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Montador Estate Hits Back at NHL In Response to Motion to Dismiss

Steve Montador CTEApril 9, 2020
Derek Helling

The Montador Estate has filed its response to the NHL’s motion to dismiss its complaint, alleging the NHL had and failed a duty of care to Steve Montador while he was employed by NHL franchises. The case has already seen an interesting wrinkle, however.

Despite the fact that the Montador Estate did not object to the NHL’s motion to transfer its complaint against the NHL to effectively consolidate it with similar claims filed against the same by Nick Boynton and Daniel Carcillo, Judge John Z. Lee denied the motion, leaving the Montador Estate and the NHL to litigate this matter on its own merits. Those merits are what counsel for the Estate hope will grant them leverage to negotiate a better settlement offer than the one the Estate passed on or win a trial if this matter should proceed to that point.

Per the norm in responses to motions to dismiss, counsel for Montador addresses the NHL’s arguments directly. Correspondent to the motion, the defense focuses on four main arguments. Those are:

  • The Estate’s claims state causes of action
  • The collective bargaining agreements that Montador played under do not preempt the estate’s claims
  • The First Amendment to the Constitution of the United States of America does not bar the estate’s claims
  • Illinois’ Workers Compensation laws do not apply to the NHL

The first pleading focuses on the NHL’s claim that the Estate did not adequately state a claim upon which the court can grant relief. The Estate disagrees on that point and rehearses its arguments from its complaint. The Estate argues the facts of the situation are sufficient to substantiate a negligence claim against the NHL because they establish that the NHL had a duty to players like Montador, breached that duty, Montador suffered an injury and the NHL’s negligence caused that injury. The Estate also highlights how the NHL’s general denial and dismissal of any link between its brand of ice hockey and neurological disease have created a culture that allowed Montador’s injuries and the exacerbation of them.

In response to the NHL’s claim that the collective bargaining agreements between the NHL and the NHLPA when Montador was playing preempt the Estate’s claims, the Estate makes an important distinction. Because Montador had already retired when he filed his complaint and the NHLPA does not represent retired players, the NHLPA could not represent him and file a grievance with the league on his behalf.

Even if Montador had been an active player, however, the Estate argues the CBA wouldn’t preempt his claims. The Estate says for a labor agreement to preempt a claim, the claim must be based on an article of that CBA. The Estate says that nothing in either of the CBAs that were in effect during Montador’s career detail how the NHL must market its primary product of ice hockey games, its responsibility to inform players of the neurological dangers of their employment or the regulation of the culture of the workplace. Because those are the matters which represent the substance of the Estate’s claims, they are not preempted by either CBA.

The Estate then goes onto claim that the NHL mislabeled and misread its claims of the NHL promoting violence in the workplace as based on the free speech part of the First Amendment. Plaintiffs claim the precedent the NHL cites are all concerning the protection of speech against government action and thus are irrelevant because this is a private matter. That leads into the Estate’s final defense against the NHL’s motion.

In that pleading, the Estate points out a section of Illinois’ Workers Compensation law that the NHL likely hoped the court would conveniently gloss over. The section reads as follows:

no common law statutory right to recover damages the employer, his insurer, his broker, any insurance agent, any service organization retained by employer, his insurer or his broker to provide safety service, advice or recommendations for the employer or the agents or employees or any of them for injury or death sustained by any employee while engaged in the line of his duty as such employee

As even the most fundamental understanding of the former relationship between Steve Montador and the NHL makes obvious, the NHL was not Montador’s employer at any time during his career. Rather, the individual franchises that Montador played for were his employers. Additionally, the Estate states that there is no record of those franchises contracting with the NHL to provide advice or recommendations as the above statute specifies. Therefore, the NHL cannot claim exemption from the Estate’s claims under Ill.’s Workers Compensation laws.

For all these reasons, the Estate argues the court must deny the NHL’s motion to dismiss. It’s uncertain when Judge Lee will make a decision on this matter. If he denies the motion, then that’s no guarantee that this matter will see a trial, however.

The Estate turned down the settlement offer that most of the members of the earlier proposed class accepted. That doesn’t mean the Estate isn’t open to subsequent offers, however. Like in any other civil matter, the probability of a settlement depends on the veracity of the devotion of the plaintiffs in “having their day in court” and the quality of the offer from the defendants. As the NHL stands to gain little from a long and open court case, it is likely that the NHL will make another offer if Lee denies this motion.

At that point, it would be up to the Estate whether it wants to continue to hold out for a better offer, skate off with the current offer or fight it out in front of Judge Lee. Regardless of any amount the Estate settles for or receives via a jury award, no amount of money can replace the quality of life and the years that the NHL’s negligence stole from Steve Montador and his family.

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Freelance journalist

Derek Helling is a journalist out of Chicago. Illinois, who covers the intersections of entertainment and sports with business, law, media and technology. He publishes a newsletter, "The Ninth Circle of Helling," that focuses on labor issues in North American sport.

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