1999) ...................................................................................................22
Roppo v. Travelers Commercial Ins. Co.
869 F.3d 568 (7th Cir. 2017) ...................................................................................................24
Rovell v. Am. Nat’l Bank,
194 F.3d 867 (7th Cir. 1999) ...................................................................................................24
Sanders v. Acclaim Entertainment’, Inc.,
188 F. Supp. 2d 1264 (D. Colo. 2002) .....................................................................................26
Sherwin v. Indianapolis Colts, Inc.,
752 F. Supp. 1172 (N.D.N.Y 1990) .........................................................................................16
Sluder v. United Mine Workers of America,
892 F.2d 549 (7th Cir. 1989) .........................................................................................9, 10, 15
Stringer v. National Football League,
474 F. Supp. 2d 894 (S.D. Ohio 2007) ....................................................................................16
Swanson v. Citibank, N.A.,
614 F.3d 400 (7th Cir. 2010) .............................................................................................21, 29
Textile Workers Union of America v. Lincoln Mills of Alabama,
353 U.S. 448 (1957) ...................................................................................................................6
Toulon v. Cont’l Cas. Co.,
No. 15 CV 138, 2015 WL 4932255 (N.D. Ill. Aug. 18, 2015) ................................................23
United Parcel Serv. v. Mitchell,
451 U.S. 56 (1981) ...................................................................................................................20
United Steelworkers of America v. Rawson,
495 U.S. 362 (1990) .............................................................................................................8, 16

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Vaca v. Sipes,
386 U.S. 171 (1967) .................................................................................................................20
Video Software Dealers Ass’n v. Webster,
968 F.2d 684 (8th Cir. 1992) ...................................................................................................25
Vrdolyak v. Avvo, Inc.,
No. 16 C 2833, 2016 WL 4765716 (N.D. Ill. Sept. 12, 2016) .................................................25
Ward v. Kmart Corp.,
136 Ill.2d 132, 554 N.E.2d 223 (1990) ....................................................................................28
Williams v. Nat’l Football League,
582 F. 3d 863 (8th Cir. 2009) ..................................................................................................16
Wilson v. Midway Games, Inc.,
198 F. Supp. 2d 167 (D. Conn. 2002) ................................................................................25, 26
Young v. Bryco Arms,
213 Ill.2d 433, 821 N.E.2d 1078 (2004) ..................................................................................29
STATUTES
Illinois Wrongful Death Statute, 740 ILCS 180/1 ...........................................................................5
Illinois Survival Act, 755 ILCS 5/27-6 ............................................................................................5
Illinois Workers’ Compensation Act, 820 Ill. Comp. Stat. 305/5(a) .............................................29
Labor Management Relations Act § 301, 29 U.S.C. § 185 ................................................... passim
OTHER AUTHORITIES
Federal Rules of Civil Procedure 12(c) and 56 ................................................................................1

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PRELIMINARY STATEMENT
Defendants National Hockey League (“NHL” or the “League”) and the National Hockey
League Board of Governors1 (collectively, “Defendants”) respectfully submit this memorandum
in support of Defendants’ motion to dismiss and/or for summary judgment pursuant to Federal
Rules of Civil Procedure 12(c) and 56.2
First and foremost, Plaintiff’s claims must be dismissed because they are completely
preempted by Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185 (“Section
301”), because they arise out of or require interpretation of collective bargaining agreements.
The exclusive remedy for such claims is arbitration. (pp. 5-20; infra.)
Even if Plaintiff’s claims were not preempted, he would still fail to state a claim with
respect to any of his claims for relief for the following reasons:
●

To the extent the Complaint alleges (in Counts I and III) that the NHL
misrepresented the dangers of hockey through implied communications, the
claims do not plausibly allege that the NHL assumed a duty to study the long-term
effects of concussions, breached such a duty, or that Steven Montador relied to his
detriment on any supposed misrepresentation. (Point II (A) pp. 22-25, infra.)

●

To the extent the Complaint alleges (in Counts II and IV) that the NHL is liable
because it “permitted and promoted fighting” and/or “glorified violence,” the
claims: (i) are barred by the First Amendment; (ii) fail to plausibly allege a duty
not to promote violence; and (iii) fail to plausibly allege that any active promotion

1

Because the NHL Board of Governors is not a legal entity with any existence apart from the NHL
(Compl. ¶ 16), it cannot be a defendant in a legal action.
2

Because this motion is supported in part by documents outside the pleadings (attached to the
Declaration of Julie S. Grand, Esq.), Defendants are moving under Rules 12(c) and 56.

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of violence was the foreseeable or proximate cause of Montador’s injuries. (Point
III (B) pp. 25-29, infra.)
●

All of Plaintiff’s claims are in any event barred by the exclusive remedy provision
of the Illinois Workers’ Compensation Act. (Point III, p 30, infra)
STATEMENT OF FACTS

A. The Parties
The NHL is an unincorporated association of thirty-one Member Clubs that is dedicated
to the perpetuation of hockey as one of the national games of the United States and Canada.
Nat’l Hockey League v. Nat’l Hockey League Players’ Ass’n, 789 F. Supp. 288, 289-90 (D.
Minn. 1992); Laumann v. National Hockey League, Nos. 12 Civ. 1817, 12 Civ. 3074 (SAS),
2012 WL 6043225, at *472 (S.D.N.Y. Dec. 5, 2012).
Plaintiff is the Executor and Estate Trustee of the Estate of Steven Montador. (Compl. ¶
12) (Steven Montador is referred to herein as “Montador.”) Montador played hockey in the NHL
for six different Clubs between 2001 and 2012. (Compl. ¶ 2.)
B. The NHL/NHLPA Collective Bargaining Agreement
Montador was employed pursuant to terms and conditions of employment contained in
collective bargaining agreements between the NHL and the National Hockey League Players’
Association (“NHLPA”) in effect during the periods January 13, 1995 – September 15, 2004 (the
“1995 CBA”) and July 22, 2005 – September 15, 2012 (the “2005 CBA”), as well as other
collectively-bargained agreements between the NHL and the NHLPA (and documents
incorporated by reference in the CBAs) that were operative during Montador’s hockey career.3

3

The 1995 CBA and 2005 CBA are attached as Exhibits 1 and 2, respectively, to the Declaration
of Julie Grand, Esq.

2

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The CBAs delineated the manner in which the League Playing Rules (including rules
concerning and affecting Player safety) are promulgated and enforced. Among other things,
Article 30 of both CBAs stated:
30.2 League Playing Rules. Each player shall be bound by the League’s
Playing Rules to the extent that such rules are not in conflict with provisions of
this Agreement.
30.3 Amendments. The NHL and its Clubs shall not, during the term of this
Agreement or any extension thereof, amend or modify the provisions (or
portions thereof) of the League Rules or any of the League’s Playing Rules in
existence on the date of this Agreement which affect terms or conditions of
employment of any Player, without the prior written consent of the NHLPA
which shall not be unreasonably withheld.
The Complaint asserts that the NHL undertook a legal duty to ensure player safety and to
warn players about the risks of playing hockey. The CBAs do not support that proposition. Both
CBAs and the Standard Players’ Contract (“SPC”) required under (and part of) the CBAs4
assigned responsibility for the treatment and management of player injuries to the NHL’s
Member Clubs and their respective medical staffs. For example:
● 2005 CBA Article 16.11(e) provided that “[a]ny determination that a Player is
eligible to be placed on the Injured Reserve List, or designated as Injured Non-Roster,
shall be made by the Club’s physician in accordance with the Club’s medical
standards and documented . . . .” Article 16.10(d) of the 1995 CBA contained a
similar provision that provided “determinations that a player has suffered a major
injury must be made by the Club’s medical staff in accordance with the Club’s
medical standards.”

