STUDY FINDS LIFELONG VALUE IN HIGH SCHOOL ROM THE YM TO THE URY SPORT PARTICIPATION F G J See page 10 America’s Leading Authority on Injury, Liability, and Litigation in Sports ISBN 1054-1950 • Vol 24 • No 4 NFL OFFERS LAWSUIT ALLEGES COMPENSATION PLAN The National Football League UNSAFE TACKLING (NFL) submitted an 85-page roadmap detailing proposed com- pensation for former players with LED TO PARALYSIS cognitive disorders. US District youth sport football player made a tackle in a 2011 game. His family Judge Anita Brody must approve Aalleges that his Pop Warner coach taught him to use an illegal tackling the plan. The proposed $765 mil- technique and that his paralysis is due to this unsafe method of tackling. lion settlement could result in $5 The family filed a lawsuit against the Pop Warner organization saying, “As million payments for those with [the player] approached contact with his opponent, he dropped his head amyotrophic lateral sclerosis, or down, kept his arms at his side and initiated the tackle head first. Upon Lou Gehrig’s disease; a $4 million contact with the opposing player, the athlete immediately went limp and payment for a death involving dropped to the field unmoving.” The suit alleged he suffered a catastroph- brain trauma; and, $3 million pay- ic spinal cord injury and has minimal use of his arms and no movement ments for dementia cases among from the chest down because he tackled the way he was taught — “head other payments. first.” In August, Pop Warner Football announced it was joining the News & Record, Greensboro, NC, January 7, 2014 “Heads-Up Football” program sponsored by USA Football and would Editor’s Note: On January 14, become a recipient of National Football League (NFL) funding. Heads-Up, 2014, Judge Brody denied the pre- teaches players to hit and tackle with their heads to the side. liminary motion for approval of the USA Today, November 8, 2013 proposed settlement fearing it was IN MY OPINION not enough money to cover the While the young athlete does not want to sue his coaches, his family is seek- needs of the players. She is con- ing compensation to offset the enormous amount of money it will take to cerned with the lack of documenta- care for their son for the rest of his life. In a similar case, Mark v. Colgate, the tion regarding the fairness of the attorney for Mark in his suit against Colgate University discounted the claim final monetary figure and whether that a defective helmet led to his client’s paralysis injury. The attorney insist- the players would be properly diag- ed that most head injuries in football are the result of dangerous tackling nosed and compensated. Brody is techniques. Following injury and lawsuit, Mark has become an attorney and asking for additional information has promoted proper tackling techniques for all players at all ages. on how the fixed settlement amount of $765 million could pos- COACH FIRED FOR RUNNING-UP SCORES sibly meet the needs of the approxi- Football Coach of the Year and the Virginia Independent Schools mate 20,000 people who are eligi- Athletic Association Division Two State Championship winning coach, ble for compensation over the 65- Carl Turner, has been fired. Turner has stated that he was fired because year lifespan of the settlement class. his Bishop Sullivan Catholic High School team, on route to a perfect 2013 It is possible that the NFL will pro- season, ran-up the scores on several opposing schools. The team’s overall vide the necessary documentation margin of victory in 12 games was 27.6 points with its most lopsided win and that Judge Brody will be satis- a 62-6 victory. Bishop Sullivan’s principal has said that the coach left the fied with the settlement as it stands. school to spend more time with his family. If the documentation is not forth- Following dismissal, Turner stated that a “real man” would have fired coming or if the provisions do not him after the last game rather than waiting until the Christmas break. make sense to Judge Brody, she Turner was aware that the Bishop Sullivan principal did not want him to could throw-out the entire pro- embarrass opposing teams. “They told me not to and I defied them and posed settlement and the sides did it anyway,” Turner said following his dismissal. would have to renegotiate the plan. Pilotonline.com, Norfolk, VA, January 8, 2014 News & Record, Greensboro, NC, January 15, 2014

FROM THE GYM TO THE JURY • WWW.GYM2JURY.COM JANUARY, 2014 From The Editors FROM THE GYM TO THE JURY Twenty-Four and From The Gym To The Jury is pub- lished five times annually. The Still Innovating contents of this publication are his year marks 48 years since Dr. Herb Appenzeller considered risk management coun- wrote the first book on legal liability in physical edu- seling and not legal advice. Unless cation and athletics, From the Gym to the Jury. In the otherwise noted, the opinions T expressed are those of From the years since, he has been asked to speak nationally, serve Gym to the Jury, Inc. If legal ad- as a consultant, set guidelines for compliance with state vice is required, the service of a and national legislation (Title IX and ADA), consult and HERB APPENZELLER professional is recommended. testify on behalf of school personnel in sport-related lawsuits. 24 years ago, he joined with Ron Baron, an Editor attorney with a sports background and a pioneer in risk DR. HERB APPENZELLER management, at The Center for Sport Law and Risk 7503 Somersby Drive Management. Together they have conducted over 100 Summerfield, NC 27358 Phone: 336-643-4620 risk assessments of venues such as high school, colle- email: [email protected] giate and professional sport programs. Their hands-on Co-Editor experience has contributed to valuable information they publish regularly in the From the Gym to the Jury newslet- RON BARON RONALD L. BARON, J.D. 4825 Stranz Lane ter. The mission of the newsletter has and always will be the protection of Plano, Texas 75093 student-athletes from needless injuries, the reduction of destructive lawsuits Phone: 214-641-9450 against athletic programs and personnel and the lessening of discrimination email: [email protected] in athletics. Today the 12-page publication available on line provides time- Contributing Editors ly and valuable articles, actual court cases and our expert opinion on trends DR. TOM APPENZELLER in injury prevention and sports-related litigation. The “From the Editors” Catawba College entry in each issue highlights recent sport concerns and our views on “hot- email: [email protected] button” issues. Through our “In My Opinion” comments, we try to provide DR. FREDERICK O. MUELLER insights based on our 48 years of experience to illuminate issues and reduce University of North Carolina at Chapel Hill the risk of injury and litigation. The distinguished experts on our Advisory email: [email protected] Board represent every important area of sport from new state and federal DR. JULIAN STEIN legislation regarding ADA, Title IX, and I.D.E.A, to trends in sport safety and email: [email protected] injury reduction. They are all leaders in their individual fields and we are GIL FRIED, J.D. lucky to be