November 19th, 2019

Mary Cain, Alberto Salazar and Coaching Malpractice

Ahh, I get to do a post on both running and the law! My sweet spot. Let’s have at it then, with the scandal roiling the running world and see how it fits into a legal framework.

The Players

Alberto Salazar was the world’s greatest marathon runner, winning New York three straight times from 1980-1982, and winning Boston in 1982 in an epic Duel in the Sun.

As a bona fide legend, he moved on to coaching, leading up to being the head coach of the vaunted Nike Oregon Project, training some of the best runners in the world.

This was not just any coaching facility, of course. Nike poured money into equipment and studies well beyond the means of any amateur, and most professionals, including the removal of oxygen from a room to simulate high altitude conditions, which can benefit runners. The Wikipedia synopsis:

In addition to the simulated altitude training, special software was used to monitor electrodes attached to the athletes, determining what condition they were in and how far or fast they could train. They used underwater and low-gravity treadmills. They also had a collaboration with Colorado Altitude Training (CAT), a company specializing in hypoxic athletic training, for their training equipment.

Mary Cain was one of his athletes. Born in 1996, well after Salazar had raced to greatness, she was arguably the best high school track star in the country. And a straight-A student.

She signed with Nike in 2013 and went off to Oregon to train with Salazar as a college freshman.

But she didn’t see the scandal coming. Nobody ever does.

The Problem

In a video op-ed (embedded below) in the New York Times last week (I Was the Fastest Girl in America, Until I Joined Nike) Cain tells a harrowing story of her time spent with Nike and Salazar. She was directed to become thinner and thinner and thinner, and ultimately developed an eating disorder.

Much of her training was, apparently, the same as the boys. And therein lies a problem. Because boys and girls are physiologically different.

When girls get pushed into a boy’s training program they run the risk of their bodies breaking down. Because it has a negative effect on estrogen levels, which has its repercussions in bone density loss, among other problems. Bones become more susceptible to breaking. That is what happened to Cain due to Salazar constantly badgering her and trying to humiliate her into losing weight.

After months of dieting and frustration, Cain found herself choosing between training with the best team in the world, or potentially developing osteoporosis or even infertility. She lost her period for three years and broke five bones. She went from being a once-in-a-generation Olympic hopeful to having suicidal thoughts.

Nike and Salazar held themselves out as experts and specialists. Yet what they were doing was injuring the young women who had placed their trust in them. And not just Cain.

Kara Goucher, an Olympic distance runner who trained with the same program under Salazar until 2011, said she experienced a similar environment, with teammates weighed in front of one another.

Goucher went on to explain that, “When you’re training in a program like this, you’re constantly reminded how lucky you are to be there, how anyone would want to be there, and it’s this weird feeling of, ‘Well, then, I can’t leave it. Who am I without it?’ When someone proposes something you don’t want to do, whether it’s weight loss or drugs, you wonder, ‘Is this what it takes? Maybe it is, and I don’t want to have regrets.’ Your careers are so short. You are desperate. You want to capitalize on your career, but you’re not sure at what cost.”

How may others will come forward in this athletic version of #MeToo remains to be seen.

Cain’s seven-minute video op-ed describes the abusive system she was under. At 16 she got the call from Salazar and in college went off to train with him, in order “to become the best female athlete ever.” Instead, she says, she was physically and emotionally abused in a system endorsed by Nike.

The top running program in the country had no female coaches, no sports psychologists, no nutritionists. He wanted to give her birth control pills and diuretics to lose weight (the latter of which is not allowed in track and field).

With the eating disorder and injuries she became suicidal, starting cutting herself. She told Salazar. Who told her to go to bed.

Cain is now advocating for women coaches who appreciate the physiological differences between men and women and know they have to be trained differently. People who know how to build strong women’s bodies not just to race tomorrow, but for the long haul.

So. What would a lawsuit look like if Cain sued Nike for negligence?