Article 11 of both CBAs provided that the SPC shall be the “sole form of employment contract”
for Players. The SPC itself was annexed as Exhibit 1 to both CBAs.
4

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● Both CBAs delegated to Club physicians the responsibility for making “fitness-toplay” determinations (as to whether a Player is disabled from playing).5
● The 2005 CBA provided that if a Player disagreed with the Club’s doctor as to
whether he was fit to play hockey, the Player had the right to obtain a second medical
opinion. (2005 CBA Art. 17.7.) Similarly, the 1995 CBA provided for review of a
player’s fitness to play by an independent medical specialist. (1995 CBA SPC ¶ 5.)
● The 2005 CBA mandated that each Club conduct an annual exit physical at the end of
each NHL season to document “all injuries that may require future medical or dental
treatment either in the near future or post-career,” and to provide each Player with a
complete copy of his medical records following each season. (2005 CBA Art. 23.10.)
Finally, the CBAs provided (in Article 17) for an exclusive dispute resolution procedure
to address disputes of interpretation or application of the CBA. The 2005 CBA also provided for
a separate expedited dispute resolution process under which fitness-to-play disputes were
decided by an independent physician in the event of a disagreement between the Club’s doctor
and the Player’s doctor. (2005 CBA Art. 17.7(d)-(f); SPC ¶ 5.)
C. The Complaint
Plaintiff filed this action in this Court in December 2015. It was immediately transferred
to the District of Minnesota6 and remanded back to this Court in October 2019 upon the
conclusion of the Minnesota MDL proceeding.

5

The fitness-to-play provisions are contained in Paragraph 5 of the form SPC contained in both
CBAs and are mirrored in Section 17.7 of the 2005 CBA.
In re National Hockey League Players’ Concussion Injury Litigation, 14-md-2551(SRN/BRT)
(D. Minn.).
6

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Counts I and II of the Complaint purport to state claims under the Illinois Survival Act
(755 ILCS 5/27-6). Counts III and IV purport to state claims under the Illinois Wrongful Death
Statute (740 ILCS 180/1). In sum and substance, the Complaint alleges that the NHL was
negligent in permitting and promoting fighting and in failing to inform Montador of the alleged
long-term effect of concussions. To this end, the Complaint alleges, inter alia, that:
1. The NHL owed Montador a duty “to keep him reasonably safe during his career and
to provide him with the most up-to-date medical information on all issues, including
the increased risk of long-term brain damage.” (Compl. ¶ 20.)
2. The NHL knew that “its players were susceptible to developing CTE and other
neurodegenerative brain diseases as a result of the fist-fighting it allowed and
promoted, the hard hits it encouraged and marketed, and/or the blows to the head that
it steadfastly refused to eliminate from its game.” (Id. ¶ 21.)
3. Despite its “unilateral authority to regulate equipment, enact rule changes, mete out
discipline, mandate injury protocols, and provide warnings to protect its players from
the short and long term consequences of concussions,” the NHL permitted and
promoted fighting (id. ¶ 53), and “failed to keep . . . Montador reasonably safe during
his career and utterly failed to provide him with crucial medical information on the
permanent ramifications of brain trauma.” (Id. ¶ 22.)
ARGUMENT
I.

PLAINTIFF’S CLAIMS ARE COMPLETELY PREEMPTED BY SECTION
301
Plaintiff’s claims are completely preempted by Section 301 because they either arise out

of rights created by a collective bargaining agreement or require interpretation of a collective
bargaining agreement.

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A. U.S. Supreme Court and Seventh Circuit Precedent
Section 301(a) vests federal district courts with jurisdiction to hear “[s]uits for violation
of contracts between an employer and a labor organization representing employees.”7 In Textile
Workers Union of America v. Lincoln Mills of Alabama, 353 U.S. 448 (1957), the Supreme Court
held that Section 301 is more than jurisdictional; it authorizes federal courts to fashion a body of
federal common law to govern the enforcement of labor contracts. “[T]he preemptive force of §
301 is so powerful as to displace entirely any state cause of action ‘for violation of contracts
between an employer and a labor organization.’ Any such suit is purely a creature of federal
law, notwithstanding the fact that state law would provide a cause of action in the absence of §
301.” Franchise Tax Bd. of Cal. v. Constr. Laborers Vacation Tr. for S. Cal., 463 U.S. 1, 23
(1983) (internal citation omitted).
Section 301 completely preempts two types of claims: “claims founded directly on rights
created by collective-bargaining agreements, and also claims ‘substantially dependent on
analysis of a collective-bargaining agreement.’” Caterpillar Inc. v. Williams, 482 U.S. 386, 394
(1987) (citing Int’l Bhd. of Elec. Workers v. Hechler, 481 U.S. 851, 859 n.3 (1987)); AllisChalmers Corp. v. Lueck, 471 U.S. 202, 202 (1985). Thus, while a factual overlap between a
state law claim and one that may be asserted under a collective bargaining agreement does not
alone result in preemption, Lingle v. Norge Division of Magic Chef, Inc., 486 U.S. 399, 407

7

The Court has subject matter jurisdiction pursuant to Section 301 for the reasons explained
herein. To the extent that some but not all claims are preempted by Section 301, the Court may exercise
supplemental jurisdiction over the non-preempted claims. Boogaard v. Nat’l Hockey League, 891 F.3d
289 (7th Cir. 2018), cert. denied, 139 S. Ct. 601 (2018). The Complaint contains no allegations
concerning the basis for subject matter jurisdiction and we note that there is no diversity jurisdiction. The
NHL is an unincorporated association and seven of its member clubs are based in Canada. The Complaint
alleges that Montador was a Canadian resident at the time of his death and that Plaintiff was appointed
trustee of Montador’s estate by a Canadian court. (Compl. ¶¶ 12, 13.)

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(1988), a claim that is “inextricably intertwined” with terms in a collective bargaining agreement
is preempted. Crosby v. Cooper B-Line, Inc., 725 F.3d 795, 800 (7th Cir. 2013).
In Allis-Chalmers, the Court made clear that Section 301 preemption extends to
purported state law claims sounding in tort, as well as contract claims:
Questions relating to what the parties to a labor agreement agreed, and what
legal consequences were intended to flow from breaches of that agreement,
must be resolved by reference to uniform federal law, whether such questions
arise in the context of a suit for breach of contract or in a suit alleging liability
in tort.
Id. at 211. The Court considered whether a state law tort claim that the defendant-employer had
acted in bad faith in handling the plaintiff’s claim for disability benefits provided under a
collective bargaining agreement was preempted by Section 301. The Court defined its task as
determining whether the tort cause of action “confers nonnegotiable state-law rights on
employers or employees independent of any right established by contract, or, instead, whether
evaluation of the tort claim is inextricably intertwined with consideration of the terms of the
labor contract.” Id. at 213. The Court concluded that the claim fell within the latter category and
was thus preempted. As it later summarized (in Hechler):
The Court [in Allis-Chalmers] observed that any attempt to assess liability on
the part of the employer would inevitably involve interpretation of the
underlying collective-bargaining contract. First, the disability plan adopted in
the collective-bargaining agreement might itself have included an implied
requirement of good faith that the employer breached by its conduct . . . .
Second, under the relevant state law, the duty of “good faith” on which the
plaintiff relied “intrinsically relate[d] to the nature and existence of the
contract.” Hechler, 481 U.S. at 858.
In Hechler, the Court considered a tort claim brought by an employee who alleged that
her union had violated a duty of care to ensure a safe workplace. The Court observed that, under
the state’s common law, the union had no general duty to provide a safe workplace; that a union
could assume a duty of care through a contractual arrangement; and that the breach of such an