able to call upon their considerable wisdom and experience. University of New Haven email: [email protected] Through From the Gym to the Jury we have: • Helped a college avoid a multimillion-dollar lawsuit when a rugby DR. TODD L. SEIDLER University of New Mexico player was rendered quadriplegic. email: [email protected] • Advised a coach, who planned to sue the school system when he was bypassed for a head-coaching job, not to sue in consideration of his future JOHN GRADY, PhD, J.D. employment opportunities. As a result, he is now a successful college coach. University of South Carolina email: jgrady.gwm.sc.edu • Advised athletic directors, trainers, and team physicians on protocols enabling student-athletes with disabilities and other medical considera- DR. ANNIE CLEMENT, PhD, J.D. tions to be able to participate in team sports. Cape Canaveral, FL Phone: 1-321-799-3381 • Provide risk assessments for scores of athletic programs. The assess- email: [email protected] ments have provided safer environments for players and spectators, reduced needless injuries and reduced damaging and expensive lawsuits. Graphic Design and Copy Editors • Through “Special Issues” of From the Gym to the Jury, we focused on a MAC CHAMBERS and CAROL CLAY single area and controversies providing insights and practical information email: [email protected] directly to the readers who have applied them to their programs. From The Gym To The Jury is designed and We are proud of our history and record. We look forward to many produced by AD infinitum. For information more years of publishing the most up-to-date information and opinion to call Mac Chambers…336-282-1450. help our readers run safe and successful athletic facilities and programs. email: [email protected] Herb Appenzeller and Ron Baron

PAGE 2 FROM THE GYM TO THE JURY • WWW.GYM2JURY.COM • VOL 24, NO 4 Some Good Advice for 2014 oyce Richman, a career counselor, consultant and want...what are you willing to do differently to coach says 2014 is… “One in which I get to achieve an outcome of value to you and those you Jchoose instead of waiting to be chosen, and I hold dear? What are the chances you’re willing to include, instead of waiting to be included. One in take, the effort you’re willing to make? What are the which I give instead of waiting to be given and act positions you’re willing to take, the stands you’ve the instead of waiting for an action. I want to breathe courage to make, to take on more, lead farther, before I think. I want to think before I act. I want to dream larger? And what about those you lead, and recognize that others have the same needs as I and manage and care about beyond the benefit of a pay- needs beyond what I can possibly imagine. I want to out or a pay-off? Who do you want to be? How do step back and give others space to step forward. I you want to be? And why is it important to you.” want to lean in when there is something to say and “Mother, father, sister, brother, care-taking of a listen in when there is something I need to hear. I child of aging parents, care-taking parent of children want to be open to points of view that differ from in need, how do you want to be? Take in a deep my own. I want to share my perspective without breath. Exhale fully. Think. Then act with the concern that I will be judged badly for thinking as I future in mind. Act with a mission; a plan with con- do. I want to open doors to opportunity and possi- sideration and caring in mind. Act with purpose, bility. I want to close doors to negativity, naysaying, find true north, vectors you need to stay on course and ‘not invented here’ thinking. I want to encour- and remain constant to what you know to be the age the hesitant, persuade the reluctant, and applaud right thing for yourself. Try harder. Work harder. the courageous. I want to be more than I was, fix Care more. Surprise your naysayers, outplay the what is broken, repair what’s in need, and remain players, out-think the thinkers. Make time count. mindful that what I want may not be as important as Make life worthwhile. Come back. Fight back. And what others want from me.” never give up.” Happy New Year. “What about you? What do you need and News & Record, Greensboro, NC, December 29, 2013 DELAWARE Its Not Over ‘Til Its Over STATE UNIVERSITY n a very unusual game situation, Alan Haagen made three free throws to Igive the Hockinson High School Hawks, Brush Prairie, WA, a one-point SUSPENDS BAND lead over the rival Camas High School basketball team. One second AFTER ALLEGED remained in the game. However, jubilant Hockinson fans rushed the court HAZING INCIDENTS and the referee properly called a technical foul awarding two shots to The entire Delaware State Camas. A Camas player made the two free throws, thereby helping his University (DSU) band was sus- team win the game. Trevor Person, the losing Hockinson coach, said later pended amid yet unspecified allega- that he had never seen a situation like that before and praised the officials tions of hazing. The band is com- for calling a “solid” game. The Columbian, Columbia, WA, December 18, 2013 prised of 150 students who make up performing groups from the IN MY OPINION While the situation is unfortunate, it further proves a game is not over marching band, jazz ensembles, a until it is oven…even with only one second on the clock. This year band flag team and dancers. DSU Auburn University beat the University of Alabama in the Iron Bowl officials were extremely proactive in with no time left on the game clock. Alabama’s decision to call time their decision to suspend the band. out and attempt a long field goal with one second remaining proved to However, hazing in college march- be the wrong decision as an Auburn player fielded the missed field goal ing bands has become a major returning it for the game winning touchdown. That one second cost Alabama a shot at the national championship and probably con- issue after the drum major at tributed to its loss in the Sugar Bowl. Aside from the very real risks of Florida A&M University died from injury presented when fans rush onto a basketball court, school offi- injuries he sustained during a haz- cials need to alert their students, parents, boosters and fans that rushing ing beating he suffered on the band the court when a game appears to be won, but is not yet officially bus following a football game. decided, can have very adverse repercussions for their team. USA Today, November 15, 2013

