NCAA Division III Breakout Session
Access to Championships
Risk Management - NADIIIAA Business Session
(Tuesday, June 16, 10:45 - 11:45 a.m.)
Good morning. I'm Art Eason, director of athletics at William Paterson College and the secretary of NACDA. At this time, I'd like to welcome you to our NCAA Division III Breakout Session. First, we'll have a short Division III Athletics Administrators Business Session and then we'll move on to our topic of the day, "Risk Management."
Joyce Wong, associate director of athletics at the University of Rochester and the National Association of Division III Athletics Administrators' president.
Thank you Art. This will be very brief. We have a couple of announcements we would like to make. I would like the Officers to please stand. Your vice president is Leon Lunder from Carlton College; our secretary is Art Eason from William Paterson College; our treasurer is Tim Gleason from the Ohio Athletic Conference; and John Schael is our past president. John had to go back to St. Louis yesterday. Dick Rasmussen from the UAA is serving as the person handling all of our business details for us.
We would like to update our E-mail servers. We all mentioned it at our last session. We've had a couple of problems with E-mail addresses. At the back of the room, I'm going to post our present addresses. If you have changed that address, please note that on this list. If your name is without an E-mail address and you wish to be on the server, please provide us with your address. In order to get onto the server list, I'll give you the listing for all of the Division III athletics administrators. Now, we have close to 200 members on that list.
If you write to all of us, our E-mail address is email@example.com. That will connect you to everyone on this server list.
Within the next three weeks, you will receive in the mail renewal notices for membership. Membership is from July 1 through June 30. Those dues will go back to Dick Rasmussen at the UAA office. Leon Lunder does have some renewal membership forms with him today. If you wish to pick one up, please do so. What we would like, though, is those who are presently members of the DIII, please pick one up. Those of you that are renewing, wait until you receive it in the mail so we can have an organized way of renewing our membership.
Lastly, we are asking if any of you have any areas of concern that you would like your Executive Committee to review over the course of the summer, please give those ideas to any of the Officers. We would like to print a newsletter in October giving pros and cons of all of the issues that will be coming up at the NCAA convention. If you wish to contribute to that, please drop us a note on what those areas are and what you would like to present. We would like to remind you that the Saturday before the convention, we will have a program of professional development issues, as we have in the past. Thank you very much.
Thank you Joyce. In today's complex world of athletics administrators, people are constantly looking over their shoulders on every decision you make and lawyers are ready to sue not only you, but also your institutions for millions of dollars. We must be ever on the watch for our actions and decisions that we make.
I'd like to give you a little scenario. It's a true one. An athlete is injured during a contest and before you know it, almost the next day, you receive a letter from the parents' attorney informing you that you are being sued, the institution, the coach, everyone because this injury to this athlete will deny him from becoming a professional athlete. The pain and suffering associated with the injury, the missed class time, etc. Before you could finish reading the letter, your phone rings. It's the president's office. They've received the same letter and they're asking for an immediate report on the athlete, the injury.
You have to immediately make sure you've crossed all of the T's and dotted all of the I's to make sure you have not put your institution, yourself, your coaches or anyone else at risk. Today's presenters will better help you to understand, and some other scenarios that they might present, as we explore risk management in intercollegiate athletics.
I will introduce the panelists. They will go ahead and give you their presentation. Then, we will have an opportunity to ask questions. Our first presenter is Barbara Bickford, the associate director of athletics at Brandeis University. Barbara has a law degree from Boston College School of Law and a master's degree in sports administration from Boston University. She did her undergraduate work in communications at the University of Wisconsin-Parkside. She's been an Associate Athletic Director at Brandeis since 1990 and has served in various roles in athletics administration at the university since 1983.
Thank you Art. That little scenario was one that was familiar to me because four years ago, in the opening of our new facility, we had a track meet. At the very first meet, an athlete was going through warm-ups, injured himself and that athlete's father was in my office the next day screaming about how he was going to sue us. We went through the whole process and won.
How many of you have actually been named as a defendant in a lawsuit, either you or your program? A lot of you. How many of you have a formal risk management program established at your institution? How come there were at least three times as many of you who have been sued and you don't have a risk management program at your institution? That's what we'll talk about today.
First of all, basics. What is risk management? I would say that risk management is the answer to the two dreaded L's, liability and litigation. More specifically, it's an attempt to provide policies, procedures, safety audits, risk reviews, emergency action plans and all of those things are put into effect to combat the flood of lawsuits that are confronting the sports industry and, particularly, institutions' college athletics programs. To avoid or defend against litigation are the two most obvious reasons to implement a risk management
program. Even more important than that, is that your program will be a safer place for student-athletes.
