Referee Malpractice Lawsuits

The football fans out there will remember the controversial call at the end of the Packers-Seahawks game earlier in the NFL season.  Most Packers fans blame that loss solely on a referee's blown call.  I follow football and basketball year round, so I've seen my share of missed or blown calls throughout the years. But the referees have been in the news more than usual lately, so that got me thinking --Can a referee be sued for malpractice?

I did some legal research and found an interesting case from the Iowa Appellate Court.  Jim Bain was a Big Ten basketball referee during the 1980s.  He was reffing the Iowa vs. Purdue game at Carver-Hawkeye Arena on March 6, 1982.  During the final seconds of that game, Bain called a foul on an Iowa player that gave Purdue two free-throws in the closing seconds.  Purdue hit the shots to win the game, knocking Iowa out of contention for the Big Ten championship.  Most Iowa fans blamed Bain for the loss, asserting that the call was clearly blown.

John and Karen Gillispie operated a sports memorabilia store in Iowa City.  Shortly after that game, the Gillispies began selling "Jim Bain Fan Club" t-shirts.  The shirts had the picture of a man with a rope around his neck.  Upon learning of these t-shirts, Jim Bain sued the Gillispies for an injunction to prohibit future sales of the shirts and for actual and punitive damages.

The Gillispies counterclaimed for referee malpractice.  They claimed that Bain's conduct in officiating the Iowa-Purdue game was below the standard of competence required of a professional referee.  The Gillispies claimed that Bain's malpractice cost Iowa the Big Ten title, and, as a result, destroyed the market for Big Ten championship memorabilia at their store, costing them more than $175,000 in future profits.

The Court found that Bain did not owe any duty of care to the Gillispies.  Their damages for lost profits were not a reasonably foreseeable consequence of Bain's acts as a referee.  The Court held that referees are in the business of applying rules to athletic contests, not creating a marketplace for others.  It was therefore beyond the scope of Bain's duties as referee to make calls at all times with the profits of businesses worldwide in mind.

This is obviously a very limited holding that basically says fans can't sue referees.  However, what if the University had sued Bain because Iowa did not make the NCAA tournament?  Surely, that is a foreseeable consequence of a blown call by a referee.  What if the Iowa player who was called for the foul had sued?  What if that loss cost him a spot in the NBA draft or money on his first NBA contract?  Aren't NBA rookies paid more money if they were Big Ten champions in college?  

I don't represent any sports franchises or universities, so I have not done this research. My next research project will be whether I can file a coaching malpractice case against Lovie Smith the next time he wastes a timeout on a horrible challenge.  

HERE is a link to the Bain case.

Sandusky's lawyer has it all wrong.

The Jerry Sandusky tragedy is fascinating and I have strong feelings on several aspects of the case.  I rarely state my opinions as to the strength of high profile cases in the news, even in private conversations with friends and family.  I make arguments all of the time, but I never really state my true opinion.  My profession requires me to argue positions with which I do not always agree, so in private I try to hone those skills by taking the unpopular or opposing view, just for the sake of argument.  Oftentimes I don't even have a personal opinion.  I just make the arguments based on the facts presented, or based on who is paying the retainer.  If you asked me whether Casey Anthony should be sued in civil court for the wrongful death of her daughter, I would say "I don't know, who do I represent?"

But for this case, I am going to make an exception.  I think he's guilty.  The reason I feel so comfortable making that proclamation seven days into a two year process is that Sandusky's attorney, Joe Amendola, went on national television last night and let everyone know that his theory of the case is completely wrong.  They're already focusing on the children.  Supposedly, they have several alleged victims who will say that the abuse never occurred.  He's way off base with his theory of the case however.  

This case, ultimately, will not be about children.  Children can be manipulated.  Their memories can be impeached or even recreated, especially by veteran defense attorneys under the hot lights of cross-examination.  This case, however, will be about adults.  Independent, third-party, adult witnesses who have already testified under oath in front of a grand jury!!  For Sandusky and Amendola to appear on live television last night to proclaim their innocence is completely absurd.  If the only witness was a ten year old child with a history of behavioral problems, maybe you proclaim your innocence and beat the kid up on cross to raise reasonable doubt.  

But that's not what's going on here.  Here we have an independent witness who is a 36 year old assistant college football coach.  We also have two detectives who surreptitiously listened to Sandusky spill his guts to the mother of one of his victims.  Of course, the defense strategy will be to try to exclude that recorded telephone admission from the trial.  Then they'll impeach McQueary's credibility ("You then immediately called the police, didn't you Mr. McQueary?"  "WHAT?!?!?!  YOU WAITED 10 YEARS TO CALL THE POLICE?!?!!?).  So, based on the knowledge publicly available at this point, it may not seem like too much of a stretch for Amendola to think that he can win this case if he has strong doubts about the admissibility of the telephone recording and if he thinks that McQueary is not a credible witness.  