VOL 24, NO 4 • WWW.GYM2JURY.COM • FROM THE GYM TO THE JURY PAGE 3 To Be or Not To Be? Do Not Pass n the spring of 2006, Demetrius Hall and Michael Boyd were students at the Geritol Gresham Middle School in Alabama. On May 5, Boyd and Hall were I uane Davis was a part-time opponents in a physical education class basketball game. Hall was guard- men’s basketball coach at ing Boyd when Boyd became angry and threw the basketball at Hall. Hall Mount Saint Mary College then pushed Boyd and threw a punch. A fight ensued. The other students D for 14 years. Coach Davis in the class separated the two young men but a verbal exchange contin- resigned after three consecutive ued. Another student pushed Hall into Boyd, Boyd then slammed Hall losing seasons when he found into some metal stairs causing him to strike his head. Because of the that his contract would not be altercation, Hall was seriously injured. On May 5, 2008, Hall and his renewed for the upcoming 2009- mother sued three physical education teachers at Gresham Middle School 2010 season. Soon after Davis claiming negligence and wantonness. They further alleged that the defen- resigned, the college created a dants breached their duty to supervise the two students leaving them new position for a fulltime men’s unattended for an extended length of time. The defendants answered the basketball coach. complaint by asserting the defense of state-agent immunity and moved Mount Saint Mary College the trial court for summary judgment. On October 4, 2011, the plaintiff interviewed six candidates and filed a response to the defendants’ motion for summary judgment and hired Ryan Kadulbowski, age 26, abandoned all claims against two of the physical education teachers, as the new, fulltime basketball Sokol and Queen. The trial court granted Sokol and Queen summary coach. Davis, who was 69 years judgment. The third physical education teacher, Chad Jones, had claimed old at the time of Kadulbowski’s that he was at the opposite end of the gym delivering a message to Sokol hiring, sued the college for its when the fight began. The plaintiff argued that if Jones was not present decision not to renew his con- on the gym floor at the time of the altercation, then he had acted beyond tract. The plaintiff’s legal argu- his authority and was not protected by state-agent immunity. Since there ment was adverse employment were issues in dispute, the trial court denied the defendants’ motion for action motivated by age in viola- summary judgment. tion of the Age Discrimination Demetrius Hall v. Chad Jones, Supreme Court of Alabama, 2013 Ala. LEXIS 190 Employment Act (ADEA). IN MY OPINION The United States District Chad Jones has created a “catch 22” for himself. Jones claims Court for the Southern District that he was at the opposite end of the gym when the fight of New York granted the defen- occurred. This makes the negligence issue one of “direct” versus dant’s motion for summary judg- “general” supervision. If Jones was not in the area, he could not ment and the plaintiff appealed. have prevented the fight. However, if he was not in the area, he Davis claimed the district erred could not claim state-agent immunity. If Jones was the teacher in three ways: and it was his class, then the defendant should have been super- 1. He was more experienced vising the class directly. It will be up to the trial court to deter- than Kadulbowski; mine whether Chad Jones was negligent in his duties as a physical 2. The Athletic Director made a education teacher. stray comment that the new coach It is worth noting that Miller v. Cloidt and the Bd. of Educ. of Borough was an impressive young man; of Chatham, 1964, had a dramatic effect on physical education in New 3. The college renewed the Jersey. Physical education teacher Cloidt left his class unsupervised contract of several young during a springboard activity to treat an injury to one of the students. coaches who had similar or He instructed the class to sit and wait for him to come back and not to worse records. use the springboard while he was not in the room. Stanley Miller, a he appellate court ruled that 14-year-old participant in the class, ignored Cloidt, got on the spring- these facts did not reasonably board and jumped, landing on his head rendering him quadriplegic. Tsuggest that age was the “but Following extensive litigation, the initial court award of $1,800,000 was for” cause of the college’s decision. reduced to $300,000. As a result, New Jersey schools increased their The court of appeals affirmed the liability insurance and put additional emphasis on supervision in class- district court decision. es of this type. Davis v. Mount Saint Mary College, United While these are worthy changes, it is tragic that it took a catastrophic States Court of Appeals for the Second Circuit. 2013 U.S. App. Lexis 5590, injury to a child and years of costly litigation to put the changes into place. March 21, 2013

PAGE 4 FROM THE GYM TO THE JURY • WWW.GYM2JURY.COM • VOL 24, NO 4 Moss Will Not Grow on a Rolling Stone my Moss filed a complaint against cussed the job with Hester before he er or produce sufficient evidence that Athe Franklin County Board of was offered a contract. The school there was no legitimate reason to Education in Alabama, claiming that board hired Hester on September 6, employ someone else. Several school the school board discriminated 2011, on the recommendation of board members stated that when hir- against her in violation of Title VII of Principal Pounders. Steve Pounders ing a coach it was important to look the Civil Rights Act of 1964. The recommended Hester because he for a good teacher first, someone with plaintiff asserts that she was not had ties to the community, graduat- good morals, someone who could selected for an open coaching posi- ed from Belgreen High, lived in the teach students about life, has a strong tion in the fall of 2011 because of her area and was a decent coach. The work ethic, can manage the communi- gender and in retaliation for an earli- plaintiff claimed that she was more ty and get people involved in the pro- er lawsuit she had initiated. qualified to coach both teams and gram. There was evidence that the In August of 2011, the girls’ bas- that Hester had been fired as the school board did not consider coach- ketball and softball coaching posi- girls’ basketball coach at Vina High ing records. Even though a man was tions at Belgreen High School School. The Superintendent of hired for the position, the principal became open. At the time, Moss was Schools, Gary Williams, stated that actually wanted the former coach, who a health and physical education Moss did not relate well to young is a female, to continue coaching. The teacher and girls’ track coach at Phil people, was abusive and used inap- United States District Court for the Campbell High School. The plaintiff propriate language. Everyone on the Northern District of Alabama, had been terminated as the girls’ bas- school board agreed that Moss was a Northwestern Division, found that the ketball coach at Phil Campbell in good coach, but there were prob- plaintiff failed to show any evidence March 2010. Moss heard through lems with her attitude and that that a reasonable jury could find in her the grapevine that Richie Hester, a Richie Hester was the most qualified favor on the claim. The district court history and science teacher at Vina and the best fit for the job. granted the defendant’s motion for High School was going to be the new The district court held that in dis- summary judgment. girls’ basketball and softball coach at crimination/failure to hire cases, the Amy D. Moss v. Franklin County Board of Education, United States District Court for the Belgreen High. The plaintiff then plaintiff must prove that intentional Northern District of Alabama, Northwestern called the school