SPORTS LITIGATION ALERT July 30, 2021 Vol. 18, Iss. 14 Case Summaries Train At Your Own Risk: Gym Owner s folks head back to the gym as the COVID-19 pan- Ademic subsides, we are reminded that injuries can Not Liable for Injuries Suffered occur, even under the supervision of a personal trainer. During Personal Training Session Through a strenuous legal “workout,” the Southern District of New York (“Court”) recently ruled in favor By John E. Tyrrell; Patrick J. McStravick and Kelly of a gym owner as not owing a duty based on the as- J. Woy, of Ricci Tyrrell Johnson & Grey sumption of risk doctrine. Pryce v. Town Sports Int’l, Table of Contents Here’s the latest issue of Sports Litigation Alert, the nation’s • Attorneys Offer Thoughts of How College Athletic only subscription-based periodical reporting on the intersection Departments Should Cope with NIL Movement ......19 of sports and the law. We also publish 11 other sports law peri- • A Half Dozen States Legalize Sports Betting: odicals. Visit www.hackneypublications.com to learn more. Looking to be Ready for 2021 NFL Season ..........21 • Minnesota Timberwolves & Lynx Hire Suzanne Case Summaries Spellacy as General Counsel .....................22 • Return Train At Your Own Risk: Gym Owner • Sports Lawyer Ellen Ferris Promoted to Senior Not Liable for Injuries Suffered During Personal Associate Commissioner for Governance and Training Session ................................1 Compliance ..................................23 • How Would Alan Dershowitz Litigate a Concussion • Online Gaming and Online Safety – Where Is the Claim? Martin v. Hermiston School District ..........4 Law Heading? ................................23 • DNA Sports Performance Lab and MLB: The Story • Paul C. Weiler LL.M. ’65, 1939–2021; Labor Law Continues .....................................5 Scholar and the Founder of ‘Sports and the Law’ .....27 • Keith v. Talladega City Bd. of Educ. – • How Will NIL Affect Student-Athlete Academic Discriminatory Claims Fail Due to Procedural and Performance – a Recap from a LEAD1 Association Precedential Guidelines ..........................8 Webinar .....................................29 • Magistrate Judge Dismisses Claim Brought by Parents of Concussed Football Player ..............12 News Briefs • Family of Man Who Died After Fall at Stadium Articles Sues University of New Mexico ..................31 • Former Arizona State University Athletics • Cassie McBride Named Vice President & General Administrator Alleges Wrongful Termination and Counsel of the San Jose Sharks ...................31 Retaliation After Reporting Sexual Harassment • NASCAR, Penn National Gaming Expand Strategic Incidents .....................................13 Alliance with Partnership Involving Arizona and Phoenix Raceway ..............................31 • Who’s At Fault When 21 Ultramarathoners Die in a Race? .......................................15 • The International Olympic Committee’s Rule 50 in the Age of Social Justice ........................17 Copyright © 2021 Hackney Publications. All rights reserved. Page 2 Sports Litigation Alert Volume 18, Issue 14 July 30, 2021 LLC, 2021 U.S. Dist. LEXIS 62977, at *2 (S.D.N.Y. On June 28, 2018, Mrs. Pryce brought a negligence Mar. 31, 2021). claim against NYSC1 to recover damages for the On the morning of July 2, 2015, 51-year-old Sim- shoulder injury she suffered during her personal train- one Pryce (“Mrs. Pryce”) arrived at New York Sports ing session. Id. at *1. Specifically, Mrs. Pryce alleged Club (“NYSC”) for a training session with her per- that Reyes briefly left her unsupervised while she was sonal trainer, Jonathan Reyes (“Reyes”). Id. at *10. performing the “core diagonal crossover” and thereby About halfway through the session, Reyes demon- breached a duty to ensure a safe exercise environment, strated a new exercise called the “core diagonal cross- which breach proximately caused her injury. Id. at *1- over,” which required Mrs. Pryce to lift a medicine ball 2. The case proceeded to a bench trial held over four from her chest to above her shoulder while bending her days before the Honorable Katherine Polk Failla. The first issue presented to the Court was whether knee. Id. at *11. When Mrs. Pryce began the exercise, NYSC was entitled to judgment as a matter of law on Reyes stood within three feet of her in order to observe its assumption of risk defense under Federal Rule of and, if necessary, correct her form. Id. at *12-13. At Civil Procedure 52(c)2. Id. at *36. The Court empha- some point during the exercise, Reyes walked approxi- sized “that ‘[t]he application of the doctrine of assump- mately twelve feet away from Mrs. Pryce to talk to a tion of risk is generally a question of fact to be resolved patron at the gym. Id. at *13. After completing two or by a jury.’” Pryce, 2021 U.S. Dist. LEXIS 62977, at three repetitions of the final set, Mrs. Pryce felt a pull *39 (quoting Layden v. Plante, 