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:

 

October 20th, 2017

Lawyers (and other advocates) Need A Hobby

The Paine to Pain race logo

All too often in life, those who are professional advocates get so wrapped up in their little piece of the world that they fail to see the bigger picture. This happens with lawyers, of course, but likewise with any political advocacy group you find.

Go to Twitter, for example, and you’ll see no shortage of people obsessed about one thing, and one thing only (and that one thing is, all too often, politics).

But if you want to be effective, you have to actually leave that advocacy behind and engage your heart and mind in a completely unrelated hobby. Only then can you step outside of your work and even attempt to view it objectively.

If you are advocating, then you need that objectivity, because the people you’re trying to convince are not those that already drank your flavor of Kool Aide. The advocacy is geared toward are those that don’t have an opinion, or are open to being persuaded because they are not all-consumed with confirmation bias.

For me, as regular readers know, that  hobby is putting on the Paine to Pain half marathon trail race each year that now attracts about 700 athletes from 15 states. We get about 200 volunteers to help. This is not a small undertaking on my part.

But, believe it or not, I think this makes me a better lawyer. While it is time spent away from writing briefs and “being productive” in the office, it helps to give me perspective.

Having raced over these trails, and seen so many others do it including some with disabilities, I’m more rounded as a person. Not because it’s running, but because it is something other than lawyering.

It also makes me a better project manager, which is a large part of being a trial lawyer if you are the one with the burden of proof. If you don’t line all your ducks up in a row and prepare, prepare, prepare, then you won’t succeed, regardless of whether the “event” is a trial or a conference you are directing.

It doesn’t really matter what your passion is outside of your area of advocacy. It could be sports, music or your local church/synagogue/mosque.  If it happened to also be a community based hobby, as mine is, you will also get the incidental benefit of becoming more well known in your community, which might bring with it unexpected opportunities.

If your advocacy consumes you and you can’t look at the rest of the world objectively, you aren’t going to be a very good advocate. Engaging those outside hobbies are critical to perspective and effective advocacy. And might have additional professional benefits.

 

October 30th, 2015

NYC Marathon and Law (Sometimes)

ASICS ad, 2012 NYC Marathon, photo by my son, then age 10, at end of 2010 marathon

I noted the other day that I had, over the last 9 years, hijacked my blog to talk baseball, even managing to toss some law into the mix. It was my way of celebrating that my Mets were in the World Series.

And today I do the same thing with running because, as it happens, the NYC Marathon is this Sunday, and over the years I’ve also done a slew of running posts, often mixed with law.

This Sunday, if the stars are all properly aligned, I will run the marathon by day in a Mets shirt and then climb to the top of Citi Field at night for game 5 of the World Series. So if you see some guy like that running while waving an orange rally towel, it’s just me trying to have a helluva-sports-kinda-day.

Isn’t that your image of what a lawyer should look like?

Post have ranged from a marathon length Blawg Review back in 2007, to discussions of the assumption of risk doctrine, to the stoopid legalese we often see in waivers, to the circumstances of how I found my face on the side of a bus.

And sometimes, there is no legal angle at all. I just wrote something because I enjoyed writing it. Whether you enjoy reading it is an altogether different factor.

Without further ado, the rest of a round-up of running related posts that have appeared here, some of which actually deal with law:

 

Boston Marathon (Drinking Beer, Kissing Wellesley Women and Abstract Journeys)

Turkewitz in the News…

Trial Tactics and Race Planning

The Long Blue Line (26.2 Miles of It)

New York City Marathon (Some thoughts and photos)–Updated for Zoe Koplowitz

The Boston Marathon (Highway to Hell)

Did Paul Ryan Lie? (About His Marathon Time?) -updated

Legal Implications for Cancelling NYC Marathon? (Updated)

Twelve Miles To Newtown

Boston Marathon Bombing (And the Lives We Lead)

What Does A Smile Mean? (Updated x2)

Running, Lawyering and The Great Stage

Passover and the Boston Marathon Bombing

Boston Marathon, 2015 Edition (Updated!)

 

 

 

 

April 20th, 2015

Boston Marathon, 2015 Edition (Updated!)

