July-August 2009

In This Issue

Case Summaries and Articles

• Lawsuit Pushes Athletic Association to Level Playing Field for Female Baseball Players
• Assessing a Coach's Liability for Injury to the Student-Athlete
• U.S. Supreme Court Holds the Line in Case involving Coach-led Prayers
• Chicago Joins the Metal Bat Debate: As the Windy City Inches Closer to Securing its Bid to Host the 2016 Games, a Closer Examination of such Debates becomes Necessary
• Summary Judgment Ruling Sidelines Football Player's Discrimination Claim
• Court Finds that Missing a Game Does Not Constitute 'Irreparable Harm'
• Basketball Player's Claim Survives Summary Judgment
• Federal Appeals Court Sides with Coaches in Wrongful Death Case
• Court: Coach's Age and Race Discrimination Claims Can Continue
• Federal Judge Sends Eligibility Lawsuit Back to State Court.

Lawsuit Pushes Athletic Association to Level Playing Field for Female Baseball Players

The Executive Committee of the Indiana High School Athletic Association (IHSAA) has adopted an emergency rule permitting girls to try out for their high school baseball teams.

The decision was made three months after a 14-year-old Indiana girl, Logan Young, sued the IHSAA and the Monroe County Community School Corporation (MCCSC) for allegedly discriminating against her in violation of Title IX by not allowing her to try out, and play for, her high school's baseball team.

Young, a freshman at Bloomington High School South and avid baseball player, had expected to able try out for her school's baseball team last year. The IHSAA, however, had promulgated a rule, enforced by MCCSC, that prohibited her from trying out for her high school's freshman baseball team because of her gender.

In her complaint, Young alleged that she was "deprived of an opportunity to participate in high school baseball that is given to similarly situated boys, Logan will be irreparably harmed by losing the chance to play baseball with her peers and to develop skills to enable her to progress to the next level of baseball; Logan will be irreparably harmed by being denied other tangible and intangible benefits of baseball participation made available to similarly situated boys. Having an opportunity to play softball will not adequately compensate Logan for losing the opportunity to play baseball, and will place her at a substantial disadvantage compared to her peers who played baseball."

After the recent decision, Marie-Elisabeth Young, Logan's mother, said she was "pleased that the IHSAA has decided to do the right thing and let these girls try out for their baseball teams, We're proud of Logan for fighting this rule so that no other girl in Indiana has to go through what she went through just to get the opportunity to play the sport that she loves."

Young was represented by lead counsel Sharon McKee of Hangley, Aronchick, Segal & Pudlin in Philadelphia, PA; Tae Sture of Sture Legal Services in Fishers, Indiana; and Public Justice's Staff Attorney Victoria Ni and Goldberg, Waters & Kraus Fellow Amy Radon.

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Assessing a Coach's Liability for Injury to the Student-Athlete

By Robert J. Romano, Esq.

A few years ago, a high school freshman basketball player at Campbell County High School in Cold Springs, Kentucky suffered a severe break of his arm during basketball practice. His parents, true to the litigious American culture, sued the school’s two basketball coaches. The negligence suit, filed against the coaches in their official capacity as employees of the board of education, claimed that the coaches “mishandled the situation”.

Coaches Are Generally Not Liable for Their Players’ Injuries

It has long been established in intercollegiate and high school athletics that schools, together with the coaches they employ, are not responsible for ensuring the health and safety of student-athletes. Moreover, schools and coaches are not held strictly liable for injuries sustained by student-athletes in the course of athletic participation.

In addition, courts have held that high school and college athletes assume the inherent risks involved with a sport. The voluntary nature of the athlete’s participation in the activity usually allows schools and coaches to escape liability for injuries that are considered part of the game.

Coaches Have a Duty to Take Reasonable Precautions

While athletes may consent to undertake a wide variety of risks inherent to their particular sport, there are certain risks which they may not necessarily assume. Courts have determined that even though schools and coaches are not strictly liable for player injuries, they do have a duty to their players and must do everything practical to minimize the risk of injury to players under their control.

A Florida court decision has given some direction as to when liability may be imposed upon high schools and coaches. In Leahy v. School Board, 450 So.2nd 883, (Fla. Dist. Ct. App. 1984), the court held as follows:

the duty owed an athletes takes the form of giving adequate instruction in the activity, supplying proper equipment, making a reasonable selection or matching of participants, providing non-negligent supervision of the particular contest, and taking proper post-injury procedures to guard against aggravation of injuries.

Several other courts have defined the duty of care owed by coaches and high schools to student-athletes. In Kahn v. East Side Union High School District, 75 P.3rd 30, (Cal. 2003), the court stated that a coach will breach his duty to a student-athlete if the coach “intentionally injures the student or engages in conduct that is reckless in the sense that it is ‘totally outside the range of the ordinary activity’ involved in teaching or coaching the sport.” The court went on to say that coaches do not have a duty to eliminate all risk presented by the sport but rather have a duty “not to increase the risk inherent to learning, practicing, or performing the sport.”

The More Dangerous the Sport, the Greater the Responsibility the Coach Bears

The relevant court decisions indicate that at a minimum, coaches must provide proper supervision, training, and instruction. Coaches should take measures to ensure that players follow the rules of the game in an effort to avoid injuries. Coaches must warn against all known dangers or dangers that should have or could have been discovered in the exercise of reasonable care. In addition, coaches must supervise their players in proportion to how dangerous the activity is. The more dangerous the sport, the greater the responsibility the coach bears.