The Legal Framework

I probably wouldn’t have done the analysis below if I hadn’t read a post from my buddy Scott Greenfield, wherein he was dismissive of Cain’s complaint. He wrote that athletes like Cain make their own decisions to try to be the fastest and to win, and that comes with the trade-offs of loss and injury. They need, therefore, to take personal responsibility for their choices and the risks they undertook to push themselves to get there. Who would deny them the agency to make their own choices? (See: Run for your Life)

You don’t have to suffer this abuse, but then, when you’re a world-class athlete and the tiniest edge distinguishes the podium from the pack, you want to do whatever it takes to win. You’ve learned to lose, and it sucked.

In one of the comments about whether the coach should know better, he writes that:

this is about world-class athletes who push themselves to be the best ever. Complaining about the trade-off afterward is facile. And much as parents and athletes trust their coach, it’s not to “know better,” but to win. If their paramount concern was their well-being, they would have stayed home.

This rang a bell in my head and lead me to think of the “What if” potential for a Cain suit. Greenfield doesn’t use the words “assumption of risk” (as he isn’t using the post to undertake a legal analysis) but that is nevertheless a theme: You made a decision to compete in x, and x has its risks, and you got hurt. Don’t blame others.

Assumption of risk is an old concept here in New York (and elsewhere). It applies to the bike racer who hits a pothole in the street, the ice skater who falls and breaks a wrist, and the fan in the stands injured by a foul ball.

Fundamentally, primary assumption of risk will supersede an act of negligence by the creator or supervisor of an athletic event. So even if there’s negligence, the suit will get tossed if the participant assumes the foreseeable risks.

It was best summarized by Justice Benjamin Cardozo in Murphy v. Steeplechase Amusement in 1929 when someone flopped off a moving belt ride that stops and starts, known as The Flopper. Cardoza wrote:

A fall was foreseen as one of the risks of the adventure. There would have been no point to the whole thing, no adventure about it, if the risk had not been there. The very name above the gate, the Flopper, was warning to the timid….

…One who takes part in such a sport accepts the dangers that inhere in it so far as they are obvious and necessary, just as a fencer accepts the risk of a thrust by his antagonist or a spectator at a ball game the chance of contact with the ball 

(And a little side note as Justice Cardozo continues on — I wish judges still wrote like this)

The antics of the clown are not the paces of the cloistered cleric. The rough and boisterous joke, the horseplay of the crowd, evokes its own guffaws, but they are not the pleasures of tranquility. The plaintiff was not seeking a retreat for meditation. Visitors were tumbling about the belt to the merriment of onlookers when he made his choice to join them. He took the chance of a like fate, with whatever damage to his body might ensue from such a fall. The timorous may stay at home.

That last phrase at the end, “The timorous may stay at home,” has been oft-quoted. Indeed, I use it myself in a Disclaimer for the trail race that I put on each year, trying to use wording that evokes the spirit (if not the exquisite style) of Cardozo’s assumption of risk summary.

Given that I’m a runner, and a race director, and a lawyer that does personal injury law, this stuff forms a trifecta of interest to me and (to the extent you are likewise interested) you can see some of the ways this subject has previously come up in my little corner of cyberspace with snowboardingsoftball practicehorseback riding, auto racingwater slides and lacrosse.

But is that what’s going on here with Cain and Salazar? Was she hurt in competition, or even during training? She wasn’t injured, for example, by falling when she crashed into another runner fiercely powering through a turn. Most every case I’ve ever read on the primary assumption of risk doctrine deals with a specific incident, and whether the thing that caused the injury was an anticipated or appreciated risk.

Mary Cain doesn’t deal with a particular incident or an appreciated risk. She went for expert advice, as many might do for a doctor, lawyer or car mechanic. We seek out people with specialized skills and talents because we don’t have them ourselves. If they sound like they know what they’re doing, or have been highly recommended by others, we hire them.

Nike and Salazar were supposed to be the best. Top of the heap. Cain reasonably hired them and followed their advice. Salazar, after all, had been at this for decades.

But their advice was not just bad, it was apparently dangerous, and dangerous in unanticipated ways. Cain faced medical issues that would not have been apparent to her. And Salazar and Nike provided no help when faced with them.

I would not discuss this in the language of assumption of risk, but rather, of coaching malpractice. It’s negligence, or even recklessness.

