Constitutional Law: Freedom of Speech & Social Media
On January 8, 2021, the U.S. Supreme Court granted certiorari and agreed to hear an appeal of the July 2020 B.L. v. Mahanoy Area School District decision by the U.S. Court of Appeals for the Third Circuit upholding a March 2019 District Court ruling granting summary judgment to a cheerleader (B.L.) dismissed from her squad for inappropriate postings on social media. The free speech case was the first before the nation’s high court to address the question of school authority over off-campus, inappropriate postings by students or student-athletes on social media. In May 2017, off-campus and using her privately-owned phone, B.L. took a photo of herself and a friend holding up their middle fingers and posted it on the social media platform Snapchat with the caption “f*** school, f*** softball, f*** cheer, f*** everything.” A few days thereafter, the cheer sponsor informed B.L. that she was being dismissed from the squad because the profane posting violated the student-athlete code of conduct in that it was “disrespectful to the coaches, the school, and the other cheerleaders.” The U.S. District Court’s 2019 decision that the cheerleader’s free speech rights had been violated was based on the precedents established in the U.S. Supreme Court’s rulings in Tinker v. Des Moines ISD (a substantial disruption had not occurred as a result of B.L.’s Snapchat posting) and Bethel School District v. Frasier (through which the high court limited the authority of schools for the use of profane language by students to that which occurs on campus). The oral arguments in the case were held before the high court on April 28, 2021 and on June 23, 2021, the high court ruled 8-1, with only Justice Thomas dissenting, in favor of the cheerleader, concluding that B.L.’s First Amendment right of free speech had been violated.
The Supreme Court relied on three rationales for concluding that B.L.’s free speech rights had been violated:
Also important in the Mahanoy ruling are the “special characteristics” explicitly set forth by the Court in its holding – the circumstances in which schools will be allowed to regulate off-campus expression – and when attempting to regulate such speech, officials should “paper the trail” by thoroughly documenting the existence of the special situation legally justifying school control over off-campus student communications: substantial disruption of the educational or athletics environment, severe bullying of students or school officials, threats against students or staff, use of school computer hardware or software, online school activities, academic integrity violations, and online breaches of school security.
Constitutional Law: Freedom of Speech & Political Protests
In September 2021 an administrative agency complaint lawsuit was filed with the Florida Commission on Human Relations, Studley v. American Heritage School, asserting that the complainant, the former girls’ basketball coach at the institution, was fired for allowing his players to wear Black Lives Matter t-shirts during pre-game warm-ups (but not during the game itself), allegedly in violation of the school’s jersey policy and without prior approval by school administrators. According to the complaint, the school had previously allowed numerous such political demonstrations by students, including ones supporting the former U.S. President and other conservative causes, but sanctioned the female basketball players by cancelling several games and other team events for their advocacy for a cause unpopular in the local community. Although the players likely would not be able to claim a violation of their free speech rights because American Heritage is a private school not bound by the First Amendment’s free speech guarantees, the coach may have access to employment discrimination remedies set forth in federal and Florida statutes. The complaint will be investigated and a ruling issued sometime in 2022. The standard of practice that emerges from such cases, many of which have occurred across the country in recent years, is that all schools should proceed with caution when considering punishment of or sanctions against student- athletes or coaches for expressing their political views, regardless of the ideological leanings of those views.
Constitutional Law: Freedom of Religion & Prayer
In July 2021, in Kennedy v. Bremerton School District, the U.S. 9th Circuit Court of Appeals refused to grant an en banc rehearing of its March 2021 upholding its October 2017 ruling against a public high school football coach (a “state actor”) who held on-field prayers with players after games. In July 2021, the coach stated that he will now request that the U.S. Supreme Court hear an appeal of the case. In January 2019, the high court declined to hear an appeal of a previous 9th Circuit ruling in 2017 against the coach, but four conservative Justices took the unusual step of including along with that denial of certiorari a six-page statement that they believed the coach might have justiciable issues related to freedom of speech and free exercise of religion. The issue is whether his on-field prayers constitute private or public speech – only if public would his actions constitute an Establishment Clause violation – and with the recent appointment to the Court of an additional conservative Justice (Coney-Barrett), there is a possibility the “Supremes” may now agree to hear an appeal of the Kennedy case.