Coaches Must Provide Proper Protective Equipment

In addition, coaches may be found liable if an injured player was not provided with the proper protective and safety equipment and, even further, the coach must see to it that the athlete was properly instructed as to the appropriate use of this equipment. A coach must also see that the equipment is properly maintained so that its effectiveness is maximized.

A coach may never be free from all potential theories of liability, but a coach can protect himself or herself by using reasonable care and ensuring that athletes under his or her supervision are fully prepared, and protected, before stepping foot on the field or court.

Robert J. Romano, Esq. is the founding partner of THE ROMANO SPORTS AGENCY, which specializes in representing NCAA and Professional League Coaches in all aspects of contract negotiations. For more information, visit his web site at www.romanosportslaw.com, or contact him at rjr2128.@columbia.edu

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U.S. Supreme Court Holds the Line in Case involving Coach-led Prayers

The U.S. Supreme Court has rejected the appeal of a New Jersey high school football coach, who has been fighting for the right to bow and kneel in prayer with his football team.

The decision preserved a federal appeals court's decision, which had concluded that Marcus Borden's desire to bow his head and take a knee during team prayer is an endorsement of religious activity at a public school.

"Interesting, the Supreme Court chose not to disturb the 3rd Circuit's decision, which rejected, among other things, arguments that the coach is more like a bystander and that this somehow mitigated the First Amendment concerns," said Carla Varriale of Havkins Rosenfeld Ritzert & Varriale, LLP. "Simply put, public schools are not supposed to sponsor or endorse religious activities. No matter how sincere Coach Borden may be in his own beliefs, his role on the field was as a coach, not as a religious or spiritual educator."

Borden was successful at the district court level in July 2006 when a judge decided that the East Brunswick Board of Education's rules forbidding his right to express his religious views were unconstitutional. However, that decision was reversed by the 3rd U.S. Circuit Court of Appeal in April 2008.

In appealing that ruling to the U.S. Supreme Court last fall, Borden's attorney, Ronald Riccio, argued that his client's case had national implications because "it addresses what public school educators are permitted to say and do when public school students engage in religious activities in their presence."

The attorneys representing the defendants were quick to celebrate the victory.

In a prepared statement, Richard Katskee, an attorney with the Americans United for Separation of Church and State, which represented the board of education in court, said: "Children have a clear right to attend public schools without religious pressures being brought to bear by school personnel. Coach Borden was out of bounds, and the courts were right to blow the whistle. I hope that other coaches and school personnel learn a lesson from this."

In another statement, Todd Simmens, president of the East Brunswick Board of Education, said: "Public school officials simply may not engage with students in religious activity.  The board of education and district officials have, throughout this case, made certain no school employee supervises or otherwise participates in any type of prayer with our students. Needless to say, the board is pleased that, in this case, the courts reaffirmed this long-standing constitutional principle."

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Chicago Joins the Metal Bat Debate

As the Windy City Inches Closer to Securing its Bid to Host the 2016 Games, a Closer Examination of such Debates becomes Necessary

By Timothy Liam Epstein, Esq.
SmithAmundsen, LLC

Financing, logistics and convincing the International Olympic Committee that Chicago is the best choice for the 2016 Summer Games, is not the only athletic issue facing Chicago these days.  At lower levels of competition a debate is being waged over the type of bat used during baseball games.  While seemingly limited in impact to Illinois, the larger sports law community would do well to pay attention to the sports law developments (like the Illinois Supreme Court's decision in the Karas case) in Chicago and Illinois as a whole for potential impact on amateur events like World Sport Events, NCAA championships, conference championships, and, of course, the 2016 Summer Games.

Last month a Joint City Council committee held a hearing on the issue of whether to ban the use of metal bats by Chicago baseball players between the ages of 8 and 18.  At the Hearing, Chicago Public Schools, Little League Baseball and bat manufacturers stood up in opposition to the ban.  Ald. Frank Olivo (13th), whose son is currently recovering from a fractured skull after being hit by a baseball off a wooden bat, along with Ald. Anthony Beale (9th) oppose the ban.  The aldermen argue the ban will disadvantage city players because metal bats are less expensive and last longer than wooden bats.  Ald. Robert Fioretti (2nd) is pushing to ban metal bats in order to save lives.  If Chicago were to pass the ordinance it would join New York City and North Dakota, which previously banned metal bats.

In September of 2007, backed by Councilman James Oddo, the original sponsor of the bill, New York City banned metal bats in high school baseball games.  While U.S. District Court Judge John G. Koeltl said there is no clear evidence that metal bats cause more serious injuries than wooden bats, he added, "[t]he protection of the health and safety of high school-age students is entitled to great weight." Judge Koeltl further stated, "[w]hile the record does not include clear empirical evidence showing that more serious injuries would occur without the ordinance, it is the City's legislative assessment that the risk is too great." Moreover, former New York Mets pitcher John Franco agreed that the ban is a good idea arguing that the baseball shoots back at the pitcher as soon at it leaves the pitchers hand, "I don't even see it coming at me.  It's dangerous.  It's very, very dangerous...I'm speaking from someone standing on the mound for 22 years, and I can see the difference."

In addition, in 2007, North Dakota changed from metal to wooden bats in high school baseball.  Coaches and players alike support the change as it brings back "real baseball" while promoting safety.  The North Dakota High School Activities Association Board of Directors voted for the switch as a result of a frequency of injuries caused by line drives off metal bats that allow little reaction time for fielders.  Opponents of the ban argued that the cost of replacing wooden bats is much higher and the fewer hits or home runs produced by wooden bats negatively impact players' recruitment by college and professional teams.  While early returns show lower offensive statistics associated with wooden bats, proponents argue that wooden bats reveal the players' true power. Furthermore, proponents of the metal bat ban argue that safety is of paramount importance and coaches have noticed a difference in line drives hit at their players. Sherm Sylling, Executive Director of the North Dakota High School Activities Association, says that all in all the change has been smooth.