I would say there are four primary advantages of risk management programs. One is the safety aspect. It is a safer program for your student-athletes. Two, it provides a paper trail. It gives you better records for evaluating and improving your programs. Three, that same paper trail will provide you with a better defense in the case of litigation. Four, a sound risk management program can significantly reduce your insurance premiums in your program.
Favorite excuses why you don't have risk management programs. One is lack of time. Risk management is something that relates to every single aspect of your program. It should probably be placed ahead of things you would consider as essential such as, budgeting, scheduling, eligibility and contracts. You claim you don't have time for something that's essential for your program, then your program shouldn't exist. I'm suggesting the time spent on risk management is time that will improve every aspect of the rest of your program and it needs to be prioritized first, instead of last or non-existent.
Another common complaint is lack of staffing. Who is going to oversee it, implement and evaluate it? There's lack of budget. Who's going to pay for this? There's also that real optimism that, "we have a good program. It won't happen to me. I won't be sued." The answer to your lack of staffing excuse can be addressed in a variety of ways. You can create of committee of current staff. The university may have a risk manager in place for the university than can help assist you, guide you or lead you. There are risk management consultants that are available to be brought in to help you.
Lack of budget, obviously, is a serious concern, but the cost of litigation, even in cases you win or that cases you might settle, is always more expensive than the cost of a consultant. Another potential revenue source is the fund you save through reduction of insurance premiums. Large programs, with 15 or more sports, that can document a quality risk management program are always more favorably evaluated by insurance companies. There have been instances of programs saving a minimum of 15 and up to 21 percent on those premiums. Over the course of your program, that amount of money is staggering and could be put to better use in other things.
Smaller programs may have the excuse that they aren't big enough to have deductibles that could significantly impact their premiums. What I suggest in that case is to get creative. Pool arrangements through your conference, through other schools in your locale, may be able to make a big enough impact that you can have a quality program and still save a lot of money.
I'd like to touch base on the process for risk management. This will be brief because a risk management review can take weeks or months and I'm trying to do this in five minutes. The first thing you need to do is appoint a person or a committee that reviews all of your current programs. Current programs means varsity sports, intramurals, recreation, club sports, physical education, activities courses, anything that happens within your jurisdiction and your program.
The second thing is to conduct a review of your program, all of your present policies, current forms you use, the other materials. You need to review your overall program with administrative policies, and starting from the top down, getting to each specific sport program. When you're looking at specific sport programs, you have to pay attention to, not just the traditional season of your sport program, but also your non-traditional seasons and conditioning programs, so every aspect of every sport needs to be reviewed.
It's essential to have everything in writing. You need to have a statement of goals for your entire athletics program, as well as goals for each specific program beneath that. You need to identify exposure to accidental loss that could interfere with your basic goals. You need to review or develop safety guidelines for each sport. Within that review, you need to pay attention to a warning to athletes of the inherent dangers in sport. Most of you take for granted that people know what they're getting into when they play a sport at this level. But legally, although athletes do assume a risk of participating, they only assume the risks that are inherent in that sport. They have to be informed of what those risks are before they can consent to taking on that risk.
The next step would be to create written criteria for the selection of personnel to fill every position within your program. This criterion should also prioritize conflicting responsibilities. If you have coaches who are also teachers, if you have coaches that are head coaches in one sport and assistant coaches in another sport, or coaches that are administrators, their job description needs to be very clearly delineated as to what the priorities are and the expectations for every aspect of that position. When you're looking at the non-traditional season, if you have a coach that's coaching a sport, that's also teaching classes, that might be doing some administration of facilities or supervision and they are also conducting a non-traditional sport season program, you need to have the responsibilities and expectations for that non-traditional season outlined in their job description. This protects the university and it also protects the coach or the person in that position.
Another thing to remember is the criteria for selection for part-time and volunteer coaches is just as important as it is in hiring full-time positions. The school is still liable if it places or allows a part-time or volunteer coach to fill a position for which they are not qualified. Once the criteria for the selection of coaches have been determined, you need to evaluate each of your present personnel to determine whether or not they meet your established criteria. Lee Green is going to be getting into the specific duties each of your personnel have.
Coaches need to be informed of their legal duties to perform, which is probably best addressed by creating an in-service training program for all coaches and athletics department staff, anyone that is in supervisory positions within your department so that they understand what their responsibilities and duties are legally.
Next, you move into the category of facilities and equipment. You need to do a complete evaluation and audit of every facility, every space and every piece of equipment you use in your program. You need to create a written plan for outlining the procedures, responsibilities, time schedules and focus on trying to foresee potential accidents and then brainstorm ways to avoid them.
One of the most important areas to review in a risk management program is the medical and health program for your athletes. The greatest number of lawsuits filed fall into this category. Because it is such an important category, we have a medical expert, our athletic trainer, Peg Garland, so I'll move on.
