RISK MANAGEMENT: WHAT IS IT AND HOW CAN IT HELP YOU?
BILL MC HENRY:
(Tuesday, June 7- 11:15 a.m. -12:30 p.m.)
Risk Management is a very timely subject. Our Corbett Award recipient at today's luncheon is faced with a four-million dollar lawsuit. Also, in talking with one of our other friends here, the Citadel case will go
to court this week. If you haven't been sued, count yourself as being very fortunate. I've had the threat of at least five lawsuits over the last 20-some years as an athletic director and I can think back with horror to experiences I had in 1961, my first year as an athletic director and head football coach. I had a player die
on the football field. If that had been 1981, I'm sure I probably wouldn't be here at this time. Fortunately, it was before litigation for athletic injuries. But, it is a very, very scary process.
Intercollegiate programs are jeopardized by litigation. This crisis is prompted by a sharp increase in sports-related injuries, resulting lawsuits and soaring insurance costs. The nation's judiciary has made it clear that liability often measured in millions of dollars now extends to colleges, their administrators, coaches, trainers and all athletic personnel.
A solution to this crisis is for the colleges to focus on and adopt preventive and defensive measures. I believe in this very thoroughly. This is the heart of risk management and this is what our two speakers will talk to you about today.
I feel very fortunate that we have two of the leading experts in the country on this subject. I've
heard them speak before and I know you're going to get a lot from what they have to say. Our first speaker
is, Glenn Wong. Glenn is the department head and graduate program director of the sport management program at the University of Massachusetts in Amherst. He teaches courses in sport lawand labor management relations. Mr. Wong has authored two books; Lawand Business of the SDort Industries and Essentials of the Amateur SDorts Law. He has written numerous journal articles and also writes a monthly column; The Sports Law Report for Athletic Business magazine. Mr. Wong has been a lecturer and a panelist on sports law issues at numerous regional and national conferences. He received his degree from Brandeis University and Boston College Law School. Mr. Wong is a member of the Massachusetts Bar, the American Bar Association and the American Arbitration Association. He has served as a salary arbitrator for Major League Baseball. It's my pleasure to present Mr. Wong at this time.
Thank you very much and good morning .We have some handouts for you and we'll make sure they get around to you. I think one of the key words that was raised earlier was the word defensive. I really think that in terms of the risk management area, I try to get across to administrators to try to prevent problems before theyoccur. One of the ways to do that is by setting up a risk management program. I also try to get across possible risks by discussing cases which have gone to court or are currently in court which have led to very large settlements. I'd also like to put all of this in perspective and to say that many of you are involved with very large programs. You run athletic programs. You run physical education programs. You run
intramural programs, possibly in club-sport programs and, for the most part, if you did it on a percentage basis, you've probably had very few claims and very small amounts of litigation. But, the way I analyze a large court liability lawsuit is to say it's like hitting the lottery. It doesn't happen very often, but, when it does it, it hits very large.
One of the things you can do by getting involved in a risk management program is to reduce the possibility of injuries occurring and to reduce the possibility of a large lawsuit being brought successfully against you.
Risk management is a matter of understanding those circumstances in which accidents are most likely to occur and taking appropriate steps to minimize the probability of occurrence; very, very simple
definition. To expand upon that a little bit, I believe risk management is a comprehensive review and evaluation of an entire program to reduce or eliminate injuries which could lead to a court liability
lawsuit. One of the key terms there is the term "comprehensive." When I say comprehensive, I think you have to review your entire program. I will go through some of those steps and later Dr. Appenzeller will go through some of the actual things he has found when reviewing specific programs.
Another definition is for a tort. A tort is a private, civil case which is brought by an injured party against someone for negligence, generally. Negligence is simply not being careful. When someone has not been careful, it opens up the possibility for a plaintiff bringing a lawsuit. That's what courts are looking for in a negligence case and that's what you're trying to prevent.