Since the introduction of metal bats in the 1970s, metal bats have come to dominate youth and amateur baseball, as well as softball markets.  Metal bats were originally introduced as a cost-saving alternative to wooden bats, which were prone to breaking. While a coach may need six wooden bats per year at a cost of fifty dollars each, a basic metal bat could sell for thirty dollars.  Moreover, players and coaches agree that metal bats outperform wooden bats with statistical support.

Scientific research performed in 2002 by a group of bioengineers at Brown University found that, on average, baseballs hit off a metal bat traveled fastest at 93.3 mph, while, on average, baseballs hit off a wooden bat clocked in at a slower speed of 86.1 mph.  These researchers concluded that the difference in speed between the bats was due to the barrel of an aluminum bat being hollow, allowing for a distribution of mass along the length of a metal bat, which is a considerably more generous distribution of mass than that of a solid wooden bat.  Interestingly, the research indicated that the "sweet spot" did not seem to vary between wooden and metal bats. 

In the late 1980s, the National College Athletic Association ("NCAA") implemented guidelines for the weight and length of metal bats, as well as certain safety tests that the bats had to pass.  Then, in 2008, the NCAA and Little League Baseball announced more stringent tests aimed at making metal bats perform more like wooden bats by 2011.  The groups also called for adjustments to bats already in play.  Critics of metal bats point to a growing body of evidence showing that metal bats are unsafe for pitchers because pitchers have less than half a second to react to line drives.  The most common fear articulated by metal bat critics is a situation involving a small twelve year old pitcher on the mound facing a large twelve year old batter at the plate.

Local critics of metal bats also point to a study conducted by the Illinois High School Association ("IHSA"), which tracked thirty-two high school teams in more than four hundred games and nine thousand at bats.  The study recorded five injuries from metal bats, but only one injury from a wooden bat.  Critics point to the specific danger in the faster speed of baseballs hit off metal bats to younger players who have more trouble controlling baseballs than older players.  In addition, critics of metal bats point to a study from the National Center for Catastrophic Sports Injury Research that indicates that there have been fifteen catastrophic injuries to high school and collegiate pitchers since 1982, with three players having died in the past decade from batted baseballs.  Only two of those deaths involved wooden bats, while the others involved metal bats.  Of note, Little League Baseball maintains its opposition to banning all non-wood bats, and counters that the reported injuries to pitchers should be tempered by the fact that there have been 9,500,000 high school and collegiate baseball participants since 1982.

While there have been numerous lawsuits filed by amateur baseball players against baseball bat manufacturers, most of these cases have settled.  The "premier plaintiff's case" in this area occurred in 2002, in Brett v. Hillerich & Bradsby Co., a casefiled in the Western District of Oklahoma. In Brett,a teenage pitcher was struck in the head with a baseball hit off an aluminum bat made by Hillerich & Bradsby Co., the manufacturer of Louisville Slugger.  The impact crushed the pitcher's skull resulting in a massive blood clot, which doctors performed emergency surgery on to remove the clot and repair the skull fracture.

Brett then sued Louisville Slugger alleging that the subject aluminum bat was defective because it made hit baseballs achieve dangerous speeds.  The lawsuit also claimed that baseballs hit with this aluminum bat were hit with such force that pitchers do not have sufficient reaction time to protect themselves.  Discovery in this litigation revealed internal documents claiming Louisville Slugger knew or should have known that the aluminum bat's capability put pitchers in danger, but they chose to ignore the warnings.  At verdict, the jury awarded the Plaintiff $150,000, which Louisville Slugger did not appeal. 

Hannant v. Hillerich & Bradsby, followed an incident in April 2002, where Daniel Hannant was struck in the head with a baseball hit off a metal bat while pitching in a high school game near Chicago.  Hannant suffered severe head injuries and the case settled.  In Sanchez v. Hillerich & Bradsby, 104 Cal. App. 4th 703 (Cal. Ct. App. 2002), Andrew Sanchez was pitching for California State University-Northridge ("Cal State-Northridge") when he was seriously injured when struck in the head by a line drive hit off the metal bat of a University of Southern California ("USC") player.  Sanchez filed suit against USC, the NCAA, the Pacific 10 Conference ("Pac-10"), and Hillerich & Bradsby.  The appellate court found in favor of Sanchez, with no admission of liability and an unspecified amount of damages.

Currently, in the case of Domalewski v. Hillerich & Bradsby, The Sports Authority and Little League Baseball, a 12-year-old was pitching in Wayne, New Jersey when he was hit in the chest by a baseball off a metal bat in June 2006.  The Plaintiff's heart stopped for fifteen minutes resulting in commotion cordis condition, causing brain damage.  The Plaintiff is now allegedly confined to a wheelchair, cannot speak clearly, and needs constant care and supervision.  The lawsuit alleges that the three defendants were aware of the danger of metal bats, put speed ahead of safety, and negligently deviated from acceptable practices in the design and manufacture of the bats.  One advertisement claimed the bat was so powerful that it was capable of "beaming the third basemen" with a line drive.  

The Domalewski suit contends that in 2002, the U.S Consumer Safety Product Commission found that there were seventeen deaths nationwide due to batted baseballs, with eight from metal bats, two from wooden bats and seven from an unknown origin.  While the lawsuit has yet to be decided, its effect on youth baseball thus far has been that many youth participants are wearing protective gear with at least one youth league making it mandatory for all pitchers to wear a protective heart guard.