Would such a case survive a motion to dismiss?

The legal analysis, if it were ever to come to that, would pit these two essential concepts against each other: Was she a negligence victim, with Coach Salazar directing her to perilous conduct (unknown to her) that no reasonable coach would direct? And even if she was, would assumption of risk apply, with Cain accepting known dangers inherent in athletic competition, resulting in such a suit being tossed?

To me that answer is clear: Creating an eating disorder that would have long-term harmful effects on the athlete was not part of any known training program. It was not an anticipated hazard she could evaluate and appreciate before signing on with Nike. And any reasonable coach would have, had the issue arisen, immediately brought in psychologists, physicians or nutritionists as needed if one of their charges was having that problem.

Salazar, ultimately was suspended for four years for drug doping. The Nike program has been disbanded (for now). Nike’s CEO stepped down. And Cain went public with the abuse she underwent.

The extent to which the athletes under Salazar/Nike’s charge knew they were being doped by Salazar and Nike remains unknown.

Some may believe that the doping and the starving are two different things. But I’m not so sure, as both entail athletes who have placed their faith in the expert, and been told by them to eat (or not eat) certain things without knowing, understanding, or appreciating that it was dangerous conduct as the risks were not explained.

It’s simplistic, I believe, to think that a teenage athlete would have more knowledge than a legendary runner and coach with decades of experience. He was hired, and trusted, due to those decades of experience, his advice and skillset. And he betrayed the trust.

Her video op-ed is here:

 

February 16th, 2018

The Lacrosse Ball and the Lawsuit

Addy Tauro head shot, Syracuse University

I’ve got this thing about sports, injuries and lawsuits. And that’s because of two things that seem to be in conflict: First, I bring lawsuits regarding injuries for a living. But second, I am also the race director for a 13-mile trail race.

And you know what? Folks get injured while trying to run fast over rocks, roots and other hazards that include other runners. The risk of wiping out comes with the territory.

So over the past years I’ve written about injuries (and lawsuits) from snowboarding, softball practice, horseback riding, auto racing, and water slides.

With that intro now over, we turn to lacrosse and a decision from last week.

The lacrosse drill at Syracuse University was conceptually simple for the women’s varsity team: Athletes ran down the sidelines while a line of coaches roll balls to them from about 20-25 feet away. The athletes scoop them up and toss them back to the coaches. Then repeat with the next coach.

According to the suit that was ultimately filed, the ground ball part of the drill had never been performed any other way. Except that one coach decided on this one day in the middle of the rolling drill to wing the ball overhand to Addy Tauro as if it were a pass.

Now if Tauro survived said winging of said lacrosse ball without injury, would I be writing about this today?

When one of the coaches whipped it at her head, it was wholly unexpected and she “never even saw it coming,” as she stated in her affidavit.

She suffered a concussion.

She claimed in her suit that throwing a hard rubber lacrosse ball at someone’s head, when she’s not expecting it, is grossly negligent and reckless.

So. Does this case get dismissed under New York’s assumption of risk doctrine because, when engaging in recreational activities, she consented to the commonly appreciated risks of the sport that flow from such participation?

I’ll wait while you ponder. Time’s up.

Rather than answer the lawsuit and go through discovery, Syracuse moved immediately for summary judgment based on the assumption of risk doctrine, and also based on a written waiver that Tauro had signed. They countered her version of events.

And the answer is: Summary judgment for Syracuse was denied on both counts and the case goes forward.

The Appellate Division (Fourth Department) first dispensed with the waiver issue, since such waivers are against public policy for people who act with gross negligence or recklessness. (see Gross v. Sweet and GOL 5-326)

And on the assumption of risk doctrine, the court stated that if the claims by the plaintiff were true (and at this early stage a court must make that assumption) that she did not assume these kinds of risks. This risk was not part of the game, as this was a practice. Nor was it an anticipated risk of a pick-up drill that a ball would be thrown at her head.

The court held that a player will not assume the risks of reckless or intentional conduct, or dangerous conditions that the coach created over and above the usual dangers that are inherent in the activity.

