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COLLEGE ATHLETICS AND THE LAW
(Tuesday, June 12, 2:00-3:00 p.m.)



RUDY CARVAJAL:

I'd like to welcome you to session six, College Athletics and the Law. This will be a very informative session and I would like to say how we are going to conduct it. We will have two presentations and we will leave a lot of time at the end for some specific questions that you might have. I'd like to introduce at this time Nancy Olson, the athletic director from Florida International University, who will introduce our panel.

NANCY OLSON:

I believe that I am probably the second speaker from the state of Florida that you have had during the Convention. Tim Foley spoke to you yesterday. On behalf of all the colleges and universities in the state of Florida, we hope that you are having a great time and we welcome you to the great state of Florida. This is a real pleasure for me to introduce these two gentlemen today. Dr. Mallios is going to speak to us first. 1 first met Dr. Mallios when 1 was a student at the University of Miami. Later on, 1 went back to school to get a degree in sports administration at this same college, which is now St. Thomas University. 1 took a course at that time called Legal Aspects of Sports Administration with Dr. Mallios as the teacher and it certainly has proven to be one of the most beneficial courses that 1 had to take in that program.

Dr. Mallios is currently the NCM faculty rep at the University of Miami. He served as the school athletic director from 1979-83 and he has published extensively in the area of sports law. He has authored a text called PhvsicalEducati9~andthe Law To~ay, which came out in 1977. He has completed a second book called The Law. SDortsand Schools and CoL~eges, scheduled for publication later this year. Ladies and gentlemen, let's welcome Dr. Harry Mallios to the-podium.

HARRY MALLIOS :

Thank you Nancy. The reason I am here today is because I'm indebted to intercollegiate athletics. As a student-athlete at the University of Miami back in the early 50's, I learned many things playing college football that I believe had a lot more to do with my professional success that I may have had, than perhaps what I learned in the classroom. My former professor may recoil at such a thought. As an athletic administrator, I would look forward to the annual NACDA meetings and I am privileged to be here today to address the membership. The focus of our presentation is dealing with the legal aspects of intercollegiate sports. The burden of my remarks is rather light and simultaneously inadequate, for reasons observed in a quotation from Oliver Wendell Holmes. He stated that general propositions do not decide conf.rontations. General remarks by a speaker, I believe, tend not to be responsive to specific concerns of the audience, but recognizing that as such, I will merely propose then, to state in my introductory remarks, general propositions that perhaps are sufficiently developed by the cou~t that we can understand at least the ground rules against which we can then test more particular situations.

In the last ten years there has been considerable critical literature. It has grown and it has become known as sports law. The legal profession has become much involved with the world of sports, and litigation in sports,quite frankly has experienced an explosion much in keeping with what has happened with society in general. It is not surprising then, that conditions that confront athletic administrators during the past decade and into the present was due largely to mandates, and the aftermath of federal legislation and/or litigation involving sports. There is no doubt that we have a very active and socially conscientious judiciary exercising review of the many facets of the law in sports. Probably more so than any time in our history.

There are a number of possibilities one might consider in making a presentation of this kind. The topics that we could have included were emerging topics in sports law, emerging such as antitrust laws.

Two circumstances come to mind. The first being the action promulgated by the University of Oklahoma and the University of Georgia versus the NCAA to decide who controls the televising of intercollegiate football. The case will be decided and we should have a decision from the United States Supreme Court momentarily. The second is the antitrust action by the Association of Intercollegiate Athletics for Women versus the NCAA. Rather than belabor the point, a course in antitrust could take a better part of a semester. A second topic which could be included involves defamation of character. I believe this is an area that is just now being tested. These are suits being brought by coaches or indeed student-athletes. Defamation has to do with libel and slander. Sports programs are also affected by rules of law. They must determine the right of a coach or a student-athlete to seek recovery for defamatory statements written or spoken.

The recent issue of The Chronicle of Hi~her Education stipulated a lawsuit involving a former women's basketball coach at the University of South Carolina that has received a good deal of news coverage. The coach has settled her lawsuit with the university for $20,000. However, a 75 million dollar libel suit against Time Incorporated, which is the publisher of Sports Illustrated, continues in the courts. Lawsuits can originate over a cup of coffee, by words spoken in haste or frustration, just as easily as on the playing field. Slander is the legal term assigned to oral communication which wrongly defames the character of a third person. Libel is the legal term for written communication. The law has always treated libel as more serious than slander because of the permanency of the written word. There seems to be a shift recently in defamation suits. Some courts are looking at the intent of the statement. At one time it was held no matter how damaging, a true statement was an absolute defense. Now, however, if there is malice or intent to harm, a defamation suit may be substantiated by today's courts.