board office to find discrimination motivated the employ- Division 2013 U.S. Dist. LEXIS 161563 out when the job opening was going IN MY OPINION to be posted. It was posted the next An unfortunate reality in life is that many jobs are filled before they are day. Amy Moss applied for the job even posted. The Franklin County School Board should have posted but was not contacted for an inter- the opening and then waited a few days before hiring the next coach. It view. Consequently, her rejection for would not have meant that a legitimate search was taking place, but it the girls’ basketball and softball might have prevented a lawsuit. positions led to Moss’s lawsuit. It has always fascinated me that schools and colleges talk earnestly The Belgreen High position was about Equal Employment Opportunity Commission (EEOC) and Title vacant because the prior basketball VII guidelines, reviewing applications, forming search committees and coach resigned her position. conducting legal and unbiased searches. However, it appears the rules However, she remained at the and procedures go out the window when it comes to hiring National school as a teacher even though Collegiate Athletic Association (NCAA) Division I football and basketball there was no teaching vacancy avail- coaches. Division I athletic departments operate above the law when it able. The Belgreen Principal, Steve comes to employment law. How many times are the search committees Pounders, waited until August to made up of a total of one — the athletics director? Seldom is there any post the opening in the hopes of genuine review of open applications. Athletic directors, sometimes pub- convincing the previous coach to licly, but usually privately, hire whom they want to hire. All other depart- renew her duties and not to quit ments on a college campus have to follow employment law, but some- coaching. When it became evident how football and basketball seem to be exempt. What would happen if that the former coach was not going the dean of the business school took it upon himself to hire a faculty to return, Richie Hester was infor- member without regard to legal rules and regulations? Why do we allow mally interviewed for the job. Division I football and basketball to disregard federal law and are the Principal Pounders and school institutions they represent better off for their ignoring the practice? board member Sharon Oliver dis-

VOL 24, NO 4 • WWW.GYM2JURY.COM • FROM THE GYM TO THE JURY PAGE 5 Penny-wise and Pound Foolish n November 19, 2012, University because the ACC filed its action first. Scarecrow, Tin Man and the Lion are Oof Maryland President Dr. The Atlantic Coast Conference in charge until and if he returns. Wallace D. Loh, held a press confer- argued that the withdrawal payment The University of Maryland could ence to announce that effective July is necessary to preserve the integrity have informed the ACC that it 2014, the University would with- of the league and to ensure the qual- would gladly pay the draw from the Atlantic Coast ity of the product. The withdrawal payment/penalty when and if it Conference (ACC) and join the Big payment is essential to the business decided to rejoin the league. In the Ten Conference. The Atlantic Coast of running the ACC. Lawyers for the complaint, however, the University Conference said okay, we are going University of Maryland, however, of Maryland made multiple allega- to miss you and by the way, Section stated that the Atlantic Coast tions, including that its impending IV-5 of the ACC Constitution states Conference is wrong at every turn membership in the Big Ten that any member leaving the confer- and that the League is no different Conference will significantly ence has to make a “withdrawal pay- from any other commercial endeav- increase athletic department rev- ment”. The ACC, on November 25, or. The University of Maryland fur- enue, and that the penalty will 2012, filed a single count declarato- ther argued that the sports league weaken its athletic department and ry judgment action in Superior undermine its ability to compete Court for Guilford County, NC, University of with other ACC schools, that the against the University of Maryland ACC’s action will render Terrapins and its Board of Regents. The Maryland’s Athletic Teams less competitive in Atlantic Coast Conference believes the ACC, and that Maryland con- that the University of Maryland exit from the sumers will be harmed by the dete- should make a good faith “with- rioration of quality. drawal payment” in order to leave Atlantic Coast The circuit court found that the the ACC on equitable terms. expansion of the ACC contradicted Authorities at the University of Conference the University of Maryland’s allega- Maryland believe that it is a “with- tion of stymied competition. The drawal penalty” the University may prove court also found that the withdraw- should not have to pay. On January al payment has not prevented the 18, 2013, the Board of Regents and to be costly University from improving its eco- the University of Maryland filed nomic and competitive posture. legal action in the Circuit Court for exemption of antitrust only applies The real question for the court to Prince George’s County, MD, asking to national organizations like the determine was who should decide the court to declare the ACC’s with- National Football League (NFL) or the case, courts in North Carolina or drawal penalty invalid and unen- the National Collegiate Athletic courts in Maryland. The ACC forceable. The University of Association (NCAA). The ACC argued that North Carolina was Maryland wants the case heard in countered that the withdrawal pay- more convenient because of geogra- the state of Maryland and the ACC ment was designed to compensate phy and the location of the confer- wants it heard in North Carolina. the league for the economic effect ence headquarters. The circuit court The Atlantic Coast Conference caused by a member leaving the did not buy the convenience argu- moved to dismiss University of conference. The purpose is econom- ment because of the locations of the Maryland’s complaint or in the ic protection and therefore not sub- University of Miami, Florida State alternative, to stay the proceedings, ject to Maryland’s Antitrust Act. University, Boston College and alleging that using Maryland’s Maryland contends that the with- Syracuse University. In addition, Antitrust Act against the ACC vio- drawal penalty violates antitrust law modern technology has significantly lates the Commerce Clause of the because the penalty has no relation- lessened the expense and inconven- United States Constitution. ACC ship to the amount of damage, if ience when litigating in a distant lawyers further argued that the any, the ACC would incur if a con- location. The court held that as a University of Maryland failed to ference member withdrew. matter of public and private interest, establish a relevant market or I am reminded of the scene from the case would have more of an antitrust injury, and the matter The Wizard of Oz when the Wizard impact on the taxpayers, residents should be stayed or dismissed tells the citizens of Oz that the See: Foolish . . . continued on next page