957 N.Y.S.2d 458, 461 in her shoulder. Id. (3d Dep’t 2012)). Specifically, a dispute existed as After her session, Mrs. Pryce began to feel sore in to whether Reyes unreasonably heightened the risks her shoulder. Id. at 13-14. At first, Mrs. Pryce believed to which Mrs. Pryce was exposed beyond those usu- her pain to be the usual soreness she experienced af- ally inherent in weightlifting. Pryce, 2021 U.S. Dist. ter training sessions. Id. at *14. However, Mrs. Pryce LEXIS 62977, at *39. Although the record suggested sought medical attention when the pain continued for that Mrs. Pryce exercised with weights voluntarily and twelve days. Id. The medical examination showed that was aware that such movements carry an inherent risk she needed surgery followed by physical therapy. Id. at of injury, the Court could not ignore the fact that Mrs. *15. Even after the surgery, Mrs. Pryce still had issues Pryce was new to lifting weights and was paying for with her shoulder, specifically experiencing twinges special instruction from Reyes. Id. at *39-40. Thus, the and having difficulty completing ordinary tasks. Id. Court did not grant NYSC judgment as a matter of law. at *17-18. Not only did she suffer physically, she also Id. at *40. suffered financially by means of lost income and out- Judge Polk Failla then decided the merits of the of-pocket medical expenses. Id. claim as a factfinder. New York law provides that the assumption of risk doctrine is “not an absolute defense, but rather a measure of the defendant’s duty of care.” Id. at *33 (citing Morgan v. State, 90 N.Y.2d 471, 484 (1997)); see also Turcotte v. Fell, 68 N.Y.2d 432, 438 (1986) (“[W]hen a plaintiff assumes the risk of partici- Sports Litigation Alert (SLA) is a narrowly focused pating in a sporting event, the defendant is relieved of newsletter that monitors case law and legal develop- a legal duty to the plaintiff; and being under no duty, ments in the sports law industry. Every two weeks, he cannot be charged with negligence[.]”). Generally, SLA provides summaries of court opinions, analysis a plaintiff assumes a risk if he or she is aware of the of legal issues, and relevant articles. The newsletter dangerous condition and the resultant risk. Pryce, 2021 is published 24 times a year. U.S. Dist. LEXIS 62977, at *35. It is not necessary, To subscribe, please visit our website at 1 Gym owned by Defendant Town Sports International, LLC, d/b/a/ http://www.sportslitigationalert.com “NYSC”. 2 FED. R. CIV. P. 52(c). Copyright © 2021 Hackney Publications. All rights reserved. Page 3 Sports Litigation Alert Volume 18, Issue 14 July 30, 2021 however, for a plaintiff to prove that he or she foresaw exercise as instructed, and that she was able to com- the exact manner in which injury occurred. Id. Citing plete two sets of it. Id. at *45. Furthermore, the fact four reasons, the Court found that Mrs. Pryce failed to that Mrs. Pryce struggled with the exercise towards the establish facts indicating that NYSC breached a duty end of each set was unconvincing to the Court as hav- of care, and thus she assumed the risk of injury and ing any relevance to the cause of the injury. Id. was not entitled to recovery. Id. at *41-42. Fourth, since there was no evidence that Mrs. Pryce The first basis relied upon by the Court was the had improper form or too heavy of a weight, the Court NYSC membership agreement which Mrs. Pryce noted that it was unclear what Reyes could have done signed. Id. at *42-43. By signing the membership to prevent her injury even had he been standing right agreement, Mrs. Pryce admitted that she understood next to her. Id. at *46. Notwithstanding Reyes’s tes- that “[a]ny strenuous athletic or physical activity in- timony asserting that it would be unprofessional and volves certain risks,” and “that there are certain risks potentially unsafe for a trainer to lose sight of a cli- associated with the use of a health club and the use ent mid-session, the Court found this was not enough of fitness equipment[.]” Id. at *42 (quoting the NYSC for Mrs. Pryce to prove that he allowed her to perform membership agreement). Further, Mrs. Pryce acknowl- the exercise in an unsafe manner. Id. Based upon the edged her agreement that exercise carries a risk of in- facts presented at trial, the Court could not conclude jury even when conducted under the supervision of a that, “Reyes’s conduct, even if a deviation from best trainer. Id. Understanding this risk, Mrs. Pryce volun- practices, unreasonably increased Mrs. Pryce’s risk of tarily joined NYSC, signed up for personal training, injury.” Id. at *47. and performed the exercises Reyes prescribed for her. The Court left open the possibility for liability of a Id. Importantly, Mrs. Pryce failed to present evidence gym owner in a scenario where a plaintiff can present that, “Reyes, by either action or inaction, concealed, misrepresented, or unreasonably increased the com- monly-understood risks to Mrs.