Sports Litigation Alert
Volume 12, Issue 16 September 4, 2015

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Table of Contents

Case Summaries

Articles

News Briefs

Sports Litigation Alert is proud to offer an Expert Witness Directory at our website. SLA subscribers are entitled to be listed in that directory, please email your details to us and we will include you in the listing. Here is this issue's featured expert:

Merry Moiseichik, ReD, J.D.
Expertise: playground, facility risk management
University of Arkansas

Case Summaries

Texas Appeals Court Looks to Federal Case Law in Acquitting Mom Who Taped Coach’s Speeches in Wiretap Statute Case

A Texas state appeals court has reversed a trial court and found that a school board member did not violate that state’s wiretap statute when she had her daughter record the half-time and post-game speeches of the school’s high school basketball coach.

The court reasoned that the coach did not have “a reasonable expectation of privacy under the circumstances” and that the recordings were not "oral communications" covered by the statute.

Lelon "Skip" Townsend was hired in 2011 to coach the Argyle High School girls' basketball team. Townsend was, in his own words, an intense coach, who preached discipline and accountability. Not surprisingly, reports of Townsend berating and belittling players in practice began surfacing the following school year. Wendee Long, a member of the Argyle School Board, was concerned about the reports, and she grew increasingly concerned when parents began contacting her to complain of Townsend's treatment of their children. Long's daughter had also been a member of the basketball team before quitting after the first regular season game.

On February 7, 2012, the Argyle High School girls' basketball team traveled to Sanger, Texas to play the Sanger High School girls' basketball team for the district title. Long's daughter attended the game as a spectator and, with the assistance of a Sanger student, obtained access to the visiting locker room before halftime for the purpose of surreptitiously videotaping Townsend. Long's daughter taped an iPhone to the inside of a locker and set it to record. The iPhone captured an audio and video recording of Townsend's half-time speech and an audio recording of Townsend's post-game speech.

In March 2012, Long showed the recordings, which were on her computer at work, to her assistant principal. Later that month, Long mailed the recordings to the other members of Argyle School Board, and the recordings were distributed to the board on the night of the meeting to consider Townsend's probationary contract. A few days later, the Superintendent of the Argyle Independent School District turned over the recordings to the police. A detective with the Sanger Police Department eventually traced the recordings to Long and her daughter.

Long was charged in a two-count indictment with, inter alia, violating Tex. Penal Code Ann. § 16.02(b). The State alleged Long violated Section 16.02(b)(1) by procuring her daughter to record Townsend's speeches and Section 16.02(b)(2) by showing the recording to her assistant principal. The jury agreed, finding Long guilty. In accordance with the parties' plea-bargain agreement, the trial court sentenced Long to five years' confinement, probated for three years, and assessed a $1,000 fine.

Long appealed, raising four issues.

“In her second issue, she challenges the sufficiency of the evidence to sustain her conviction,” noted the appeals court. “In her first, third, and fourth issues, respectively, she asserts that the trial court erred in overruling her motions for directed verdict, for judgment of acquittal, and for a new trial. Although Long enumerates four issues, all rest on the premise that she committed no crime because, as a matter of law, Townsend ‘had no justifiable expectation that only his students would acquire the contents of his communication.’”

In its analysis, the appeals court noted that the Texas criminal wiretap statute, Section 16.02, is substantially similar to the federal one on which it is modeled. Thus, the court noted that “the legislative history of the Wiretap Act reveals that Congress's intent was to protect persons engaged in oral communications under circumstances justifying an expectation of privacy. United States v. McIntyre, 582 F.2d 1221, 1223 (9th Cir. 1978). Thus, to determine whether a person had a reasonable expectation of privacy in his speech, we employ a two-prong test: (1) did the person exhibit a subjective expectation of privacy; and (2), if so, is that subjective expectation one society is willing to recognize as reasonable. Smith v. Maryland, 442 U.S. 735, 740, 99 S.Ct. 2577, 2580, 61 L.Ed.2d 220 (1979); Villarreal v. State, 935 S.W.2d 134, 138 (Tex.Crim.App. 1996). That determination is made on a case-by-case basis and is highly fact determinative. Given the great variety of work environments in the public sector, the question whether an employee has a reasonable expectation of privacy must be addressed on a case-by-case basis. O'Connor v. Ortega, 480 U.S. 709, 718, 107 S. Ct. 1492, 1498, 94 L. Ed. 2d 714 (1987).”

The appeals court continued: “It is widely accepted that a public school teacher has no reasonable expectation of privacy in a classroom setting. See Roberts v. Houston Indep. Sch. Dist., 788 S.W.2d 107 (Tex.App.--Houston [1st Dist.] 1990, writ denied); Plock v. Bd. of Educ. of Freeport Sch. Dist. No. 145, 545 F. Supp. 2d 755 (N.D. Ill. 2007); Evens v. Super. Ct. of L.A. County, 77 Cal.App.4th 320, 91 Cal.Rptr.2d 497 (1999).

“Although the duties of a coach are not comparable to that of the typical classroom teacher, no one could reasonably deny that some of the duties of a coach involve a type of teaching. Theiler v. Ventura Cnty. Cmty. Coll. Dist., 198 Cal.App.4th 852, 859, 130 Cal.Rptr.3d 273, 277 (2011), as modified (Aug. 24, 2011). A public high school coach educates students-athletes in a myriad of ways. Principally, a coach provides instruction to help his players reach a certain performance standard in a chosen activity. See Lowery, 497 F.3d at 589 (recognizing that ‘the immediate goal of an athletic team is to win the game, and the coach determines how best to obtain that goal’); Ex parte Nall, 879 So.2d 541, 546 (Ala. 2003) (holding that student injured during baseball practice could not recover in negligence suit against public school coaches because they were state agents entitled to immunity for the exercise of judgment in educating students). Secondarily, a coach teaches his players to develop self-discipline, an admirable trait and one necessary for success in most endeavors in life, including academics. See Lowery, 497 F.3d at 589 (recognizing that students participating in sports develop discipline, and that ‘[a]thletic programs may also produce long-term benefits by distilling positive character traits in the players’); Ex parte Yancey, 8 So.3d 299, 305-06 (Ala. 2008) (holding that student injured while cleaning field house following weight-lifting class taught by high school public coach could not recover in negligence suit against the coach because he was a state agent entitled to immunity for the exercise of judgment in teaching students discipline in his weight-lifting class by requiring then to clean field-house facilities).

“From the preceding authority, we can extrapolate that society is not willing to recognize that a public school educator—whether a teacher or a coach—has a reasonable expectation of privacy in his or her instructional communications and activities, regardless of where they occur, because they are always subject to public dissemination and generally exposed to the public view. Here, there is no doubt that Townsend was an educator helping his pupils maximize performance and develop discipline.”

The court wrote that “society is not willing to recognize as reasonable any expectation of privacy in half-time and post-game instructional communications uttered by a public high school basketball coach to his team in the visiting locker room of a public high school.

“The State takes umbrage with the proposition ‘that a coach addressing his team during and after a sports contest is 'equivalent' to a teacher addressing a class.’ The State asserts a "coach is different from a teacher" in two important respects. The first is that ‘[a] coach's objective is not pedagogical in nature, but rather to achieve success in the sports arena.’ The second is that ‘the nature of a coach's behavior with his team on game day’ in a closed locker room is private rather than public. In essence, the State is contending that the curtailed expectation of privacy society is willing to recognize for teachers ‘should not automatically be applied to coaches addressing their teams at halftime or at the end of a sports contest’ because a coach fulfills a different role in a different physical space. While we are not insensitive to the State's argument, we are not persuaded by it.

“The trial court's judgment is reversed, and we render judgment acquitting Long of the charged offense.”

Wendee Long v. The State of Texas; Ct. App. Tex., 8th Dist., El Paso; No. 08-13-00334-CR, 2015 Tex. App. LEXIS 6714; 6/30/15

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LMRA Preempts Former NFL Players’ Claims against Union

A federal judge from the Eastern District of Missouri has dismissed the concussion-related claims of several former National Football League players against the NFL Players Association (NFLPA), holding that the claims are untimely under the Labor Management Relations Act (LMRA).

The plaintiffs, whose careers spanned from 1975 to 2012, brought two separate lawsuits against their union and two of its former presidents, which were consolidated and resolved in the instant opinion.

The substantive allegations were nearly identical, according to the court. During their respective careers, the players suffered multiple repetitive traumatic head impacts and concussions during practices and games. These injuries, allegedly, were neither acknowledged nor treated while the plaintiffs were players. The players paid money throughout their careers to the NFLPA as association dues.

“The NFLPA assured the players they would protect them and owed them a fiduciary duty, stating that they would act in the players' best interests at all times,” wrote the court, citing the complaint. “However, the NFLPA did not spend significant funds on research into ways to mitigate or prevent brain trauma, such as developing safer helmets, competition rules, or football equipment. The NFLPA also failed to certify medical personnel that treated NFL players, despite having a duty to do such.

“The players allege that the defendants were in a superior position of knowledge, and they knew the dangers and risks associated with repetitive head impacts and concussions. They attained this knowledge from the NFLPA's own medical consultants and commissioned studies on the subject, the NFLPA's participation in the Retirement Board of the Bert Bell/Pete Rozelle NFL Player Retirement Plan, and the NFLPA's participation in the Mild Traumatic Brain Injury Committee. Despite that superior knowledge, the defendants knowingly concealed the information from the players and fraudulently misrepresented there was no link between head impacts and cognitive decline. The players allege that these actions caused or contributed to cause the players to suffer long-term neuro-cognitive injuries, including dementia, depression, memory loss, and chronic traumatic encephalopathy (CTE), a condition caused by repetitive sub-concussive and/or concussive blows to the head. The players allege that by concealing or omitting information, the defendants caused the players to ignore the need for treatment.”

The NFLPA moved to dismiss the lawsuits, arguing that the claims are ultimately preempted by section 301 of the LMRA.

In its analysis, the court first considered the fraudulent concealment, fraud, and civil conspiracy allegations. These state law claims are “actually claims for breach of the duty of fair representation under section 9(a) of the National Labor Relations Act and (are) completely preempted,” according to the court, which relied on Vaca v. Sipes, 386 U.S. 171, 190, 87 S. Ct. 903, 17 L. Ed. 2d 842 (1967).

Similar arguments were successfully made with regard to the negligence claims. To prove negligence, the plaintiffs had to show the defendants “had a duty to protect (them) from injury: and that the defendants “failed to perform that duty,” which “caused injury” to the plaintiffs. L.A.C. ex rel. D.C. v. Ward Parkway Shopping Ctr. Co., L.P., 75 S.W.3d 247, 257 (Mo. banc 2002).