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assumed duty could give rise to either a breach of contract or a tort action. Thus, the “[t]he
threshold inquiry for determining if a cause of action exists is an examination of the contract to
ascertain what duties were accepted by each of the parties and the scope of those duties.” Id. at
860. However, because “‘questions of contract interpretation . . . underlie any finding of tort
liability,’” the claim was preempted by Section 301. Id. at 862 (citation omitted).
The Supreme Court again considered the preemptive effect of Section 301 on tort claims
in United Steelworkers of America v. Rawson, 495 U.S. 362 (1990), holding that negligence
claims brought against a union by survivors of miners who died in an underground fire were
preempted by Section 301. The Idaho Supreme Court had held the claims not preempted,
distinguishing Hechler on the ground that the claims advanced by the Rawson plaintiffs relied on
a duty of care that arose “from the fact of the inspection itself rather than the fact that the
provision for the Union’s participation in mine inspection was contained in the labor contract.”
Id. at 371. The Supreme Court rejected that distinction, observing:
This is not a situation where the Union’s delegates are accused of acting in a
way that might violate the duty of reasonable care owed to every person in
society . . . .
If the Union failed to perform a duty in connection with inspection, it was a
duty arising out of the collective-bargaining agreement signed by the Union as
the bargaining agent for the miners. . . . “Questions relating to what the parties
to a labor agreement agreed, and what legal consequences were intended to
flow from breaches of that agreement, must be resolved by reference to
uniform federal law. . . .” Id. (citation omitted).
Applying these principles, the Seventh Circuit has repeatedly recognized the breadth of
Section 301 preemption, which applies “[e]ven where a plaintiff relies on state law in a
complaint and makes no mention of § 301” because “the federal statute will displace the statelaw claim to ensure uniform interpretation of collective bargaining agreements.” Baker v.
Kingsley, 387 F.3d 649, 657 (7th Cir. 2004) (claims asserted under Illinois Wage Act

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preempted). As long as a defendant’s interpretation “is plausible, and demonstrates a genuine
dispute between the parties that can affect liability, it is a sufficient basis for preemption.” Id. at
659. See also Healey v. Metro. Pier & Exposition Auth., 804 F.3d 836 (7th Cir. 2015) (Section
301 preempted a tortious interference with contract claim because the factfinder would need to
determine if a collective bargaining agreement had been breached).
In Sluder v. United Mine Workers of America, 892 F.2d 549 (7th Cir. 1989), the Seventh
Circuit affirmed the dismissal of a negligence claim on preemption grounds. The defendantunion there had conducted inspections of a mine that subsequently collapsed. The complaint
asserted claims of negligence and loss of consortium, alleging that “by undertaking these
inspections, [the union] became subject to the state common-law duty to perform these
inspections with due care.” Id. at 551.
The Court in Sluder began its analysis with a discussion of Illinois law governing the
imposition of liability for a voluntary undertaking, emphasizing that “we have stressed that ‘the
scope of the duty is limited by the extent of the undertaking,’” and that “Illinois courts “require
that any duty assumed be limited strictly to the scope of the undertaking.’” Id. at 554 (emphasis
in original) (citations omitted).8 With that as the predicate, the Court held the claims to be
preempted because analysis of the collective bargaining agreement would be required to
establish whether a duty of care (express or implied) existed—and the nature and extent of such a
duty:
It is, of course, possible that a third party, such as District 12, might assume
this duty. However, before liability could be established, it would be necessary
to establish that the union breached a specific duty it had assumed toward the
employees. In order to define the scope of the duty assumed by the union, it
would be necessary to establish the precise responsibility assumed by the
union.
8

As discussed at pp. 23, that principle is relevant here for a variety of reasons.

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In our view, it would not be possible to define, with the precision demanded by
Illinois law, the scope of the union’s duty without reference to the collective
bargaining agreement that governs the relationship between the company and
the union. Indeed, the necessity for such a reference is evident from the
complaint itself. One of the specific acts of negligence attributed to District 12
by the Sluders was that the union “[c]arelessly and negligently failed to close
said mining facility in light of its unreasonably dangerous condition.” The
union’s authority to close the employer’s facility is, of course, not a right
granted by law but, if at all, by the collective bargaining agreement. The
collective bargaining agreement and the dispute resolution process established
under that agreement set forth the circumstances under which such action by
the union would be permitted . . . . The collective bargaining agreement
outlines not only the union’s responsibility with respect to the two mine safety
committees but also limits District 12’s right to interfere in the operation of the
mine. Id. (internal citation omitted).
B. The Decisions In Boogaard v. NHL
Plaintiff’s claims closely track the claims made on behalf of another deceased NHL
player. Boogaard v. National Hockey League, 13-cv-4846 (N.D. Ill.) (Feinerman, J.). Because
there were multiple decisions resulting in the final dismissal of all claims in that case, we review
the history of the Boogaard litigation in detail here.
As later summarized by the Seventh Circuit, the original complaint filed by Derek
Boogaard’s personal representative alleged “that the NHL had failed to prevent the overprescription of addictive medications to Derek, had breached its voluntarily undertaken duty to
monitor and curb Derek’s drug addiction in the Program, had been negligent in monitoring
Derek for brain trauma during his career, and had negligently permitted team doctors to inject
Derek with an intramuscular analgesic called Toradol.” Boogaard, 891 F.3d at 291-92; supra.

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In the first of three decisions addressing the sufficiency of Boogaard’s claims9, Judge
Feinerman held that all of the claims were preempted by Section 301. Boogaard v. Nat’l Hockey
League, 126 F. Supp. 3d 1010 (N.D. Ill. 2015) (“Boogaard I”). Boogaard’s complaint alleged
that the NHL had a duty to keep Boogaard safe and that “the NHL should have changed the rules
of play to discourage fighting.” Id. at 1020. The Court noted that “the NHL contends that
Article 30.3 of the 2005 CBA prevented it from changing the rules of play unilaterally,” thus
setting up a dispute concerning interpretation of the CBA. Id. Relying on the text of Article
30.3 (see p. 3, supra), Judge Feinerman held:
Rules about fighting could reasonably be viewed as “Playing Rules . . . which
affect terms or conditions of employment of any Player”; after all, stricter
treatment of fighting, such as mandating ejections or lengthy suspensions,
could have dramatically affected the terms and conditions under which
Enforcers like Boogaard played, if not put them out of work altogether. And if
Article 30.3 meant that the NHL could not have more severely punished
fighting without first haggling with the NHLPA, then it is unlikely that the
NHL’s voluntarily assumed duties included an obligation to change the rules of
play to make the game safer by not changing the rules of play to further
discourage fighting.
The point here is not to run to ground the question whether the NHL has in fact
correctly read Articles 16 and 30 of the 2005 CBA. Rather, the point is that
the NHL’s reading is, at a minimum, plausible and arguable, which means that
ascertaining the scope of the NHL’s voluntarily assumed duties would require
interpreting the CBA, which in turn means under settled law that Counts V and
VI are completely preempted. Id. at 1020-22.
The Court also found that any claim of a duty of care created by a “special relationship” was
preempted because “[t]he parties dispute the amount of control that the NHL had over
Boogaard’s welfare, and the focus of their dispute is on the terms of the 2005 CBA . . . so to