A third topic may well include the prerogative of a college or university student-athlete and the power of institutions and athletic administrators. We have ad hoc administrative and faculty rules, athletic department rules, not to mention NcAA rules and regulations. The layers seem to progress upward to the supreme law of the Constitution. Virtually every significant change affecting student-athletes prerogative and college powers over the last decade have resulted from the authoratative interpretation of the 14th Amendment and the Bill of Rights. What I mean to imply is that the rules of constitutional limitations have been expanded, an example of this can be the First Amendment, expression of speech; Fourth Amenrlment, search and seisure; and Fourteenth Amendment, due process clause and equal protection clause, I will speak more of due process shortly. Equal protection, of course, contains many cases dealing with Title Nine legislation.

A fourth topic, very briefly, involves privacy of records. The family educational rights and privacy act of 1974, more commonly known as the Buckley Amendment, guarantees students, including student-athletes, of access to their college files. Information contained in an educational record of a student-athlete can- not be released or viewed without permission of the student-athlete. A concern comes to mind specifically regarding the academic eligibility of a student-athlete. It is an extremely precarious item. Due to the media pressure questioning why is an athlete no longer on a team; why is he no longer practicing; why is he no longer in school; I think this law is also now being questioned and tested.

A fifth area, which my colleagues will speak of shortly involves liability, wh1ch can result from injuries sustained in athletic programs. Now this is probably an area of the law which has received the greatest body of litigation and correspondingly a large body of poor decision. Examples, of course, are liability to the participants, liabilities to the spectators at a contest, liability of institutions and athletic administrators, liability of coaches, not to mention medical treatment or perhaps product liability or defective equipment. Much of my own background is drawn from poor liability in sports programs. As a result, I'd rather not belabor the point. The two areas of concern would be the concept of negligence, what is it, and defense of negligence.

My next topic and more specifically, with more emphasis, deals with worker's compensation and college athletics. The question posed is "should universities be responsible for athletes that are seriously injured?" Although the most widely publicized problem dealing with intercollegiate sports seems to focus primarily on recruiting violations and perhaps academic abuse of the intercollegiate athlete, the legal aspect of athletic injuries could also become a major issue, in a very new dimension. Applicability of workers compensation statutes to student-athletes is an area that I think is getting increasing attention by the courts and certainly by student-athletes. For example, a college football player suffered an injury which rendered him a quadriplegic, tragic case. It's the most tragic and heartwrenching and devastating injury in all of sports. Despite the serious type of injury and the serious number of injuries in college athletics that an athlete may incur, only a handful have sought workeis compensation benefits. Typically workers compensation statutes provide two criteria that must be met before an injured plaintiff can recover benefits. First. the athlete must qualify as an employee. Second. the athlete must suffer a personal injury by accident arriving out of and in the course of employment. That is very important. If a college athlete does not meet the threshhold requirements of establishing employee status. he has no case. If employee status is established. the analysis of the college athlete's case will be similar to that of any employee.

In 1953. a University of Denver football player established a relationship between his job. Which involved custodial tasks at a university owned tennis court. and athletic aid. His job was contingent upon his athletic ability. He received benefits from worker's compensation. In 1957. the Supreme Court of Colorado dealt with a worker's compensation case in which a football player died following a head injury. The crucial elements in this case centered upon the fact that no evidence existed which showed the athlete's employment was dependent upon playing football. The Supreme Court of Colorado disallowed benefits. In 1963. a California case held that dependents of a college football player killed in an airplane crash while returning from a football game were entitled to worker's compensation and death benefits. The worker's compensation law was upheld and it was stated. and I am quoting. "the student athlete was an employee under the California statutes." Recently courts upheld that an athlete was not an employee. The most recent case we've all read about is the 1982 Indiana State University case. The young man became a quadriplegic following injuries. It was the first time in twenty years that the issue of scholarship athletes was again raised in worker's compensation benefit cases. The Indiana Supreme Court reversed a court of appeals opinion. which felt the athlete qualified as an employee. The Supreme Court of Indiana rejected the claim that the athlete did not receive pay for playing football.

A final case in 1982 was here in the state of Florida. It was held that an injured basketball player who received a full grant-in-aid was not entitled to worker$ compensation. The case held the athlete's scholarship was not a quid pro quo for his basketball services. If the athlete had been given a university job. again, this is important. he would have been considered an employee. I believe NCAA rules provide a useful background to illuminate the nature of the relationship between the student-athlete and his school. as something other than one of the employees and the employer. There are four factors that I think are relevant. The first one is incorporation by reference. Many member institutions incorporate by reference the rules of the NCAA in their grant-in-aid agreement. When this is the case. an argument can be made that the NCAA prohibition of pay for play negates an alleged employer/employee relationship for purposes of coverage under the act of worker's compensation. Of course. membership alone may be sufficient in so much as the organization. the NCAA. is well known to require strict compliance with its rules as a condition of continued membership. But, since the grant-in-aid agreement establishes the relationship. NCAA rules incorporation by reference would be helpful to define the relationship.