Next, you need to develop or review appropriate warning and waiver forms. These types of forms are easily attainable, or if you use a consultant, this person will provide this form for you. A sound risk management program must include a method for evaluating the risk management program. You have to review the various components of the program to determine whether they have been successfully implemented, a procedure for making recommendations and how you implement those recommendation which, obviously, cycles back into your review.
Final step is to get approval of your risk management plan by the appropriate person within your institution. Without that stamp of approval from your campus risk manager, your dean, your general counsel, your president, whoever it may be, your program will not hold any weight in the event of litigation.
In conclusion, the process of creating a risk management plan and then implementing it will result in a safer athletics environment for your athletes. You're going to have a better program and the people in your program that you're most concerned about, your athletes, are going to have a better, quality program. Although, there's an inherent risk of injury through participation in any sports programs, injuries are less likely to occur when the risk management program is followed. By maintaining good safety practices in all programs, you're much less likely to be sued. When you are sued, you'll be in a much better position to defend against the litigation. Thank you.
Thank you Barbara. You've taken away our excuses for not having a plan and you've made out a plan for us. For those who have walked out, unfortunately, if you want to get more information from Barbara, you'll have to go to the University of North Carolina at Chapel Hill where she will be teaching a course on legal issues in athletics.
Our next presenter will be Peg Garland, the head athletics trainer at the University of Rochester. Peg did her undergraduate work at West Chester University where she majored in physical education, health and recreation. She received a master's degree in physical education administration. She is a certified athletics trainer and has been for 16 years. She served three years as head athletic trainer at St. John Fisher and five years as assistant athletics trainer at the University of Rochester. For the past year, she's been the head athletics trainer there.
Peg is also the head trainer for the Rochester Ravens, a professional women's soccer team. She's held that position for three years. She's a trainer for the Rochester City Ballet. Currently, she holds the rank of lieutenant in a volunteer fire department. Peg.
Thank you Art. I'm going to talk from the trainer's role as far as the non-traditional seasons and the concerns we have. The non-traditional season is an area the athletics directors need to start looking into as a risk management concern. For the athletics trainers, their role in the non-traditional season is just as important as the regular season. The athletics trainer cannot look at this season lightly.
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The basic issues there, the quality, the way you distribute it, the way your inform your students about the use of the equipment. One of the duties that's always been one of the most difficult ones, and one that amazes me that's built in here, but matching and equating participants. Are you playing someone because of their size, strength, experience, skill-level, causes that much greater risk of injury that you failed to fulfill your duty of reasonable care. There are a lot of lawsuits in this particular area.
Valuation for injuries and incapacities. This, again, is where so many schools cut their budget and that is at the athletics training level and the athletics trainers are so overworked, as it is. The athlete that has the cold and inner-ear leads to the injury and it was never noticed, or athletes being rushed back into competition after an injury, a lot of liability there.
Medical assistance, as Barbara pointed out, is probably the most highly litigated area. The two aspects here are first aid. This seems like common sense, but having all coaches and personnel trained in first aid and CPR. So many schools fail to do that. Then, emergency medical procedures are important. Do your coaches that practice on outlying fields have cell phones? Do they have medical release forms available for the members of their teams so that if they're at that away practice facility or on the road at a game and someone needs to be admitted to a hospital for care and parents aren't there, the athlete's unconscious, can you get them the medical care quickly without any hassles of trying to overcome the admittance process?
Finally, safe transportation, which for Division III schools and NAIA schools is a big issue. A lot of schools rely heavily on the use of school vans and coaches' and students' vehicles. More and more cases involving athletes injured during transportation process come up.
The back of this handout laid out the obvious problems. If you're going to adhere to these duties, how do you document later that you really have? How do you show your paper trail? There's one thing that athletics administrators don't like, it's more paper work. Yet, I've got a big list of paper work here. The very first thing on here is sports participation agreements. I assume most schools use some version of this, but just to minimize the paperwork hassle, if you can roll all of the different components of your risk management plan that you'll need to document together into one sports participation agreement, have all athletes fill it out at the beginning of the school year, one meeting of everybody to go through all of the details will minimize this.
I listed just the basic components. Student-athlete, parent/guardian information, emergency contact info, whatever waivers and releases of liability you use, medical treatment consent forms, something that I see overlooked at an awful lot of schools. Those will be in this agreement. They can be copied for the coaches to have on-hand, a first-aid kit, a cell phone and all of the medical treatment consent forms, so when they're on the road, you can get your kids into a hospital quickly, if necessary.
Access to educational information is important. You're probably already doing this for your compliance officer or FAR to allow them access to the transcripts. If coaches want to be able to check to make sure grades are going okay, to be able to call up the teachers on students who are having problems, you really need to have this filled out. This can be a one-sentence, one-paragraph type thing in your sports agreement, but very important.