In an earlier decision, Judge Feinerman had denied Boogaard’s motion to remand on the grounds that at
least two counts in the complaint were preempted by Section 301 and were therefore federal claims, not
state law claims. Nelson ex rel. Boogaard v. Nat’l Hockey League, 20 F. Supp. 3d 650 (N.D. Ill 2014).
9

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decide whether the NHL was Boogaard’s custodian, the Court would have to interpret the CBA.”
Id. at 1023.
Boogaard thereafter moved for leave to file a second amended complaint that included
the original counts that had to be been held preempted, as well as additional counts that closely
resemble the claims made in this action. As here, the additional counts alleged that the NHL had
harmed Boogaard by permitting and promoting fighting and by failing to inform him of the
negative long term consequences of concussions after having previously announced that the
League was studying the effects of concussions.
Judge Feinerman granted leave to file the second amended complaint. Boogaard v. Nat’l
Hockey League, 211 F. Supp. 3d 1107 (N.D. Ill. 2016) (“Boogaard II”). The Court adhered to its
earlier decision dismissing Boogaard’s original claims as preempted. The Court also held that
the new counts added in the proposed second amended complaint were preempted in part by
Section 301 but not in their entirety, finding:
1. The new counts were preempted to the extent they were “based on allegations that the
NHL failed to eliminate violence . . . [because] [t]he Court would need to interpret the
CBA to determine whether the NHL had a duty to eliminate violence.” Id. at 1111.
2. Boogaard’s claim that the NHL “took several active and unreasonable steps that
ultimately harmed Boogaard” by “cultivat[ing] a ‘culture of violence’” would not require
interpretation of the CBA and was therefore not preempted. Id. at 1112. Specifically, the
court noted, the proposed amended complaint alleged that the NHL promoted violence on
an affiliated website and in an HBO documentary; in promotional films that it created;
through stories published on its website; and in video games it sponsored. Id.

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3. Boogaard’s claims that the NHL failed to warn him of the risks of concussions would be
preempted if they relied only on those allegations. However, the claim was not
preempted in its entirety because Boogaard claimed “that the NHL actively and
unreasonably harmed him” by communicating that it was undertaking a study of
concussions and then failing to disclose the danger of neurodegenerative disease. The
assertion that the NHL “implicitly communicat[ed] that head trauma is not dangerous”
contained “the seed of a viable, non-preempted claim.” Id.
The Court thus held that the new counts “mix[ed] together different kinds of allegations,
some completely preempted by the LMRA and some not.” Id. at 1113. The Court concluded
that Boogaard’s proposed second amended complaint was not futile because of Section 301
preemption. However, the question of whether the new counts stated viable claims for relief was
not before the Court and was not decided in Boogaard II.
The viability of those claims (stripped of all preempted allegations) came before the
Court when the NHL thereafter moved to dismiss the second amended complaint under Rule
12(b)(6). (The NHL also moved for reconsideration as to preemption.) The Court granted the
NHL’s Rule 12(b)(6) motion (without commenting further on the application of preemption).
Boogaard v. Nat’l Hockey League, 255 F. Supp.3d 753 (N.D. Ill. 2017) (“Boogaard III”).
In addition to finding that Boogaard’s claim was barred under Minnesota law, the Court
held in Boogaard III that dismissal was warranted “no matter which state law applies.” Id. at
763. Citing Ashcroft v. Iqbal, 556 U.S. 662 (2009), the Court ruled that the NHL had made an
“eminently reasonable” argument that Boogaard’s claims failed to allege a plausible claim for
relief and that Boogaard had failed to respond to those arguments:
The NHL’s initial brief argued that Boogaard failed to allege facts that satisfy
the elements of negligence and negligent misrepresentation . . . . Specifically,

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the NHL contended that Boogaard’s promotion of violence claims . . . do not
plausibly allege (1) that the NHL had a legal duty not to promote violence or
(2) that the NHL’s conduct proximately caused Boogaard’s injuries . . . . The
NHL further contended that Boogaard’s negligent representation claims . . . do
not plausibly allege (1) that the NHL had a duty to study or disclose the longterm effects of concussions, (2) that the NHL breached that duty by
communicating false information, or (3) that Boogaard relied on that
information . . . . Those arguments were eminently reasonable, yet Boogaard
utterly and inexplicably failed to address them, thereby forfeiting both sets of
claims. 255 F. Supp. 3d at 764.
On appeal from the decision in Boogaard III, the Seventh Circuit affirmed the Court’s
determination in Boogaard III. 891 F. 3d 289, supra.
C. Plaintiff’s Claims Are Completely Preempted By Section 301
Both Montador and Boogaard played under the 2005 CBA. Plaintiff’s claims here are
preempted for the same reasons cited by Judge Feinerman in Boogaard and the cases relied upon
therein and discussed at pp. 6-9, supra.
At its core, Plaintiff’s claims rest on the same assertions made in Boogaard, i.e., that the
NHL owed Montador a duty of care by virtue of its alleged unilateral authority to implement
changes to the game of hockey to promote player safety (Compl. ¶ 18) and that the League
violated its duty to protect Montador by “permitting and promoting” violence. Indeed, the
defining feature of the Complaint is its relentless criticism of the NHL for supposedly having
been negligent in allowing “fighting” or “violence.” (Compl. ¶¶ 53-63, 71, 75, 117-123, 136,
137, 142, 146.) The Complaint actually tees up Section 301 preemption by making the blunt
statement (disputed by the NHL in Boogaard and here) that “[e]liminating fighting is a rules
issue that can be easily implemented by the NHL without any collective bargaining.” (Id. ¶ 63.)
As discussed at pp. 11-12, Article 30.3 of the 1995 and 2005 CBAs governed the
procedure for changing Playing Rules—and it manifestly did not give the NHL unilateral

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authority to change the Playing Rules (as to fighting or otherwise10); to the extent there is a
dispute as to that proposition, that is exactly why Judge Feinerman correctly held Boogaard’s
claims preempted in Boogaard I, 126 F. Supp. 3d. at 1020-22.
In fact, it is not possible to determine whether or to what extent the NHL owed Montador
any duty of care at all without interpreting the CBAs. The Complaint does not allege a violation
of a duty owed to all members of society, but rather a duty that supposedly was created by virtue
of the Defendants’ role as “stewards” who controlled the game of hockey. (Compl. ¶¶ 17, 18.)
It is incumbent on Plaintiff to allege facts establishing the existence and scope of such a duty.
However, as was true in Sluder, Boogaard and the cases cited at pp. 6-10, supra, “it
would not be possible to define, with the precision demanded by Illinois law, the scope of the
[NHL’s] duty without reference to the collective bargaining agreement . . . .” Sluder, 892 F.2d at
554; Boogaard I, 126 F. Supp. 3d. at 1020. In Boogaard, the Court found that both the
“voluntary undertaking” and “special relationship” theories proffered by Boogaard were
preempted because “[t]he parties dispute the amount of control that the NHL had over
Boogaard’s welfare, and the focus of their dispute is on the terms of the 2005 CBA.” Id. at 1023.
The decision in Boogaard I is consistent with another decision by this Court holding
negligence claims against a professional sports league completely preempted by Section 301.
The decision in Duerson v. National Football League, No. 12 C 2513, 2012 WL 1658353 (N.D.
Ill. May 11, 2012) (Holderman, C.J.), is also instructive. In Duerson, the Court considered

