SPORTS LITIGATION ALERT June 4, 2021 Vol. 18, Iss. 11 Case Summaries Injuries Sustained to a Minor from injuries sustained from a collision with a baserunner wearing metal cleats who slid into the third baseman. Metal Cleats Falls Within the Fabian Torres, playing third base, was injured when Ballpark of Inherent Risks a baserunner wearing metal cleats slid into the base and collided with his left shin. By Jon Heshka, Associate Professor at Thompson In Torres v. Loisaida, Inc., 2021 N.Y. App. Div. Rivers University LEXIS 1974 *; 2021 NY Slip Op 01875 **; 2021 WL 1132875, the Supreme Court of New York, Ap- he Supreme Court of New York reaffirmed in pellate Division, First Department upheld an Octo- March 2021 that infant minors, as young as T ber 2019 order of the Supreme Court, Bronx County 13-years old, can voluntarily assume risks inherent holding that: “Since recovery is precluded by the fact in playing baseball, which in this instance included that he assumed the risks inherent in playing baseball, Table of Contents Here’s the latest issue of Sports Litigation Alert, the nation’s • Medina Spirit and the Future of Anti-Doping in only subscription-based periodical reporting on the intersec- Horseracing ..................................10 tion of sports and the law. We also publish 11 other sports • Former Louisville Assistant Men’s Basketball law periodicals. Visit www.hackneypublications.com to learn Coach May Wind Up Exchanging Cardinal Red for more. Jumpsuit Orange ..............................11 Case Summaries • Proposed Law Would Authorize Student-Athletes to Unionize .....................................12 • Injuries Sustained to a Minor from Metal Cleats • Name, Image, & Likeness Creates Challenges for Falls Within the Ballpark of Inherent Risks ...........1 Compliance Departments ........................13 • Gagliardi v. Sacred Heart University: Plaintiff’s • After Being Promoted to General Counsel of the Discrimination Appeal Rejected ...................3 Rockets, Clay Allen Talks about the Journey, and • Court Dismisses Defamation Claim Against Utah Significance of the Promotion ....................16 Jazz and Russell Westbrook .......................5 • Will New Jersey be the center of the Esports • It May Be a ‘Minor’ Win, but a Win Nonetheless Universe? According to the Head of the NJ for Soccer Prodigy ..............................6 Division of Gaming Enforcement, that’s the Goal .....17 • Court Issues Temporary Restraining Order • Attorney Derrick Crawford Named NCAA VP of Preventing UConn from Cutting Its Rowing Program ...7 Hearing Operations ............................18 Articles News Briefs • The European Super League, Florentino Perez, and • Jaguars Promote Chief Legal Officer Megha Parekh International Contract Law .......................8 to Executive Vice President ......................19 • Canadian Sports Lawyer Set to Become Judge in Ontario ......................................19 • Chambers Honors Firms for Sports Law Work .......19 Copyright © 2021 Hackney Publications. All rights reserved. Page 2 Sports Litigation Alert Volume 18, Issue 11 June 4, 2021 plaintiffs may not recover under a theory of negligent [2008], affd. 10 N.Y.3d 889, 861 N.Y.S.2d 603, 891 supervision.” N.E.2d 719 [2008], quoting Napoli v. Mount Alvernia, In granting summary judgment to the defendant Fe- Inc., 239 A.D.2d 325, 326, 657 N.Y.S.2d 197 [1997]. lix Millian Little League’s motion to dismiss the com- The court in Navarro also found that there was no plaint, the court built on a long line of legal authority evidence that her injury resulted from any “unassumed, involving baseball including Navarro v City of New concealed or unreasonably increased risks” (Benitez York, 87 AD3d 877, 877-878, 929 N.Y.S.2d 236 [1st v. New York Bd. of Educ., 73 N.Y.2d 650, 658, 543 Dept 2011]). N.Y.S.2d 29, 541 N.E.2d 29 [1989]). In Navarro, the 16-year-old infant plaintiff was Similarly, the court in Torres rejected the argument injured when, during an elective high school softball that the baserunner’s metal cleats created an enhanced class, she was hit by a bat wielded by another player or concealed risk that was not assumed. Both the hitting ground balls in warm-up. Chelise Navarro told 13-year-old infant plaintiff and his father were aware the other player, consistent with the teacher’s instruc- the baserunner was wearing metal cleats and the wear- tions for practice drills, that she should not take full ing of such cleats was permitted under the little league swings. Upon being handed the bat, however, the play- rules. Citing Bukowski v Clarkson Univ., 19 NY3d 353, er immediately threw the ball in the air and took a full 356-357, 971 N.E.2d 849, 948 N.Y.S.2d 568 [2012], swing before plaintiff had time to get out of the way. the court in Torres also rejected the argument that