With proponents of the metal bat ban claiming athlete safety as paramount to any cost or statistical advantage that metal bats may hold, opponents have a tough legal battle if the debate ever found its way into court, but the repercussions of such a ban may have additional consequences.  While baseball is not going to be played at the 2012 Summer Games in London, and Olympic baseball rules (as of the 2008 Summer Games in Beijing) call for the exclusive use of wooden bats, baseball competition during the 2016 Games has not been determined.  Further, if Chicago succeeds in securing the bid for the 2016 Summer Games, the number and scope of amateur sporting events taking place in Chicago (with efforts made by World Sport Chicago) will significantly increase, which could include baseball (i.e. Chicago's hosting of the 2007 World Boxing Championships).  As such, the outcome of the City Council's debate on the use of metal bats may have an impact beyond Chicago's youth baseball diamonds if the scope of the ban is expanded, and the precedent set is used to examine the equipment utilized in other sports. 

Timothy Liam Epstein (Chicago, IL) is Chair of the Sports Law Practice Group at SmithAmundsen LLC, focusing on the litigation needs of players, coaches, teams, and schools.  Tim is also the Vice-Chair of DRI's Sports Law Special Litigation Group.  Tim thanks his law clerks, Justin Kaplan and Megan Ferkel, for their contributions to this piece.

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Summary Judgment Ruling Sidelines Football Player's Discrimination Claim

A federal judge from the District of Hawaii has granted summary judgment to a several defendants in a case where student athlete, who was kicked off a football team, claimed that he was discriminated against on the basis of his race and his disabilities.

In so ruling, the court found that the complaint of plaintiff, Dontae Scott, "does not clearly articulate the factual and legal bases of Scott's claims."

The plaintiff was allegedly attacked in the school cafeteria by other students on October 18, 2007.  Although Scott said that he did not start the fight, he did not allow the dispute to die, acting belligerently even after school staff had removed him from the area. Scott even attempted to return to the area to continue fighting. School officials determined that Scott had committed "disorderly conduct," a "Class B" offense under applicable administrative rules, and suspended him from school for five days. He was permanently kicked off the football team.

On November 20, 2007, Scott filed a lawsuit, claiming that, even after his suspension ended, he was prevented from returning to school. The complaint alleged that Scott's suspension from school and termination from the football team constituted race-based discrimination in violation of 42 U.S.C. § 2000(d) and 42 U.S.C. §§ 1981, 1981a, and 1983. Scott said that his suspension and termination from the football team also violated the Individuals with Disabilities in Education Act and § 504 for the Rehabilitation Act. Scott asserted that the defendants intentionally caused him emotional distress. Scott sought $5 million in damages and an injunction to prevent the defendants "from the illegal practice of racial discrimination and harassment in denying Dontae Scott his usual position and play time on the Leilehua High School football team."

In granting summary judgment for the defendants, the court held:

1) that the injunctive relief claim, which seeks an order allowing Scott to play football for Leilehua High School, is moot, as Scott has already graduated from high school;

2) that the State of Hawaii, Department of Education, and the individual Defendants in their official capacities have Eleventh Amendment immunity with respect to Scott's §§ 1981 and 1983 money damage claims;

3) that, with respect to Scott's racial discrimination claims under Title VI and against the defendants in their individual capacities under 42 U.S.C. §§ 1981 and 1983, Scott does not present evidence that the defendants suspended Scott from school and kicked him off the football team because of race-based discrimination;

4) that having withdrawn his race discrimination claim under § 1981a at the hearing, Scott cannot recover under that statute;

5) that, with respect to Scott's claims under the Individuals with Disabilities Education Act, 20 U.S.C. §§ 1400-1487  [*4] ("IDEA"), Scott failed to exhaust his administrative remedies and has not, in any event, demonstrated a viable claim;

6) that, with respect to Scott's Rehabilitation Act claim under 29 U.S.C. § 794, Scott fails to raise a genuine issue of fact as to whether he was discriminated against because of his disability; and

7) that, with respect to Scott's state-law intentional infliction of emotional distress claim, Scott does not raise a triable issue of fact as to whether the defendants acted with the requisite malice and cannot establish the elements of such a claim given the lack of a genuine issue of fact as to whether the defendants discriminated against Scott at all.

Dontae Scott v. State of Hawaii Department of Education; Aloha Coleman, principal of Leilehua High School; Robert Davis, Vice Principal of Leilehua High School; Mr. Tokuda, football coach; D. Haw,; CIVIL NO. 07-00575 SOM/BMK, 2009 U.S. Dist. LEXIS 16884; 3/5/09

Attorneys of Record: (for plaintiff) Andre S. Wooten, LEAD ATTORNEY, Honolulu, HI. (for defendants) Kendall J. Moser, LEAD ATTORNEY, Office of the Attorney General-State of Hawaii, Honolulu, HI.

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Court Finds that Missing a Game Does Not Constitute 'Irreparable Harm'

A federal judge has denied a request for an injunction, which would have allowed a plaintiff to participate in a playoff basketball game, finding that the plaintiff and the co-plaintiff school district failed to articulate the "irreparable harm" she would suffer if her suspension was left in place

The court also admonished the attorneys representing the plaintiffs for failing to introduce case law that might have supported the claim that the player would suffer irreparable harm by not participating in the next day's game.

The impetus for the claim was Brittany Benedetto's ejection from a girls' basketball game on February 11, 2009. The official, who was sanctioned by the defendant Pennsylvania Interscholastic Athletic Association, Inc., ejected Benedetto with 14 seconds remaining in overtime after she had an altercation with a player from the opposing team. Per PIAA rules, a player ejected from a contest by a registered official for unsportsmanlike conduct or flagrant misconduct is disqualified from participating in the remainder of the competition as well as the next day of competition. The next day, Benedetto was scheduled to participate in a playoff game.