The Complaint also refers to the NHL’s authority to impose “Supplemental Discipline in reaction
to certain actions on the ice.” (Compl. ¶ 18.) That authority, however, was subject to Article 18 and
Exhibit 8 of the 2005 CBA, which defined and delimited the NHL’s authority and set forth broad factors
governing the imposition of Supplemental Discipline. Grand Decl., Ex. 2, pp. 95-98, 268-72. The extent
of the NHL’s authority to impose discipline for on-ice conduct, therefore, likewise requires interpretation
of the 2005 CBA.
10

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negligence claims against the NFL based on Duerson’s suicide, which allegedly resulted from
CTE that was caused by brain damage incurred while he played in the NFL. As here, the
plaintiff alleged that the NFL had been negligent due to its “fail[ure] to educate players about the
risks of concussions and the dangers of continuing to play after suffering head trauma.” Id. at
*1. Judge Holderman concluded that the claims were preempted because numerous provisions
of the applicable collective bargaining agreement concerned health and safety (including
provisions regarding the duties of team doctors regarding fitness to play), and that “even if the
NFL’s duty arises apart from the CBAs, . . . the necessity of interpreting the CBAs to determine
the standard of care still leads to preemption.” Id. at *5.11

11

Other courts have found preemption in similar circumstances. Notably, in Stringer v. National
Football League, 474 F. Supp. 2d 894 (S.D. Ohio 2007), the court held that Section 301 preempted
negligence claims against the NFL arising out of Korey Stringer’s death from heat stroke. The Stringer
court held, inter alia, that because the collective bargaining agreement “place[d] primary responsibility”
for treating the players’ physical condition on NFL team physicians, these CBA provisions “must,
therefore, be taken into account in determining the degree of care owed by the NFL and what was
reasonable under the circumstances.” Id. at 910-11. Thus, even if the NFL had voluntarily assumed a
duty, “the degree of care owed cannot be considered in a vacuum” but instead “must be considered in
light of pre-existing contractual duties imposed by the CBA on the individual NFL clubs concerning the
general health and safety of the NFL players.” Id. at 910. See also Williams v. Nat’l Football League,
582 F. 3d 863 (8th Cir. 2009); Givens v. Tenn. Football, Inc., 684 F. Supp. 2d 985 (M.D. Tenn. 2010);
Sherwin v. Indianapolis Colts, Inc., 752 F. Supp. 1172 (N.D.N.Y 1990).
In In re National Hockey League Players’ Concussion Injury Litigation, 189 F. Supp. 3d 856 (D. Minn.
2016), the MDL court denied a Rule 12(b)(6) motion to dismiss the Amended Master Complaint. In
doing so, the MDL court declined to go beyond the four corners of the amended complaint prior to
discovery. Id. at 869, 872. Moreover, the ruling in the MDL case relied on erroneous legal conclusions,
including the court’s disagreement with Judge Holderman’s reasoning in Duerson and its suggestion that
preemption would not apply unless the plaintiffs’ claims accrued while they were subject to a CBA – and
that it would be inappropriate to apply preemption because the claims of retired players were not subject
to arbitration under the applicable CBAs. See id. at 869-70 & n.6. As the claims rested on allegations
that the NHL breached duties owed to players during their playing careers, the necessary inquiry is
whether the CBAs in effect at that time either gave rise to the duty or must be interpreted to determine the
nature and scope of the duty. Moreover, even assuming it were true that a retired or deceased player may
not arbitrate his claims (because he is no longer a member of the bargaining unit), that fact would be
irrelevant. The claims in Rawson, Boogaard, infra, and Stringer were wrongful death actions that were
not brought by current members of a bargaining unit. In each case, the plaintiffs’ claims were held to be
preempted.

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The same principles apply here. As discussed at pp. 3-4, supra, the CBAs allocate
responsibility for the management and treatment of injuries to Clubs and their physicians (who
are responsible for treating players, conducting end-of-season physical examinations, making
fitness to play determinations, and determining eligibility for placement on Injured Reserve) -not the League. The CBAs can reasonably be interpreted as placing primary responsibility for
treating and managing player injuries on the Clubs and their physicians, thus negating (or at least
diminishing) any legal duty of care owed by the League. See Duerson, supra.
We note that Judge Feinerman held in Boogaard II that Section 301 preemption would
not bar claims that the NHL “actively harmed” Boogaard. However, the Complaint does not
allege that the NHL harmed Montador in any fashion other than “permitting and promoting”
fighting—a phrase that appears in some form (always in the conjunctive) 6 times in the
Complaint. See, e.g., Compl. ¶¶ 53, 66, 82, 117, 130, 146. A sine qua non of Montador’s claims
in Counts II and IV is that the NHL created a risk to him by promoting violence and that it failed
to protect him from that risk by failing to change the Playing Rules to eliminate fighting.
Plaintiff’s negligent misrepresentation claims (Counts I and III) fare no better. Plaintiff
asserts that the NHL “gratuitously” undertook a duty to warn Montador of the long-term risks of
concussions when it announced in 1997 that it would gather data to study concussive and subconcussive brain trauma in players (Compl. ¶¶ 23-24) and that it violated that duty by failing to
inform him of the risk of neuro-degenerative brain disease. However, as the Court held in
Boogaard I and Boogaard II, the existence and scope of a voluntarily assumed duty to protect
another “depends on the totality of the circumstances, which in this case would have included
contested interpretations of the CBA.” Boogaard II, 211 F. Supp. 3d at 1110. Thus, allegations
“that the NHL failed to warn Boogaard of the risks of concussions” are preempted. Id. at 1112.

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Again, we note that Judge Feinerman’s decision in Boogaard II left open the possibility
that Boogaard could maintain a non-preempted claim “that the NHL actively and unreasonably
harmed Boogaard by implicitly communicating that head trauma is not dangerous.” Id. That
conclusion, however, cannot save the negligent misrepresentation claim.
Montador (like Boogaard) claims that the NHL’s duty to warn was created by virtue of
the League’s 1997 announcement that it would undertake a study of concussions and that “[i]n
furtherance of its study, the League collected and analyzed data on every player.” (Compl. ¶ 25.)
The Complaint goes on to allege:
By gratuitously conducting scientific research and engaging in discussion of
the long-term effects of brain injuries sustained by NHL players, and by
publicly maintaining that its Concussion Program was thoroughly analyzing
concussion data, the NHL gave its players the false impression that it was
working on their behalf to keep them informed and up-to-date on all medical
and scientific advancements related to repetitive head trauma. (Id. ¶ 31.)
What the Complaint overlooks, however, is that the text of the NHL’s communications to
players concerning the concussion program was itself the product of negotiations between the
League and the NHLPA. Data was collected from Montador and other players in connection
with the Concussion Program pursuant to an authorization and consent form that was negotiated
and agreed upon by the NHL and the NHLPA (and was thus governed by Section 30112). The
form explained that the program was run by the NHL/NHLPA Concussion Working Group and
that the objective of the Concussion Program was “to better understand the nature of concussions
in hockey and to help educate players and guide team medical staff on management of this
injury.” Grand Decl., ¶ 3, Ex. 3. Further, it informed players that the information obtained from