the As a result, the bat hit Navarro on the cheek, causing little league failed to provide safety equipment that injury. would have prevented the inherent risks. The court found that a participant in an athletic ac- In Burkowski, a college baseball pitcher was injured tivity is deemed to have assumed “those commonly ap- after being hit by a line drive during indoor practice. preciated risks which are inherent in and arise out of Plaintiff alleged that the risk of being hit by a batted the nature of the sport generally and flow from such ball was enhanced due to the multi-colored pitching participation” (Morgan v. State of New York, 90 N.Y.2d backdrop and low lighting at the indoor facility, which 471, 484, 662 N.Y.S.2d 421, 685 N.E.2d 202 [1997]). made it harder to see the white ball, and the failure to In establishing whether the injury sustained fell use an L-screen. The court held that ordinary reason- within the ballpark of the risks ordinarily associated able care must be exercised to protect student-athletes with the game, the court found that it is well estab- voluntarily participating in organized athletics from lished that “‘the danger associated with people swing- unassumed, concealed, or enhanced risks. “If the risks ing bats ... while warming up for the game’ is inher- of the activity are fully comprehended or perfectly ob- ent in the game of baseball” (Roberts v. Boys & Girls vious, plaintiff has consented to them and defendant Republic, Inc., 51 A.D.3d 246, 248, 850 N.Y.S.2d 38 has performed its duty” (Turcotte v Fell, 68 NY2d 432, 439 [1986]). The court in Burkowski also held said that risks which are commonly encountered or “inherent” in a sport, such as being struck by a ball or bat in base- Sports Litigation Alert (SLA) is a narrowly focused ball, are “risks [for] which various participants are le- newsletter that monitors case law and legal develop- gally deemed to have accepted personal responsibility” ments in the sports law industry. Every two weeks, (Morgan, 90 NY2d at 484). SLA provides summaries of court opinions, analysis In addition to being struck by a ball or bat in base- of legal issues, and relevant articles. The newsletter ball, we can add to the list of inherent risks a baseman is published 24 times a year. being injured by a baserunner wearing metal cleats sliding into the base. Torres is a reminder that the as- To subscribe, please visit our website at sumption of risk doctrine applies where a consenting http://www.sportslitigationalert.com participant, even 13-years of age, in sporting activities “is aware of the risks; has an appreciation of the nature Copyright © 2021 Hackney Publications. All rights reserved. Page 3 Sports Litigation Alert Volume 18, Issue 11 June 4, 2021 of the risks; and voluntarily assumes the risks” (Mor- SHU’s season, Gagliardi arrived late to every single gan v State, 90 NY2d 471, 484 [1997]). practice, and missed several practices entirely. He also did not attend the first day of the UConn Men’s Invi- Return to Table of Contents tational Tournament (Id.). In his deposition, Gagliardi justified his behavior: Gagliardi v. Sacred Heart University: “And that was the gist of the conversation in Plaintiff’s Discrimination Appeal terms of if I’m part-time, then I’m going to work Rejected part-time hours, and how that was going to play By Jeff Birren, Senior Writer out. And I didn’t want to go into my first couple aul Gagliardi was the men’s tennis coach at Sacred weeks of teaching and take a sick day or a per- PHeart University (“SHU”). He felt he was being sonal day for another job, considering that in- mistreated because the women’s tennis coach was paid formation was publicly available on the Sacred more. Gagliardi raised this issue and was later termi- Heart website. And so I felt that would not be a nated. He filed a Complaint that asserted federal claims good idea …” (Id. at 5). of gender discrimination, and for retaliation after he Gagliardi admitted that he did not tell his supervisor reported his “inequitable treatment.” Gagliardi’s Com- that he was going to miss the first day of the UConn plaint, however, left out many relevant facts. SHU tournament until that week. He also admitted that he prevailed in its motion for summary judgment and the Second Circuit recently affirmed in an unpublished opinion, (Gagliardi v. Sacred Heart University, (“Ga- SPORTS LAW EXPERT gliardi”), No. 20-629-cv, 2021 U.S. App. LEXIS 8991, Sports Litigation Alert is proud to offer a directory at 3 (3-29-21)). of Expert attorneys and witnesses at our Sports Facts Law Expert website. Gagliardi played high school tennis at Branford High Here is this issue’s featured expert. School in Connecticut, college tennis at Providence and three years as a professional player in Mexico, Expert Attorney Argentina, Chile, Poland, and Australia.