Benedetto and the co-defendant, Sharon City School District, filed a complaint and petition for preliminary injunction in the Court of Common Pleas of Mercer County, Pennsylvania. The defendants, PIAA and Pennsylvania Interscholastic Athletic Association District 10, removed the Complaint to this Court on the basis of federal question jurisdiction pursuant to 28 U.S.C. § 1441 and § 1446.

"Benedetto and the School District contend that the lack of a procedural appeals process for an ejection based upon unsportsmanlike conduct or flagrant misconduct constitutes a violation of the Procedural Due Process Clause of the Fourteenth Amendment of the United States Constitution and the Pennsylvania Constitution," wrote the court.

"In addition, the plaintiffs urge that the penalty imposed upon Benedetto is 'arbitrary and capricious' because she never engaged in the alleged conduct and, as such, the penalty constitutes a violation of the Equal Protection Clause of the United States Constitution and the Pennsylvania Constitution. Benedetto and the School District seek an entry of preliminary injunctive relief consisting of a suspension of the remaining penalty - missing the game on February 21, 2009."

Before offering its analysis, the court noted the following factors that need to be in place to grant injunctive relief:

"(1) the likelihood that the applicant will prevail on the merits;

(2) the extent to which the applicant will suffer irreparable harm absent injunctive relief;

(3) the extent to which the defendant will suffer irreparable harm if relief is granted; and

(4) the public interest.

Dziewa v. PIAA, Civ. No. 8-5792, 2009 U.S. Dist. LEXIS 3062, 2009 WL 113419 at * 3 (E.D. Pa. Jan. 16, 2009), quoting, S&R Corp. v. Jiffy Lube Int'l. Inc., 968 F.2d 371, 374 (3d Cir. 1992). 'Courts will issue a preliminary injunction only where four factors weigh in favor of this extraordinary measure... .' Id"

The defendants challenged, among other things, Benedetto's and the School District's ability to demonstrate "irreparable harm."

"To establish 'irreparable harm,' the applicant must 'demonstrate potential harm which cannot be redressed by a legal or an equitable remedy following a trial.' Dziewa, 2009 U.S. Dist. LEXIS 3062, 2009 WL 113419, quoting, Acierno v. New Castle County, 40 F.3d 645, 653 (3d Cir. 1994). The complaint does not identify the nature of the irreparable harm. Nor during the two conferences held to discuss the requested relief did the plaintiffs precisely articulate the nature of the irreparable harm.

"Nevertheless, it is well established that ineligibility for participation in interscholastic athletic competitions alone does not constitute irreparable harm. See Dziewa, 2009 U.S. Dist. LEXIS 3062, 2009 WL 113419 at * 7; Revesz v. PIAA, 798 A.2d 830, 837 (Pa. Commw. Ct. 2002) (stating that 'the loss of an opportunity to play interscholastic athletics for one year does not constitute irreparable harm.'); Sahene v. PIAA, Civ. NO. 99-902 (W.D. Pa. July 19, 1999) (holding that 'plaintiff will not suffer irreparable harm if he is not permitted to participate in interscholastic athletic competition during the 1999 or 2000 school year. Although Christopher Sahene is not eligible to play football, defendant does not bar him from practicing with Fox Chapel's teams or coaching in the sport in which he is interested. Plaintiff is also free to participate in intramural activities as well as non-school-related athletic events.'); Fortson v. Shaler Area School District, Civ. NO. 92-2462 (W.D. Pa. Jan. 6, 1993) (holding the same); and Brownlee v. PIAA, Civ. NO. 7-32 at Docket NO. 18 (stating that 'Plaintiff's motion for preliminary injunctive relief was denied for failure to demonstrate imminent irreparable harm') and transcript of proceedings, p. 99 (stating, 'I cannot find, based on the record presented here this morning, that by missing less than half of this season the plaintiff will sustain immediate irreparable harm.') (citing, Sahene and Fortson); Cruz v. P.I.A.A., Civ. No. 00-5594, 2000 U.S. Dist. LEXIS 17521, 2000 WL 1781933 at * 1 (E.D. Pa. Nov. 15, 2000) (denying a request for preliminary injunctive relief because '[n]ot being able to play on game day is certainly a disappointment but does not in my judgment constitute the type of harm warranting the extraordinary remedy of injunctive  relief.').

"Benedetto and the School District admit that they have no case law to counter that cited above. To the extent that the plaintiffs contend that the 'irreparable harm' consists of something other than the denial of an opportunity to participate in the February 21, 2009 game, the plaintiffs failed to coherently identify what the irreparable harm would be. Certainly the possibility that the School District may lose a playoff game if Benedetto does not compete cannot constitute 'irreparable harm.' Further, the School District has no underlying property interest in its 'reputation' which would merit the granting of injunctive relief. See Adamek v. PIAA, 57 Pa. Commw. 261, 426 A.2d 1206, 1208 n. 2 (1981) (stating that '[t]he interest of a school district in preserving its good reputation is not a property interest.'). To the extent that Benedetto would argue that her reputation would be irreparably harmed if forced to miss tomorrow night's game, I find that argument unconvincing. Should Benedetto ultimately prevail and the suspension be reversed, her reputation will be restored because those interested will understand that her involvement in the altercation was based solely upon self-defense. To the extent that Benedetto contends she will suffer embarrassment and humiliation if forced to miss the game, she can be compensated for such pain and suffering should she ultimately prevail.