A “collective bargaining agreement” includes not only the main document with that title but also
other written and even oral agreements that are negotiated. See, e.g., NLRB v. P.I.E. Nationwide, Inc.,
923 F.2d 506 (7th Cir. 1991). Thus, the authorization form was an agreement governed by Section 301.
12

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baseline neurological testing would be disclosed “for the purposes of my treatment, tracking my
post-concussion symptoms, assisting in determination of my ability to return to play, team
management, education, League-wide concussion analysis and management, and peer review.”
Id.
In short, the essence of Montador’s negligent misrepresentation claim is that the NHL
voluntarily assumed a duty to inform Players about the supposed long-term effects of repeated
concussions and that the Players reasonably relied on the League’s failure to disclose to their
detriment. The claim is preempted because:
1. It is, at least in part, “founded directly on rights created by” a collective bargaining
agreement, i.e., the collectively bargained authorization form that communicated to
Montador what it was the League intended to study. Boogaard I, 126 F. Supp. 3d at
1016.
2. In the alternative, the claim is “substantially dependent on an analysis” of the
authorization form. As already noted, the voluntary undertaking doctrine is narrow.
Resolving the claims in Counts I and III would require the Court to interpret the
collectively bargained authorization form (which communicated directly to Montador
what the NHL would do with the information collected) “in order to determine the
true scope of the NHL’s voluntarily assumed duties.” Id. at 1016, 1019.
D. The Preempted Claims Must Be Dismissed
The claims must be dismissed because Section 301 “does not create tort rights,” Healy v.
Metropolitan Pier & Exposition Authority, 804 F. 3d 836 (7th Cir. 2015) (citations omitted), and
because neither Plaintiff nor Montador sought arbitration or filed a timely “hybrid” Section 301
claim.

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Where a collective bargaining agreement provides for arbitration of disputes concerning
the requirements of the agreement, an individual union member cannot ordinarily bring an
independent lawsuit for violation of the agreement. In Vaca v. Sipes, 386 U.S. 171, 186 (1967),
and DelCostello v. International Brotherhood of Teamsters, 462 U.S. 151, 165 (1983), the
Supreme Court recognized a narrow exception to this bar by permitting, “hybrid/duty of fair
representation” actions under Section 301, but only where the employee represented by the union
can demonstrate both: (1) that the union breached the duty of fair representation in handling the
grievance, and (2) that the employer in fact breached the terms of the collective bargaining
agreement. DelCostello, 462 U.S. at 164-65. As the Supreme Court explained in DelCostello,
“the two claims are inextricably interdependent.” Id. at 164. Proof that the union breached its
duty of fair representation is an “indispensable predicate” to the plaintiff’s breach of contract
claim. United Parcel Serv. v. Mitchell, 451 U.S. 56, 62 (1981).
Here, Article 17 of the CBAs required that all “disputes “involving the interpretation or
application of, or compliance with, any provision of” the CBA be resolved through arbitration.
(Grand Decl., Ex. A & Ex. B.) Therefore, claims on behalf of Montador can survive only as
hybrid Section 301 claims – which are subject to a six-month limitations period. DelCostello,
462 U.S. at 169-71; Christianson v. APV Crepaco, Inc., 178 F.3d 910, 914 (7th Cir. 1999).
There is no allegation in the Complaint that Montador ever sought to arbitrate his claim or that
the NHLPA refused to do so. Plaintiff’s claims must therefore be dismissed.

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II.

EVEN IF NOT PREEMPTED, THE COMPLAINT FAILS TO STATE A
CLAIM FOR RELIEF UNDER ILLINOIS LAW13
A complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim to

relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. at 678 (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)); supra. A claim is facially plausible only when the court
can “draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id.
Said differently, a plaintiff must include more than allegations that “in the hands of an
imaginative reader, might suggest that something has happened to her that might be redressed by
the law.” Swanson v. Citibank, N.A., 614 F.3d 400, 403 (7th Cir. 2010). The “required level of
factual specificity rises with the complexity of the claim,” McCauley v. City of Chicago, 671 F.
3d 611, 616-17 (7th Cir. 2011), and a court must “draw on its judicial experience and common
sense” to determine whether a plaintiff has established plausibility. Iqbal, 556 U.S. at 679.
To the extent any sliver of Plaintiff’s claims survives preemption, the claims are subject
to dismissal for failure to state a plausible claim for relief.
A. Plaintiff’s Negligent Misrepresentation Claim (Counts I And III) Is Not
Adequately Pled
Plaintiff asserts that the NHL implicitly (and negligently) communicated that head
trauma is not dangerous. Negligent misrepresentation requires: (1) a false statement of material
fact; (2) carelessness or negligence by the defendant in ascertaining the truth of the statement; (3)
an intention to induce the other party to act; (4) action by the other party in reliance on the truth
of the statement; (5) damage to the other party; and (6) a duty owed to the other party to

13

Because the Complaint asserts claims under the Illinois wrongful death and survival statutes, we
assume the applicability of Illinois law for purposes of this motion only. Defendants reserve the right to
argue for the applicability of another state’s law under applicable choice of law principles to the extent
necessary.

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communicate accurate information. Quinn v. McGaw Hill Cos., 168 F.3d 331, 335 (7th Cir.
1999). Plaintiff here has failed to allege facts to establish the necessary elements of this tort.
1. Plaintiff Does Not Allege That The NHL Assumed A Duty To Study Or
Disclose The Long-Term Effects Of Concussions
Counts I and III fail because Plaintiff has failed to plead facts that establish that the NHL
owed Montador a duty to undertake a study of concussions or to disclose the results of any such
study. Plaintiff’s voluntary undertaking theory – namely that the NHL assumed a duty to inform
players about the long-term risk of concussions because it communicated that it was voluntarily
undertaking a study of concussions – is deficient as a matter of law. (Compl. ¶ 23, et. seq.)
As Judge Feinerman observed in Boogaard I, “[t]he voluntary undertaking doctrine is
narrow.” 126 F. Supp. 3d at 1018.14 The scope of any assumed duty is limited strictly to the
extent of the undertaking. Homer v. Pabst Brewing Co., 806 F.2d 119, 121 (7th Cir. 1986).
Courts thus carefully examine the nature of a defendant’s undertaking, “imposing a duty only to
the extent actually assumed by the defendant.” Id. Consequently, even where a defendant
assumes a duty by undertaking an investigation, the defendant does not assume a duty to disclose
facts it learns during the investigation. See Fichtel v. Bd. of Dirs. of the River Shore of
Naperville Condo. Ass’n, 389 Ill. App.3d 951, 961-62, 907 N.E.2d 903, 911-12 (2009). Rather, a
duty assumed by undertaking an investigation is a duty to investigate with reasonable care. In
Fichtel, for example, the plaintiff alleged that an insurer assumed a duty to disclose the presence
of mold discovered during a voluntarily undertaken investigation. The court found that even

14

Judge Feinerman cited the holding in Frye v. Medicare-Glaser Corp., 53 Ill.2d. 26, 33, 605
N.E.2d 557, 560 (1992), as an example. In Frye, “the Supreme Court of Illinois held that a pharmacist
was not liable for failing to warn a customer that a certain medication was dangerous in combination with
alcohol, even though she voluntarily warned him that the medication caused drowsiness . . . . By warning
about drowsiness, the court held, the pharmacist undertook only to warn about drowsiness; she did not
undertake to warn about other side effects too.” 126 F. Supp. 3d at 1019 (citation omitted).