The second one is discontinuation of aid. Generally the NCAA does not permit the discontinuation or withdrawal of financial aid When an injury disrupts a student-athlete's participation in the sport. When the school follows this rule. a stronger argument can be made that the athletic scholarship was granted for educational purposes. If a student's eligibility for the grant-in-aid is not contingent upon contingent participation in sports. the contract for hire aspects of the relationship are diminished. The student, unlike the employee. cannot be discharged on performance where his aid continues in spite of nonperformance.

The third one concerns services in lieu of participation. Some schools require the performance of other services when a student's injury precludes participation in a sport. Such a requirement brings the relationship back toward one of employer/employee. If contingency of the grant-in-aid is conditioned on some other service for the school during a term of injury. it is more likely that the student will fit the definition of employee under worker's compensation.

The final category is services in addition to participation. The existence of this factor, services in addition to particpation, has probably produced the most litigation. In this case a student-athlete performs a job for the school on a regular basis. simultaneously with participation in a sport. when employment in this job is a part of a financial aid package. His employment is conditioned on his athletic ability for continued participation in a sport. There is a good chance the student-athlete will be covered as an employee, under workers compensation. even if his injury occurs in the sport rather than in the job. which is a part of his financial aid. For example, when a student's financial aid agreement with a school provided a part-time job as manager of the tennis courts. and conditioned employment in the job on participation in football. the court found the student to be covered under worker's compensation and the employee aspect of the Colorado worker's compensation law. This happened even though the injury occurred on the practice field. But with a student's aid agreement, which provided a part-time job, it did not condition employment on participation in the sport. A fatally injured football player was held not eligible for benefits under the same Colorado statutes. The above factors may be helpful in assessing potential liabilities under worker's compensation law. The current state of case law is rather meager nationwide and I think other developments are likely in the future.

Finally, I wish to deal with due process of law. The last two issues of 1he Chronicle of Higher Education spotlighted two cases in which due process of law figured quite prominently. Educational institutions, athletic administrators, coaches and student-athletes are constantly subjected to varying degrees of sanctions for violations of rules and regulations. Athletic associations and conferences likewise, face conflicts in the courts questioning the application of penalties assessed against member institutions, coaches or student athletes. Just as the severity of the infractions vary, so does the appropriate actions and its method of application determination. Among the sanctions which are most severe, of course, are those which place an institution on probation, suspend or terminate the employment of a coach, or suspend or withdraw the eligibility of financial assistance to a student athlete. Other sanctions, such as these, have been challenged in the court, both because the sanctions were considered unfair and perhaps the procedure of application was considered arbitrary.

This part of my program will deal with the legal aspects and continuing prominence of the due process clause of the Sth and l4th Amendments of the United States Constitution. The legal aspect referred to is more accurately expressed in terms of the proliferation of cases involving the exercise of authority through or against athletic associations or conferences, educational institutions, administra- tors, coaches and student-athletes. Certainly the prominence of Title IX legislation has done much to create among university and college athletic administrators an awareness of the law, specifically as it relates to sex equity in sports programs. The recent Grove City decision by the United States Supreme Court continues to shape the legislative impact of Title IX and is reflected in the attempt by both houses of congress to amend Title IX to make it institutional in scope, opposed to programatic, which the Supreme Court has held. Also, the heavyweight of cases brought to the courts challenging the constitutionality of imposed penalties by the NCAA, have been well-documented in the plethora of cases.

The most recent and widely publicized of which,has been the ongoing challenge by a university basketball coach questioning the NCAA right to order his suspension Jor rule violations in a basketball program which allegedly took place prior to and after his arrival at the university. The coach filed suit granting him a temporary restraining order blocking his suspension from coaching, claiming he would be denied,without due process of law, his ability to be actively employed in the profession of his choosing. The educational institution, as a member of the NCAA, was placed in a position that required it to take appropriate action against staff members who violated rules. The question is whether a university can enforce such a severe sanction against a staff member's suspension without satisfying due process requirements. It is becoming increasingly important that educational institutions or indeed athletic administrators consider that upon initiating or taking action against a coach or a student-athlete to proceed in a fixed manner, with respect to this. I mean to suggest the more serious the action taken, such as suspension or termination of employment, suspension or termination of eligibility, then a greater degree of intention should accompany how one would proceed. This does not mean, of course, that an athletic administrator, an educational institution or even an athletic association or conference cannot impose sanctions. The implication is, however, that failure to proceed in a fair and impartial manner may find litigation.

A recent case, the second case in The Chronicle of Higher Educati~~, really questions the due process rights of a hiph school coach and athletic director. The Supreme Court of the United States affirmed a lower courts ruling that the coach and athletic director had a property interest in his position of employment. The individual was employed and had been dismissed by the school district. His agreement with the school board was that he had two years of employment, but he was terminated after one year.

Certainly curtailment of employment would seem to be a major sanction. Although this is a high school case, the concept is applicable in cases at post-secondary level. What is implied in this term that we have consistently heard and read so much about? What does the phrase due process mean? What is due process of law and what are the implications? More importantly and to the point, does due process apply to student-athletes when they are disciplined for an alleged rule violation? Does due process apply to coaches, a coach who may be disciplined for an alleged rule violation? The Constitution of the United States, as I mentioned earlier, states, not only once, but twice, no person shall be deprived of life, liberty or property without due process of law. The Fifth Amendment places a restraint on the federal government and the Fourteenth esbablishes the same limitation on state government.