Constitutional Law: First Amendment Freedom of Assembly
On November 30, 2020, a U.S. District Court in Pennsylvania, in T.W. v. Southern Columbia Area School District, ruled in favor of the district’s one-year suspension of a senior football player/ wrestler for his third violation of the school’s zero-tolerance drug/ alcohol policy and refused to issue an injunction that would have restored the athlete’s eligibility. T.W.’s first violation was a drunken driving arrest, his second was attendance at a party where widespread drinking was openly taking place, and his third was being present at an event to which police responded where drinking by minors was taking place and at which T.W. was cited even though he was not drinking. “The Court is satisfied that the risk of harm from enjoining the [school district’s] ability to consistently enforce it disciplinary rules sufficiently outweighs [the student-athlete’s First Amendment right of assembly to be where he chooses and associate with whomever he chooses],” stated the federal judge in his written opinion. “Neither T.W. nor his parents have established a likelihood of success at a full trial on their constitutional claims. Moreover, the public has a strong interest in deterring underage drinking amongst students that would be harmed by enjoining T.W.’s suspension.” Most similar cases in recent years across the country have been decided in favor of upholding zero tolerance drug/alcohol clauses in codes of conduct, with the only exceptions being in states where by statute or state association policy, schools are limited to sanctioning behavior that occurs during the sports season or school year, an issue which ADs must address by researching and staying current with their jurisdiction’s law and their state association’s policies.
Constitutional Law: Equal Protection & Race-Ethnicity-Religion Discrimination
In June 2021, supported by the NFHS Board of Directors, six NFHS Rules Committees, in an effort to honor student-athlete Equal Protection rights guaranteed by the U.S. and state constitutions, modified rules related to uniforms, swimwear, hairstyles, or other gear worn during competition to allow student-athletes the latitude to respect their religious and cultural beliefs and backgrounds without prior approval from state associations, as long as the safety risk from the modification would not be significant, does not negatively impact sportsmanship, and will not impose undue financial hardship on schools. For instance, participants in volleyball, basketball, soccer, field hockey, and spirit will now be permitted to wear religious headgear (e.g. hijabs) and in swimming and diving, athletes may wear suits that provide full body coverage. In order to protect athletes from discrimination based on race, ethnicity, and religion, it will be incumbent on ADs and coaches to stay abreast of and implement new directives issued by NFHS Rules Committees and approved by the NFHS Board.
Athletic administrators and coaches must also take immediate corrective action in the event student-athletes are harassed on the basis of race, ethnicity, religion, or cultural background. In September 2021, a settlement of $862,500 was paid in Banks v. Baraboo School District (WI), a case in which a female basketball player had allegedly been harassed through the use of the n-word, Confederate flag, and Nazi salutes by classmates and teammates regarding her race, skin color, coarse hair, and other cultural behaviors – harassment that grew so severe that she was forced to transfer to a school in another district. U.S. Supreme Court precedents have established a legal standard of strict liability (automatic liability) for districts, administrators, and athletics personnel having knowledge that such harassment is occurring and exhibiting deliberate indifference towards remedying the discrimination. Knowledge plus deliberate indifference is the two-pronged legal standard, therefore school officials must ensure that as soon as there is knowledge of a problem, investigation is undertaken and corrective measures are implemented in order to avoid a finding of deliberate indifference.
Constitutional Law: Equal Protection & Transgender Students
On January 20, 2021, the day of his inauguration, President Biden signed a series of Executive Orders, including EO 13988, titled Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation, explicitly reinstating protections against discrimination for LGBTQ individuals, students and student-athletes. The restoration of the policy that the definition of the word “sex” in Title IX refers to “gender identity” will likely affect the outcome of OCR complaints, federal lawsuits, and proposed/ enacted state laws related to the sports participation rights of transgender students.
On April 25, 2021, a U.S. District Court dismissed a federal lawsuit, Soule et al v. Connecticut Association of Schools, filed in February 2020 against the Connecticut Interscholastic Athletic Conference (CIAC) and six school districts challenging a policy that permits transgender student-athletes to compete based on their gender identity. The plaintiffs were three cisgender (non-transgender) female track athletes who claimed that they had no chance of ever winning a race against transgender female tracksters because of their supposed physical superiority. Parallel to the federal suit, a complaint was filed with the OCR by the same three cisgender females challenging the same state association policy, a complaint now likely to be resolved in favor of the defendants based on EO 13988 (see above). An interesting footnote to the Connecticut dispute is that twice in eight days, on both February 14, 2020, and February 22, 2020, Chelsea Mitchell – one of the cisgender plaintiffs/ complainants in the cases who had stated, “No matter how hard you work, you don’t have a fair shot at victory when competing against transgender girls,” defeated Terry Miller, a transgender opponent, on the first occasion to win the Class S 55-meter State Championship and on the second occasion to win the All-Class 55-meter State Title.