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assuming the insurer had voluntarily undertaken an investigation, it could be liable only for
negligently investigating, not for the nondisclosure. 389 Ill. App.3d at 962, 907 N.E.2d at 912.
Here, Plaintiff’s allegations of an assumed duty are insufficient as a matter of law. While
Plaintiff asserts that the NHL undertook a study of “repetitive head trauma sustained by NHL
players” (Compl. ¶ 23), he alleges only that the study was “highly anticipated” (id. ¶ 27) and that
“NHL players hoped” the study would address whether “head trauma in NHL hockey lead[s] to
long-term . . . changes in NHL players’ brains.” (Id. ¶ 29.) The Complaint does not allege that
the NHL represented that it would study the long-term effects of concussions or that the League
actually did undertake a study of long-term issues.15 Nor does the Complaint allege that the
League communicated to players that it was going to study (or that it had studied) those issues.
And there is no allegation that anyone from the League communicated anything at all to
Montador. In these circumstances—and in light of the narrow application of the voluntary
undertaking theory, the Complaint should be dismissed for failure to allege the existence of a
duty.
2. Plaintiff Does Not Plausibly Allege That the NHL Made A False Statement
Under Illinois law, a plaintiff must sufficiently allege a false statement of material fact
and negligence in ascertaining the truth of the statement. Toulon v. Cont’l Cas. Co., No. 15 CV
138, 2015 WL 4932255, at *4 (N.D. Ill. Aug. 18, 2015). The Seventh Circuit has stressed that
“[i]n order to show negligent misrepresentation,” a plaintiff must establish that the defendant
“made statements intending to induce him to act in a particular way that damaged his business
prospects.” F:AJ Kikson v. Underwriters Labs., Inc., 492 F.3d 794, 801 (7th Cir. 2007)

15

To the contrary, the Complaint alleges that the NHL decided not to undertake any such study.
(Id. ¶ 41.)

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(emphasis in original). Here, even if the Complaint adequately alleged that the NHL assumed a
duty to study and disclose the long-term effects of brain trauma, the claim would fail because it
does not sufficiently allege a breach of that duty by virtue of a negligent misstatement.
As noted above, the Complaint does not identify any communication made to Montador
about the NHL’s study of concussion or its results. Plaintiff asks the Court to speculate that the
NHL possessed some undisclosed critical piece of information not otherwise available to
Montador that would have altered the events culminating in his death. The missing facts leave a
gaping hole in his negligent misrepresentation claim.
3. Plaintiff Fails to Plead Detrimental Reliance
To plead negligent misrepresentation, a plaintiff must allege detrimental reliance on the
truth of the alleged misrepresentation. Roppo v. Travelers Commercial Ins. Co. 869 F.3d 568,
591 (7th Cir. 2017) (citing Iqbal). “A plaintiff must believe the alleged misrepresentation to be
true in order to state reliance.” Id. Moreover, such reliance must have been objectively
reasonable. Rovell v. Am. Nat’l Bank, 194 F.3d 867, 870 (7th Cir. 1999). The Complaint here
utterly fails to plead this element.
Nowhere in the Complaint’s lengthy screed attacking the NHL’s conduct before, during
and after Montador’s career does it ever plead that Montador ever relied upon any of the NHL’s
statements. Indeed, the Complaint’s focus on the NHL’s commencement of a study of brain
trauma in 1997—a study that was supposedly “highly anticipated by many, including NHL
players” (Compl. ¶ 27)—ignores the fact that Montador himself did not even enter the NHL until
2001. (Compl. ¶ 2.) Likewise, there is no allegation that Montador even read the report
published in 2011, much less that he relied on it. The absence of any allegation of detrimental
reliance is fatal to the claim.

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B. Plaintiff’s Promotion of Violence Claim (Counts II And IV) Is Not Facially
Plausible.
1. The Promotion Of Violence Claim Is Barred By The First Amendment.
Plaintiff seeks to avoid preemption as to Counts II and IV by alleging not only that the
NHL harmed Montador by failing to change or enforce the Playing Rules (claims that are
transparently preempted), but also that the NHL harmed him by “promoting” fighting and other
violent conduct. However, even if the “promotion of violence” claim were not preempted, it
would fail. Plaintiff’s allegations go entirely to the way in which the NHL supposedly marketed
itself to existing and potential fans. As the entire thrust of the claim is directed against various
forms of protected speech, it is barred by the First Amendment to the United States Constitution.
See N.Y. Times Co. v. Sullivan, 376 U.S. 254, 277 (1964).
Expressive acts such as films, news stories and video games—even when they promote or
encourage violence—are protected speech. Brown v. Entm’t Merchs. Ass’n, 564 U.S. 786, 798
(2011) (holding “video games in which ‘the violence is astounding’” are protected speech)
(citation omitted); Video Software Dealers Ass’n v. Webster, 968 F.2d 684, 687 (8th Cir. 1992)
(videos “depicting any type of violence” are protected speech); Am. Booksellers Ass’n v. Hudnut,
771 F.2d 323, 330 (7th Cir. 1985) (noting that “violence on television” is protected speech).
Thus, tort claims premised on protected speech fail as a matter of law. See Vrdolyak v. Avvo,
Inc., No. 16 C 2833, 2016 WL 4765716, at *4 (N.D. Ill. Sept. 12, 2016) (granting motion to
dismiss claims based on allegations of protected speech).
In Wilson v. Midway Games, Inc., 198 F. Supp. 2d 167 (D. Conn. 2002), the plaintiff
alleged that the makers of the Mortal Kombat video game designed it to addict players to
violence and that her son had been killed by one such individual. Id. at 169-70. The court
granted the defendant’s motion to dismiss the plaintiff’s tort claims because the First

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Amendment precluded an action for damages, even accepting as true the “allegations that Mortal
Kombat caused violence and physical harm.” Id. at 182.
The exceedingly narrow exception to this bedrock principle of free speech is that civil
liability may attach to protected speech only where the speech is directed to inciting or producing
imminent lawless action and is likely to incite or produce such action. Brandenburg v. Ohio, 395
U.S. 444, 447 (1969); Am. Booksellers, 771 F.3d at 333. This limited exception does not apply
to protected speech in movies and video games. For example, in Sanders v. Acclaim
Entertainment’, Inc., 188 F. Supp. 2d 1264 (D. Colo. 2002), the court granted the motion to
dismiss filed by producers of video games and movies that allegedly caused students to commit
school shootings. Id. at 1280-81. The court found the Brandenburg exception inapplicable
because the complaint contained no allegations that the defendants “had any intent, let alone a
specific intent, to assist and encourage anyone to engage in acts of criminal violence.” Id. at
1280.
Here, because each action the NHL allegedly took to “promote” violence was protected
speech, Plaintiff cannot state a viable tort claim. Plaintiff alleges that the NHL promoted
violence through: films (Compl. ¶ 74(a), (b), (f)); news stories (id. ¶ 74(c)); television programs
(id. ¶ 74(d)); in-game videos (id. ¶ 74(e)); and video games (id. ¶ 74(g)). Plaintiff does not
allege, nor could he plausibly allege, that the NHL’s films and similar media productions were
directed to and likely to produce imminent lawless action. Indeed, the gist of his claim is not that
the NHL’s actions included a criminal assault by a third party against Montador, but rather that
Montador himself was induced to fight in games. The bulk of the Complaint laments the fact
that the topic of these productions—fights in hockey games—was not even prohibited by the