King of parallel to that, all relating to invasion of privacy and the Family Educational and Privacy Act, is the release of information authorization form. There have been increasing number of suits with schools that just the coach talking to the reporter on some fact appearing in the paper, has caused an invasion of privacy suits. A quick release of information from the student-athlete that allows you to release information about them to the media. That wouldn't include their transcripts, but just the basic talking to a reporter type thing.
Insurance coverage, depending upon what you do. If you're a school that provides no insurance coverage to your students, the cases, so far, have been pretty uniform in not imposing a duty on schools to provide insurance coverage. Where there has been some liability is schools that don't provide insurance coverage, but the students are unaware of that. They just assumed they were insured. You need to inform the students about the parameters of your school's insurance coverage. At most schools, you're just providing an excess coverage policy over what they would have already through their parents, etc., again, all of that needs to be detailed.
You can also build in that if you're a school that doesn't provide insurance, but you require the student be covered through either parents or some other policy that they buy, you can build that into a separate sign-off for the student.
One possibility a few schools have started to do is an arbitration agreement. It's not entirely clear yet the extent to which these are going to be upheld.
That's a lot of information, but again, it's all in one packet. You've got four or five pages of information. Go through it with all of your student-athletes at the beginning of the school year. Have them initial each separate aspect and sign off at the end. It's about the best you can do on these things in terms of trying to consolidate.
We've also listed some other areas you'll need to document. Participation in other athletics activities is listed. If you have the non-traditional season, you're going to want to build the information on that into your sports participation agreement for varsity sport. If it's club sports, intramurals, etc., you'll want to have a separate participation agreement for those athletes. It will probably be a shorter version of the varsity athlete agreement, but again, this is overlooked at most schools.
Medical history questionnaire is absolutely critical. It's something that is being litigated more and more. One of the areas of planning that a lot of schools will actually use the questionnaire, but then they never review them. No one is assigned to review them. One of the most common litigated areas today are the heart problem cases. There is some family history of heart problems or something reflected on the medical history questionnaire, but nobody reviewed those questionnaires, therefore, the kid wasn't submitted to more extensive testing. The medial history questionnaire really needs to be looked at closely.
There should be athletics injury reports for every injury. There should be a comprehensive inspection plan for all of your playing environments, facilities and fields and all of your equipment. List the re-conditioning helmets, etc., and prove that you've actually done repairs when problems have been noted during an inspection. You need a comprehensive plan that assigns a center for responsibility. List how many times a year you're going to do the inspections. The whole key to risk management is reasonable care. You don't have to be the absolute guarantor of the safety of your athletes, but reasonable care. This inspection plan helps you to show that you've regularly inspected equipment and playing environments and repaired problems in a timely manner. This goes a long way to paper your trail in a lawsuit.
Documentation of whatever accommodations you have in place for student-athletes with disabilities is also important. That can be in the admissions process. It can also be in terms of actual participation in a sport. Make sure you have access for spectators to your facilities.
The plan for your gender equity can be one of the keys for your compliance to Title IX. Document your educational efforts and reporting procedural aspects related to sexual harassment cases. An area that, unfortunately, has more and more litigation over and one that is presenting a real problem for schools.
I want to end by saying there are lots of legitimate lawsuits out there, but the pendulum has really swung a long way working against athletic administrators in this country. Hopefully, in coming years, it will start to swing back a little bit more to the middle. Recently, there has been a flood of ridiculous cases. Henry Craighead, a coach of a woman's softball team, has filed a $4 million lawsuit claiming his constitutional right to the pursuit of happiness was violated when he was ejected from a game for arguing balls and strikes with the umpire. The lawsuit alleges he was harassed, intimidated, embarrassed and suffered humiliation, exposure to public infamy, injury to his good reputation and has been and forever will be, hampered in his pursuit of happiness.
These problems occur in all countries. Even royalty can become embroiled in a sports situation. Prince William, future Duke of Cornwall, second in line to the British throne, was hit in the face by a fellow student's golf club during the recess period at school. On a school's putting green during recess, Prince William, got a
little too close to this classmate's putting stroke and was struck by the putter's club head, resulting in a depressed fracture of the forehead and he spent 24 hours in the hospital. A full recovery and no lawsuits are expected.
One last one, some of you may have heard about. A nine-year old Little League pitcher overthrew his catcher during a pre-game warm-up session and hit a spectator in the face with the ball. He now finds himself the sole defendant in a $15,000 personal injury sports lawsuit. Johnny's goal had always been to both pitch for the New York Yankees and play linebacker for the New York Giants. He has now ruled out at least one career for himself. According to his mother, he doesn't want to be a lawyer.
Thank you Lee. You've done a good job. You've provoked a lot of thought. I would like to thank our panelists for their outstanding presentations and I would like to thank you, the audience, for coming out. Hopefully, you can put some of this to work for you to minimize your risk. Thank you.