In defining due process, it is very difficult. It is not clear. It is a hazy term. First, you must have a clearly stated charge of what regulation is thought to have been violated. It is simply an order to give an opportunity of what to defend against, know well in advance what is thought to have been violated. Secondly, there must be a hearing, particularly if the application of a severe sanction seemed imminent. Thirdly, there must be a requirement of impartiality on the part of the group who makes the decision. Finally, it may not be a constitutional requirement, but a hearing which places an institution on probation, administrator or coach relieved of their duties,or a student~athlete declared ineligible, should have a transcript of the proceedings on file for future reference.

It is interesting to note that the NCAA, although challenged numerous times, has been consistently sustained in cases challenging procedure cases and employment cases. This provides well for the co~ittee opon infractions and how they proceed in the state of inquiry. It may be well for many critics to condemn the actions of the NCAA committee on infractions, that they should not fall into the trap of equating requirements of due process with one's personal view of desirable procedure. As far as the courts are concerned, it should be remembered that the circumstances of procedural steps taken and not necessarily the penalty assessed, will determine whether litigation is justified and if indeed due process of law has been served. For whatever reason, good or bad, the legal dimension of sports law is being reviewed and assuming new proportions.

NANCY OLSON:


I know several people here attended the stress management session we had this morning. One of the things I caught is that the legal aspects of our profession can cause us stress. I really appreciate what Dr. Mallios had to share with us, because it is important for all of us to help reduce some of the stress we go through. As an athletic director, I deal with our university attorney a lot more than I ever expected I would. Our next speaker is a lawyer and a very bright young man who received his undergraduate degree from Northwestern University, and was first in his class. He went on to get his law degree from Harvard and I believe he is one of the movers and shakers in southern Florida. He is improving the quality of life for all of us who live there. He is the executive director of the Miami Sports and Exhibition Authority. Some of you may know him. He has gone around the country speaking about sports violence. He's written a book on sports violence, ~ Interaction Between Private Lawmaking ~ Criminal Law. He has also appeared on numerous television and radio shows, including ~ Morning America, ABC ~, NBC and ~ Evening ~, NBC Tomorrow ~ and the NBC ~ ~. Ladies and gentlemen, Mr. Rick Horrow.

RICK HORROW:

Thank you, Nancy. I appreciate it,and one comment I would like to make to Dr. Mallios is that it is a very difficult position to summarize the current state of sports and the law in 18-20 minutes. I can understand and I just hope you all don't get too upset if I take a few more minutes as well.

I would, rather than give you case by case analysis of the different jurisdietions around the country, give you a framework in the context of injuries, both participant and non-participant injuries. It is absolutely impossible at the outset to get into a summary of where the law is now in each of your jurisdic- tions. Frankly, the law is now crossing between high school, college and professional athletics. You've had a lot to digest already from that lunch and I don't want to give you more. I just want to provide you with a framework with which to discuss these issues as they become more current in the future. First of all, I'd like to mention a few things regarding spectator injuries before we get to some of the other players in this whole picture.

First of all, assumption of risk related to spectator injuries is really the most common defense.

Of course, the standard there is one of what a reasonable man knows or should know. The problem though, is how to define that in your own jurisdiction. In certain jurisdictions, for example, you cannot sue as a matter of law if you are hit in the head during a baseball game. On the other hand, in a recent instance involving a Kansas City Royal, a Missouri court allowed a plaintiff to collect for an injury suffered when a ball went through a hole in the backstop and hit the guy in the head. Of course, the issue is where is the line that gets you into court, and where is the line that the jury has to adhere to in order to determine liability and damages?

The bottom line and the second issue on spectator liability is that it is,in fact,a subjective and fluid area and it changes daily. Jurisdictions aren't very clear in defining what is an appropriate level of risk and what is not. For example, in the southwestern part of our nation, a spectator may sue as a matter of law and he may get into court. On the other hand, in Minnesota,a hockey spectator is assumed to know a little bit more about how to watch a hockey game and therefore, if he is injured, he assumes a certain higher standard of risk than a hockey jan in Phoeniz, Arizona, for example, so it is fluid. Another thing I want to mention regarding spectator liability is watch to see what kind of a state you have. I~ it a comparative or tributory negligence state? Can you recover if the other party is at fault or can t you? Florida, for example, is a comparative negligence state where the proof is determined by the relative fault of the party. A number of states are not and that probably is the key in determining this whole spectator injury question.