“The players contend that the defendants owe a duty independent from the duty of fair representation,” wrote the court. “They allege that the defendants possessed superior knowledge about the relationship between head impacts in football and brain injuries and a ‘unique vantage point,’ obtained through the NFLPA's participation in the Retirement Board of the Bert Bell/Pete Rozelle NFL Player Retirement Plan and in the Mild Traumatic Brain Injury Committee, studies commissioned by the NFLPA, and the NFLPA's own medical consultants. The players contend that this duty required the defendants to disclose their complete knowledge to the players.”

The defendants countered that the court “must interpret the applicable CBAs in order to determine whether the NFLPA owed the players a duty and whether the players' reliance was justified.”

Turning to the negligent misrepresentation claim, the court revisited the plaintiffs’ argument that “the defendants, in the course of business and because of a pecuniary interest, supplied false information regarding the risks of traumatic head impacts. They allege these misrepresentations occurred before, during, and after their playing years.”

The court agreed, in part:

“The NFLPA had a CBA-mandated advisory role, which at times required it to review current player safety materials. The extent to which the players were justified in relying on the NFLPA's statements will necessarily depend upon an interpretation of the various CBAs. The claim of negligent misrepresentation is preempted by section 301 of the LMRA.”

Christian Ballard, et al., v. National Football League Players Association, et al.; E.D. Mo.; Case No. 4:14CV1267 CDP, 2015 U.S. Dist. LEXIS 108621; 8/18/15

Attorneys of Record: (for plaintiffs) Richard F. Lombardo, LEAD ATTORNEY, SHAFFER AND LOMBARDO, Kansas City, MO; Brett A. Emison, WENDT GOSS PC, Kansas City, MO; Charles R.C. Regan, Michael Thomas Yonke, YONKE LAW, LLC, Kansas City, MO. (for defendants) David Louis Greenspan, Jeffrey L. Kessler, LEAD ATTORNEY, WINSTON AND STRAWN LLP, New York, NY; James G. Martin, LEAD ATTORNEY, DOWD BENNETT, LLP, Clayton, MO.

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Appeals Court Affirms LSU’s Motion to Dismiss Ex-Coach’s Race Discrimination Claim

The 5th U.S. Circuit Court of Appeals has affirmed the ruling of the Middle District of Louisiana, which granted LSU’s motion to dismiss in a case in which the school was sued by its former women’s tennis coach for racial discrimination.

The panel, like to district court, found that the university’s decision to terminate his contract had more to do with his lack of success as a coach than any perceived discrimination.

Plaintiff Anthony Minnis was hired by LSU in 1991. During his tenure as head coach, the LSU women's tennis team achieved a winning record only four times, and in the SEC on only three occasions (1997, 2004, and 2008). His overall SEC won-loss record as head coach was 86-146. During his tenure, Minnis' teams competed in the NCAA tournament 15 out of 21 years. But in Minnis' last 12 years, the team never advanced past the second round. In the year preceding Minnis' termination, his team did not reach the NCAA tournament, and in the three years preceding the non-renewal of Minnis' contract, the women's tennis team had three consecutive losing seasons.

Minnis sued the school for racial discrimination in 2012 after the school fired him. Among other things, he claimed that similarly situated white coaches were paid more and judged less harshly.

Named in the lawsuit are LSU Athletic Director Joseph Alleva; Senior Associate AD Eddie Nunez, and Senior Women's Administrator Miriam Segar.

In its motion to dismiss, LSU suggested that student-athletes had “complained that Minnis created unnecessary tension during matches rather than offering tactical advice. And that he yelled and would not accept their input and often threatened to revoke scholarships. They were also concerned that Minnis was unorganized, conducted team meetings that lasted several hours and did not provide them constructive feedback.”

The court first examined Minnis claim of a violation of Title VII, which prohibits discrimination by employers “against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a). The court turned to the burden-shifting framework established by the United States Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973) for guidance.

“To overcome a motion for summary judgment on his remaining discrimination claims, Minnis must first establish, by a preponderance of the evidence, a prima facie case of discrimination. McDonnell Douglas, 411 U.S. at 801-803. A prima facie case is established once the plaintiff has proven that he or she: (1) is a member of a protected class; (2) was qualified for his position; (3) was subjected to an adverse employment action; and (4) was replaced by someone outside the protected class; or in the case of disparate treatment, show that others similarly situated were treated more favorably. Id.”

Once a prima facie case is established, “the defendant must rebut by articulating a legitimate, nondiscriminatory reason for its actions. McDonnell Douglas, 411 U.S. at 802”

If the defendant satisfies that burden, the plaintiff “must then create a genuine issue of material fact that either: (1) the defendant's reason is not true, but instead is a pretext for discrimination (pretext alternative); or (2) regardless of the nondiscriminatory reason, the plaintiff's race was also a motivating factor (mixed-motives alternative). Alvarado v. Tex. Rangers, 492 F.3d 605, 611 (5th Cir. 2007)”

The district court reasoned that Minnis' Title VII falls short. While he satisfied the first three elements mentioned above, he failed in demonstrating that the other coaches were similarly situated to him. Specifically, he “failed to point to evidence detailing the job responsibilities, duties, and expectations or competitive success of the head coaches of other LSU sports. Rather, he merely points to the differences in salaries. ... Thus, the court has not been provided with sufficient evidence to evaluate whether the head coaches of other sports are ‘similarly situated’ to Minnis.

“ ... Moreover, though Minnis asserts that his termination is attributable to race discrimination, he has failed to point to any cases where a similarly-situated party, i.e., a coach with a losing record, succeeded in showing that his termination was based on his race.”

The court elaborated on Minnis’ mediocre record as a “legitimate” reason for LSU to terminate him. “In a profession created around competitive success, Minnis had a lackluster record,” wrote the court.

“Simply put, Minnis has failed to point to sufficient evidence from which a jury could conclude that the alleged harassment complained of was severe or pervasive enough to affect a term, condition, or privilege of his employment,” it added.

Coach Appeals to the 5th Circuit

Minnis then appealed the lower court's grant of summary judgment on his Title VII disparate compensation and discriminatory discharge claims.

The panel found that the appeal fell short when LSU “articulated non-discriminatory reasons for the pay disparity (and Minnis failed) to rebut each of those reasons. He has not offered any evidence beyond his subjective beliefs to meet his burden. Thus, the district court correctly concluded that there was no genuine dispute of material fact regarding pretext and, accordingly, Minnis' disparate compensation claim fails.”

Similarly, Minnis' discriminatory discharge claim failed “because he could not rebut LSU's non-discriminatory reasons for termination.”

Turning to his appeal of the district court's dismissal of his hostile work environment claim, the appeals court found that “based on the totality of the circumstances, the combination of alleged acts does not constitute a hostile work environment because he has not shown that the acts were “sufficiently severe or pervasive” to alter the conditions of his employment and create “an abusive working environment.”

Anthony Minnis v. Board of Supervisors of Louisiana State University and Agricultural And Mechanical College; 5th Cir.; No. 14-31251, 2015 U.S. App. LEXIS 11390; 6/29/15

Attorneys of Record: (for plaintiff) Jill Leininger Craft, Esq., Jill Craft, L.L.C., Baton Rouge, LA. (for defendant) Vicki M. Crochet, Esq., Robert Wylie Barton, Deborah Elaine Lamb, Taylor, Porter, Brooks & Phillips, L.L.P., Baton Rouge, LA; Edmond Wade Shows, Assistant Attorney General, Shows, Cali & Walsh, L.L.P., Baton Rouge, LA.

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Federal Court Denies Florida State’s Motion to Dismiss Title IX Lawsuit Brought by Jameis Winston’s Accuser

By Daniel Werly, Foley & Lardner LLP

The United States District Court for the Northern District of Florida (Case No. 4:15cv235-MW/CAS) has denied Florida State University Board of Trustees’ (“FSU”) Motion to Dismiss Plaintiff Erica Kinsman’s Title IX lawsuit against the University. Kinsman alleges (both in this lawsuit and in a separate lawsuit against current Tampa Bay Buccaneer and former FSU quarterback Jameis Winston (M.D. Fl. No. 6:15-cv-696-ACC-GJK) that Winston raped her at an off-campus apartment in Tallahassee, Florida. She claims that FSU failed to investigate the alleged sexual abuse properly and failed to respond to the reported assault thus denying her of educational benefits.

Despite FSU’s pleas to the contrary, the court found that Kinsman sufficiently alleged facts, assumed to be true, in order to maintain a claim under Title IX (28 U.S.C. §§ 1681-88). In order to plead a violation Title IX for student-on-student harassment, Kinsman is required to show that: (1) FSU is the recipient of federal funds (this was not disputed); (2) an “appropriate person” must have actual knowledge of the harassment; (3) FSU acted with “deliberate indifference of known acts of harassment...”; and, (4) the harassment was severe, pervasive, and objectively offensive.

First, FSU argued that its head football coach Jimbo Fisher and associate athletic director were not “appropriate persons” under Title IX. The court dismissed this argument, finding that while these individuals were not per se “appropriate persons”, it is plausible the facts will show that these individuals had enough authority over Winston to take corrective action. The court similarly found that Kinsman adequately plead facts to support that Jimbo Fisher and/or the associate athletic director had actual knowledge of her identity and that she was a FSU student and the identity of the accuser.

Next, FSU argued that it was not deliberately indifferent and unreasonable to the alleged harassment because it immediately provided Kinsman with a victim advocate who explained how to change a class shared with Winston and informed Kinsman of the student disciplinary process. The court rejected this argument because the underlying facts did not appear in the complaint, which stated that no one at FSU offered any safety precautions. Interestingly, the court stated that if these facts bear out, “there is some support for the general proposition that such a response might not be clearly unreasonable.” In other words, FSU may be able to achieve dismissal on these grounds at a later date once the facts are more developed.

Finally, the court strongly disagreed with FSU’s argument that that Kinsman being on campus with Winston an additional ten months was not serious enough to constitute severe or further discrimination. In describing the trauma involved when a rape victim encounters her attacker, the court stated that “it does not require mental gymnastics” to determine that this was further discrimination.

FSU also argued, with regards to Kinsman’s claims that she was harassed on social media, that it cannot be held liable for the actions of third parties because it cannot control their actions. Kinsman refuted this argument by stating that if FSU police would have taken action when the incident took place, Winston “would have been removed as a threat to [her] long before ever suiting up to play football in a Seminoles jersey,” thereby reducing the likelihood of social media harassment. The court noted that at least one other court held that similar third-party harassment is not itself actionable but punted on dismissing these allegations by stating that this harassment may bear on the severity of the other claims.