On August 17, 2020, before the most recent Presidential election and before the issuance of EO 13988, in Hecox et al v. Little, a U.S. District Court in Idaho blocked the implementation of a state statute, Idaho HB500, limiting participation by transgender women and girls on university and high school athletics teams, concluding that the law violates the Equal Protection guarantees set forth in the Fourteenth Amendment to the U.S. Constitution. A lawsuit had been filed by transgender Idaho college and high school athletes in March 2020 after HB500 was enacted and the TRO issued by the federal court will bar its implementation pending a full trial in the case. In issuing the injunction, the District Court concluded, “in making this determination, it is not just the constitutional rights of transgender girls and women athletes at issue, but the constitutional rights of every girl and woman Idaho. Because the Court finds Plaintiffs are likely to succeed in establishing the Act is unconstitutional … it must issue a preliminary injunction at this time pending trial on the merits.”
Since 2019, eight other states have enacted statutes similar to Idaho’s limiting sports participation by transgender females (MT, TN, WV, AR, MS, AL, FL, TX) and one state implemented restrictions through an executive order by its governor (SD). Supporters of the laws argue that without such bans, women’s and girls’ sports at the college and high school level will become dominated by transgender females, although none of the state legislators sponsoring the bills have been able to offer specific examples of unfair competitive advantage, leading to the repeated use of what has now become a clichéd phrase that the state laws are “a solution in search of a problem.” The legislatures of three states (KS, LA, ND) passed such bills that were then vetoed by their governors and 23 other states have voted down the enactment of such legislation. Several of the proposed laws would have mandated visual inspections by athletic personnel to verify gender in cases where an athlete “looked” like they might be transgender and one bill would have criminalized the attempted participation in sports by a transgender girl.
For a thorough summary of the policies of all 50 states and D.C., read the study conducted by ESPN titled Alabama to Wyoming: State Policies On Transgender Participation.
Constitutional Law: Privacy Issues
In a January 2021 Minnesota civil suit seeking $500,000 in damages, Roe v. Roiger and Snap Fitness, and a 2020 criminal prosecution, State v. Roiger, the escalating problem of photos and videos being taken in locker rooms, shower rooms, and other private areas within athletic facilities was illustrated when a woman (unnamed plaintiff Roe) became aware that a fitness center owner had installed a surveillance camera in a tanning booth which had allegedly been used to observe her as she “removed her clothing without knowing she was being viewed.” Defense attorneys asserted in the cases that the camera was merely a deterrent to prevent theft from the booth and that signage was posted to warn users of the presence of the recording device. The cases are still making their way through the courts, however, with the ubiquity of cameras in phones, tablets, laptops, and other electronic devices, the situation highlights the need for school policies banning cameras from all private areas within school athletic facilities.
Similar cases arose during the last year, including the August 2021 arrest of an assistant high school football coach at Los Osos High School (CA) after a hidden camera was discovered in a female locker room and searches of his electronic devices led to the discovery of images and videos resulting in felony charges for the possession and production of child pornography. The coach is being held on a $500,000 bail pending his criminal trial and in October 2021, a class action civil suit on behalf of potentially several thousand female victims (every girl recorded nude or partially undressed dating back to the beginning of the current statute of limitations in 2015) was filed against the school district, school administrators, and other athletics personnel.
In October 2021, a teacher and golf coach at Rockville High School (CT) was arrested and charged with multiple felony counts related to child pornography and voyeurism after electronic communications via email and social media were flagged by the National Center for Missing and Exploited Children and an ensuing investigation traced dozens of photos to his classroom and school sports facilities, including dozens of images stored on his devices and in accounts (in the “cloud”) being used to store the photos in an effort to avoid discovery of his alleged criminal malfeasance. He is being held on a $300,000 bail pending his criminal trial, and a civil suit against the district, school, administrators, and athletics personnel have yet to be filed.
Constitutional Law: NIL Issues in High School Sports
On June 30, 2021, the day before a dozen state laws addressing Name, Image & Likeness (NIL) rights for student-athletes were scheduled to take effect, the NCAA adopted a set of interim rules allowing compensation for college athletes for the use of their NIL, regulations that will remain in place until a permanent NCAA policy or federal legislation is enacted governing the issue. The 22 states with NIL laws in effect as of the end of 2021 are CA, OR, AZ, NM, CO, TX, OK, MO, KY, LA, IL, MS, AL, GA, FL, SC, VA, NC, OH, PA, MD, and CT. Seven states have enacted NIL laws that will go into effect between 2022 and 2025: MT, NV, NE, AR, TN, MI, and NJ. Eleven others have NIL legislation pending: KS, HI, IA, MN, WV, MA, NH, RI, VT, WA, and NY. Five bills have been introduced in Congress to establish uniform, federal regulation of NIL rights for college athletes, but those proposals are in the early stages of the legislative process and no action is expected on the bills until well into 2022.