Second, in unsafe facilities, the key issue to remember on that concept is that the owner is now an insurer of the safety of the patron. But he must use reasonable care of persons in the same circumstances That is a standard that has been parroted time and time again over the last thirty years of jurisprudence, allover the country. Most recently, one of the larger recovery cases involved collapsed bleachers at The Wh6 concert, in Cincinnati, Ohio. The second issue, therefore, is what are the standards governing unsafe facilities? Well, it's a higher degree of care. There are facilities that are called "rough places." The rub is that there are no standards to define what a rough place is as opposed to a non-rough place. We have a little bit of guidance in the Reynolds vs. Deep South Sports, which is a Tennessee case. It suggested that a lady that was hit with a whiskey bottle in a wrestling match is allowed to recover a higher level of damages. The wrestling hall operator was held to a higher standard of care because of the cosmic notion that a wrestling match happened in a rough place. Beyond that there is really no specific guidance. The more severe the act, the higher the standard is if you know or should have known how to control it. There are cases, for example, that attribute a higher standard of care in criminal actions of violations of unsafe facilities, as opposed to just civil actions.

Finally, there are the cases that involve knowledge. Again, with a spectator who was assumed to know the game in a better way than spectators who shouldn't, those standards are different. In general, the coach that coaches an athletic team is not an insurer in the legal sense of the word, but he again has to act as a reasonable man. Now these cases are allover the lot. There are cases that demand a higher standard to coaches in some jurisdictions than others. The problem is how is the coach going to judge his conduct if a situation is changing on a day-to-day basis? There are institutions, for example, that are most particularly effective, like insurance carriers that are trying to get together these days and define what they think the general standards of care are. In southern Florida five months ago, the National Council of Youth Sports Coaches met to set what they thought were legal standards regarding certification. They hoped they could be used in a court of law to prove a case regarding coaching negligence. Without getting into specifics,these subject matters covered the areas of unequal competition, lack of supervision, defective equipment,and unsafe environment. All of those are areas that coaches should know about and address as a framework for assessing what the standard care in the coachin~ profession ought to be. Again, no specifics, but a general framework.

In a school system, the primary threshhold question is, is it a state school or non-"t'ite Rchool? !;t'ito school, of course, implies issues of sovereign immunity. A sovereign immunity defense is allowed for proprietary administrable acts rather than discretionary acts. Again, if there are sovereign immu~ity jurisdictions in your state school, there are certain limitations in each state. Your attornies know better than I would regarding each jurisdiction. For example, sovereign immunity in the state of Florida is limited to $100,000 per claim, but the bottom line as far as school districts are concerned,is that this is an expanding area. A $6.4 million verdict against a Seattle school board, admittedly high school, regards an issue where a school district was negligent in failing to instruct the athlete on how to make contact with a tackler in the open field. It was the highest verdict to date and an issue that implicates alL of us, whether it happens in high school, colleges, professionals or anywhere.

There are three theories that you ought to be aware of. First of all in the issue of negligence, the syste~ and the manufacturer are not insurers in the strict legal concept of the term, but have to meet a reasonable test. The equipment in a high school, for example, or an athletic program on the college level must be updated. How old is the equipment? How long has it been in that state? Should the coach have known about the old equipment? Should he have taken steps to remove it? All of that is based on the basic reasonable man standard.

A second theory is one that runs directly to the manufacturer. Those of you that have been involved in this kind of litigation know what I am talking about. The manufacturer may be liable if he warrants, implicitlyor explicitly, that the goods that he manufactured are fit for the intended Vurpose. A~ain, you can all think of examples. Time doesn't permit me to go into the cases, but that is a generally accepted rule of law that is now the foundation for a number of plaintiff damage suits.

The next topic concerns the issue of strict liability as it impacts unsafe equipment. The theory suggests that if the product is reasonably dangerous, then the product is defecLive by definition.

Once it leaves the manufacturer and it causes the injury, it is up to the individual state to pass statutes and laws that cement that concept. It is up to your own state laws as they relate to how strict the liability theory impacts you as administrators of school systems and universities.

The general standard is a malpractice standard due to violating the accepted medical standards in the industry. In the sports contact cases, the cases that now are giving the largest damage awards are in the areas of failing to immobilize where a doctor has authorized the moving of a player after an incident causing injury on the field prematurely. But, again, that is one set of facts and there are hundreds of other patterns. It is the reasonable man standard framed in malpractice issues in this context. Secondly, there are a number of cases that are now beginning to suggest that a sports doctor is now beginning to be held to a higher standard. There have been three cases in the last six months, and I'm not suggesting it's black letter law allover, but it is a trend and we must watch that trend. There are new state laws that are trying to deal in the good samaritan type context; trying to show what the liability is for school system doctors, as well as other doctors, as they go out and treat injured athletes in a field of play. Florida Volunteer Team's Physician Act, for example, which is a statute specifically tailored Lo the situation I just described, suggests that if a team doctor is gratuitously rendering emergency care, "arising from an athletic act," he shall specifically not be held liable if the care is rendered in accordance with accepted medical practice. You have to determine what each individual state does as far as the individual case at hand.