While the court determined that the suit may proceed at this stage of litigation, it also identified several troubling issues with Kinsman’s allegations. Moving forward as the facts develop in discovery, expect the key issues in this case to include: (1) whether Jimbo Fisher and/or the associate athletic director have adequate authority to take corrective action; (2) whether FSU’s actions of providing a victim advocate was sufficient to show that its actions were not unreasonable; and, (3) whether FSU’s actions caused the social media harassment Kinsman endured.

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Judge Deals Setback to NHL in Discovery Dispute Involving Concussion Litigation

A federal judge from the District of Minnesota has resolved a discovery dispute by ordering the National Hockey League (NHL) and its teams to turn over certain documents related to the ongoing concussion litigation between the former players and the league.

In so ruling, the Court found that the NHL’s “blanket application of the physician-patient privilege — protecting all medical data from disclosure — is inapplicable.”

The plaintiffs represent a class of living and deceased former NHL players who suffered concussions or repeated sub-concussive injuries while playing in the NHL.

In filing their claim last year, they alleged that the NHL was responsible for “the pathological and debilitating effects of brain injuries caused by concussive and sub-concussive impacts sustained . . . during their professional careers.”

Critical to the plaintiffs’ claim was their contention that “scientific evidence has for decades linked head trauma to long-term neurological problems.” They added that it is “not plausible that the NHL was unaware of this body of literature.” The plaintiffs also asserted that the NHL also had actual knowledge of the “negative repercussions of [violent head] impacts on its players” because of the “infamous incidents” that have occurred throughout NHL history. They also claimed that they trusted and relied on the NHL, which was “both reasonable and foreseeable.”

The plaintiffs asserted six counts against the NHL.

In count I, they seek a declaratory judgment that the NHL knew, or reasonably should have known, that the head impacts Plaintiffs and class members endured were likely to expose them to substantially-increased risks of neurodegenerative disorders and diseases; that the NHL had a duty to advise Plaintiffs and class members of that risk, but willfully and intentionally concealed material information from, and misled, Plaintiffs concerning that risk; and that the NHL recklessly endangered Plaintiffs and class members.

In Count II, they allege that, as a result of the NHL’s misconduct, they have experienced injuries that have increased their risk of developing neurodegenerative disorders, and that costly medical monitoring procedures are necessary to enable Plaintiffs and class members to obtain early detection and diagnosis of those conditions. Accordingly, Plaintiffs “seek the creation and funding of a Court-supervised, NHL-funded medical monitoring regime.”

Counts III and IV assert negligence-based causes of action. In Count III, Plaintiffs allege that the NHL owed its players a duty of reasonable care to manage player safety and to act in the best interests of its players’ health and safety—including to keep players informed of the neurological risks associated with head injuries suffered while playing hockey in the NHL—and that the NHL breached that duty by, for example, promoting a culture of violence and failing to inform or warn players of the potential negative effects of such head injuries. Plaintiffs allege that, as a result of these breaches, they have suffered or are suffering long-term neurological damage.

In Count IV, Plaintiffs assert a claim for negligent misrepresentation by omission. They allege that a special relationship existed between the NHL and Plaintiffs by virtue of the NHL’s superior knowledge of material medical information that was not readily available to players and by virtue of the NHL’s undertaking to communicate some safety information to players and the public, such that the NHL had a duty to disclose accurate information to Plaintiffs. According to Plaintiffs, the NHL breached its duty by negligently omitting material information regarding the link between the type of head injuries sustained in the NHL and cognition-impairing conditions. Plaintiffs assert that they justifiably and reasonably relied to their detriment on these negligent misrepresentations by omission.

Finally, Counts V and VI assert fraud-based causes of action. In Count V, Plaintiffs assert a claim for fraudulent concealment based on the NHL’s alleged knowing concealment of material information regarding the risks of head injuries suffered while playing in the NHL, the NHL’s alleged intent and expectation that Plaintiffs would rely on its silence and fraudulent concealment, and Plaintiffs’ alleged reasonable reliance on that silence to their detriment. And, in Count VI, Plaintiffs assert a claim for fraud by omission and failure to warn. Specifically, Plaintiffs allege that “[t]he NHL had a duty to promptly disclose and speak the full truth regarding the health risks caused by concussion and sub-concussive blows to the head.” Plaintiffs assert that this duty arose by virtue of the NHL’s superior knowledge of material medical information that was not readily available to players and by virtue of the NHL’s undertaking to communicate some safety information to players and the public. (Id.) According to Plaintiffs, the NHL breached this duty by fraudulently and intentionally failing to disclose material information regarding the link between the type of head injuries sustained in the NHL and cognition-impairing conditions, and that Plaintiffs justifiably and reasonably relied on these fraudulent omissions to their detriment.

The Discovery Battle

The origins for the discovery dispute was the NHL’s refusal to produce documents unless specific players gave their consent. It claimed the information was protected by the Health Insurance Portability and Accountability Act (HIPAA), the Americans with Disabilities Act (ADA), physician-patient privilege, and the NHL collective bargaining agreement.

The judge, however, concluded that the disclosure of such information was permissible as long as identifying information was redacted, including player names, jersey numbers, and team names.

“Since the chief concern of the U.S. clubs and defendant is that the requested information will somehow be connected to an individual player, anonymizing information appropriately addresses this legitimate concern.”

Specifically regarding HIPAA, the court cited the “litigation-use exception,” which permits disclosure of the requested information.

As for the ADA, the court explored case law to reach the following conclusion: “(T)he ADA does not create a privilege that wholesale bars the discovery of the requested information under the circumstances of this case.”

With the above parameters in mind, she ordered the clubs “to produce any internal reports, studies, analyses and databases in their possession (whether initiated by the U.S. clubs, NHL, or retained researchers) for the purpose of studying concussions in de-identified form. The U.S. clubs shall produce any responsive correspondence and/or emails between themselves, themselves and the NHL, or with any research or other professional about the study of concussions.”

In Re: National Hockey League Players' Concussion Injury Litigation; D. Minn.; MDL No. 14-2551 (SRN/JSM), 2015 U.S. Dist. LEXIS 100608; 7/31/15
Attorneys (for plaintiffs) Charles S. Zimmerman and Brian Gudmundson, Zimmerman Reed, PLLP, 1100 IDS Center, 80 South Eighth Street, Minneapolis, Minnesota 55402.
Stephen G. Grygiel and William Sinclair, Silverman, Thompson, Slutkin & White, LLC, 201 North Charles Street, Suite 2600, Baltimore, Maryland 21201.
Jeffrey D. Bores and Bryan L. Bleichner, Chestnut Cambronne PA, 17 Washington Avenue North, Suite 300, Minneapolis, Minnesota 55401.
Stuart Davidson and Mark J. Dearman, Robbins, Geller, Rudman & Dowd, LLP, 120 East Palmetto Park Road, Boca Raton, Florida 33432.
Lewis A. Remele and Jeffrey D. Klobucar, Bassford Remele, 33 South Sixth Street, Minneapolis, Minnesota 55402.
Thomas Demetrio, William T. Gibbs, Corboy & Demetrio, 33 North Dearborn Street, Chicago, Illinois 60602.
Brian D. Penny and Mark S. Goldman, Goldman, Scarlato & Penny PC, 101 East Lancaster Avenue, Suite 204, Wayne, Pennsylvania 19087.
Vincent J. Esades and James W. Anderson, Heins Mills & Olson, PLC, 310 Clifton Avenue, Minneapolis, Minnesota 55403.
David I. Levine, The Levine Law Firm P.C., 1804 Intracoastal Drive, Fort Lauderdale, Florida 33305.
Daniel E. Gustafson, Gustafson Gluek, PLLC, 120 South Sixth Street, Suite 2600, Minneapolis, Minnesota 55402.
Thomas J. Byrne and Mel Owens, Namanny, Byrne, & Owens, APC, 2 South Pointe Drive, Lake Forest, California 92630.
Michael R. Cashman and Richard M. Hagstrom, Zelle Hofmann Voelbel & Mason LLP, 500 South Washington Avenue, Suite 4000, Minneapolis, Minnesota 55415.
(for defendant)
Daniel J. Connolly, Joseph M. Price, Linda S. Svitak, and Aaron D. Van Oort, Faegre Baker Daniels, LLP, 2200 Wells Fargo Center, 90 South Seventh Street, Minneapolis, MN 55402; John H. Beisner and Jessica D. Miller, Skadden, Arps, Slate, Meagher & Flom LLP, 1440 New York Avenue, Northwest, Washington, D.C. 20005-2111; Shepard Goldfein, James A. Keyte, Matthew M. Martino, Skadden, Arps, Slate, Meagher & Flom LLP, Four Times Square, New York, New York 10036; James Baumgarten and Adam M. Lupion, Proskauer Rose LLP, Eleven Times Square, New York, New York 10036.

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Articles

Baylor University, Sexual Assault, & Title IX Vulnerabilities: Part I


Ellen Staurowsky

By Ellen J. Staurowsky, Ed.D., Professor, Drexel University

On August 21, 2015, a jury in McClennan County, Texas found former Baylor University defensive end Sam Ukwuachu (a player on scholarship who never saw a down there) guilty of second degree sexual assault of a female student who had been at one time on an athletic scholarship at the same university. Ukwuachu received a sentence of 180 days in jail, 10 years of probation, and 400 hours of community service for his crimes.[1]

In the aftermath of the verdict, questions have been raised about how Baylor and its administration managed the case and whether they did all that they could to ensure the safety of the students on their campus. The focus of criticism directed at Baylor has centered primarily on two key issues.

The first issue was Baylor’s decision to allow Mr. Ukwuachu to transfer from Boise State University, even after he was dismissed from the team for undisclosed disciplinary reasons and without consideration for his troubled past, which included alleged violence against his girlfriend, depression, and substance abuse. While Baylor will most likely continue to face questions regarding their willingness to accept Ukwuachu while other schools, such as the University of Florida declined, the second issue, which might be even more difficult for the University to address, was its handling of the case in light of Title IX requirements.

During the course of the trial, Ukwuachu’s lawyer, Jonathan Patterson Sibley, sought to include as evidence a review of the case that Baylor had conducted under the auspices of the Office of Student Conduct after it happened in October of 2013, wherein Baylor authorities concluded that there wasn’t enough evidence to pursue the investigation further. The internal investigation of the case, however, was found so deficient the judge would not permit the jury to hear that the University had not found Ukwuachu to be culpable under Title IX’s preponderance of the evidence standard, a lower standard of proof that requires only a 51 percent likelihood of wrongdoing on the part of the accused. Ultimately, the jury found him guilty of sexual assault beyond a reasonable doubt, a stricter standard, raising questions regarding the veracity of Baylor’s efforts.