All of the enacted/proposed state laws limit NIL rights to college athletes and include express written provisions excluding high school athletes, whose amateur status is to be regulated exclusively by state association rules. The precise requirements set forth in each state statute, including restrictions on NIL agreements between endorsers and athletes (e.g. protections for students designed to safeguard them against financial exploitation), prohibited industries for NIL deals (e.g. alcohol, tobacco, firearms, gambling), and disclosure mandates (e.g. by athletes to their institutions), are available from the National Conference of State Legislatures (www. ncsl.org).
Of concern to school and athletic personnel nationwide is the impact of NIL legislation on high school athletic programs and student- athletes, including those explicit provisions in NIL state laws related to high schoolers and their amateur status, the unintended consequences of NIL statutes on pre-college athletes, and the impact of state association policies on the preps.
At present, only three state associations have amateurism rules allowing high school student-athletes to be compensated for their NIL. On October 20, 2021, the New York State Public High School Athletic Association (NYSPHSAA) announced a revision of its definition of an amateur so that student-athletes can now “participate in commercial endorsements provided there is no school team, school, section, or NYPHSAA affiliation.” Therefore, athletes will not be allowed to exhibit in a commercial setting their uniforms, logos, or other identifying insignia of their team, school, section, or the NYSPHSAA. Given that the high schoolers most likely to enter into NIL deals are either 1) individuals with huge followings on social media because of non-sports-related content posted online or 2) high-profile athletes with extensive followings on social media primarily because of their sports notoriety, the challenge in policy enforcement will be the somewhat subjective determination as to whether those falling into the second category are benefitting financially from a school-sports-affiliated NIL agreement.
The California Interscholastic Federation (CIF) has long permitted non-athletics-affiliated NIL deals for student-athletes because of the high number of young people in the state who receive compensation arising out of the film, television, and music industries based in the state.
In October 2021, the New Jersey State Interscholastic Athletic Association (NJSIAA) adopted a policy permitting high schoolers to receive NIL compensation without a loss of amateur status, again with the limitation that they will not be allowed to exhibit in a commercial setting their uniforms, logos, or other identifying insignia of their team or school, with the new regulations scheduled to take effect on January 1, 2022.
In order to stay abreast of this rapidly evolving sports law issue, school officials will need to monitor their state laws using the NCSL website (see above) and stay current regarding their state association policies. The challenge going forward for state associations, schools, and athletics administrators in jurisdictions not granting NIL rights to high schoolers will be dealing with the wide range of emerging issues such as well-known student-athletes opting out of playing for their high school teams so that they may benefit financially from NIL deals (perhaps playing only for club, private, or elite teams that permit NIL compensation), or well-known student-athletes skipping their senior year of high school in order to matriculate early to a university and cash in on their NIL rights, or the transfer of well-known student-athletes to non-state-association schools (e.g. IMG Academy, Finley Prep, Prolific Prep) that permit NIL compensation, or groups of private schools withdrawing from state associations and forming their own governance organizations that enact liberal NIL rules, thereby leading to huge numbers of transfers from public schools to those private institutions by students wishing to exercise their NIL rights.
Criminal Law: Failure to Report Child Abuse
In a situation reflecting the importance of schools and athletic programs taking proactive measures to ensure that all sports personnel, including athletic directors, coaches, athletic trainers, and other officials involved in high school sports, fulfill their obligations under state child abuse reporting laws, in August 2021, the AD at Chatfield High School (CO) was charged with a misdemeanor count of failure to report child abuse or neglect (under state law, he was a mandatory reporter) and both the AD and the school’s principal were placed on administrative leave by the Jefferson County Public Schools related to an alleged hazing incident in July involving members of the school’s baseball team. As have so many sports initiation rituals in recent years, the Chatfield hazing events allegedly involved elements of sexual misconduct and because, as in most instances of hazing in high school athletics, the victims were minors, the incident triggered the requirements set forth in the Colorado Child Abuse Reporting Act.