I would like to go through a general risk management check list. This is a starting point and is something that should be expanded greatly. This can be adjusted and changed to suit your own individual programs:
A) Are all personnel properly qualified for the job? I see this being a real concern with part-time coaches. Many schools use part-time coaches and they may not be properly qualified for the job either in terms of the teaching end or in terms of having some type of first-aid training .
B) Are all players properly trained in the sport they are participating in? In football, are they told the proper tackling techniques? Is that done in the training in the pre-season practices? I raise that question because Bill mentioned the case of Mark Buoniconti who is suing Citadel. He is suing them on the fact that they improperly trained him for the proper techniques of tackling.
C) Are players properly conditioned before participating in the rigors of the sport? There have been a few cases involving football players, primarily in pre-season practices, who have been injured or who have
died as a result of extensive physical conditioning at the beginning of practice. That has led to litigation.
D) Is there sufficient and qualified supervision for the sport? I mean both in terms of quality and quantity of supervision. This can be a real problem for you in the intramural area and it can be a problem in the club sport area. There have been several cases in the golf area. I ask people what sport has the most tort liability cases. From my research, it's been golf. One of the things you're looking for from an attorney's point of view are damages. A golf ball and a golf club can cause a great deal of damage. There are several cases involving courses being taught in schools and there have been injuries.
E) Is there sufficient and qualified medical assistance available? You may have to look at your state laws. In Massachusetts, there's a law which states that you have to have a doctor present at a football game. Make sure your doctors are properly prepared in the sports area and also, make sure that you have a sufficient number of qualified trainers.
F) Do personnel have a background in the legal considerations of their jobs? I think this helps. We've talked to groups involving athletic department personnel. As you go through a presentation and point out some of the problem areas in some of the cases that have occurred, many people begin to review their own program. They then draw their own conclusions and sometimes they find out what they should or shouldn't be
doing. I've heard of a case where someone was injured and sued a coach successfully. Perhaps you shouldn't be punishing a player after practice. The punishment drills have resulted in players being injured or even
G) Is the equipment being used for the sports where it is required? For example in hockey. If shields are required, are the proper shields being used.
Is the equipment property certified? For example, football helmets are certified. Is the equipment in conformance with the guidelines? If the equipment is not governed by certification guidelines, is it up-to-date? There are changes in terms of the safety of equipment these days.
Is the equipment checked on a regular basis for wear and defects? You need at least a yearly review. In the high risk sports such as football, you may want to do this more often.
Is equipment being used for the purpose it was manufactured for? If it's not, you're going to be held responsible and not the equipment manufacturer.
I would like to raise a case involving equipment. This case was Woodsen vs. Irvington High School. A football player was having some problems involving his neck. As a result, he asked the equipment people and his coach for one of the horse-collars, which prevents the neck from snapping back. He was refused. In the game, his neck snapped back and he was paralyzed. As a result of that, the jury came back with a 6.4 million dollar award in favor of the plaintiff.
H) Are your facilities safe for the sport? Are there leaks in the ceiling? Is water forming on the gym floor or on the court? Are there problems on the baseball field? You need to look at these areas in terms of facilities.
Are your facilities being used for the purpose they were designed for? There have been cases in which a basketball gymnasium was being used for frisbee. As a result of the frisbee game, one of the players ran into a door, which was not under any of the baskets, and was injured. He went through the glass on the door. Part of the defense of the university was that the gym was not designed for frisbee and, fortunately, they were successful in that case. But, you have to be careful and realize that these types of accidents can happen.
If you don't want that type of activity taking place, make sure it doesn't. Understand what your facilities were designed for and understand the risk of injuries which may occur as a result of a different type of sport being played.
In the area of supervision, many of you are involved in spectator facilities. You have to think about cro~ control. You have to think about what your policies are in terms of liquor liabilities. You also have to think about more than the grounds. There's one case in which a woman who left a football game was injured in the parking lot. The school was held responsible. The court's reason was that the school owned the property. They encouraged tailgate activities. During one of these parties, someone fell into this woman causing her to fall. The court felt they should have supervision over these activities. Worry about not just the facility where the event is taking place, but also about the grounds around the facility.