Among the things that may be examined as time goes on is Baylor’s institutional history — both past and present — with Title IX. And there are some interesting twists and turns that emerge there. A window into that history is revealed, interestingly enough, through Ukwuachu’s attorney and his family ties to the University and athletic department. Sibley, who received both his undergraduate degree and law degree from Baylor, is the grandson of Jack Patterson. Patterson served as the athletic director at Baylor from 1971 to 1980, in the years following the passage of Title IX.[2]

An Abbreviated History of Baylor’s Relationship with Title IX

In her book Before Brittney, A Legacy of Champions, former student, athlete, coach, and professor at Baylor, Nancy Goodloe (2014), chronicles the evolution of women’s athletics on that campus. Baylor’s relationship with Title IX started out as one of outright resistance. Over time, Baylor’s approach to Title IX as documented by Goodloe suggests a long pattern of non-compliance and either misunderstandings about what the law required or disregard for it.

Shortly after Patterson was hired as the athletic director at Baylor to oversee the men’s athletic department, the administration moved to place the women’s physical education and athletics program under his direction as well. As characterized by Goodloe, Baylor’s president, Abner McCall, was committed to having only one person in charge of athletics, “And that person was not going to be a woman” (p. 144). In January of 1976, McCall wrote to the Director of the Office for Civil Rights seeking to be exempted from Title IX on the grounds that the regulations calling for the eradication of sex discriminatory treatment in education were in conflict with the religious tenets espoused by the Baptist faith and the Southern Baptist Convention (accommodations for pregnant students might sanction pre-marital sex, equitable distribution of scholarship assistance was in direct contradiction to the practice of awarding financial aid only to male students, and a concern that the University would be compelled to consider the hiring of female candidates in the religion department despite the fact that preference should be shown to Baptists ministers, a role reserved at the time only for men). Baylor’s opposition to Title IX would surface again in the mid-1980s, when they supported Grove City College in arguing that Title IX’s reach improperly violated separation of church and state and overreached by applying more generally to institutions overall rather than narrowly applying to individual programs.[3] The U.S. Supreme Court’s decision in Grove City v. Bell in 1984 would eventually be reversed with the passage of the Civil Rights Restoration Act of 1988.

Equitable treatment and retaliation would be the substance of a lawsuit filed by dismissed Baylor women’s basketball coach Pamela Bowers in 1995, which relied on Title IX as a cause of action. In that case, Bowers alleged that after having been at Baylor for 15 years she was released from the program because she fulfilled her obligation under NCAA rules to report rules violations that were occurring, not in her program, but in the men’s basketball program. In 1994, Baylor head men’s basketball coach Darrell Johnson would be fired with a federal indictment following shortly thereafter (Gorum, 1994). There was speculation that the University’s settlement of the $4 million lawsuit with Bowers may have been prompted by that pending announcement that the Southwest Conference was launching an investigation, a possible NCAA investigation was anticipated, and looming federal indictment (Gorum, 1994; McCallum, 1994).

Baylor’s Title IX Record in 2015

In May of 2014, Baylor’s president, Kenneth Starr appeared on a panel called by the U.S. House Education and Workplace Committee to discuss the implications of college football players unionizing (Staurowsky, 2015). In the course of that hearing, Mr. Starr was asked a question regarding the Title IX implications of college football players seeking to be recognized as employees with the right to collectively bargain, Mr. Starr stated that “there are very serious issues with respect to Title IX in particular.” He went on to say that the recognition of scholarship football players as employees would create a “very serious” imbalance under Title IX. He never explained why, but just simply planted that conclusion and moved on. (U.S. House..., 2014).

Further on in his testimony, Mr. Starr was questioned by U.S. Representative John Tierney (D-MA) regarding Baylor’s compliance with Title IX. In response to Tierney pointing out that Baylor was not awarding athletically-related financial aid to female and male athletes proportional to their rates of participation, with males receiving a disproportionally high amount, Mr. Starr testified:

“Well, that is a very dynamic and fluid process, so it may change from year to year, but if there is in fact a disparity, and I accept what you’ve said, it has to be addressed, so we have to come forward with explanations as to why there may be a temporary disparity. We recently created two new women’s sports with scholarships in order to address the disparity, so we have for example created equestrian with a number of scholarships for women.  We have created acrobatics and tumbling” (U.S. House, 2014, 1:50.00 into the hearing).

In a follow up, Tierney asked Mr. Starr:

“Are you saying, you believe this is a temporary issue, you’re saying this isn’t a year to year thing, are you saying that with some knowledge of the facts, or are you just guessing that’s the case?” (U.S. House...., 2014, 1:15.31 into the hearing).

Mr. Starr’s response:

“Well, I don’t know the specifics of those, that specific disparity, so that is information to me.  What I do know is the academic department, the athletic department does have to focus on this with our Title IX compliance officer, we have to have a Title IX compliance officer, who reviews all these kinds of issues to determine whether they are....”

The exchange between Congressman Tierney and Mr. Starr points to the vulnerabilities Baylor may have given the scrutiny of late following the revelations regarding the Ukwuache situation for several reasons.

First, an analysis of available Equity in Athletics Disclosure data for the decade between 2004-2005 and 2013-2014 reveals several trends in Baylor’s allocation of athletic scholarships that are problematic from a Title IX perspective. While Title IX regulations often provide considerable leeway to schools in terms of how they can comply, the standard for the allocation athletic scholarship assistance to athletes is clear. “Title IX regulations require an allocation within one percent of what the representation for males and females are within the athlete population (in theory, if there are 50 percent female athletes, the allocation of existing athletically related financial aid should be within one percentage point of 50 percent - either 49 percent or 51 percent)” (Staurowsky, 2015) . As shown in the table below, the discrepancy noted by Tierney was not a “temporary” issue but was a persistent trend that had gotten worse not just during the decade, but worse during the time that Mr. Starr was president of the institution. Further, these were not small discrepancies that might be accounted for with modest fluctuations in athlete movement within the program. These were double digit discrepancies that ordinarily suggest that there is a Title IX violation.

Second, Mr. Starr’s claim that Baylor had added equestrian and acrobatics and tumbling to help the Title IX profile within the athletic department sends up other red flags. Equestrian may have been created to expand the number of opportunities available within the athletic department for female athletes, but that sport had been added in 2006 (Staurowsky, 2015). The disproportionate allocation of scholarship dollars at Baylor that favored male athletes was not affected by the addition of equestrian. Male athletes increasingly received a greater portion of athletically related financial aid after equestrian was added (see table below).

Third, when Baylor’s pattern of participation is examined closely, there are other signs of possible irregularities. According to 2013-2014 EADA data, Baylor reported having 27 men on its women’s basketball team. While the use of male practice players have been an accepted practice and that by itself is not a Title IX violation, the fact that they report more men than women on their women’s basketball team (13 women; 27 men) is highly irregular (Staurowsky, 2015).

And fourth, equestrian and acrobatics and tumbling were interesting choices to use in expanding athletic opportunities for female athletes in an effort to comply with Title IX. In the case of equestrian, the NCAA defines it as an “emerging sport,” meaning that it is a sport “recognized by the NCAA that is intended to help schools provide more athletic opportunities for women, more sport sponsorship options for institutions and help that sport achieve NCAA championship status.” In 2014, equestrian was dropped from the NCAA’s list of emerging sports for women because there had not been sufficient growth to warrant an NCAA championship. NCAA rules had required that after 10 years there would be at least 40 programs that were offering the sport. In the fall of 2014, there were only 19 equestrian programs with 719 participants competing. The National Collegiate Equestrian Association (NCEA) mounted a successful campaign to put off the NCAA’s decision temporarily, but now faces the prospect of having to continue to grow the sport, something they had not been able to do in the decade previous.

The building of Baylor’s Title IX compliance plan around equestrian was risky enough. However, it took an even riskier path electing to sponsor acrobatics and tumbling, listed in the EADA report as “gymnastics.” Although the NCAA recognizes gymnastics, it has not, heretofore sanctioned acrobatics and tumbling. The governing body for the sport, the National Association of Collegiate Acrobatics and Tumbling (NCATA, 2015) has 12 members, none in the Big 12 (which is Baylor’s conference), and only one other NCAA Division I program (University of Oregon). Others include Division II institutions such as Gannon University and Division III Adrian College. Whether Baylor could defend offering a women’s sport that includes competition against Division II and III opponents as being comparable to the level of competition that programs within a major conference typically provide might prove to be another problem.

Conclusion

In the weeks ahead, Baylor may be called upon to explain the process they used in fulfilling their obligations under Title IX that goes beyond the materials posted to their website (Q & A..., August 24, 2015). With this history, Baylor may be particularly vulnerable to conjecture that the case was mishandled and that the victim did not receive the kinds of protections she deserved prior to or after the assault took place. Because she was a female athlete, and she had her scholarship reduced after the incident occurred (something that might trigger an NCAA investigation as well as an OCR investigation), Baylor may face other questions to be answered.

References

Flannery, R. (2014, October 23). BU will hire a Title IX coordinator this semester. Baylor Lariat. Retrieved from http://baylorlariat.com/2014/10/23/bu-will-hire-a-title-ix-coordinator-this-semester/

Fogelman, L. (2014). President Starr appoints Dr. Juan Alejandra Jr. as vice-president for governance and risk and chief compliance officer. Baylor University Media Communications Press Release. Retrieved from http://www.baylor.edu/mediacommunications/news.php?action=story&story=149898

“Funeral services set for former Baylor AD Jack Patterson.” (1996, December 18). Press release. Retrieved from https://www.baylor.edu/mediacommunications/news.php?action=story&story=1460

Henderson, W. (2005). On the nomination of Judge John G. Roberts, Jr., to be Chief Justice of the Supreme Court of the United States. Testimony before the U. S. Senate Judiciary Committee. Washington, DC: The Leadership Conference. Retrieved from http://www.civilrights.org/advocacy/testimony/henderson-roberts.html?referrer=https://www.google.com/

Goodloe, N. (2014 ). Before Brittney: A legacy of champions. Neche, ND: Friesen Press.