"Because Plaintiffs failed to identify any irreparable harm, I need not hold a hearing prior to issuing an order denying injunctive relief. See Rottmann v. PIAA, 349 F. Supp.2d 922, 928 (W.D. Pa. 2004) (stating '[a] district court is not obliged to hold a hearing when the movant has not presented a colorable factual basis to support the claim on the merits or the contention of irreparable harm.' See Bradley v. Pittsburgh Bd. Of Ed., 910 F.2d 1172, 1176 (3d Cir. 1990))."

Sharon City School District and Brittany Benedetto v. Pennsylvania Interscholastic Athletic Association, Inc. and Pennsylvania Interscholastic Athletic Association District 10; W.D.Pa.; Civil Action No. 9-213, 2009 U.S. Dist. LEXIS 13037; 2/20/09

Attorneys of Record:  (for plaintiffs) Patricia R. Andrews, LEAD ATTORNEY, Andrews & Price, Pittsburgh, PA. (for defendants) Alan R. Boynton, Jr., LEAD ATTORNEY, McNees, Wallace & Nurick, Harrisburg, PA.

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Basketball Player's Claim Survives Summary Judgment

A state court judge in Connecticut has kept alive the claim of a plaintiff, who injured himself when he slipped and fell in a gym, by denying a pair of motions for summary judgment brought by the defendants in the case.

The court's rationale for the decision was "based upon the nature of the allegations in the complaint and the material issues of facts disputed by the parties to this action."

The incident that led to the litigation occurred on April 21, 2005, when plaintiff David Williams was participating in a basketball practice in the Middletown High School gymnasium. Williams slipped and fell on a dusty, unswept floor, causing him to sustain a serious knee injury. The practice occurred during spring break, when the school district had a limited staff at its disposal.

On September 27, 2007, the plaintiff parent, Annette Williams-Crump, filed an amended 12-count complaint on behalf of her minor son. The first and seventh counts were directed against Jeff Turro, the head custodian at MHS; the second and eighth counts are against Robert Fontaine, the principal of MHS; the third and ninth counts are pled against Carol Parmalee-Blancato and/or Michael Frechette, superintendent of Middletown High School; the fourth and tenth counts are directed at the Middletown board of education; the fifth and eleventh counts are pled against the Amateur Athletic Union (AAU), and the sixth and 12th counts are against Bobby Dodd, AAU's president and chief executive  officer.

The plaintiffs alleged that the defendants had a duty to supervise the premises and maintain a safe environment for the basketball participants, and that they failed to do so. The plaintiffs further alleged that the defendants breached their duty of care by failing to maintain the gymnasium floor in a safe condition, and by leaving it in a dusty, unswept condition, which caused Williams to slip and sustain his serious knee injury. In particular, the plaintiffs alleged that the municipal defendants in this case owed a mandatory public duty to Williams to clean and safely maintain the gymnasium floor. The plaintiffs additionally alleged that the Middletown Bulldogs were part of a league that the AAU was operating, managing or facilitating, and that it had possession or control of the MHS gym at the time of the injury.

In their motion for summary judgment, the board of education defendants argued that they were entitled to governmental immunity. In the second motion for summary judgment, the defendants AAU and Dodd asserted that they were neither in possession or control of the premises at the time of the incident, nor did they breach their duty of care to Williams in failing to maintain the premises in a safe condition.

Addressing the second summary judgment motion first, the court concluded that the issue of control and possession of the MHS gymnasium at the time of Williams' injury to be a "material fact disputed by the parties in this case. As an issue of fact, it is within the province of the finder of fact at trial to determine the validity of this element of the plaintiffs' claim. For this reason, the AAU and Dodd's motion for summary judgment is denied."

Turning to the board of education's motion for summary judgment, the court noted that while "municipalities are generally immune from liability in tort, municipal employees historically were personally liable for their own tortuous conduct. Burns v. Board of Education, 228 Conn. 640, 645, 638 A.2d 1 (1994). There are several well recognized exceptions to governmental immunity claimed by the plaintiffs in this case. They are: (1) the identifiable person-imminent harm exception; (2) the acting in a proprietary capacity exception; and, (3) the violation of a mandatory public duty exception."

The court found that the imminent harm exception to GI did not apply as that exception did not apply to a voluntary activity on school grounds. However, questions of material fact existed as to whether the proprietary capacity (PC) and mandatory public duty (MPD) exceptions to GI applied. The acceptance of a fee for the athletic association's use of the high school gym, while minimal proof of the PC exception, was nonetheless sufficient to raise a question for the jury as to whether the exception applied, but only as to the BOE itself. Language in the BOE's policies regarding facility use indicated that it was required to provide a custodian when a facility was used. None was provided. While not conclusive proof of a MPD, the evidence gave rise to a factual inference sufficient to survive summary judgment.

Annette Williams Crump PPA David Williams v. Middletown Board of Education et al.; Super. Ct. Conn., Middlesex; CV075002093, 2009 Conn. Super. LEXIS 435; 2/20/09

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Federal Appeals Court Sides with Coaches in Wrongful Death Case

The 11th U.S, Circuit Court of Appeals has reversed a trial court, finding that three high school football coaches were entitled to qualified immunity in a case in which the coaches subjected the plaintiff to rigorous drills the day before he collapsed and died.

In so ruling, the court found that the actions of the coaches did not sufficiently "shock" the "conscience," the necessary threshold for piercing the qualified immunity defense.

The event leading to the litigation occurred during a football practice in 2007, when plaintiff Tyler Davis participated in a voluntary workout with the Rockdale County High School football team. Davis was allegedly subjected "to an intense and unreasonable practice that cause him to collapse and die the next morning."