But it's way too early for a lawyer who was hired only five days ago to declare that anyone is innocent.  Again, we are seven days into a two year process.  35 more victims may come forward next week....with pictures.  The police might uncover surveillance video from some random parking lot on campus which shows Sandusky having illicit relations with a poodle.  We don't know at this point.  Anything is possible. Not even I, a rouge blogger intent on inflaming the masses, can argue for Sandusky on this one.  All we do know is that they just committed to a defense that they're going to have to stick with for the next two years.  And it's going to take a lot more than one kid recanting his accusations for Sandusky to prevail in this case.  

Is Cheerleading a Sport?

I don't know. At least not officially.

The Wisconsin Appellate Court recently refused to decide whether cheerleading is in fact a sport. That court assumed that cheerleading is a sport, for purposes of a recent opinion, but failed to actually hold that cheerleading was a sport.

The Court did, however, hold that cheerleading is not a "contact sport," as that was the true issue before the court.

The case involved a ninth-grade cheerleader's suit against another cheerleader for negligence in failing to properly spot her during a stunt and causing her to fall from a pyramid and suffer a severe head injury.

The defense claimed immunity from negligence liability under a Wisconsin statute that provides that a participant “in a recreational activity that includes physical contact between persons in a sport involving amateur teams” is liable only for causing injury to another participant by acting “recklessly or with intent to cause injury.”

In Noffke v. Bakke, 748 N.W.2d 195 (Wis. App. 2008), the Court held that cheerleading is not a “contact sport” for purposes of this statute. It concluded that, although “the risks and the athleticism involved in cheerleading are comparable to those in contact sports,” cheerleading is not a “contact sport” because “it does not involve physical contact between opponents.”

Therefore, the Wisconsin statute at issue did not bar plaintiff's negligence claim against the defendant.

The Wisconsin Supreme Court granted the defendant's petition to appeal this ruling, and the case is awaiting decision after oral argument last fall.

Maybe then we will get an official ruling as to whether cheerleading is actually a sport.

(Article courtesy of the Marquette University Law School Faculty Blog.)

NCAA Class Action Settlement

A federal judge has approved a class action settlement between the NCAA and Division 1 football and men's basketball players arising out of a lawsuit in which the athletes alleged that the organization limited the amount of financial aid available to them as college students.

As part of the settlement, the NCAA has agreed to provide an additional $218 million in financial aid for student athletes to NCAA Division 1 member institutions during academic years beginning in 2007-08 through 2012-13, according to a press release issued by Houston's Susman Godfrey, the law firm representing the plaintiffs.

Class members could receive up to $2,500 per year for three years of expenses incurred while they were obtaining an undergraduate, graduate or professional degree or were enrolled in a professional certification program. They also could receive a $500 payment toward career development programs. Also in the settlement, the NCAA agreed to provide health insurance to student athletes in Division 1 schools, arrange for accident insurance for injuries of student athletes at Division 1 schools and look into offering student athletes scholarships through graduation.

The attorneys will be paid $8.6 million, plus interest.

Duke won a lawsuit because it has a bad football team

From the Sports Law Blog:

The University of Louisville sued Duke for breach of contract after the Blue Devils opted out of the final three games of a four-game football series after Louisville demolished Duke 40-3 in the first game. Apparently, Duke waved the surrender flag to avoid more embarrassments.

The case, University of Louisville v. Duke University, sought $450,000 in damages. The amount was derived from a contractual cancellation penalty of $150,000 per game if the nonbreaching party is unable to schedule a replacement game with a “team of similar stature." Louisville, of course, had a duty to mitigate its damages by trying to find a "team of similar stature." It claimed it could not.

It is in interpreting "team of similar stature" where Duke's lack of success helped. Judge Phillip J. Shepherd agreed with Duke’s argument that its team was so bad (6-45 over the past 5 years) that finding a replacement team of "similar stature" should not have been difficult. At oral argument, Duke persuasively asserted that this is a threshold that could not be any lower.

Louisville did find substitute teams and the court rejected the claim that the term "similar stature" was ambiguous. According to the court's ruling, finding a replacement of similar stature literally meant that any NCAA Division I team would suffice – including those in the Football Championship Subdivision (formerly known as Division I-AA.) Therefore, the court granted summary judgment for Duke.

Imagine, however, if Duke was a more competitive football team. Then the substitution clause would be more difficult to fulfill. Or, in a legal nightmare scenario, imagine that Duke's football team was as good as its men's basketball team! Needless to say, situation would be far more difficult.