PAGE 6 FROM THE GYM TO THE JURY • WWW.GYM2JURY.COM • VOL 24, NO 4 “SPATTING” CREATES Foolish . . . continued from previous page DILEMMA FOR and students in the state of 19, 2013, the North Carolina COLLEGE COACHES Maryland. Ultimately, the Court of Appeals ruled in favor of Spatting is a common practice in Atlantic Coast Conference filed the ACC. The Maryland Attorney the National Football League its lawsuit first, so the Circuit General is appealing. (NFL). About one-half of players Court of Maryland, Prince Board of Regents of the University System of Maryland v. Atlantic Coast Conference, Circuit tape their ankles for additional sup- George’s County issued a stay Court of Maryland, Prince George’s County 2013 port and to restrict motion that pending the final judgment in LEXIS 4 helps prevent and lessen sprains. North Carolina. On November However, some players do it just to make a “fashion statement”. Many IN MY OPINION contracts with apparel suppliers It has taken twenty-three pages of legal opinion, countless hours such as Nike, Adidas and Under and astronomical attorney fees to decide the simple issue of which Armour restrict covering up their state’s court will hear the case. The University of Maryland is a logos. Some shoe suppliers restrict charter member of the Atlantic Coast Conference with a distin- spatting while others allow a cer- guished history. However, it now believes it can make more money tain number of players to tape per by joining and competing in the Big Ten Conference. Did anyone game. One shoe supplier believes at Maryland ask the athletes, parents or fans? The sad reality is that a decal could be put on the that we no longer have regional conferences with geographical spat. Injured athletes say their rivalries in close proximity. Along with the fans and student-ath- rights are being violated, as well as letes, the real losers are the non-revenue sports that will undoubt- HIPAA guidelines, when they need edly have problems funding additional and often lengthy travel to tape their ankles to prevent requirements. The University of Maryland will now participate in a injuries and are prevented from conference that includes Minnesota, Wisconsin and Nebraska. doing so by the supplier contracts. Parents and fans who want to follow Terrapin teams will find travel The concern of spatting came to more difficult and expensive. light when the University of This is another example of the failure of the National Collegiate California athletic director Sandy Athletic Association (NCAA) to protect the welfare of its student-ath- Barbour questioned the number of letes. Hopefully, the men’s tennis team will not have to take a bus to players having their ankles spatted Lincoln, Nebraska for a Wednesday match. The NCAA could have during the games. stepped in and stopped the widespread and disruptive conference USA Today, November 1, 2013 realignment claiming that it was acting in the best interest of the stu- dent-athletes. However, it is not clear the NCAA has the desire or the FORMER BENGALS power to affect conference realignment. It has been nearly mute in its CHEERLEADER WINS response to the league expansion. The impotence of the NCAA is fur- ther demonstrated by the fact that the ACC is attempting to punish the DEFAMATION SUIT University of Maryland for deserting the ACC without enlisting the aid Sarah Jones, a former cheer- of the NCAA. Surely, if the NCAA is in fact the ultimate governing leader for the Cincinnati Bengals, body concerning college athletics, it should have a strong voice in con- was awarded $338,000 in her ference realignment. defamation suit against the web- The recent rush to create super conferences has nothing to do site The Dirty Jones.com. The 28- with the athletes, tradition or regional rivalries. It is all about greed. year-old sued in 2009 after the The University of Maryland athletic program may bring in more rev- website alleged that she was enue, but is the extra money worth it? Sadly, the answer from promiscuous and had sexually University officials is yes. Even with an ACC withdrawal payment, transmitted diseases. rumored to be in the neighborhood of $60 million, the University of Jones pleaded guilty in October Maryland athletic program could easily recover that amount and to sexual misconduct after a sexual more with its share of the substantial television revenue generated by affair she had with a 17-year-old Big Ten Conference football alone. Perhaps the University of high school student she taught. Maryland’s move to the Big Ten Conference will prove to be the right Jones and the student, now 18- action for student-athletes and fans alike. To date, the only winners years-old, recently announced that are the opposing lawyers. they were engaged. USA Today, July 12, 2013 VOL 24, NO 4 • WWW.GYM2JURY.COM • FROM THE GYM TO THE JURY PAGE 7 LEADERSHIP Judicial Verdict COMES IN MANY FORMS Questioned Major Richard “Dick” n October 27, 2010, Brian Ross once saw a rat emerge. According to Williams recently published a Ofiled a lawsuit seeking compen- the teacher, the Settlement House book reflecting on his beliefs satory damages, injunctive relief, was a terrible place to be and was about leadership. Leadership at and punitive damages against the very unsafe and unhealthy for ele- the Point of a Bayonet…Ten New York City Department of mentary school aged children. Principles of Success discusses Education and three administrators Ross approached Assistant Williams’ experiences in World for violation of the First and Principal Danielle Santoro about War II as Commander and Fourteenth Amendments to the the health and safety issues and was Leader of the 506th Parachute United States Constitution. told to keep his mouth shut since Infantry Regiment and the 707th Ross was hired in September the building was to be renovated in Airborne Division. Williams 2005 as an elementary physical edu- the near future. Ross then told his believes that leaders should: cation teacher and was assigned to Union Chapter Leader, Christine • Strive to be a leader of charac- New York City Public School 132, Caraballo, about his concerns ter, competence and courage. located in the Williamsburg neigh- regarding the facility. Later that day, • Lead from the front. Say, “fol- borhood of Brooklyn, New York. Santoro informed the plaintiff that low me!” and then lead the way. Public School 132 did not have a he needed to meet with Principal • Stay in top physical shape - gymnasium and used a multi-pur- Lubeck the next morning. Ross physical stamina is the root of pose room as a gym and as an audi- then requested that his union chap- mental toughness. torium. Physical education classes ter leader be present at the meeting. • Develop your team. If you were also taught in the schoolyard The next morning, before Caraballo know your people, are fair in set- and in individual classrooms. In arrived at the meeting, Lubeck told ting realistic goals and expecta- April 2010, Principal Beth Lubeck Ross that she had given him satisfac- tions, and lead by example, you decided to use the multi-purpose tory