The parents of the plaintiff subsequently sued the Rockdale County Public Schools (RCPS), the State of Georgia, and various RCHS employees, including the three football coaches.

The plaintiffs relied on Section 1983 in alleging that the coaches had violated Tyler's substantive due process rights. They claimed specifically that the defendants failed to provide sufficient water, ignored his complaints that he was becoming dehydrated, and failed to attend to him until after the team meeting.

The defendants then moved to dismiss the complaint, a motion that the district court granted as it related to all defendants except the coaches. Specifically, the lower court found that the complaint sufficiently alleged a constitutional violation under the Fourteenth Amendment and the coaches were not entitled to qualified immunity.

In reviewing the decision, the panel noted that "the plaintiffs allege the coaches violated Tyler Davis's substantive due process rights during the workout session because: (1) Davis was deprived of water and exhibited signs of overheating; (2) when Davis collapsed on the football field, the coaches deliberately chose not to assist him or immediately summon medical assistance; and (3) these deliberate decisions resulted in the deprivation of his right to life, liberty, health, bodily integrity, and safety. The district court found these facts, if proven, are sufficient to support a finding that the coaches acted willfully or maliciously with an intent to injure Davis. We disagree."

Quoting from County of Sacramento v. Lewis, 523 U.S. 833, 846, 118 S. Ct. 1708, 1716 (1998), the panel noted that "the Due Process Clause was intended to prevent government officials from abusing their power, or employing it as an instrument of oppression." The panel added that the substantive component of the Due Process Clause "protects individual liberty against 'certain government actions regardless of the fairness of the procedures used to implement them.'" Collins v.City of Harker Heights, 503 U.S. 115, 125, 112 S. Ct. 1061, 1068 (1992) (quoting Daniels v. Williams, 474 U.S. 327, 331, 106 S. Ct. 662, 665 (1986)).

"'Nothing in the language of the Due Process Clause itself requires the State to protect the life, liberty, and property of its citizens against invasion by private actors.' DeShaney v. Winnebago County Dep't of Soc. Servs., 489 U.S.189, 195, 109 S. Ct. 998, 1003 (1989). In DeShaney, the Supreme Court expressly rejected the argument that a constitutional duty of protection can arise from a state's 'special relationship' with a particular individual where the state played no part in creating the danger posed to the individual. Id. at 197, 109 S. Ct. at 1004. Conduct by a government actor will rise to the level of a substantive due process violation only if the act can be characterized as arbitrary or conscience-shocking in a constitutional sense. See Lewis, 523 U.S. at 847, 118 S. Ct. at 1717. The concept of conscience-shocking conduct 'duplicates no traditional category of common-law fault, but rather points clearly away from liability, or clearly toward it, only at the ends of the tort law's spectrum of culpability.' Id. at 848, 118 S. Ct. at 1717. The Supreme Court has made clear 'the due process guarantee does not entail a body of constitutional law imposing liability whenever someone cloaked with state authority causes harm. Id. Thus, 'the Fourteenth Amendment is not a "font of tort law" that can be used, through section 1983, to convert state tort claims into federal causes of action.' Neal v. Fulton County Bd. of Educ., 229F.3d 1069, 1074 (11th Cir. 2000) (citing Lewis, 523 U.S. at 848, 118 S. Ct. at1718). To rise to the conscience-shocking level, conduct most likely must be 'intended to injure in some way unjustifiable by any government interest.' Lewis, 523 U.S. at 849, 118 S. Ct. at 1718."

After examining case law that was analogous, the panel turned back to the case at hand.

"In this case, Tyler Davis voluntarily participated in an extracurricular after-school activity, so no custodial relationship existed between himself and the school," the panel wrote. "The plaintiffs did not allege the coaches engaged in corporal punishment or physically contacted Davis. The allegations in the complaint do not support a finding that the coaches acted willfully or maliciously with an intent to injure Davis. Rather, the facts allege that the coaches were deliberately indifferent to the safety risks posed by their conduct to Davis. In this school setting case, the complaint's allegations of deliberate indifference, without more, do not rise to the conscience-shocking level required for a constitutional violation."

Davis v. Carter; 11th Cir.; No. 08-10162; 1/23/09

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Court: Coach's Age and Race Discrimination Claims Can Continue

A federal judge has denied a school district's bid for summary judgment in a case where an African American coach claimed that it discriminated against him on the basis of his age and race when it failed to reappoint him to several coaching positions.

The court did, however, grant summary judgment to the district on the plaintiff's retaliation claim, finding that given "the plaintiff's failure to produce evidence of a similarly-situated employee, no reasonable jury would find that the plaintiff has established a prima facie case of retaliation."

The events leading up to the claim are as follows: Robert Green, who is African-American, was born in 1955. He is a certified teacher and began working as a physical education teacher and coach for the East Aurora School District No. 131 in 1980. While working for the district, he coached football, boys' and girls' basketball, and track and field at the elementary, middle, and high school levels. Green completed courses such as sports first aid and principles of coaching while employed with the District.

During the 2004-2005 school year, Jesus Barraza became the athletic director at Simmons. As AD, Barraza supervised the athletic programs and recommended teachers for coaching positions to Principal Randal Ellison.

Just before the start of the 2005 track and field season, Barraza asked Green to resign as head coach. Barraza stated that he told Green that he should resign because there had been several complaints about his coaching behavior. According to Barraza, Green promised to improve his behavior. Green contends that Barraza only mentioned that Green had failed to participate in two basketball-related events as the reason for requesting that he resign. Barraza relented and allowed Green to remain as track and field coach for the season.