2015bostonmarathonToday is the 119th running of the Boston Marathon, one of the truly great road races in the world. While it’s become associated with terrorism in the minds of many due to the bombing two years ago, this is not the way that runners think of it.

The race is, for most of us, a goal and pinnacle. Except for the great elites who will toe the line at Hopkinton this morning, most think of this as a great celebration.  While some get into the race as runners for charity, the achievement for most is simply running fast enough in a prior race to qualify.

I have many friends out there now — as I type they are making their way to the start line and wondering how long the rain will hold off.

And along the route, there are countless parties being readied to celebrate the runners as they go by, for what is a mass event like this other than a great big party?

Is the potential for terrorism in the minds of many? Of course. But they are out there anyway, runners, spectators and volunteers alike.  Those that are out there are not shut-ins preferring to cower. They are the ones celebrating life.

Below are a few pieces I’ve written before about the race (and the bombing). For those who want a peak into the psyche of the runner and what the race is about, here you go:

Boston Marathon (Drinking Beer, Kissing Wellesley Women and Abstract Journeys) – 2009

The Boston Marathon (Highway to Hell) – 2012

Boston Marathon Bombing (And the Lives We Lead) – 2013

Passover and the Boston Marathon Bombing – 2014

——–

Update: Rebekah Gregory DiMartino, who lost a leg in the 2013 Boston Marathon bombing….ran the closing miles of the marathon today to cross the finish line. Video of her crossing the finish is enough to dent even the hardest and most cynical of hearts.

 

April 15th, 2014

Passover and the Boston Marathon Bombing

Exterior, Kings County Supreme Court (Brooklyn) — Photo credit, me.

Once again, a confluence of two seemingly unrelated events. On the one hand, today is the first day of Passover. On the other, it is the one year anniversary of the Boston Marathon bombing.

Passover celebrates breaking away from tyranny and bondage and the establishment of freedom and the rule of law. While celebrated by Jews, we recognize its universal symbolism. So too do others, as we see the Ten Commandments displayed in courthouses around the country as an example of one of the first descriptions of written law.

The bombing, by contrast, represents both anarchy and totalitarianism. Anarchy from the acts of violence themselves, and (to the extent news stories are accurate that this was an act of militant Islamism) the use of that anarchy to promote theocracies where religion reigns supreme and freedom is restricted.

I have a place in my heart for the Boston Marathon, having been privileged to run it in 2009 and again in 2012. This year it is run with a still-fresh wound, despite the brave faces many victims wear.

But this will not be the first time a marathon is run in the wake of a terror attack.

In 2001 the NYC Marathon was run just two months after the World Trade Center fell, and the fires were still burning. As we crested the Verazzano Bridge at the one mile mark of the race’s dramatic start, you could see the hole in the downtown skyline.

There were some that didn’t show up to run that year, concerned over reports in the week before the race that a bridge was the next suspected target. Rumors and fear ruled the day.

But 25,000 did show up. And the streets were teeming with people that day for a massive public event for which adequate protection could not be assured. And the reason for the lack of protection was simple, if you want to live in a free society, you can’t “protect” 26 miles of roadway through the streets of New York.

We knew that back then. People with guns or backpacks with bombs could emerge from the crowd of 2 million at any time. Runners and spectators alike had bulls eyes on their chests. But it was important to be there and to celebrate New York and to say that we would not live our lives in fear. Cowering was not an option.

BostonStrongAnd it will be important again next Monday when the 118th Boston Marathon is run. The crowds will be thick and the runners stoked, with each participant — runners, volunteers and spectator alike — tossing caution to the wind to be there. They know that others will be watching them on this great stage.

The police will try to protect parts of the race course, of course, as they do in New York and all major sporting events. But the reality is that the security is a thin veneer. There is always a way in a free society to wage an attack.

Freedom is like that. It is hard to gain, as recent events show in the Middle East and now Ukraine. In biblical times it took us 40 years of wandering in the desert to get there.

It’s easy to become complacent about freedom and to take it for granted when there is no challenge to it.

But when the challenges to freedom come — and terror attacks are certainly such challenges — it feels good to see people willing to put themselves out there to celebrate it, and thereby protect it. Spectators will, quite literally, be manning the barricades.

Cowering is not an option. #BostonStrong