Because the situation involved juveniles and because of student privacy laws, neither the Jefferson County Sheriff’s Office nor the school district have disclosed the precise details of sexual components of the hazing perpetrated on underclassmen baseball players by the older players. However, in October 2021, both the principal and the AD resigned from their positions at Chatfield. As has happened in so many similar cases across the country in recent years, school officials and athletics personnel are often unsure whether they are mandatory reporters and therefore neglect to contact the appropriate child protective services agency or law enforcement and ultimately are charged with the crime of failing to fulfill their duties under the state’s child abuse laws. Schools and athletic programs must provide written information to all personnel regarding the details of their state law, in-service all personnel on the critical importance of satisfying their obligations pursuant to the state law, and monitor ongoing compliance by personnel with the state law.
Criminal Law: Liability for Heat Stroke Death
In July 2021, a Clayton County Georgia grand jury issued an indictment charging two coaches for the girls’ basketball team at Elite Scholars Academy, a charter high school in the Clayton County Public School System, with second-degree murder, second-degree child cruelty, involuntary manslaughter, and reckless conduct for the August 13, 2019, death of 16-year-old Imani Bell who collapsed and died from heat stroke during a required conditioning drill while running football stadium stairs in temperatures in the high 90s and a heat index estimated to have been 106 degrees.
In February 2021, a wrongful death civil lawsuit was filed against the district, high school, school officials, athletic administrators, and coaches, claiming negligence by the defendants in failing to exercise reasonable care in fulfilling their duties of planning, supervision, selection and training of coaches, proper technique instruction, providing a safe playing environment (including assessing heat indices), monitoring athletes for injuries and incapacities, providing appropriate immediate medical assistance, and having in place an emergency medical response plan that could be promptly activated in such circumstances. The civil suit also stated that the defendants failed to adhere to the Georgia High School Association (GHSA) rules mandating the use of Wet Bulb Globe evaluation as to whether it is safe to practice or conduct conditioning drills outside and that the defendants also failed to follow GHSA regulations governing when basketball conditioning and practices could begin. A few months after Bell’s death, the district issued enhanced directives governing sports safety protocols, including measures related to the hiring and initial training of coaches, including mandates for First Aid training, CPR certification, AED education, and Code Blue training, along with the use of the online platform Dragon- Fly on which student-athlete health information such as physicals, medical history questionnaires, concussion paperwork, and other medical forms is organized.
Liability for Sports Injuries: Duty to Supervise
In February 2021, a seven-figure settlement was reached in Mileto v. Sachem Central School District and Sachem East Touchdown Club, a lawsuit arising out of the death of Joshua Mileto, a junior football player at Sachem East High School (NY) who in August 2017 was participating in a football camp conditioning exercise allegedly designed by one of his coaches who had seen a television show featuring training drills used by Navy Seals. The high school football version of the conditioning exercise featured groups of five players running as they carried a 400-pound log on their shoulders, a drill during which one member of Mileto’s group stumbled and fell, with all of the others except for the 5’6” 134-pounder safely diving out of the way and the log falling on Mileto’s head, killing him. The suit, filed in late 2017 by Mileto’s family seeking $15 million in damages, was against the school district, the football booster club that financially sponsored the camp, and various school/athletics administrators and coaches. The precise financial and liability terms of the settlement were undisclosed and protected by a confidentiality agreement, although the Mileto family is declining to keep any of the money and instead using the funds to establish scholarships in memory of Joshua and to fund efforts to improve sports safety initiatives for high school and youth football programs.
Liability for Sports Injuries: Duty to Provide a Safe Environment
In July 2021, in Zimmer v. Billings School District, a case illustrating that one component of the duty of schools and athletic programs to provide a safe environment, is that sports facilities must comply with local safe building codes, a negligence lawsuit filed in state court in Billings, Montana was settled for $500,000 with family of an eight-year-old boy who in March 2018 fell 10-feet onto a hardwood floor through a safety railing on gymnasium bleachers at West High School. The Zimmer family was attending an AAU volleyball tournament held at the school and when the boy fell through the railing, he sustained a skull fracture requiring life-saving surgery and ultimately resulting in more than $100,000 in medical expenses. The gaps between the railing’s horizontal stanchions exceeded that allowable under local safe building codes and following the incident, the protective framework was redesigned and brought up to code. The standard of practice from the case is that school and athletics administrators must ensure that all sports facilities are inspected by someone with knowledge of local zoning and safety codes and that identified instances of non-compliance are corrected.