Assumption of risk goes to the anticipated and appreciated risks. Which is why, if one is writing a waiver, it might be wise to educate the participant as to all of the anticipated risks. Thus, while a waiver might not excuse negligence based on public policy grounds, it might be quite useful for assumption of risk grounds.  “Look!,” a defendant could now safely claim, “she knew about this risk!”

You know those sports waivers written in ALL CAPS that appear designed to dissuade the participant from actually reading them? They are for shit, in my opinion, and really don’t serve the purpose of educating to real risks. Because they are not being read. Nobody reads them except for the lawyers that wrote them. And then they hope that the legal mumbo jumbo somehow imparts knowledge of the risks?

The one I wrote for my trail race gets read. And I know that because people will routinely come up to me and tell me so. It was crowd-sourced  years ago, with the idea of doing everything possible to make it readable, and therefore useful for actually educating people on the risks of participating. If anyone decides to create a Waiver Hall of Fame, I’m going to submit it.

The case is Tauro v. Gait and Syracuse University

 

 

July 6th, 2016

What Risks Have You Assumed?

FranzKlammerC41

Franz Klammer was not involved in this incident, but he makes for great art work for the blog.

An interesting case yesterday out of New York’s Appellate Division, involving a skier that crashed into a snowboarder at the base of the bunny hill, badly injuring the boarder.

Most lawyers wouldn’t take such a case due to the assumption of risk doctrine.  I’ve discussed that before, as it often provides immunity to the one that caused the injury. Assumption of risk, as I described previously regarding an injured softball player, provides that:

a voluntary participant in a sporting or recreational activity  consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation…If the risks of the activity are fully comprehended or perfectly obvious, plaintiff has consented to them and defendant has performed its duty.

So wouldn’t that apply to a skier that clobbered another?  The defendant in Horowitz v. Chen moved for summary judgment on that basis.

Not so fast, said the appellate court. The defendant, it seems, was moving at 20 to 30 kilometers per hour (yes, that is the way it is written), and the plaintiff was standing in a crowd at the bottom of the beginners’ slope.

While participants in sporting activities may consent to the commonly appreciated risks inherent in a sport, the court said that doesn’t mean that they consent to “conduct that is reckless, intentional or so negligent as to create an unreasonably increased risk.”

The court noted that this occurred in or near a marked safety zone, and that the defendant skier was zipping along in this area despite “his awareness of his limited abilities to safely handle such speed under the snow surface conditions presented.”

The court also noted the extent of the injuries (not described in the opinion), writing that “in view of the significant injuries sustained by plaintiff, reasonable inferences may be drawn that she endured a violent collision, which raises an issue as to whether the speed at which defendant was skiing was reckless under the circumstances.”

Now the important part, for New York practitioners. This case came out of New York’s First Department. (NY has four, for you out-of-towners, the First covers Manhattan and the Bronx.) In rendering its decision, the court cited to two other cases, one in the Third and one in the Fourth.

So this represents a little new ground on the subject area of assumption of risk. If conduct is “so negligent as to create an unreasonably increased risk” then the assumption of risk doctrine can be overcome, at least for the purposes of surviving summary judgment.

And last, just because I feel like it, the legendary 1976 Olympic downhill run of Franz Klammer:

 

April 13th, 2016

Let’s Go for a Horsie Ride…(And Fall Off)

Ridin-Hy promo image from its website

Ridin-Hy promo image from its website

Today we go horseback riding at the Ridin-Hy Resort. So put on your cowboy boots and climb into the saddle at my little stable.

Wait! Is the saddle secure? I know, you’ve only had a grand total of 10 hours of horseback riding experience in your life, but isn’t that enough to know that the saddle may slip and you might fall to the ground?

Isn’t that what assumption or risk is all about! It’s a horse: everyone knows they kick, they toss people, sometimes folks get hurt!

You’re not going to blame me for flopping off the horsie on the beginner ride, are you?

What do you mean you want to sue me because you got hurt? So your saddle slipped. It can happen. You must have been sitting on it wrong! Here’s how our funny judge wrote about you:

As her horse again began to move forward she attempted to straighten the saddle without success and fell. It is not clear from the record in this motion in limine if the saddle came off of the horse but the plaintiff certainly did.