It’s On Us Baylor. (2015). Facebook page. Retrieved from https://www.facebook.com/ItsOnUsBU

Kerr, L. (2014, October 16). NCAA to drop women’s equestrian as emerging sport in 2017. Sport in Law. Retrieved from http://sportinlaw.com/2014/10/16/ncaa-to-drop-womens-equestrian-as-emerging-sport-in-2017/

Kirk, J. (2015, August 21). A timeline of the Baylor sexual assault scandal. SBNation.com. Retrieved from http://www.sbnation.com/college-football/2015/8/21/9185837/baylor-football-player-sam-ukwuachu

Luther, J., & Solomon, D. (2015, August 20). Silence at Baylor. The Texas Monthly. Retrieved from http://www.texasmonthly.com/article/silence-at-baylor/

McCallum, J. (1994, November 28). Paper trail: Six coaches are among those indicted in a federal probe of the Baylor basketball program. Sports Illustrated. Retrieved from http://www.si.com/vault/1994/11/28/132735/paper-trail-six-coaches-are-among-those-indicted-in-a-federal-probe-of-the-baylor-basketball-program

NCATA. (2015). National Collegiate Acrobatics and Tumbling Association website. Retrieved from http://ncata.org.

“Patty Crawford, Title IX coordinator.” (2015). Retrieved from http://www.baylor.edu/titleix/index.php?id=873089

Post., N. (2014). Baylor University Equity in Athletics Disclosure Act Report: 2012-2013.

“Q & A concerning procedures for investigation of allegations of sexual assault.” (2015, August 24). Waco, TX: Baylor University. Retrieved from http://www.baylor.edu/titleix/index.php?id=925735

Reyes, S. (2015, August 21). Title IX coordinator is taking steps to help Baylor fight against sexual discrimination. Baylor Lariat. Retrieved from https://baylorlariat.com/2015/08/24/title-ix-coordinator-is-taking-steps-to-help-baylor-fight-against-sexual-discrimination/

Staurowsky, E. J. (2015). The politics of Title IX and college athlete employees. Presented at the College Sport Research Institute Conference, University of South Carolina, Columbia, SC.

The Spelman & Johnson Group. (2014, July). Position specification — Baylor University — Title IX coordinator. Retrieved from http://www.spelmanandjohnson.com/higher-education-professionals/wp-content/uploads/2014/07/sjg-position-specification-baylor-title-ix-final.pdf

U.S. House Education and the Workforce Committee. (2014, May 14). Unionizing student athletes. CSPAN.org. Retrieved from http://www.c-span.org/video/?319264-1/unionizing-student-athletes

Watkins, M. (2015, August 25). Baylor may face legal fallout from rape case. The Texas Tribune. Retrieved from https://www.texastribune.org/2015/08/25/football-rape-case-presents-possible-legal-minefie/

Witherspoon, (2015). Baylor football player convicted of sexual assault. WacoTribune.com. Retrieved from http://www.wacotrib.com/news/courts_and_trials/baylor-football-player-convicted-of-sexual-assault/article_00adce9a-be02-515c-ad4e-f8e5149df707.html

[1] The jury imposed the 10 years of probation and community service; the judge added the jail time.

[2] It was Patterson who hired Grant Teaff as the Baylor head coach who would eventually become athletic director at Baylor and then the long-time executive director of the American Football Coaches Association. Teaff let his position just before a major investigation into the men’s basketball team in 1995.

[3] The position taken by Grove City was one supported by now Chief Justice of the U.S. Supreme Court when he served as Special Assistant to the Attorney General while working in the U.S. Department of Justice during the Ronald Reagan years. Roberts would eventually work for Kenneth Starr as his deputy during the time that Starr served as the Solicitor General (1989-1993). According to Wade Henderson, Executive Director, Leadership Conference on Civil Rights (2005), it was during that time that Roberts again took a position that would have seriously weakened Title IX. “In Franklin v. Gwinnett County School District, Roberts co-authored a brief in which he argued that a high school student could not obtain damages under Title IX for years of sexual harassment and sexual abuse by her coach. His overly restrictive view of proper remedies under Title IX was rejected unanimously by the Supreme Court, which found that sexual harassment is an intentional violation of Title IX and that its victims can recover money damages. Roberts' position in Franklin , and his restrictive views on Title IX in general, raise serious questions about whether he would allow women to fully vindicate their legal rights. These concerns would apply to victims of racial and disability-based discrimination seeking redress under Title VI or section 504 of the Rehabilitation Act, which are parallel in structure to Title IX, as well (Henderson, 2005).

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Golf Industry and Hunting/Fishing Enthusiasts at Odds over Judge’s Decision to Block New Rule Expanding the Federal Government’s Power under Clean Water Act

Like a golfer, who keeps hitting the ball off the tee into a water hazard, the Environmental Protection Agency (EPA) and the Army Corps of Engineers (Corps) had hoped to find the fairway and see “the Clean Water Rule” passed under the umbrella of the Clean Water Act (CWA). Never mind that the U.S. Supreme Court had rebuffed similar efforts in 2001 and 2006.

But just like before, a court would have none of it. Last week, a federal judge in North Dakota dealt the EPA and Corps its latest setback when the court blocked passage of the rule, which attempts to clarify which "Waters of the United States" (WOTUS) are overseen by the federal government, from taking effect in 13 states.

This was good news as far as the Golf Course Superintendents Association of America (GCSAA) is concerned, which “continues to have concerns that the rule will add additional permitting and regulatory requirements and hurdles that could adversely impact golf course design and management,” according to a press release.

An environmental attorney, who spoke the Sports Litigation Alert on the condition that his name not be used, suggested that the golf course industry is concerned that ponds and remote wetlands could be lumped in the more navigable bodies of water as being under the purview of the EPA and Corps.

“If a golf course superintendent needs to fill a small pond or a wetland, he or she does not want to have to go to a mitigation bank and buy credits at $5,000 to $10,000 a pop,” said the attorney. “They just want to fill the pond.”

This was a victory for the GCSAA, which believes work remains.

"As an association, we were not pleased with how this rule was developed, and we will continue to support legislation to withdraw the rule, including Senate Bill 1140, which aims to get impacted stakeholders a seat at the table to develop a new rule that creates more certainty and bright lines" said Chava McKeel, GCSAA director of government relations.

Introduced in April, Senate Bill 1140 would require the EPA and the Corps to immediately withdraw the WOTUS rule, complete economic analyses and adhere to a certain principles when introducing any new rule. H.R. 1732 is the companion to S.B. 1140 and has already passed the full House.

McKeel said the golf industry supports clean water and that permits have always been required when activities were performed impacting "Waters of the U.S." But now the definition of what is federally regulated water has been expanded to potentially include man-made lakes, water hazards on golf courses and ditches. There is also confusion as to what is and is not covered by and exempted by the new rule and there could be fines.

While the GCSAA was pleased with the ruling, Ducks Unlimited is concerned. The new rule has the fervent support of the organization, which seeks to preserve habitat for waterfowl.

“The release of the draft rule gets us one step closer to better defining Clean Water Act regulations in regard to wetlands,” Ducks Unlimited CEO Dale Hall said in 2014. “We are also pleased with the open process EPA has adopted, which invites the public, Congress and all interested parties to participate in the discussion. EPA’s draft science report last year showed many categories of wetlands, including prairie potholes, may be geographically isolated but are still connected to, and have a significant impact on, downstream waters.”

Ducks Unlimited went on to note that “the nation lost approximately 550,000 acres of the wetlands most important to waterfowl and other fish and wildlife each year from the mid-1950s to mid-1970s. Enacted in 1972, the Clean Water Act played a significant role in slowing the rate of wetland loss to about 80,000 acres per year by 1998. However, U.S. Supreme Court cases in 2001 and 2006 resulted in the withdrawal of Clean Water Act protections from more than 20 million acres of vital wetlands.”

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Drones and Sports: A Brief Overview

By Bob Wallace, Thompson Coburn LLP

The use of unmanned aircraft systems (UAS or drones) is not just reserved for covert military operations anymore. Indeed, today, there is an abundance of small, nimble, drones taking to the sky for a variety of recreational and commercial purposes. Internet giant Amazon has plans to use drones for deliveries, and sports organizations and media outlets are using them to enhance their filming operations.

Indeed, UAS technology can be useful to sports organizations by providing them with unique aerial perspectives and footage to review. It can give coaches a different view when analyzing player spacing, hand placement, footwork or formation play, not to mention the low altitude view from behind a quarterback, for example, or a defensive player. Sports teams have also used drone footage as part of promotional material on their websites and for analytical data that cannot be gathered from traditional use of video equipment.

Many believe that the next major development in aviation is the safe integration of UAS into the national airspace system (NAS). Here are five things that you might wish to consider about the use of drones in the United States before you decide whether to take to the skies.

1. UAS Background

Since the early 1980s, recreational/hobbyist model airplane enthusiasts have enjoyed virtually unfettered access to the nation’s airspace without obtaining specific FAA authorization as long as they adhered to voluntarily guidelines, titled the “Model Aircraft Operating Standards” contained in AC 91-57. These voluntary guidelines encouraged recreational/hobbyist modelers to fly far away from populated or noise-sensitive areas, keep flights to less than 400 feet in altitude, notify an airport operator if flying within three miles of the facility, and give right-of-way to (and avoid flying in proximity of) manned aircraft.

In 2007, the FAA learned that the AC 91-57 guidelines were being used as a basis for commercial UAS flight operations, contrary to the FAA’s position that AC 91-57 excluded flying UAS for business or commercial purposes. Federal statutes have defined business or commercial purposes as “the transportation of persons or property for compensation or hire.” Consequently, use of drones for business or commercial purposes required operators to obtain a special airworthiness certificate, which is a very lengthy and costly process.

In February 2012, Congress passed the FAA Modernization and Reform Act of 2012 (the 2012 Act), which required the FAA to develop a roadmap and final regulations for integrating UAS into the NAS by September 30, 2015. It is unlikely that the FAA will meet this deadline. In the interim, the FAA is reviewing and granting exemptions to entities wishing to use UAS for commercial purposes, in accordance with Section 333 of the 2012 Act. More than 1,300 entities have received Section 333 exemptions since the first one was granted on September 25, 2014.

As our table shows, more than a third of all Section 333 exemptions granted seek the exemption for aerial photography, videography and filmmaking purposes. Although most of those exemptions indicate that the UAS will be used for photography and videography for television, motion picture, real estate, construction, infrastructure, etc., some applications indicate a specific intent to be used to acquire sports images. To date, major events such as the PGA Tour, Formula One races, and the Winter Olympics in Sochi, Russia, have employed UAS technology. A wide range of U.S. sports organizations, including several college and professional teams, are seeking ways to do so as well...legally.