In April 2005, Green filed a claim with the Equal Employment Opportunity Commission (EEOC), alleging unlawful discrimination.

In the spring of 2005, Barraza asked teachers to inform him if they were interested in coaching during the next school year. Shortly thereafter, Green left a note for Barraza stating "I am interested in coaching next year!" Barraza, however, did not recommend Green for any coaching positions for the 2005-2006 school year, and Ellison did not appoint Green to any such positions.

Barraza recommended several other teachers for coaching positions that year. The courted noted three in particular, who had filled Green's positions. The district's policy requires that certified teachers be given a preference for coaching positions over non-certified teachers. Two of the teachers were not certified. In addition, the district's policy stated that only teachers who had completed courses in sports first aid and coaching principles were eligible for coaching positions. While Green had successfully completed both courses, none of the new appointee had met that requirement.

The situation continued to disintegrate, coming to a head when on November 20, 2006, the district issued Green a notice to remedy. The notice was a formal disciplinary action, but it did not immediately affect Green's salary or position. In the notice, the District identified four separate incidents of allegedly inappropriate behavior that it alleged violated District policy. In May 2005, two female contractors complained that Green had asked inappropriate personal questions. On April 5, 2005, a student complained that Green had asked her if she was a virgin. On October 25, 2006, another student complained that Green grabbed him and pushed him from a classroom. Four days later, identified as D.S., complained that Green had sexually harassed her. The notice to remedy ordered Green to remedy the allegedly unprofessional behavior or face discharge.

The District contends that each of the complaints was investigated and that each was found credible. Green contends that all the complaints were baseless and that some were contradicted by eyewitnesses. Ultimately, the district reassigned Green to that of in-school suspension teacher.

Green filed a suit on October 9, 2007, asserting three claims of discrimination in violation of the ADEA and Title VII:  (1) a claim of age discrimination for the District's failure to appoint him girls' basketball coach, track and field coach, and wrestling coach; (2) a claim of race discrimination for the District's failure to appoint him track  and field coach, wrestling coach and football coach; and (3) a claim of retaliation for issuing him a notice to remedy, transferring him to the position of in-school suspension teacher, and failing to appoint him to a coaching position.

In deciding the age and race discriminations, the court found that "Green has shown that there is a genuine factual dispute with respect to the genuineness of his alleged record of misconduct and, therefore, with respect to whether that was the actual reason for the District's actions. This, combined with the differential in experience and training between Green and the individuals appointed instead of him, is sufficient to create a genuine factual dispute over whether the district's reasons for not appointing Green were pretextual."

As noted previously regarding the retaliation claim, the court sided with the district, finding that "Green has not produced evidence that another employee who was found to have harassed a fellow employee was not reassigned. As a result, the District is entitled to summary judgment on Green's retaliation claim concerning the November 2006 disciplinary actions."

Robert E. Green v. East Aurora School District No. 131; N.D. Ill.; Case No. 07 C 5696, 2009 U.S. Dist. LEXIS 9162; 2/5/09

Attorneys of Record: (for plaintiff) Arthur R. Ehrlich, LEAD ATTORNEY, Jonathan C. Goldman, Goldman & Ehrlich, Chicago, IL. (for defendant) Thomas J. Canna, LEAD ATTORNEY, Dawn Marie Hinkle, John F. Canna, Joshua R. Runnels, Canna and Canna, Ltd., Orland Park, IL.

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Federal Judge Sends Eligibility Lawsuit Back to State Court.

A district court has granted a plaintiff’s motion to remand a lawsuit back to a state court after the plaintiff, who was seeking a waiver of ineligibility from the Kentucky High School Athletics Association, withdrew his allegation that his rights under the United States Constitution were violated.

The case centers on the claim of Tye Prince, a talented young basketball player. When Tye’s father, Billie Prince, took a new job as assistant coach for the Ballard Memorial High School, Tye sought immediate eligibility at BMHS. The KHSAA thought otherwise, requiring him to sit out for a year.

After exhausting his appeals with the association, Price sought judicial intervention. Among other things, he alleged that his “Due Process rights have been violated under both the United States and the Kentucky Constitution.”

On December 3, 2008, the KHSAA filed a Notice of Removal to this federal court. On December 5, 2008, the plaintiff tendered an amended complaint to the Ballard Circuit Court withdrawing his Due Process Claim under the United States Constitution. On December 17, 2008, the plaintiff filed this motion to remand arguing that the court lacks jurisdiction over this matter because there is no federal question remaining since the plaintiff filed his amended complaint.

“While it is clear that the plaintiff dismissed his federal-law claim from his complaint in an effort to litigate this action in state court, the other factors weigh heavily in favor of remand,” wrote the federal judge. “This case remains in its very early stages in federal court. The court has not addressed the merits of this action. Additionally, the slight delay that would result in remanding this case to the state court would not prejudice the objecting party, the KHSAA. Finally, this matter is an administrative appeal of a KHSAA decision brought pursuant to KRS 13B.140 and is more appropriately decided by the state court. Thus, balancing these considerations, the court will remand the state law claims to Ballard Circuit Court.”

Tye Prince v. Kentucky High School Athletic Association; W.D. Ky.; CIVIL ACTION NO. 5:08CV-00195-JHM; 2009 U.S. Dist. LEXIS 3436; 1/16/09

Attorneys of Record: (for plaintiff) Daryl T. Dixon, LEAD ATTORNEY, Paducah, KY. (for defendant) Jason T. Ams, Phillip D. Scott, Theodore Roberts Martin, LEAD ATTORNEYS, Greenebaum Doll & McDonald PLLC, Lexington, KY.

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