In the February 2021 decision in Barrigan v. Continental Soccer League, a case involving the duty to provide a safe environment and which illustrated the dangers of allowing spectators to stand too close to the action at sports events and also highlighting the need for adequate lighting at contests, the California Court of Appeals reversed a lower court dismissal of a suit involving a May 2016 incident in which a mother standing on the sideline of a dimly-lit field watching her son play in a soccer game, and who was run over by two players chasing a ball out of bounds, resulting in her suffering a compound leg fracture and incurring more than $60,000 in medical expenses. The trial court concluded that the mother had assumed the risk of injury by watching the game from the sideline, but the appellate court overturned the lower court’s decision by ruling that assumption of risk applies only to inherent risks that are not exacerbated by a failure to exercise reasonable care and that the defendant had significantly increased the risk of injury by allowing a spectator to stand directly next to the sideline and by having inadequate lighting on the field – only half of the stadium’s lights were illuminated, resulting in spectators in the victim’s location standing in near darkness where players running off the field could not see them.
Liability for Sports Injuries: Duty of Supervision – Pool Safety & Drownings
In a September 2020 Illinois Court of Appeals ruling in Estate of Michal Duda v. Village of Bridgeview and Justice Illinois Park District, a case involving the duties of supervision, hiring and training of athletics personnel, proper technique instruction, and safe environment – along with issues related to the difference between ordinary negligence (lack of reasonable care) and the higher standard of recklessness (willful, wanton behavior) necessary to override statutory immunity protections for public entities, a jury award of $21.5 million was upheld to the family of a six-year-old boy who drowned at a camp sponsored by Bridgeview and the Park District. During the June 2014 camp, participants were divided into three age groups and given swim tests, with four of the 27 youngsters in the five-to-seven-year-old range, including Michal Duda, being identified as non-swimmers and thus required to wear “water wing” flotations devices in the pool. On the second day in the pool, the three counselors for Duda’s age group were aware that he was repeatedly removing his water wings, following each instance of which they replaced the flotation devices and reprimanded the boy. At the end of the day’s swim session, Duda’s age group was the first to exit the pool, which was still crowded with more than fifty members of the two older age groups. Duda exited the pool, but somehow made his was back in without his water wings, and after the older age groups exited the pool, Duda was discovered floating unconscious in the shallow end, transported to a hospital where he was revived after more than an hour of cardiac arrest, but eventually died. At trial, the jury found that the three counselors for Duda’s age group had violated their duties to protect the boy and decided on the $21.5 million amount, $3 million of which was to be covered by a settlement reached with Bridgeview and the remaining $18.5 million by the Park District.
The key issue on appeal was the question whether the counselors’ failings constituted ordinary negligence, in which case the Park District would be shielded from liability by Illinois’ Statutory Immunity law or whether the counselors had acted recklessly, in which case statutory immunity would not serve as a shield. The appellate court upheld the damages by concluding that the counselors had acted recklessly (willful, wanton conduct) because they were aware of the extreme danger of drowning for the four non-swimmers in Duda’s age group, who could not stand even in the shallow end of the pool with their heads above water, and the counselors were also aware of Duda repeatedly removing his water wings, yet they still allowed him in the water without making him wear a full lifejacket and providing more intensive supervision.
Liability for Sports Injuries: Duty to Monitor for Injury & Incapacity – Heat Stroke
In a college sports lawsuit with ramifications for high school athletics programs nationwide, McNair v. University of Maryland, a $3.5 million settlement was agreed to in January 2021, related to the 2018 death from heatstroke suffered during a practice of offensive lineman Jordan McNair. Despite exhibiting multiple symptoms of heat exhaustion, McNair was coerced into continuing to practice by athletic training staff and coaches, including the since-fired head coach who a subsequent independent investigation revealed had fostered a culture of fear and intimidation resulting in numerous players being pushed to extremes in ways unsafe and detrimental to the health and well-being of athletes. One of the conclusions stated in the independent investigation was “[t]here was a failure to identify escalating symptoms associated with exertional heat illness, including assessing vital signs, identifying the condition, and aggressively treating the patient’s elevated core temperature. No apparatus was used for prompt cooling of the patient.” The lawsuit asserted violations of several of the duties imposed on athletics personnel, including planning, supervision, proper technique instruction, safe playing environment, immediate medical response, and the key responsibility involved in the situation, the duty to monitor athletes for injuries and incapacities. It is important to note that in addition to the tragic loss of a young man’s life, the failure to fulfill those duties cost the institution not only the $3.5 million tied to the settlement, but an additional $1.57 million in expenses for the independent investigation which generated a detailed set of recommendations to ensure that such a tragedy never again occurs at the school.