First of all, I've spent a good deal of time surveying professional and college athletes for part of my book, ~ Violence. The underlying theory that we've come up with in preparing the research is that violence, as opposed to the aggressive part of the game behavior, will continue to increase as long as the pressures and incentives to be violent rate. The internal controls are better on the amateur level, the NCAA and others, than on the professional level. That's very clear. Today's courts can't solve the problem until the line defining excessive versus aggressive play is clearly drawn. The bottom line is the following: today we need to draw that line separating the normal part of the game behavior and excessive violence, where an athlete steps out of his role as sportsman and into a role that we as society really shouldn't tolerate. There are a number of pressures that cause that without going into specifics. The pressures exist to be excessively violent much more severely on the professional level than on the amateur level.

The controls to solve the problem of excessive on-the-field participant liability exists today in the NCAA in a number of ways. They don't exist in other levels of sport and we all ought to be happy about that. In 1876,the Intercollegiate Football Association established 61 rules for football and only two of those were safety rules. In 1905, after a bunch of sophomore offensive linemen were beaten to a bloody pulp by, of all people, the Pennsylvania Quakers, President Teddy Roosevelt threatened to abolish college football. That kind of knocked some sense into people because immediately there was a new independent rules committee formed under the name of the Conference Rule Committee. In 1906 the two groups met together and it lead, some historians say, to the 1910 creation of what is now the NCAA. The safety rules that have been created as an adjunct are very consistent and clear. They serve as a good framework to control on-the-field conduct and violence. This occurs through the Codes of Ethics, through the rules committees and through the NCAA Tournament Disqualification.

In the NCAA constitution article three, section six, it assigns each institution the responsibility of controlling on-the-field violence and the ethical codes of each sport confirm it in specifics. The baseball code of ethics has seven specific guidelines for coaches regarding duties to prevent unsports- manlike conduct, and deliberate teaching of violence. Coaches should teach players to respect the rule of order. I think you all know that framework and are pretty sensitive to it.

The NCAA by-laws and constitution gives sole rule-making responsibility to each sports 'rules committee. By-law ten, section five, creates the twelve sports committees. They have the primary responsibility for formulating the official playing rules of the sport. Each sports'rule allows for disqualification and hockey's rule is specifically instructed, when you compare it to professional hockey. That is one of my vendettas when I speak around the country. Some of the professional hockey administrations claimed that hockey violence is part of the game. The hockey player has to fight and you are testimony to the dispute of that argument. If it were inherent and if man, the animal, has to fight, and if man, the hockey play- er, has to fight, the rules preventing hockey fighting wouldn't have any affect. Of course, they do, and the reason they do is the geometric nature of the suspension. You are suspended one game or you are sus- pended the next. We need to really demonstrate the importance of the progress the NCAA made to control on-the-field, on-the-ice, during-the-game penalties in violence. I don't need to really get into the other issues, football, basketball, baseball, bacause you all know the rules governing those sports. On balance, the NCAA has done a good job.

We know that article two of the constitution allows suspension and disqualification for misconduct and identical disqualification language appears in all other sports, such as hockey, football, basketball and baseball. The conclusion of the NCAA's role in curbing on the field, during-the-game violence is that the safety rules have been enforced since the early 1900's. The NCAA rules committee has made giant steps and there have been 24 rules changes in football alone since 1969, specifically tailored toward improving the safety of the game. The courts tod~y cannot solve the problem, unless that excessive versus agressive line is clearly drawn. There are cases where professional hockey players walked away from brutally violent incidents because a Minnesota jury had misapplied the law. There are cases in Canaaa where players were sent to jail for six months, because a Canadian jury misapplied the law in reverse. The problem is that clear defined standard. There are defenses in the normal notion of assault and battery, but there are seven different types of consent defenses in the 50 different jurisdictions. There are 13 different variations in the assumption of risk defense. There are nine different variations in the foreseeability defense. How do you know when you've injured another athlete? Each consent definition depends on each individual sport. There are a number of other problems with the differing application of different standards regardin~ the on-the-field contact on both the civil and criminal side.

In conclusion, working backwards from the external controls, there are bills in Congress to try to regulate the on-the-field behavior. On the internal side, the NCAA has done an adequate job and will continue to do so. In the nonparticipant liability area, the field is fluid and ever-changing. As an administrator and for your counsel, you need to be constantly aware of the changing areas of law so you can stay on top of it. Hopefully, you will be one step ahead of the ever-changing and fluid situation. Thank you.

NANCY OLSON :

We have several minutes left and I think it is a valuable time to take advantage of these expert speakers. If there are some specific questions that would be relative to your institution. let's field those at this time.

FROM THE FLOOR :

Harry, I'd like to ask you dne in regards to the designation of an employee-athlete. How does the college work-study student fit into that picture?