A lot of my previous discussion is tied into good management and tied into having policies and
procedures in place. I talked about a comprehensive review. A risk management system is a little bit like taxes. It is something you should do, at least, on a yearly basis. It's not really something you should do once and then forget about. It's a constant review. I know that it's difficult to get into the mode of doing a risk management review each year. It's a little bit different than the drug testing that you just heard about. Drug testing is a program you put in and you see the results right away. One of the problems in running a risk management program is often times you don't see the results. You don't know how many people are not injured because you've done something correctly. It's not as rewarding because you don't see the bottom line. As a result of that, most people ignore risk management or put it lower on the priority list. I hope that I've made a point with some of these cases that it is something to be concerned about. There has been much more litigation in the last 10 or 15 years for injured people. Oftentimes it's against the universities.
The good management ties in to having policies and procedures. For example, I talked about the Woodsen case involving the horse collar. What are the policies and procedures for distributing equipment? Was that a coach's decision? Should it have been a doctor's decision or a trainer's decision? Policies and procedures have to be in place to answer these questions.
Occasionally, we'll hear a very tragic situation involving transportation. A van or an airline which crashes and several members of the team are injured or killed. Are your policies and procedures for transportation in place? Who drives? Who has the authority to drive? Who is covered under the insurance policies? What kind of insurance policies do you have?
Use waivers and releases of liabilities in all situations. We'll discuss this later on in detail.
If you do use them, make believe that you don't have it or assume that it's not going to be upheld in court. Put in your risk management program and make sure that you are properly insured.
Comprehensive medical examinations and insurance should be checked to see who is covered and what is not covered and that sometimes can be more important than what is covered. Check to see what the general university liability policy is and compare it to your own athletic department's policies. Consider catastrophic injury protection which the NCAA now has for athletic programs and you should consider all of those insurance matters and make sure that you're properly covered.
We have tried to give you some resources in our handout. You can review these pages, but it is just a brief overview. It will take some time to put into place. I've just mentioned a few cases. There are many others which are ongoing. I just wanted to open up for Dr. Appenzeller who has actually done some of the risk management reviews of facilities. Thank you.
BILL MC HENRY:
Thank you very much, Glenn. I've known Herb Appenzeller for many years. We've been good friends and we've talked to each other a number of times on various athletic matters. It's a great pleasure for me to
introduce him at this time.
Herb received his EA and MA degrees from Wake Forest University. He received his doctorate from Duke University. In 1987, he retired as athletic director at Guilford College, after 31-years, to accept a professorship in sports management. He is a lecturer on the national level in the field of law and sports and has offered seven books in this area. He is the co-editor of Sports and the Courts Newsletter, president of the Sports and Executive, Inc., executive director of the Sports Studies Foundation and president of the Sports and The Courts, Inc. He is a member of the board of directors of the National Association of Sports Officials and The Sports Medicine Foundation of America. He's on the board of advisors for Athletic Business as a member of the faculty for the U.S. Sports Academy. Herb is a member of four sports Hall of Fame; Guilford College, The NACDA Hall of Fame, the NAIA Hall of Fame and Chowan College.
In 1988, he received the Professional Service Award for the Safety Society of the American Alliance For Health, Physical Education and Recreation and Dance. It's my pleasure to present Herb Appenzeller.
Thank you very much, Bill. I would never have thought back in the 40s that I could have been taken to court at any time. We just didn't sue our coaches. We wouldn't think of it. We wouldn't think of suing our athletic director, physical education teacher or anyone else. That has all changed. In fact, last night I had a phone call from home Baying that one of our former professors and coaches had just instituted a lawsuit against a partner he was playing with in golf. It is a very serious injury and, in all probability, he will lose his eye. He's the kind of man that, all through the years, refused to even discuss litigation and lawsuits. Yet, here we are in a different day. Glenn could have given you case after case after case.