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NHL’s rules, let alone by law. Consequently, the Brandenburg exception has no application, and
Plaintiff’s allegations fail to state a cognizable claim.
2. The Complaint Does Not Plausibly Allege A Duty Not To Promote Violence
Counts II and IV would have to be dismissed (even if they were not preempted by
Section 301 or barred by the First Amendment) because they fail to plead the existence of a duty
of care. These counts are predicated on assumed duties of care. Plaintiff alleges in both counts
that the NHL breached its “self-imposed and self-declared duties” to keep Montador safe.
(Compl. ¶ 82.) This self-imposed, assumed obligation supposedly arose from the NHL’s “power
to implement changes to the game to promote player safety, including but not limited to,
controlling the playing environment (i.e., the ice conditions, the boards and glass) and imposing
Supplemental Discipline in reaction to certain actions on the ice.” (Id. ¶ 18.) The Complaint
asserts that the NHL breached this duty when it “permitted and promoted [Montador’s] NHL
fights.” (Id. ¶ 82.)
As discussed at pp. 22-24, supra, the voluntary undertaking doctrine is a narrow one and
courts limit its application strictly to the scope of the undertaking. Plaintiff’s claim fails as a
matter of law because the acts constituting the alleged breach—the purported glorification and
promotion of violence—are distinct from the duty that the NHL supposedly assumed, i.e., to
keep players safe during hockey games by prohibiting and punishing dangerous acts on the ice.
There is no allegation that the NHL assumed a duty to refrain from promoting or glorifying
violence to the public at large. To the contrary, the Complaint repeatedly alleges that the NHL

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openly acknowledged just the opposite.16 Consequently, the NHL’s alleged promotion of
violence was outside the scope of any alleged assumed duty of care.
Even if Plaintiff had alleged that the NHL assumed a duty not to promote violence, his
claim would fail because an individual only owes a duty of care to protect others when that
individual’s course of action creates a foreseeable risk of injury. “Reasonable foreseeability
must be judged by what was apparent to defendant at the time of the complained-of conduct, and
not by what may appear through hindsight,” and is “that which is objectively reasonable to
expect, not merely what might conceivable occur.” Davis v. Allhands, 268 Ill. App. 3d 143, 152,
643 N.E.2d 856, 861 (1995). Plaintiff fails to plead facts that would establish that Montador’s
alleged injuries and death were the foreseeable result of any of the steps the NHL allegedly took
to profit from publicizing NHL fights. He does not allege any conduct promoting or encouraging
acts of violence by Montador himself or even that Montador viewed any of the media content
that supposedly promoted violence.
In short, even if Plaintiff could surmount the other obstacles to this claim, there are
simply no plausible facts alleged to support Plaintiff’s theory that his fights with other NHL
Players, which in turn caused him to develop CTE, which in turn caused his death, were the
foreseeable result of the NHL producing content that depicted violence in hockey.
3. The Complaint Does Not Plausibly Allege Proximate Cause
A negligence claim requires plausible allegations that a defendant’s conduct was the
proximate cause of a plaintiff’s injuries. Johnson v. Wal-Mart Stores, Inc., 588 F.3d 439, 445
(7th Cir. 2009); Ward v. Kmart Corp., 136 Ill.2d 132, 139, 554 N.E.2d 223, 226 (1990). A

See, e.g., Compl. ¶ 67 (quoting a team official as saying “We believe in fighting. It’s an exciting
part of the sport.”); id. ¶ 69 (alleging that the League referred to the 1980s as “The Golden Era of
Fighting”).
16

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negligent act is a proximate cause only if the act was a substantial factor in, and the foreseeable
result of, the defendant’s conduct. Young v. Bryco Arms, 213 Ill.2d 433, 446-47, 821 N.E.2d
1078, 1085-86 (2004).
For the same reasons that the Complaint fails to plausibly allege foreseeability, it also
fails to plead facts that would establish proximate cause. Completely missing from the
Complaint are any allegations connecting the NHL’s depiction of fights in several videos and
news stories to Montador’s on-ice injuries, subsequent alleged illness and his death. Such a
chain of causation requires the ultimate “imaginative reader.” Swanson, 614 F.3d at 403.
Simply put, any claim that the NHL’s purported promotion and glorification of violence was the
proximate cause of Montador’s injuries is utterly implausible. The Complaint, therefore, fails to
state a claim for negligence.
4. Even if Illinois Law Applied, Any Non-Preempted Claims Would Be Barred
by the Illinois Workers’ Compensation Act
Assuming Illinois law (rather than federal law) applied to Montador’s claims, the
Complaint would fail to state a claim for the additional reason that the Illinois Workers’
Compensation Act (IWCA) precludes Plaintiff’s tort claims. (820 Ill. Comp. Stat. 305/5(a).)
Section 5(a) of the IWCA bars negligence actions not only against a plaintiff’s employer but also
against organizations that provide “safety service, advice or recommendations” to the employer
or its employees. Mockbee v. Humphrey Manlift Co., 973 N.E.2d 376, 389 (Ill. App. Ct. 2012).
The Complaint alleges that the NHL acted in the role of a service organization by providing
safety services, advice and recommendations to NHL Clubs that employed Montador, as well as
to Montador himself. (Compl.¶¶ 19, 22.) Therefore, the Complaint would fail to state a claim
because the IWCA would bar any recovery.

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CONCLUSION
For the reasons set forth above, Defendants respectfully request that the Court dismiss the
Complaint in its entirety.
DATED: January 13, 2020
Respectfully submitted,

_s/ Joseph Baumgarten ______________
Joseph Baumgarten (pro hac vice)
Adam Lupion (pro hac vice)
Proskauer Rose LLP
Eleven Times Square
New York, New York 10036-6522
Tel: (212) 969-3000
jbaumgarten@proskauer.com
alupion@proskauer.com
_s/ Gregory S. Bailey ________________
Gregory S. Bailey
Skadden, Arps, Slate, Meagher & Flom LLP
155 North Wacker Drive, Suite 2700
Chicago, Illinois 60606
Tel: (312) 407-0700
gregory.bailey@skadden.com
John H. Beisner (pro hac vice)
Skadden, Arps, Slate, Meagher & Flom LLP
1440 New York Avenue, N.W.
Washington, D.C. 20005-2111
Tel: (202) 371-7000
john.beisner@skadden.com
Shepard Goldfein (pro hac vice)
Matthew M. Martino (pro hac vice)
Michael Menitove (pro hac vice)
Skadden, Arps, Slate, Meagher & Flom LLP
Four Times Square
New York, New York 10036-6522
Tel: (212) 735-3000
shepard.goldfein@skadden.com
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matthew.martino@skadden.com
michael.menitove@skadden.com
Attorneys for Defendant National Hockey League

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CERTFICATE OF SRVICE

I hereby certify that on January 13, 2020, I caused a true and correct copy of the foregoing
Memorandum of Law to be filed by the Court’s CM/ECF filing system, which will send electronic
notification of such filing to all counsel of record.

/s/ Gregory S. Bailey

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