HARRY MALLIOS :

As I indicated in my response, there have only been five cases so far; two within the last two years. I think if the relationship can be shown that a work-study student received that position of work-study because of his participation in intercollegiate athletics, there may be a relationship. The connection is whether the athletic performance is contingent on getting the position. When the financial aid office designates the points of employment for those students who are seeking and receive financial aid, the athletic department has no control over that. He or she is assigned. Is the relationship there or is it clear by the lack of requesting on the part of the athletic department for that individual? I'm trying to differentiate between the person getting financial aid or not getting that aid because of his or her need, rather than their association with an athletic program with the sport. One case demonstrated the athlete's participation was contingent upon receiving the aid, the other showed that the participation had no relationship at all with the employment performed. They were decided distinctly differently. My personal opinion is that workefs compensation statutes will begin to be more liberally interpretated. But the key issue is the relationship upon work done and was it contingent upon the performance as an athlete. That is the key definition.

FROM THE FLOOR:

Because slander is a heresy situation for the most part, how is it substantiated in court to get the situation where that person is either found libel or not libel?

HARRY MALLIOS :

Slander, of course, is the oral communication which wrongly defames the character in the eyes and mind of a third person. Slander is something which can indeed cause others to ridicule and to avoid association. Words spoken in haste or frustration can lead to a lawsuit. How can slander be interpretea to be defamation, simply by saying something about someone that another person told you. The defense in libel or slander is the truth of the statement, not necessarily that someone told you this or several people told you this. If you repeat it and it is untrue, you can be defaming someone. The courts are not necessarily looking simply at whether the statement is true or not. The modern courts are now looking to see if what was said was done with intent or malice to harm someone. Even if it is true, I think you should avoid even those statements that might in some cases cause others to avoid the association of the individual you are talking about.

FROM THE FLOOR :

One of the speakers addressed the issue of the legal ramifications of an injury sustained in a so-called captain's practice. practice that occurs before the NCAA allows a practice. For instance. according to the NCAA rules. in Division One. ice hockey practice cannot start until October I. Some schools have a captain's practice prior to October I and injuries occur during that period of time. Address that issue please.

HARRY MALLIOS :

This is the first time I've heard the term. There is a framework with which to analyze that. The reasonable man standard would apply. It depends on how it is applied in your jurisdiction. The other question you have to ask is how is it officially sanctioned. Certainly the NCAA wouldn't sanction a practice that is not allowed in the time frame, but is it sanctioned by the university in some unofficial or official way? If it is not sanctioned in an official way, there are arguments to be made. By knowing a situation like that exists and not condemning it, you are, in fact, encouraging it. It is all based on the factual proof of what the plaintiff can say is the knowledge that the school system or the coach or the administrator knew or should have known about the practice and whether, in fact, he knew or should have known this was going on in an illegal way, as compared to the legal time frame of the NCAA rules. There is no hard and fast answer. If something is going on that is clearly beyond the scope of the NCAA rules, it is just another factor that can be used to prove a case of negligence, which is important to prove in a case for ultimate damages.

FROM THE FLOOR:

I want to get back to the slander and libel again. Is it true that opinion can never be slander or libel? I'm speaking now of an editorial column in a newspaper when the writer makes it clear that it is only his opinion.

HARRY MALLIOS :

Well. if your opinion. perhaps as a head football coach. is publicly printed and repeated correctly that all officials are incompetent. you cannot bring suit in that case because you are talkino about a ~roup of individuals. as opposed to a specific individual. To some extent there is a degree of lim~ted immunity. if you will. If you were to specify an 1ndividual and slander someone in such a way as to defame him. such as if you were to say all college presidents are not operating at high gear or all athletic administrators are operating on a hit or miss basis. and you do not mention a specific individual. chances are you cannot be held in the courts to be liable for slander. You are talking about a class of individuals as opposed to a single individual.

FROM THE FLOOR:

If you refer to a specific individual and a specific incident, the way that individual handled that incident?

HARRY MALLIOS :


If you were to discuss a hypothetical case, let me give you a hypothetical response. If you were to mention a specific individual and you indicate you have been quoted directly, you defame that person and his character. Through such defamation it can hurt his reputation, his ability to be employed, his character, and cause others to avoid this individual's association. The intent of that situation can be viewed by the court with defamation. There are so many varying areas in a particular case that may impact a specific case that the success or failure of any case will be determined by the weight of specifics that bear upon its ultimate outcome.

FROM THE FLOOR :


I'd like to hear a conunent on equal competition, specifically, a h~gher division and a Division:llI team scheduling up in a contact sport. When a serious injury occurs, I think there are two conditions that might prevail. One is if you were doing it for a big payday and th~ other is whether you are just doing it to improve your competition.

HARRY MALLIOS :

There have been no cases that I'm aware of,of courts awarding money to a plaintiff against a defendant coach who deliberately scheduled an inferior team or deliberately played a superior team, so therefore, on his inferior team,one of his players was injured. That is not to say that the theory can't be constructed and ultimately prevail. I don't know that the cases would turn on whether the coach wanted to make a lot of money or whether you wanted to do something else. This is opposed to turning on whether the coach should have known that scheduling a team that so out-classed his own team would cause severe injury to some of the players. The link is a very tenuous one and again there have been no cases, but I can see a plaintiff in court making that argument, based on the general framework that I told you about before regarding coach negligence. It all depends on the fact and I can construct a hypothetical that will make the coach such a bad guy he'd have to award money. You could construct a hypothetical situation that is on the gray area and again the instructive thing is that there have been no cases, but there is a legal theory out there that is ripe to be used.