evaluations in the past but that will develop teamwork. room for mandatory state testing was not going to happen anymore. • Delegate responsibility to your and to accommodate students with The principal went on to add that subordinates and let them do their special needs. Physical education there were five people lined up and jobs. You can’t do a good job if classes were then moved two blocks wanting to teach at Public School you don’t have a chance to use to the Settlement House, a commu- 132. During the meeting, the plain- your imagination and creativity. nity based organization. The facility tiff told the principal about his con- • Anticipate problems and prepare had once been used for Middle cerns regarding the Settlement to overcome obstacles. Don’t wait School 577 and for some after House, its lack of an on-site nurse, until you get to the top of the ridge school programs. first aid kit, fire evacuation plan and and then make up your mind. For three days in April and May security for the building. Lubeck • Remain humble. Don’t worry 2010, Ross taught physical educa- then threatened to fire Ross unless about who receives the credit. tion for approximately two hours a he agreed to continue teaching at Never let power or authority go to day at the Settlement House. the off campus facility. In April your head. Arriving at the building that first 2010, Ross filed a complaint with • Take a moment for self-reflec- day, the plaintiff was distressed by the Occupational Safety and Health tion. Look at yourself in the mir- what he found. The building was Administration (OSHA). The plain- ror every night and ask yourself if extremely deteriorated and dilapi- tiff filed the complaint because he you did your best. dated. The bricks and windowsills believed there was no other way to • True satisfaction comes from were covered in dust, lead based protect his students. According to getting the job done. The key to a paint was peeling off the walls, nails the plaintiff, his job was first and successful leader is to earn respect and staples were exposed and there foremost to ensure the health and — not because of rank or posi- were many other hazards to the ele- safety of his students. OSHA tion, but because you are a leader mentary students. The students had inspected the Settlement House, but of character. to walk through exposed leaking because the building was being ren- • Hang tough! Never, ever, give up. pipes to get to the one restroom and ovated, the complaint was consid- Furniture World, January/February, 2013 there were massive holes where Ross See: Verdict . . . continued on next page

PAGE 8 FROM THE GYM TO THE JURY • WWW.GYM2JURY.COM • VOL 24, NO 4 DANCE COACH FIRED Verdict . . . continued from previous page OVER QUESTIONABLE ered moot. After the OSHA inspec- employees speaking “pursuant to SONG LYRICS tion, Ross claims that the adminis- their official duties” are not afforded tration retaliated against him by protection under the First Lisa Jolin, a high school dance issuing meritless disciplinary letters, Amendment because they did not coach from Wisconsin, was fired improperly grading his job perform- make the speech as a private citizen. after her team performed a routine ance, forcing him to proctor exams Employee speech related to profes- using an edited version of Robin and manufacturing parent com- sional responsibilities is not protect- Thicke’s hit “Blurred Lines.” The plaints. According to the plaintiff, ed. The court found that the plain- dance team used the song days after prior to his complaint regarding the tiff testified repeatedly that he filed Thicke and Miley Cyrus appeared Settlement House, Principal Lubeck the OSHA complaint because of his in a sexually charged performance and the rest of the administration at duties as an educator. The district on the MTV Video Music Awards. Public School 132 consistently gave court went on to add that all of the Jolin was a popular coach. The him satisfactory reviews. undisputed facts paint a clear pic- school board issued a statement Ross filed suit believing that his ture of an employee speaking out that she was dismissed “based on First and Fourteenth Amendment about his views regarding how best appropriate reasons and following rights had been violated. After dis- to perform his job duties and not district protocols.” The school covery, the defendants filed a someone attempting to make a con- board further stated that personnel motion for summary judgment. tribution to the civic discourse. The issues are confidential and that no The United States District Court for district court granted the defen- further information regarding the the Eastern District of New York dant’s motion for summary judg- firing would be forthcoming. found that public employee speech ment and denied the plaintiff’s The same music had been per- is protected under the First motion to amend his complaint. formed at Auburn University and Amendment when they speak as a Ross v. The New York City Department of Education, United States District Court for the Eastern was actually featured on ABC’s private citizen addressing matters of District of New York, 2013 U.S. Dist. LEXIS 49694 “Good Morning America” last public concern. However, public month. Ohio University dancers IN MY OPINION planned to use the same rendi- I understand the letter of the law and the intent of the law and I believe tion until they were directed to the U.S. District Court upheld the former and ignored the facts of the not. Ohio University’s band case. If the children were at risk, what other options did Ross have at director of 17 years was surprised his disposal? Unfortunately, today, physical education in the public by the backlash from University schools is not usually a priority. However, the health and safety of chil- administrators saying, “My only dren should always be of utmost importance. A physical education concern is where we draw the line teacher stood up for his students and he was threatened and punished in the future.” Athletic Business, October 2, 2013, Milwaukee for his concern. The district court, in essence, affirmed what the assis- Journal Sentinel.com, posted October 1, 2013 tant principal told Ross; shut up and do not cause any problems. Editor’s Note: See below for a sim- I do not know if the First and Fourteenth Amendments were the ilar situation in a school district in appropriate legal issues for the case, but I do not believe that justice North Carolina. This many was served by granting defendant’s summary judgment. The real losers become a concern for the American in this case were the physical education students. Civil Liberties Union. SONG LYRIC BAN LIFTED A ban on lyrics in songs played at athletic events by Union County Public Schools, NC, has been lifted. Because of the ban, music at sporting events was prohibited. Through the efforts of an Advanced Placement Government class students made a detailed presentation to school officials to allow pre-approved music. Because of the students’ efforts, some 89 songs were approved for use at athletic events. Twenty-six songs are still banned because of their use of swearing, the “N-word”, and alcohol and drug references. In the future, song selections will be evaluated twice a year by the school board and there is a general belief that this was the right action to take before legal action was taken.á Many students are very pleased to hear the approved songs at athletic events. You may see the list of approved and banned songs at: www.charlotteobserv- er.com/lyrics and charlotteobserver.com, October 16, 2013