It used to be comforting to know that the one thing for sure was that the athletic director was going to be named in a lawsuit but wasn't going to be found very vulnerable. They were usually a step away. Then in 1985 and 1986, the court changed and said the athletic director is the one who has the professional training and should know better and should know when things are wrong. It's the athletic director that has the clout that can make things happen with coaches. The responsibility really lies with you. As an athletic director
and an athletic administrator, you're the one that can make the difference. You are the risk manager. There is no question about that. You're the one they're going to be looking to.
As an athletic director, you've got several goals. You have to win ball games and have a sound program. You have to make sure that the environment is safe for spectators, your athletes and for your students. You're going to try and prevent costly lawsuits too.
I thought my last year at Guilford College would be a honeymoon. After all, I had been there 3O-years. We had not had a lawsuit, nor did we have a lot of problems. We're a small, Quaker institution that believes in the individual dignity of the student. My 3lst year was a nightmare. We had a question of eligibility that could have wiped out a team that we knew was going to be playing for the championship. We had a death in our program. Besides that, we had what I considered to be a frivolous lawsuit and I think if we hadn't held tough, our president would have settled for a suit that had absolutely no basis, nor meaning. When we took
the right steps, which was risk management, we never heard again from the other attorney. I feel that because we knew what we were doing, it protected us.
The last year has been unbelievable. I have been doing some work in risk reviews. We have worked in
the areas of Division I, II and III schools. We did the Long Beach Convention Center, the L.A. Forum, three music centers in L. A., junior colleges and NAIA schools. Through all of those risk reviews, we had a chance to talk to the people. They answered our questionnaire and their answers told us so much. To be able to then look around, we found they all have the same problems. You don't have to worry, and say, "because I'm in a small school, it won't happen." Or, say, "I'm in a large school and have assistant directors of athletics, etc., it won't happen." It will happen.
I'm going to mention some of the things we found with the hope that you will return and double check some of these things. First of all, we have electric bleachers. After a basketball game, we have student workers put these bleachers back and hurry to get out of there. Some parents left their tiny baby on the bleachers for not only a minute. Someone hit the button and brought the bleachers back and squashed the baby to death. We now tell everybody we see to put a little sign on your bleachers; check for personal objects and people before you bring them back. We've got a good feeling that we have alerted people and perhaps help solve this problem.
Every school, we found, lacked a GFI which is a ground fault interrupter. We would go to some of the bigger schools who had four or five whirlpools against the wall and they would not have a GFI. This could mean that if there was a short, somebody could be electrocuted. An athlete got into a whirlpool and was electrocuted some time ago. It can happen. A physical therapist wanted to relax and got into a whirlpool and he, too, was electrocuted. How much does it cost? You can buy them for $10. In the state of North Carolina, they cost about $45. But, is it worth it? How many of you do have a GFI in your locker rooms or in any room where's there water? If you're going to use a hair dryer, get a GFI.
We have gone to more fields that look so great until we got out in the middle and found uncovered
drains. We found four on one field that was used for soccer. The University of North Carolina does things right. They did not have a soccer field X number of years ago, so they asked if they could use our field.
That would have to be our football field. Someone in their program was so sharp, the first thing they did was remove our catch basins which were off the football field a good distance, but were in the soccer area. They put wooden covers on them and covered them with astroturf. They left them that way for three years and we used them. They knew what to do.
Three weeks ago, we saw a baseball field with two uncovered drains. A player could step in one of them with spikes on. No question as to what could happen. This is an area to look at and check.
One night we went to playa school and they had telephone poles close to the sideline. They were not covered, but worse than that, they had guide wire to keep people back. This wire was neck high, so you could imagine what could happen if someone was pushed off that sideline and hit that wire. It's another small item, but it should be looked after. These are just common sense things, really.