FROM THE FLOOR:

On the issue of slander again, if you're a public figure or a semi-public figure, what is your situation?

HARRY MALLIOS :

There is a limited immunity in public officials speaking in the act of official duties. For example, executive members of institutions, perhaps when the board of trustees operates in an official session, or when school board members operate in official school board meetings, the statements made there have a limited degree of defense afforded in such instances.

FROM THE FLOOR:

Take an athletic director. How joes he fit in the picture as a public or a semi-public figure for the media to have a good time with?

HARRY MALLIOS:

Coaches can make statements and they are accountable for those statements. As far as a coach making a statement; whether he says this or it is said against him, he has the same rights in law that any other citizen has. Even if you happened to be within a sovereign immunity district or sovereign immunity state, if you are charged with negligence and the suit is sustained, you can be held for libel. Even if your state has sovereign immunity, nevertheless, if an official of the school board, local school board, or perhaps a board of regents is accused of a negligent act, he i" afforded a de~ree of immunityalso. When a coach makes statements about a member of his staff,about a student-athlete, he can be held accountable for those statements, especially if it is construed to be libel or slander. Defqmation of character. libel and slander are indeed three sources that anyone can use in the courts for redress of a wrong. whether you are a student-athlete or whether you are a citizen.

FROM THE FLOOR:


Harry, along those same lines, you mentioned briefly about the Buckley Laws of Privacy. If an athlete is dismissed from a team by the coach because of disciplinary reasons and the coach then explains to the team as a whole that this individual was dismissed, is the coach then liable under the BuckL Laws of Privacy? Has he or she violated those laws?

HARRY MALLIOS :

Well, as you know, the Family Educational Rights and Privacy Act of 1974 really pertains to educational institutions but, nevertheless, student-athletes are students and they inhabit these institutions. A director of athletics approached the coach and told him that they had one of their student-athletes declared ineligible because of academic reasons. However, he could not repeat that and had to refer any inquiries to the director of athletics. There is a federal law which prevents disclosure of information regarding academic records. The coach answered it in a very succinct and appropriate manner when he was asked Why Jimmy wasn't participating in the fall and why he wasn't on the team. He said, "There are reasons which I cannot go into and there is federal prohibition against me releasing such information."If they have additional questions they can come to me and, of course, I will respond with a party line of the university, which really is bound by the Buckley Amendment. Anyeducational institution receiving federal funds is bound by the Buckley Amendment. I don't know if I muddied the water or answered your question. I would be very cautious in releasing information about a student-athlete, specificallyacademic.

There have been cases. Several basketball players brought a $75 million lawsuit against the University of Maryland, ~ Washington ~ and ~ Donnenb!ck Newspaper because it was released that they were dismissed because of academic reasons. A court in the state nevertheless held that thpy were public figures. An important aspect of libel and slander is a controlling case of the Sullivan case and it's really too complicated. A student-athlete is a student and I would think release of information re~arding an academic record would not be appropriate. If the student cursed out the coach, the coach can indicate,for disciplinary reasons,he is no longer a member of this team. Under the Buckley Amendment, institutions do have privileged communications such as police records, psychological reviews or screenings that do not have to be released. If someone is dismissed from the university for disciplinary reasons, the Buckley Amendment pertains to the Dean of Students office also and that information cannot be subpoenaed or released. It does not have to be released to the news media if they are inquiring why someone is no longer at an institution.

FROM THE FLOOR :

This is another area, the defamation of character, but what about giving negative recommendations?

HARRY MALLIOS :

That is a good point. I would be very careful because the opposite side of slander is libel.

Whether you think it is going to be privileged communication in the future and it states speci,fically that this information will not be released, it is confidential. The Buckley Amendment does indeed protect certain desk notes or psychological screenings, but if you are going to write something about someone, you might find yourself answering if someone is rejected for a position continuously and that record is subpoenaed. You may determine,as a result of an athletic administrator's declaration,that this individual is a homosexual and should not be employed. You are going to have a tough time answering that question. To be quite frank with you, what is an easy way to answer that question is simply to pick up the telephone and relate to someone who is making an inquiry what your feelings are. I would be cautious in the kind of comments that are going to be made that can be devastating to an individual's employment. Even over the telephone you have,perhaps,a message being taped. You can take whatever position you would like to on that and then, of course, a court will determine whether you actually said what you are accused of or not. But, if you write something in a record and that record is subpoenaed, and it is found to have a defamed statement about the character of an individual in a record, you may very well be called to task for it.

RUDY CARVAJAL:

If there are no further questions, I would like to thank our expert panelists today and Nancy Olson for preparing this session, and declare this session adjourned.