2. Seeking Authority to Fly? Obtain a Section 333 Exemption

Until the FAA issues final regulations governing commercial UAS operations, the fastest way to legally fly a UAS is to apply for a Section 333 exemption. The application requires the commercial entity to specify the exact drone(s) that will be used, the purpose, the specific locations of use and proximity to any airports, and how the UAS will be operated. The FAA reviews applications on a case-by-case basis to determine whether the specific drone and proposed operation are appropriate for use in the NAS. Typically, the FAA requires Section 333 exemption grantees to adhere to the following parameters: (a) the drone and payload weigh under 55 pounds; (b) flights are restricted to daylight operations; (c) flight speeds are less than 50 knots; (d) maximum altitude is 400 feet; (e) drones are operated within visual line of sight of the pilot (along with a visual observer to assist the pilot); (f) flights are further than five miles away from any airports; (g) drones are not controlled from a moving vehicle; and (h) UAS documents are kept readily available on the ground.

If the FAA approves the Section 333 application, the exemption holder must also obtain a Certificate of Waiver or Authorization (COA). The COA is essentially an approval to operate a drone at a specific time and place. To facilitate more commercial drone flights, the FAA automatically grants a “blanket COA” for drone flights at or below 200 feet above ground level to a drone operator with a valid Section 333 waiver, provided proper flight conditions exist. The drone operator must also use or hire a pilot with an FAA-issued sport pilot certificate to operate the drone and do so within the confines of applicable flight regulations and the terms of the FAA exemption.

3. Penalties for Non-compliance

Entities flying drones for commercial use without FAA approval are subject to a variety of FAA warnings and civil penalties, not to mention potential federal criminal charges and the negative publicity associated with a UAS incident or federal charges. Currently, the FAA has focused most of its enforcement efforts on educational initiatives and warning letters, but it has issued fines for what it determines to be a “careless” or “reckless” operation. The FAA retains the authority to punish violators thousands of dollars per violation, depending on the circumstances.

4. State and Local Laws

In addition to FAA rules, many states have proposed and/or passed legislation regarding the use of drones. Cities and counties have passed local ordinances governing drone use as well. A legal review of the state and local laws and regulations affecting drone use where the operator plans to fly should be done as part of any evaluation process.

5. What Else Should Collegiate Teams Consider Before Using Drones?

Despite the apparent advantages that appear to come with authorized UAS usage, there are great concerns related to spectator and participant injury that come along with the unpredictably of certain drone operations. These dangers include pilot error, equipment malfunctions, and an unpredictable flight environment. Because of these risks, teams wanting to use drones in their sports operations will want to carefully consider the environment in which they choose to fly and whether UAS use should occur only in a closed setting rather than an area open to the general public. Although such precautions may reduce risk, they would not eliminate the risk to players, coaches, or employees within the drone’s vicinity, even if flying UAS indoors (where a Section 333 exemption is not required).

Organizations that have been approved to operate UAS should post warning signs, employ safety netting or officers to protect observers where necessary, and carry appropriate insurance to cover the various risks and liabilities associated with drone use. If using a third-party drone operator, insist that they do so as well. Appropriate insurance coverage, which the FAA may consider when evaluating a Section 333 exemption, should include, among other liabilities, personal injury, invasion of privacy, property damage, and workers’ compensation. The main providers in the drone insurance space are currently offering coverage to businesses operating drones for commercial purposes.

Conclusion

This is a very fast growing technology industry, and the restrictions on commercial use of UAS are fairly stringent. Hopefully, once the small UAS regulations become final, the FAA will lessen some of the more restrictive requirements, and the process will be simplified. In the meantime, potential users need to understand the law and adhere to FAA rules, state laws, and local ordinances.


Bob Wallace

Bob Wallace is the chair of Thompson Coburn’s Sports Law group. This article was written with the assistance of the Thompson Coburn Unmanned Aircraft Systems practice group co-chairs Sean McGowan and Rob Kamensky, along with associate Tyler Black.

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Concussion Lawsuit against School District Centers on Lack of Medical Staff at Freshman Game

A lawsuit filed by a 13-year-old California high school student, who suffered a debilitating concussion in a freshman football game, alleges among other things that the school district in which he was a student provided medical staff for the varsity and junior varsity games, but not the freshman games.

Plaintiff Rashaun Council, of Monte Vista High School, suffered the injury in a game against Mount Miguel High School on Oct. 17, 2013. After the game, Council began vomiting, and then collapsed. Reportedly, he suffered a concussion and a subdural hematoma, and spent the next several months at Rady Children’s Hospital.

Rashaun told a local television station in San Diego, 10News, that he remembers nothing from that day and that he still has short-term memory issues.

He has retained attorney Brian Gonzalez, who told the television station that his client’s coaches were trained to recognize the signs of a concussion, but failed to do so.

In the lawsuit, Council named Grossmont Union High School District as a defendant. A spokesperson said the district’s policy “is to have a physician at all Varsity football games. Trainers will be at all home games and maybe at visiting games for all three levels of football.”

Meanwhile, the California Interscholastic Federation (CIF), which oversees high school sports for the state, reportedly told the television station that there is no CIF rule that requires medical staff at regular season games. Rather, each school district decides whether to staff the games.

Gonzalez added that his client has been an inspiration as they continue along a litigious path.

“To me, the most important cases are ones that you can feel you have something you need to fight for, and Rashaun is somebody that I will always do everything I can to fight for,” Gonzalez told the media.

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Caitlyn on the Track: Athletics, Title IX, and the Transgender Community

By Aaron Lacey, ESQ

On June 26, the U.S. Supreme Court decided that no state could limit or prohibit same-sex marriages in an opinion that began: “The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons... to define and express their identity.” As gay and lesbian couples celebrate the legal affirmation of their identity, another group within the LGBTI universe, one present on many campuses, continues to work toward greater recognition of its own: the transgender community. These efforts have been rewarded in recent years by federal policy makers, as agencies for the first time have articulated their positions regarding the application of federal discrimination laws to transgender individuals.

Postsecondary institutions, in response, have been working hard to better incorporate transgender employees, students, and student-athletes into campus life, including revising discrimination statements and updating policies and procedures to comply with emerging guidance. However, as is always the case when crafting new policies based on developing law (a common occurrence in contemporary higher education), questions remain regarding the practical application of such guidance, and how it should be implemented when in conflict with guidance issued by other organizations. As we discuss below, such conflict appears to be particularly present in the realm of college athletics.

Emerging federal policy regarding transgender individuals on campus

Federal policy impacting the treatment of transgender individuals on campus first began to take shape in 2012. At that time, the EEOC held in Macy v. Department of Justice that discrimination against an employee based on his or her transgender status constitutes “sex discrimination” and, as such, is prohibited under Title VII of the Civil Rights Act of 1964. In reaching its decision, the Commission expressly overturned its own prior decisions, in which it historically had held that claims of discrimination based on the transgender status of an individual were not actionable. 

Two years later, in an April 2014 guidance letter, the U.S. Department of Education’s Office of Civil Rights, for the first time, officially stated its position that the prohibition on sex discrimination found in Title IX of the Education Amendments of 1972 protects individuals from discrimination based “on gender identity or failure to conform to the stereotypical notions of masculinity or femininity.” The Department affirmed this position in a subsequent December 2014 guidance letter, specifically stating that students who are transgender or do not conform to gender stereotypes are protected from sex-based discrimination under Title IX. In addition, the Department observed in the letter that where a school separates students on the basis of sex (e.g., restrooms, dorms, athletic activities), the school “generally must treat transgender students consistent with their gender identity.”

Most recently, in February 2015, the Department submitted a “Statement of Interest” in Tooley v. Van Buren Public Schools, a federal court case filed in Michigan in which a transgender boy argues that his public school violated Title IX and the Equal Protection Clause. In its Statement of Interest, the Department offers the most comprehensive discussion to date of its views regarding the application of Title IX to transgender individuals.

According to the plaintiff in Tooley, the school did not allow him to use the bathroom consistent with his gender identity, and “outed” him to both students and parents, referring to him as “Olivia,” and using feminine pronouns when referring to him in class. At the outset of its argument, the Department states:

Similar to the language of Title VII of the Civil Rights Act of 1964, 42 U.S.C. '' 2000e et seq., Title IX prohibits discrimination “on the basis of sex” in education. 20 U.S.C. § 1681(a)... “On the basis of sex” includes discrimination based on the fact that an individual is transgender (i.e., has a gender identity different from the person’s sex assigned at birth) or the perception that an individual has undergone, or is undergoing, a gender transition.

The Department then argues that the facts presented by the plaintiff in Tooley establish a prima facie case of sex discrimination based on his gender identity, transgender status, and nonconformity to sex stereotypes, citing its earlier guidance that a school “generally must treat transgender students consistent with their gender identity.”

The NCAA’s approach

At the heart of the Department’s position in Tooley is the principle that a postsecondary institution should, in all respects, and at all times, treat a transgender student or employee consistent with his or her gender identity, as articulated by the transgender individual. This position is consistent with, and generally reflects, the positions being advanced by other federal agencies, including the Equal Employment Opportunity Commission and the Department of Justice. It is not entirely consistent, however, with the position articulated by various governing bodies and associations that oversee professional and collegiate athletics, including, most notably, the National Collegiate Athletic Association (NCAA).

In August 2011, well before the federal government began to articulate its views regarding the application of federal law to the treatment of transgender individuals on campus, the NCAA addressed the incorporation of transgender individuals into NCAA-sanctioned competition. In a document titled “NCAA Inclusion of Transgender Student-Athletes,” the NCAA’s Office of Inclusion outlines the following participation guidelines for transgender men and women, respectively:

  • A transgender male (assigned the female sex at birth) who is not taking any hormone treatment related to gender transition may compete on either a women’s team or a men’s team. However, if the transgender male has received a medical exception for treatment with testosterone, the transgender male’s participation on a women’s team would render the team ineligible to compete for a women’s NCAA championship.
  • A transgender female (assigned the male sex at birth) who is not taking any hormone treatment related to gender transition may not compete on a women’s team, or the team will become ineligible to compete for a women’s NCAA championship. Only after completing a calendar year of testosterone suppression treatment may she compete on a women’s team without impacting the team’s eligibility status.

This NCAA policy approach, which requires in certain instances that medical benchmarks be achieved before an athlete may compete consistent with his or her gender identity, is similar to the policies of the National Junior College Athletic Association, International Olympic Committee, USA Track and Field, USA Boxing, and a host of other governing bodies of amateur and professional athletics. Although the details differ, such policies seek to quell objections concerning the “legitimacy” of an individual’s transgender status — and ensure the fairness of the athletic competition — by requiring transgender individuals to demonstrate that various benchmark combinations have been achieved before they may compete consistent with their gender identities.