Huh? Whaddya mean, judge, that I can’t show the jury the release she signed!  I know, in New York we can’t get cases like this dismissed by having the participant simply sign a waiver absolving me of negligence, as that would violate the law and be against public policy.

But look, that risk was right here there in our release that you signed! OK, well maybe that particular risk isn’t really spelled out, but shouldn’t we show the release to the jury anyway so that the jury might get the gist of it? The judge summarized my argument well!

“The opposition’s novel theory is that this unenforceable agreement’s language can still be used, perhaps with redactions, to demonstrate the plaintiff’s express awareness that saddles may loosen and riders may fall…”

OK, I see judge.  You’re going to keep this release away from the jury because our injured rider was still a rookie, or at least, the jury gets to determine that:

[A]n assessment of whether a participant assumed a risk depends on the openness and obviousness of the risks, the participant’s skill and experience, as well as his or her conduct under the circumstances and the nature of the defendant’s conduct’ ” (Decision: Boland v Riding High Dude Ranch, Inc.)

So maybe next time I’ll put this into the release — that the saddle may slip — so that riders are aware of the problem and can recognize problems before they get hurt?

Perhaps I’ll get that Turkewitz fellow to write me a better release — one that isn’t just poorly designed to dissuade lawsuits and gets chucked as being against public policy — to actually educate participants in the sporting activity they are undertaking. So they are less likely to get injured to begin with.

Like he did here with his trail race, whose release and waiver he once crowd-sourced on his blog.

Because in order to assume a risk, one has to actually have an awareness that the risks exist.

 

 

January 15th, 2014

False and Misleading Headlines (Youth Baseball Edition) – Updated

An unhappy Brett Lawrie of the Toronto Blue Jays throws his helmet in 2013.

An unhappy Brett Lawrie of the Toronto Blue Jays throws his helmet in 2013.

Headlines make a difference, as headlines can skew the viewpoint of the reader before the facts are even read in the article. That is, if the article is even read. Many folks, of course, just skim.

And so it is with KCRA in Sacramento, CA.

The headline reads:

14-year-old Little Leaguer sued by coach for celebrating win

The problem? That isn’t really why anyone was sued. An actual reading of the article reveals that the defendant, a 14-year-old, threw off his helmet as he raced home with a winning run. But the helmet hit the coach and caused a torn Achilles tendon.

The kid, in other words, wasn’t sued because for celebrating, but for causing an injury to his coach.

As per the article’s actual text:

In legal papers filed in court, the teen’s former coach, Alan Beck, contends the boy “carelessly threw a helmet, striking Plaintiff’s Achilles tendon and tearing it.”

Whether the underlying facts support the suit or not, I have no way of knowing. All we have now is a legal pleading and a short news story.

Will it be tossed out on assumption of risk grounds? Perhaps. Throwing helmets isn’t exactly part of the game, but as you can see from the graphic above of Brett Lawrie throwing his helmet in 2013, it does happen on occasion.

But one thing is clear. The headline writer didn’t accurately tell you what the story was about.

Does this matter? You bet. Because headlines like this help to shape public opinion, and that public opinion affects how potential jurors will feel about cases before a trial even starts.

(hat tip, Conrad Saam)

Update (1/16/14):  CNN now has the story, with interviews with the parents of the kid being sued, bemoaning the suit, and the coach who brought the suit discussing his Achilles injury from a 6-foot tall, 180 pound kid, and the lack of apology. CNN harps on the amount sued for: $500,000. And that makes this a good time to remember that ad damnum clauses such as this are a very bad idea. They have, thankfully, been outlawed in New York.

The coach that sued says “it’s not about the money,” but the fact that there is a number in the complaint for the media to focus on takes that issue out of his hands.

While I don’t know if this suit will survive due to assumption of risk issues — and if California law is the same as New York law I think it will get tossed — it’s clear that the CNN focus is on money instead of safety. I wrote about that recently when Red Bull was sued for $85M — where I noted that it was a very poor move to put a number in the complaint, not only because it isn’t allowed but because it shifted the focus away from product safety.