Liability for Sports Injuries: Concussions
In July 2021, a U.S. District Court Judge in Oregon approved a settlement in Martin v. Hermiston School District, bringing to a conclusion a lawsuit originally filed in 2018 seeking damages for a concussion suffered by a sophomore player in a JV game. In 2016, the athlete took a helmet-to-helmet hit during a JV contest and, allegedly, the coaches and athletic trainer failed to recognize what the suit asserted were clear indicia of a traumatic brain injury and the player was reinserted into the game. The suit also asserted that his parents were not informed about the injury, that concussion protocols mandated by Oregon state law were not followed, and that the student-athlete was not administered proper cognitive testing to determine his preparedness to safely return to play. In subsequent games, the player sustained additional blows to the head, resulting in extensive medical problems allegedly arising from second impact syndrome. In the months that followed, the young man suffered from a range of issues such as loss of brain function, memory loss, extreme anxiety, and severe depression, leading to an attempted suicide.
The initial filing in the lawsuit named as defendants the district, the school’s athletic director, members of the football coaching staff, and the school’s athletic trainer, and sought $13.2 million for past and future medical expenses, $25 million in punitive damages, and $350,000 for the emotional distress suffered by the victim’s parents. The financial terms of the settlement were not disclosed, but have been reported to be far less than the amounts originally requested because of discrepancies in the player’s account of his injuries and the RTP protocols that were employed by the school. In 2020, the federal judge dismissed the claims against the AD, football coaching staff, and athletic trainer, therefore presumably the settlement involved only the district (and its insurers).
In January 2021, in Doe v. Milton School District, a case representative of an issue that has been afflicting high school athletic programs for many years and related to which several dozen civil lawsuits and criminal prosecutions are litigated every year, the Vermont Supreme Court ruled that the district must pay a former Milton High School football player $466,666 for a hazing ritual that occurred at an unsupervised, off-campus team dinner in 2012 at the home of a player on the squad. In November 2019, a jury awarded the victim $280,000 after finding him 40% responsible for the incident in which the player, a 14-year-old freshman at the time, was sexually assaulted by upperclassmen who physically held him down and penetrated his rectum with a pool cue. The Vermont Supreme Court restored to the jury award the 40% deduction of damages ($186,666), concluding that it had been an incorrect (and offensive) application of comparative negligence principles for the lower court to find that the victim had in any way been contributorily negligent when he was sexually assaulted. The direct perpetrators of the sexual assault pleaded guilty during their criminal prosecutions and the standard of practice that emerges from the civil suit is that school districts and athletic personnel will be held responsible for failing to act with reasonable care in regard to developing and implementing a substantive anti-hazing policy, educating coaches and student-athletes about the policy, and supervising student-athletes in those situations and environments where hazing is most likely to occur. Another legacy of the case and the many similar incidents that occur every year across the country is that, because the victims of hazing in school sports programs are almost always minors, district administrators and athletics personnel must be sure to fulfill their mandatory notification duties under state child abuse reporting laws. The case was noteworthy because another Milton student, Jordan Preavy, committed suicide one year after a similar attack that had occurred in 2011.
Sexual Harassment & Assault
In July 2021, a $300,000 settlement was agreed to in Torres v. Sugar-Salem School District (ID), a lawsuit in which a school counselor-teacher-coach “groomed” a student beginning in her sophomore year, leading to a sexual relationship and resulting in emotional injuries, severe depression, and suicidal leanings for the young woman. It was unclear from the evidentiary discovery process in the suit – now dismissed after the settlement – whether school officials fulfilled their mandatory notification requirements as required by Idaho’s state child abuse reporting law. The case was originally filed in federal court and asserted a violation of Title IX, the federal law protecting students from gender-based discrimination including that which might occur in school sports programs, and that which might occur through sexual harassment or sexual assault like in the Sugar-Salem case. If the case had gone to trial instead of being settled, the key issue concerning the liability of the district and school officials would have been whether anyone at the school was aware of the inappropriate relationship, and if so, whether corrective actions were immediately implemented by those staffers. Under existing U.S. Supreme Court precedents, districts and personnel will be held strictly liable (auto matically liable) if there is 1) knowledge of the harassment and 2) deliberate indifference to remedying the situation.
Title IX & Sports Inequities
In March 2021, in Gordon v. UHSAA & Jordan School District, a U.S. District Court in Utah issued its written decision in a landmark Title IX case in which the plaintiffs sought to have the state association institute tackle football as an interscholastic sport for girls across the state. In 2017, Samantha Gordon, a student at Herriman High School in the Jordan School District, along with other plaintiffs attending schools in the Salt Lake City area, sued the Utah High School Activities Association (UHSAA) and the Jordan, Canyons, and Granite districts, asserting that the failure of the state association and districts to offer separate tackle football teams for girls was a violation of their Equal Protection rights as set forth in the Fourteenth Amendment to the U.S. Constitution and of their statutory rights as set forth in the Title IX law.