The Department, however, does not in any way qualify its position regarding the treatment of transgender individuals. In the Department’s view, an institution’s obligations under Title IX are not impacted by the nature of the gender transition (i.e., male to female or female to male), nor by the degree to which the transition has been completed. Similarly, there is no expectation that an individual demonstrate that any medical steps have been taken to facilitate a transition, or that the stated gender is sincerely held or otherwise inherent to the individual’s identity. And the Department’s policy, it should be noted, applies equally to the campus, the court, and the field.

Dealing with policy discrepancies

Of course, this discrepancy between the NCAA and federal policies creates a dilemma for campus administrators. If a transgender female with less than a calendar year of testosterone suppression treatment tries out for and makes an NCAA women’s team, how should an institution respond? If the institution permits the transgender woman to compete, it jeopardizes the eligibility of the team to compete for an NCAA championship. If the institution refuses to permit the transgender woman to compete until the medical benchmarks have been satisfied, it appears to violate Title IX.

We readily acknowledge that the likelihood of any particular administrator contending with this scenario is remote. To our knowledge, the number of transgender athletes seeking to compete on NCAA teams, even if increasing, remains in the single digits. In addition, some athletic associations, like the National Association of Intercollegiate Athletics (NAIA), remain silent on the issue of transgender athletes. As such, there is no tension between association guidelines and federal policy. And some organizations that oversee athletic competition have adopted policies that are consistent with the views expressed by the Department. The National Intermural-Recreational Sports Association (NIRSA), for example, updated its policies in 2014 to permit individuals to compete consistent with their gender identity, without qualification.

Nonetheless, the discord between the Department’s position and the NCAA policy, which is emblematic of policies implemented by amateur and professional athletic associations around the world, suggests that additional discussion is warranted regarding the application of federal anti-discrimination laws to transgender individuals participating in collegiate athletic competition. The time for this conversation is unquestionably ripe. Recognition of the transgender community is increasing rapidly, and the individual arguably contributing most to its rise is Caitlyn Jenner, a transgender woman formerly considered the world’s greatest athlete.


Aaron Lacey

Aaron Lacey is a partner in Thompson Coburn’s Higher Education practice, and editorial director of REGucation, the firm's postsecondary law and policy blog. You can reach Aaron at (314) 552-6405 or [email protected], or find him on Twitter (@HigherEdCounsel). This article originally appeared as a REGucation post. It should not be considered legal advice. You should contact an attorney if you have specific questions about the issues discussed here.

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Leading Sports Attorney Steven Olenick Joins Loeb & Loeb in NY

Loeb & Loeb LLP has announced that Steven M. Olenick has joined the firm’s New York office as a partner in its multidisciplinary Sports Practice. Olenick provides the full range of transactional, advisory and litigation services to numerous current and retired professional athletes as well as sports agents, managers, coaches and other individuals and entities within the industry.

“Steve serves as outside GC to athletes in nearly every major area of pro sports,” said Loeb & Loeb Chairman Michael D. Beck. “His varied skill set, along with his credibility and recognition in the market will be tremendous assets for our growing sports practice and great complements to our comprehensive entertainment and private client services platforms.”

Craig Emanuel, Chair of Loeb & Loeb’s Entertainment Department added that “the business of sports is a burgeoning field and Steve’s arrival adds significant depth to our existing multidisciplinary strengths in this area. Steve joins a diversified team of sports attorneys across Loeb’s New York, Los Angeles and Chicago offices who form a dynamic national practice capable of servicing the complete needs of clients in this sector.”

Olenick’s diverse sports practice includes advice on complex legal matters ranging from endorsement deals and branding/intellectual property issues to estate and tax planning, disciplinary actions and litigation. He also has experience advising family offices, wealth advisors, accountants and other corporate entities and private clients on transactional and trust and estate matters.

Olenick is regularly invited to comment on sports-related topics as a legal contributor on major television networks such as Fox News, Bloomberg, and CNBC, and he is frequently featured as a thought leader by industry media such as ESPN and Sports Litigation Alert. He has been a featured lecturer and guest speaker at universities, including Harvard Business School, and has served as adjunct professor at Manhattanville College, teaching Legal Ethical Considerations in Sports.

“When it comes to entertainment law, Loeb has no equal.” said Olenick. “The needs of my athlete and other sports clients are perfectly aligned with the firm’s strengths in areas such as talent representation, branded entertainment, endorsements, IP and wealth management. I’m looking forward to joining this distinguished team.”

Formerly a partner at the boutique New York-based law firm Kantor Davidoff, Olenick earned his J.D. from Northwestern University School of Law and his B.A. from Cornell University.

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Planning by Coaches and Trainers is Key to Preventing Heat-Related Injuries on the Playing Field

By Janet Lewis, ESQ.

The National Centers for Environmental Information (NCEI) announced recently that July 2015 was the warmest month ever recorded across the globe. Additionally, the period of January-July 2015 was recorded as the warmest January - July since data started being collected in 1880, and 9 out of 10 of the hottest months on record have happened since 2005. In other words, it is hot.

As training camps and pre-season workouts begin for high school and youth level fall sports, heat will play a role throughout nearly every practice. Fortunately, the dangers of heat-related injury are understood by many. When it comes to heat-related injuries, most will often think of football (and they do have the highest incident of heat related issues due to higher body mass index, the wearing of pads, the physical nature of the game and the fact that their sport is often played in the heat without shade). However, all outdoor sports need to proceed with caution. For example, running races, field hockey and soccer games are often held in the summer and fall months when it is very hot. In fact, at the Falmouth road race, a seven-miler held in mid-August each year, “At least one runner in every 1,000 entrants ... suffers a potentially deadly exertional heat stroke...an incident rate 10 times higher than that reported at cooler races in the spring and fall.” Since 1984, more than 270 cases of exertional heat stroke have been reported at this race alone.[4]

So the question for high schools, and even youth sports, is how do you not only protect your athletes from suffering potentially deadly injuries, but also protect your school, staff, coaches and others should someone get hurt?

Knowing the Problem

There are several ways heat can affect athletes, much of it attributable to dehydration and overexertion. Dehydration is affected by the intensity of exercise, temperature, humidity and how much fluid is restored during exercise. Increasing levels of dehydration cause both body temperature and heart rate to rise, which will increase the risk for heat illness. “Once an individual loses 2% of their body mass from fluid losses impairments in performance are noticeable and these impairments become more extreme with great levels of dehydration.” [5] This can lead to Exertional Heat Stroke (EHS). EHS is among the top three reasons athletes die during sport and is characterized by a body temperature greater than 104 degrees Fahrenheit, as well as headaches, confusion, altered states of consciousness, vomiting and/or collapse.[6]

Injuries in sport are expected. High school athletes suffer two million injuries, 500,000 doctor visits and 30,000 hospitalizations each year. There were 120 sports-related deaths of young athletes from 2008-2011. Yet only 42% of high schools have access to athletic trainers.[7] Many of these injuries are “freak injuries” or ones that may not have been preventable. Heat-related injuries, on the other hand, can be prevented. The majority of EHS cases occur during initial summer workouts when athletes are neither prepared to cope with the heat nor with the new demands that they place on their bodies during their workouts.[8]

High school athletes, especially males, are at the highest risk of suffering exertional heat illness requiring treatment in the ER. According to the National Center for Catastrophic Sport Injury Research (NCCSIR), since 1995, 54 football players died from heat stroke, 42 of which were high school athletes and 90% were in practice. There were 13 deaths from 2010-2014 alone.[9] From 1996-2006, the number of heat-related injuries rose 33% and youths accounted for 47.8% of those injuries.[10]

Making Headlines

Following the highly publicized death of NFL player Kory Stringer in 2001, heat-related injuries were thrust into the spotlight. The NCAA adopted heat acclimatization guidelines in 2003 and the NFL followed with comprehensive plans in 2011. However, only 13 states have guidelines or laws for high schools[11] and there are generally no guidelines for youth sports. While the NFL and college players generally can be assured that they have athletic trainers, immersion tubs and best-practices in place that take into account modern heat stroke research, high school players may attend a school that doesn’t even have an athletic trainer.[12]

Florida and Georgia have enacted fines of up to $5,000 for non-compliance and/or post-season bans. Maryland has laws, but no means of enforcing it. “By not mandating heat acclimatization guidelines, states are failing to protect their athletes and, in fact, are placing them at greater risk for exertional heat stroke and other heat related illnesses.”[13]

A first important step to preventing dehydration and heat illnesses is education of all staff, coaches, trainers, athletes and parents. “All personnel involved with the organization of athletic activities share a professional and legal responsibility to ensure that guidelines are in place to manage any emergency that could arise.”[14] Everyone should be aware of how to assess hydration and how much fluid one needs to replace during and following exercise (methods include calculating sweat rate and reviewing urine color). In addition, coaches can use a Wet Bulb Globe Temperature (WBGT) to determine if it is even safe to be outside for physical activity and/or if modifications should be made for the upcoming workout. All athletes, coaches, trainers and parents should know and understand the signs and symptoms of heat related illness.[15]

In addition, all programs should adopt a heat acclimatization policy that outlines the steps that should be taken to ensure safely ramping up workout intensity and frequency over a 7-14 day period. This would include no two-a-day practices for the first five days, and following two-a-days with a single practice the next day. The Korey Stringer Institute also recommends each practice be three hours or less, increasing sodium in diets and taking frequent rest/water breaks with a hydration kit on hand (see ksi.uconn.edu/prevention/hydration). This allows the heart rate, body temperature responses and perceived exertion to be lowered while increasing sweat rate, sweat onset, heart function and overall ability to perform in the heat (for a full list of tips see ksi.uconn.edu/prevention/heat-acclimatization).[16]

Perhaps the most important element to ensuring preparedness and limiting liability is the creation and implementation of an EMERGENCY ACTION PLAN (EAP). An EAP provides information to ensure that response to an emergency is rapid, appropriate, controlled and precise.[17] This document should be comprehensive, yet flexible and updated and reviewed annually with all coaches, staff and athletes. In addition, there needs to be commitment to training and rehearsal of these plans. While a coach should never be the primary medical provider, education about emergency care and methods are vital. All coaches should be trained in CPR/First Aid and AED certified — and renewed regularly. They should also participate in EAP training and if in high school, be National Federation of High School Association (NFHS) certified.

Plan Ahead

Having a plan in place with resources available immediately is essential. This includes trainers but also water, cooling stations and cooling tubs. In fact, submerging a heat stroke victim in a cooling tub can immediately start lowering the core body temperature. (Dr. Douglas) Casa’s research reports a “100 percent survival rate in cases where the core body temperature was cooled to below 105.5 degrees in the first half hour.”[18]

Response times are critical and a well-documented and rehearsed EAP can reduce response times. For example, each minute that AED administration is delayed, the athlete’s chance of survival decreases by 10%.[19] EAPs should therefore, be specific to the sport and venue, address personnel to assist and establish lines of communication. It should outline available equipment, emergency transportation plans, venue directions and roles of first responders.