How many of you go by high schools or other places and see bleachers that are over four or five rows without back rails or side rails. You need the rails.
Do you have a plan for large crowds? Chester Lloyd has written books about stadiums where you might have anywhere from 50,000 to 80,000 people. If someone has a heart attack, you've got to get to that person within 60-seconds to administer CPR. Then, you've got probably four to six minutes to do advance cardiac care. Oklahoma has equipment right under the stands to handle this type of emergency. Have your ushers trained in CPR. It's a little thing, but what an advantage for someone with a walkie-talkie to get advanced help.
What if you send a team off without a trainer? Some of the small colleges don't have a trainer. Do you have a medical response plan? Do you plan for it so that everyone knows what they do.
Do you use your football field because it has astroturf for spring football at the same time your baseball team or track team is out there? We have seen situations where a field is crowded and people will say there will be no problem mixing baseball with football or some other sport. Now, there is a problem, so you need to look at that. We have proof of court cases where when the fields were overlapping and somebody was injured, the plaintiff won.
What about the location of your track? A man in Minnesota told about a young man in row 15. Right behind the bleachers was the discus area. It rained the night before and one of the discus men got into that pit, did a spin, slipped and threw the disc into the bleachers. It hit the young boy in the back of his head. His father was an attorney and you and I both know what happened. They settled quickly out of court.
Do you leave gymnastic equipment open in your gym? You may not. But, we've been to places where the trampoline is open. Don't leave equipment open. Check to see if your school has insurance on your
trampoline. We've had so many people injured that they're finally taking it out and they're not getting any relief from insurance.
We visited a large place and they asked' us to look at their insurance policy. We did. We asked them how much they're paying and they told us $50,000 a year. We asked them if they knew what they were paying
for. Do you know that everything dealing with sports in that policy has been excluded? They're paying for four home games and they're paying $50,000. They made a switch fast.
Does your equipment manager at any school level modify equipment? Your helmets must qualify to eliminate head injuries. Do you ever let outside groups use your facility? We suggest that you make sure that that outside group has insurance and they name you as the additional insured. It'll make a difference. A lot of schools do not have the money to be able to pay the total insurance bill. We have the athlete use his parents' policy as primary and we use ours as secondary.
Do you have sports camps? We were at one school that said, "Oh, yes, we've got sports camps, but we leave them to the coaches. We don't have anything to do with them." We asked if we could see one of their advertisements. The nickname of the school was on it. Now if someone is injured, there is no question that they will be sued. Our suggestion was to have them be independent contractors and take out their own insurance.
Do you use doctors from the community? Most people have team doctors, but some don't. We simply ask that you have a contract which states what the doctor's duty is, so that he isn't held liable for some injury. You must get these situations cleared up.
Do you conduct periodic inspections of your facilities? Some do. Some do not. I read a letter where nine of 13 cases involved the weight machine. How many of you have checked your weight machine to make sure that the threads are not bare? How many times do you have it completely checked by the manufacturer? Another important item.
If you're going to have students drive vans or cars, do you have a policy with a transportation form they can sign. Let them tell you they have adequate insurance and have not been involved in accidents. You need to go through some inspection to make certain your drivers are safe.
Finally, one of the things I recommend is that whether you are a junior community college or a Division I, II or III school, set up a Safety Committee. On that committee, put the maintenance representative, someone from the business office, someone from the athletic department, coaching staff, and maybe a student. Make someone the head of this committee and conduct periodic inspections. Decide what you want to look at.
There's so many things to consider when setting up a risk management program. Do you have a policy for the disabled? Make sure you have facilities for handicapped people. Do you have an accident injury report? Do you have a post-claim report? Do you have policy manuals?
The topics today are drugs and risk management. If you go back to your school and question yourself on the things that Glenn covered, you'll be able to set up a good program. Glenn and I will be glad to answer
any questions you may have.
BILL MC HENRY:
Let's thank our two speakers for a great job.