In 2012, at age nine, Gordon became famous via social media for her football exploits in a boys youth football league, leading to her being featured on the front of a Wheaties cereal box. In 2015, at age 12, she was one of the founding players in the Utah Girls Tackle Football League (UGTFL), an organization created by her father which in its first five years grew from 50 participants to 490. And in 2019, at age 16, during Super Bowl LIII, she was featured in the game’s top-ranked commercial titled NFL: 100-Year Game, in which an impromptu football game breaks out during a banquet for legends of the game ranging from Peyton Manning, Joe Montana, Jim Brown, Barry Sanders, and Emmitt Smith, to Patrick Mahomes, Baker Mayfield, Christian McCaffrey, Tom Brady, and Rob Gronkowski, with its conclusion showing Samantha Gordon with the ball running circles around the pros in a ballroom that has been completely destroyed by the pickup contest. In the Gordon v. UHSAA & Jordan School District lawsuit, a 13-day bench trial (no jury and a judge deciding the case) took place between September 8 and 25, 2020, with closing arguments held on October 28, 2020, and a written ruling issued by the court on March 1, 2021.
The two legal issues presented by the case were the questions as to whether the failure of the UHSAA and defendant-districts to offer separate high school tackle football competition for girls was a violation of Fourteenth Amendment Equal Protection principles and the question as to whether the failure to offer tackle football for girls was a violation of the mandates of Title IX? Regarding the Equal Protection issue, the court ruled in favor of the UHSAA and districts, concluding that no constitutional violation had occurred because 1) girls across Utah are allowed to try out for boys’ football teams and do in fact play on those teams (albeit in far smaller numbers than boys) and 2) no evidence was presented at trial that girls in Utah were excluded from boys’ teams solely because of their gender.
Regarding the Title IX issue, the court also ruled in favor of the UHSAA and districts, concluding that Gordon and the other plaintiffs did not satisfy their burden of proof to establish that the defendants had failed to fully and effectively accommodate the athletic interests and abilities of female students by showing three criteria: 1) unmet interest in a particular sport, 2) sufficient ability to sustain teams in the sport, and 3) a reasonable expectation of adequate competition for those teams.
Disabilities Laws Applied To Athletic Programs
In August 2021, a complaint alleging violations of the Americans With Disabilities Act (ADA) and Section 504 of the Rehabilitation Act of 1973 (Section 504) was filed with the U.S. Department of Justice’s Office for Civil Rights against the Colorado High School Athletics Association (CHSAA) on behalf of a 16-year-old Coronado High School swimmer with Type 1 Diabetes who was disqualified from participating in the state championship swim meet because of the tape he was wearing to affix a blood glucose monitor to his arm to track his blood sugar levels. He had competed throughout the regular season without any concerns regarding the glucose monitor and he had an approved Section 504 plan in place allowing him to “engage in management of his diabetes anytime, anywhere, during school activities, field trips, or other school-sponsored activity.” When participating in a high-exertion activity such as swimming, constant monitoring is crucial to correcting fluctuations in blood sugar in order to prevent an individual from becoming hypoglycemic, hyperglycemic, or suffering an incident of diabetic ketoacidosis. His disqualification, which because of the number of events in which he was scheduled to compete, also resulted in the disqualification of his entire team from the meet and according to state association officials running the competition was because the use of the tape to hold the monitor in place in the pool would supposedly increase his “speed, buoyance, or body compression” in the water, thereby giving him a competitive advantage.
Violation of the ADA and Section 504 require proof that an athlete 1) suffers from a disability and 2) is otherwise qualified to participate, along with 3) a showing that the requested accommodation is “unreasonable.” The first two criteria are undisputed in the CHSAA dispute – Type 1 Diabetes clearly fits the definition of a disability and the swimmer satisfied all of the other skill and eligibility requirements to be considered otherwise qualified. The only issue would be whether the swimmer’s use of a piece of tape over a glucose monitor would be an unreasonable accommodation – one that would fundamentally alter the nature of the sport – a claim that in this case would seem to be difficult to argue because the tape over the monitor was not the type of extensive taping giving rise to an increase in “speed, buoyance, or body compression” that the CHSAA rule was designed to prevent.
Lee Green is an attorney and Professor Emeritus at Baker University in Baldwin City, Kansas, where for 30 years he taught courses in sports law, business law and constitutional law. He is a member of the High School Today Publications Committee. He may be contacted at Lee.Green@BakerU.Edu.