VOL 24, NO 4 • WWW.GYM2JURY.COM • FROM THE GYM TO THE JURY PAGE 9 ATLANTA BRAVES Follow-up Study MOVE IS A SIGN Finds Lifelong Value OF THE TIMES Atlanta’s mayor has said that the in High School city could not afford to upgrade Sport Participation Turner Field in the fashion that was he Journal BMC Public Health has published a follow-up study of 712 being demanded by the Atlanta TWorld War II veterans conducted jointly by Cornell University and the Braves baseball team. Therefore, the Swiss Federal Institute of Technology. In the study, the veterans were phys- city will demolish Turner Field in ically fit as determined by passing difficult physical exams for military 2017 and the Atlanta Braves will screening in the 1940s. All of the men were 78-years-old at the time of the move to a new, more modern stadi- follow-up study. The follow-up revealed that playing varsity sports in high um in suburban Cobb County. It is school did strongly predict being physically fit and having to make fewer estimated that the new stadium will doctor visits 50 years later in life. cost the public $450 million to build The findings add substance to the importance of maintaining high school athletic programs, even in an era of shrinking school budgets. and millions more to maintain. Researchers reported, “It has been noted that physical education classes Judith Grant Long, associate pro- may be the only opportunity for many adolescents to engage in weekly fessor of urban planning at Harvard physical activity. School-based organized sports should be preserved University is quoted, “The impact because they contribute to later physical activity levels and decrease the of the recent recession on state and risk factors for early morbidity.” local tax revenues, and consequent- HUFFPOST Healthy Living, m.huffpost.com, January 8, 2014 ly fiscal management, should influ- IN MY OPINION ence thinking about all new capital In a day of tight budgets, where physical education classes, and in projects and the role of public some instances competitive high school sports, are being eliminat- debt.” Clearly, officials in the ed, this ground breaking study supports the benefits and lifelong Atlanta area would rather incur the value of sports programs and physical activities in our public costs of the new stadium than lo0se schools. This research could give coaches and administrators solid evidence to support their positions when they defend their pro- the team to another city. News & Record, Greensboro, NC, grams from budget cutters. November 13, 2013

Ten Things a Coach Would Like a Parent to Know 1. It is not about you, it is about them. Do not live ing in competitive sports. your own sports dreams through your kids. It is their 6. Children should play the sport that is in season turn now. Let them make their own choices, both until they reach middle school. Then they can become good and bad. more focused and decide on one or two sports to play. 2. Never talk to a coach about your child’s playing Cross training prevents injuries and burnout. time after a game. You never should. You child 7. If you have nothing nice to say, sit down and be should do that. That said, if you just cannot help quiet. Do not be “that” parent. yourself, send an email the next day asking for some 8. If you are losing your mind on the sideline dur- phone time. ing games, it is time to look in the mirror. It is not 3. NEVER yell at referees. They are trying. How normal to care that much about sports, even ones in would you like it if someone came to your job and which your child participates. Put that energy into screamed at you? Not so much. If you have a real something more productive. issue, file a grievance. 9. Let your child fail. Forgotten equipment, not 4. Do not coach your child from the sideline. Your working out, not practicing at home? Let them suffer job is to be a cheerleader, not a coach. If you want to the consequences. It will make them better team- coach, you should volunteer. mates and better individuals. 5. It is EXTREMELY UNLIKELY you are raising a pro- 10. Your kids are watching you. Make them proud, fessional athlete. Relax, let them have a good time not embarrassed. and learn the lessons they are supposed to be learn- Stefanie Mullen, sportskidsplay, January-February, 2014 PAGE 10 FROM THE GYM TO THE JURY • WWW.GYM2JURY.COM • VOL 24, NO 4 Rough IN MY OPINION I accepted the position of athletic director and football coach at and Tough: Guilford College in 1956. Guilford was in the North State Conference composed of teams such as East Carolina, Western Carolina, Lenoir Conference Rhyne and Catawba colleges that offered full men’s athletic scholar- ships — 45 in football, 12 in basketball and two in baseball. Guilford Realignment College did not provide athletic scholarships, but chose instead to Comes with award a small number of “need-based grants” of maximum $300. Students who wanted to apply for need-based grants had to demon- Issues strate definite financial hardships to qualify. In addition, applicants had to maintain an overall “C” average and not own a car. Even with n support of the article on the these unequal restrictions with member schools in the North State problems the new alignment has I Conference, I believed we could win. In 1963, Guilford College caused conference schools, Gary Trustees considered dropping all varsity sports in favor of a club sport Santaniello reporting in The New program. However, following a comprehensive study of the athletic York Times says, “The major colle- program, the Board chose to retain varsity sports and to offer athletic giate athletic conferences have frac- scholarships. From 1964 to the present Guilford College competed as tured and reconfigured in recent a Division One National Association of Intercollegiate Athletics (NAIA) years as individual universities varsity program and became nationally respected. In 1973, we won the chased the additional millions in NAIA National Championship in basketball. Four of our players television revenue their football and became National Basketball Association (NBA) players: World B. Free, basketball teams command.” Greg Jackson, M.L. Carr and Bob Kaufman. Our student-athletes also Connecticut volleyball teams that won the first NAIA women’s tennis championship as co-champion. competed in the Big East Confer- Our golf team under Coach Jack Jensen won three championships were ence used buses. In its first season runners-up three times. With the appointment of a new president, Guilford considered becoming an NCAA Division III program. I was in the new American Athletic not interested in going back to a non-scholarship program, even a Conference, the Huskies volleyball NCAA affiliated program, and elected