Without an EAP, there’s a risk to the athlete and all others involved in the sport. While public schools liability is limited, coaches can still be held liable through claims of negligence, citing an owed duty of care, a breach of that duty and that the breached duty caused an athlete to suffer measurable injury. Without an EAP, the school and coach didn’t remedy an unsafe condition.[20] Attorney Ben Crump represents two football players who died in 2011 and has claimed that the school “negligently hired, trained and supervised and failed to use proper policies or procedures to address heat-related illness.”

The benefits of an EAP are vast. Not only can they lead to the prevention of athletic injury and provide a more effective emergency response, but they insure a program is readily prepared for emergency situations. It ensures that appropriate care is available in a timely manner and will limit legal action, protecting the liability of schools, coaches and administrators.

The best defense will always be proactive offense. Prevent civil and criminal liability by exercising reasonable care for safety under hot and humid conditions. Instruct athletes on safe procedures and warm them of the risks and dangers so that they, too, can recognize signs of heat injury. By providing medical assistance and creating and following an EAP, the liability for those involved can be greatly reduced, along with the injuries themselves.


Janet Lewis

Ms. Lewis is the Director of Sports & Athlete Relations with Philadelphia-based Locks Law Firm. She can be reached at 215-893-0100 or [email protected].

[4] Poitras, Colin. “Keeping Runners Safe in Summer Heat.” UConn Today. Web. 13 Aug. 2015.

[5] Coaching Education. Korey Stringer Institute. http://ksi.uconn.edu/prevention/coaching-education/. Web. 13 Aug. 2015.

[6] Poitras, Colin. “Keeping Runners Safe in Summer Heat.” UConn Today. Web. 13 Aug. 2015.

[7] Southwest Athletic Trainer’s Association. http://www.swata.org/statistics. Web. 13 Aug. 2015.

[8] Heat Acclimatization Policies. Korey Stringer Institute. http://ksi.uconn.edu/high-school-state-policies/heat-acclimatization-policies/. Web. 13 Aug. 2015.

[9] Tanier, Mike. “Korey Stringer’s Sacrifice and the Battle to Stop Football Heat Stroke Deaths.” Bleacher Report (Aug. 3, 2015). Web. 13 Aug. 2015

[10] Southwest Athletic Trainer’s Association. http://www.swata.org/statistics. Web. 13 Aug. 2015.

[11] Heat Acclimatization Policies. Korey Stringer Institute. http://ksi.uconn.edu/high-school-state-policies/heat-acclimatization-policies/. Web. 13 Aug. 2015.

[12] Tanier, Mike. “Korey Stringer’s Sacrifice and the Battle to Stop Football Heat Stroke Deaths.” Bleacher Report (Aug. 3, 2015). Web. 13 Aug. 2015

[13] Heat Acclimatization Policies. Korey Stringer Institute. http://ksi.uconn.edu/high-school-state-policies/heat-acclimatization-policies/. Web. 13 Aug. 2015.

[14]Emergency Action Plans. Korey Stringer Institute. http://ksi.uconn.edu/prevention/emergency-action-plans/. Web. 13 Aug. 2015.

[15] “Heat Illness among High School Athletes — United States, 2005-2009.” Centers for Disease Control and Prevention. Web. 13 Aug. 2015.

[16] Heat Acclimation. Korey Stringer Institute. http://ksi.uconn.edu/prevention/heat-acclimatization/. Web. 13 Aug. 2015.

[17] Emergency Action Plans. Korey Stringer Institute. http://ksi.uconn.edu/prevention/emergency-action-plans/. Web. 13 Aug. 2015.

[18] Tanier, Mike. “Korey Stringer’s Sacrifice and the Battle to Stop Football Heat Stroke Deaths.” Bleacher Report (Aug. 3, 2015). Web. 13 Aug. 2015

[19] AED Policies. Korey Stringer Institute. http://ksi.uconn.edu/high-school-state-policies/aed-policies/. Web. 13 Aug. 2015.

[20] LaMance, Ken. “Liability of Public Schools for Injuries to Players in School Athletic Events.” Legal Match (20 Aug. 2014). Web. 13 Aug. 2015.

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Attorneys Submit Amicus Brief in the NFL Concussion Litigation

Two high-profile brain injury lawyers have submitted an amicus brief on behalf of the Brain Injury Association of America (BIAA) to the 3rd U.S. Circuit Court of Appeals in the NFL concussion litigation.

The purpose of the brief, according to Shana De Caro and Michael V. Kaplen of De Caro & Kaplen, is to “explain the science of Traumatic Brain Injury (TBI) and the misconceptions inherent and relied upon by the District Court in the settlement agreement.” Their objective: have the court “set the agreement aside in the interest of all retired NFL football players who have sustained brain injury.”

The attorneys wrote in the brief that “the settlement neither recognizes nor compensates the majority of players suffering long-term consequences of brain trauma, but merely rewards certain, small, discrete groups.  The vast majority of retired football players experiencing physical, emotional, and behavioral impairments following repetitive concussions remain excluded and uncompensated under settlement terms.  In the interest of expediency, the District Court relied on self-serving submissions of counsel, which unjustifiably categorized the vast majority of brain injuries as not being ‘serious’ or unrelated to repetitive head trauma, ignoring the overwhelming scientific consensus regarding the causes and ramifications of traumatic brain injury.”

They added that the proposed settlement “is faulty in many respects,” including:

  • “failure to consider subtle differences and distinctions of developing brain damage not immediately apparent;
  • omission of mild brain injury;
  • failure to compensate recognized physical, behavioral, emotional, and cognitive sequelae of concussion;
  • exclusion of well-recognized categories of presumptive brain injury;
  • failure to provide meaningful benefits for cognitive impairment;
  • arbitrary compensation distinctions based upon years of play and age;
  • implicit disregard of overwhelming medical evidence that one concussion can precipitate life-long consequences;
  • an illusory benefit failing to account for required Medicare and Medicaid lien offsets;
  • insurmountable neuropsychological testing criteria;
  • ignoring physical, emotional, and behavioral impairment undetectable by the settlement’s testing protocol;
  • overemphasis on malingering tests; and
  • failure to consider alternate testing modalities, such as diagnostic imaging.”

De Caro and Kaplen were active in concussion litigation long before the sports concussion issue entered the mainstream. De Caro is a member of the Board of Directors of the Brain Injury Association of America and immediate past chair of the American Association for Justice, Traumatic Brain Injury Litigation Group.  Kaplen, meanwhile, teaches the only course on traumatic brain injury law in the nation, at the George Washington University Law School, and is three term past president of the Brain Injury Association of New York State. 

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News Briefs

Former Football Player Indicted for Violating Uniform Athlete Agents Act

A former football player for the University of North Carolina has been indicted by a Grand Jury for violating four counts of the Uniform Athlete Agents Act. Christopher Hawkins was charged with providing money to a former a Tar Heels player, and then illegally contacting another about signing a contract. Specifically, he was accused earlier this year of trying to induce former North Carolina defensive end Robert Quinn to sign a contract with him in 2010 -- by giving Quinn $13,700 in cash and helping him sell game-used equipment for another $1,700. He was also charged with contacting former UNC defensive back Jabari Price through Instagram in 2013, even though he was not a registered agent.

Arkansas Bans Drones from Football Games, Rallies

The University of Arkansas at Fayetteville announced earlier this week a new policy that will prohibit the use of unmanned aircraft systems over the campus, and specifically sporting events, without written permission from the university. Concerns were raised when a drone flew over an Arkansas Razorbacks baseball game earlier this year and then over the university's traditional freshman pep rally, more recently. In a statement, the university noted that the use of drones “poses inherent health, security, and privacy risks to the University community." Operators of drones for research or commercial activities may be exempted. Questions have been raised about the legality of such bans.

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Britton Gallagher to Host Panel on ‘Protecting the Professional Athlete: Employment Issues & Financial Asset Protection’

The Professional Athletes Division of Britton Gallagher will host a Sports Lawyers Association outreach event and panel discussion at Progressive Field (home of the Cleveland Indians) on September 10. The panelists will discuss “Protecting the Professional Athlete: Employment Issues & Financial Asset Protection.” Speaking at the event, which gets underway at 5:30, are Britton Gallagher’s Jim Convertino, Principal & Director of Agent Services for Core 5 Sports Mike Henderson, Principal and Director of Consulting Services for Core 5 Sports Ricky Volante, and Zashin & Rich’s Stephen Zashin. The event has been approved for CLE Credit, and the ticket includes a ticket to the Indians game that evening. For more information, see http://info.brittongallagher.com/protecting-the-professional-athlete-panel

WSU Researchers Find Inaccuracies in Head Impact Sensors

With increasing concern about concussions from sports, some players have started wearing electronic sensors to measure head impacts. But a new study by Washington State University researchers has found that some of the sensors for non-helmeted sports are not fast enough to measure hard hits and don’t accurately measure what are thought to be the most serious, angular hits. “Concussions are a really challenging problem,’’ said Lloyd Smith, professor in the Voiland College’s School of Mechanical and Materials Engineering and director of WSU’s Sports Science Laboratory. “What we’re worried about is what’s going on with the brain, but we don’t have brain sensors that we can plug into. The closest thing is to see what is happening to the skull. That’s what these sensors are trying to do. The message is that you have to be careful with these sensors. They may not work for every type of impact.’’

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Sports Attorney Appointed to Trinity Sports Advisory Board

Attorney and NFL Agent Anthony R. Caruso, Esq., will serve on the Advisory Board for Trinity Financial Sports and Entertainment Management Company (Trinity Sports). Trinity Sports “unites some of the most knowledgeable and successful people in the sports and entertainment business, who provide charitable services to the community through programs including mentoring youth groups and speaking engagements at charity events.” The board is comprised of noted athletes and celebrities including Joe Klecko of the NY Jets, David Tyree of the NY Giants, and Ken Daneyko and Jim Dowd of the NJ Devils. Caruso is the chair of Scarinci Hollenbeck 's Sports and Entertainment Law practice. In addition to sports and entertainment law, he focuses his practice in the areas of corporate and commercial transactions. His clientele includes major corporations, high net worth individuals, artists, professional coaches and athletes, musicians, and various other talent, as well as video/film and television production entities and investment groups involved in all types of projects.

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Sports Litigation Alert is a bi-monthly publication of Hackney Publications. Copyright 2015. All Rights Reserved.

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