to retire as athletic director and team, in an eight-week span, had begin a sport management program. Looking back, Guilford’s affilia- four two-game conference trips. tion with the Old Dominion Athletic Conference (ODAC), a NCAA These trips were to Florida and Texas Division III conference, has proven to be valuable. The schools in the and required additional five-hour league are academically compatible, have strong credentials and are bus trips in between matches. The clean. My opposition to entering the ODAC was as follows: school with the most travel prob- 1. All of the schools at that time were located in Virginia. lems is West Virginia University 2. At the time, none of them were natural rivals. (WVA). Its women’s volleyball team 3. Travel would present serious problems. We would travel to long has to travel 90 miles just to get to distances to places like Shenandoah in Virginia and schools in an airport and then had multigame Norfolk, Virginia area. trips to Texas (twice) and Kansas, 4. Along with costs and distance of travel, we would be obligated to and single conference matches at spend many nights in hotels and motels. We would have to Iowa State University and the provide a number of meals on extended road trips. 5. The lack of diversity in ODAC might become a problem for University of Oklahoma. The WVA Guilford College, an institution that valued student and volleyball coach referred to Gate academic diversity. A89 at the Pittsburgh International At the time, a majority of the Guilford faculty opposed giving ath- Airport as her team’s “home away letic scholarships, even with our success, and many of them advocated from home.” However, Jill Kramer becoming a Division III Non-Scholarship Program. Many of my objec- the WVA women’s volleyball coach, tions were reminiscent of the issues that many schools face with confer- supports the realignment because ence realignment today. However, as Guilford found home in the she believes that it will help to “take ODAC, many of the schools struggling conference expansion today may the program to the next level.” find greater athletic success. At this time, I believe Guilford did the New York Times, New York, NY, right thing. December 17, 2013

VOL 24, NO 4 • WWW.GYM2JURY.COM • FROM THE GYM TO THE JURY PAGE 11 Racist and Sexist “The positives of sports as a Texts Result physical activity still far outweigh the negatives; in Resignations we just need to make it as he Coatesville Area School Board voted six to one to safe as possible.” Taccept the resignations of Superintendent Richard he Institute of Medicine and the National Como and high school Athletic Director Jim Donato fol- Research Council have called for a national system lowing the release of texts between the two men that were to track sports-related concussions and to begin to racist and sexist. The text messages included the “N- T answer the many questions regarding how often the word” and demeaning language concerning women, and youngest athletes suffer concussions. Specifically, people of Middle Eastern and Hispanic origin. When a they would like to know if better headgear would school board member obtained copies of the texts in reduce the number of traumatic brain injuries and August 2013 an investigation was begun. Angry parents that related research should begin to emphasize that demanded that both men be fired. Chester County the issues surrounding concussions in young athletes District Attorney has said that the investigation into the are also present in sports other than football. Since texts also revealed evidence of possible money skimming. 2009, the number of reported concussions to young CNN.com, September 25, 2013 athletes has increased by 150,000. “For male athletes IN MY OPINION in high school and college, concussion rates are high- The courts are increasing hearing cases involving est for football, ice hockey, lacrosse and wrestling. social media. The outcomes of the trials have not set For females, soccer, lacrosse and basketball head the a clear standard. For example, a middle school prin- list.” Dawn Comstock in reviewing the report stated, cipal in northeastern Pennsylvania was shocked to see “If we don’t have that type of data on the national his picture online. Along with his photo was a level, it is very difficult to know how to decide to let description of him as a “hairy sex addict” and “a per- your son or daughter play.” vert” who liked “hitting on students” in his office. There is little evidence finding that improved safe- The student who was responsible for the posting was ty gear helps to prevent concussions in kids. Each suspended from school, however, he subsequently state, with the exception of Mississippi, has passed won a lawsuit citing his First Amendment rights. On concussion laws since 2009 when a 13-year-old suf- the other hand, 20 high school athletes were disci- fered permanent disability after returning to a foot- plined when school authorities saw pictures of them ball game despite having a concussion. on Facebook drinking alcohol. Because they violated Guilford County, NC has taken a positive the school’s athletic code of conduct, their punish- approach including the following: ment was upheld in court. The US Supreme Court • Each participant or designee shall ensure that will hear a case this session arguing issues revolving every coach, school nurse, athletics director, first around the rights of students to freely use their own responder, volunteer, student-athlete and parent of a computers and the authority of school officials to student-athlete are provided annually with the head prevent online harassment of students and staff gen- injury information sheet developed by the state erated from those computers. For further informa- Board of Education. tion, see Unintended Consequences, Lessons Learned: An • Before athletic participation, student-athletes and Educational Journey, Carolina Academic Press, 2013. their parents must complete a concussion form You may order a copy from: www.cap-press.com. acknowledging they have read and understand the head injury information sheet. SAFETY EFFORTS INEFFECTIVE • Any student-athlete who is exhibiting signs or Kevin Guskiwicz, founding director of the University symptoms consistent with concussions must be of North Carolina’s Matthew Gfeller Sport-Related removed from participation and shall not be permit- Traumatic Brain Injury Research Center, says, “every time ted to return that day or any subsequent day until the we think we’ve got this culture shift going in the right student has been evaluated and receives written clear- direction we see more helmet-to-helmet hits in National ance to return to play from a medical professional. Football League (NFL) games.” “I really do think the • The principal or designee shall maintain complete fines are helping.” It may take suspensions to reduce and accurate records of action taken in his or her helmet-to-helmet hits in NFL games. school to comply with policy and applicable laws. News & Record, Greensboro, NC, October 31, 2013 USA Today, September 17, 2013 PAGE 12 FROM THE GYM TO THE JURY • WWW.GYM2JURY.COM • VOL 24, NO 4