Extreme Sports and Assumption of Risk

Ted at Overlawyered points out a case arising out of Hawaii, where a newlywed disappeared while kayaking, and her husband filed a lawsuit against the rental company, Extreme Sports Hawaii. The husband claimed that the couples were caught in strong winds and were taken out to sea, where a shark attacked and killed his wife. Many questioned the claim, though, as her life jacket was found, unbuckled and with no rips or tears, there was no damage to the kayak, and both oars were found on shore (one propped up against the rocks). (Song & Kubota, "'Unusual': No blood on kayak", Honolulu Star-Bulletin, 03/26/99). In short, this seemed more like human error while engaging in a somewhat dangerous sport.

Even still, the husband filed suit against the rental company. (He also filed suit against the Coast Guard under the Federal Tort Claims Act for negligence in attempting to rescue her, but that case was dismissed.) Ted asks a good question: Does "anything remains of the doctrine of 'assumption of the risk' if a company called Extreme Sports Hawaii' can't invoke it without going through a trial and an appeal?"

Sadly, little does remain of the doctrine of assumption of risk. In some states, it has been abolished altogether, or it has merged with a system of comparative negligence. This prevents defendants from using assumption of risk as a complete defense and moving for summary judgment. Thus, more and more of these defendants are forced to bear the expense of litigating a trial and putting their financial fate in the hands of a jury.

In this case, the jury did find the company to be not negligent ("Company not guilty in Maui kayak death", Honolulu Star-Bulletin, 05/09/2003), most likely based on the company's statement that it warned the couple not to paddle beyond a certain area and the many factual inconsistencies in the husband's story. The only reason the case got before a jury was because there was an issue of material fact: whether or not the company warned the couple of the small craft wind advisory that was in effect that day. This distinguishes the case from an earlier Hawaii case, Wheelock v. Sport Kites, 839 F.Supp 730 (D.Haw. 1993), where a signed liability release agreement was held valid as to negligence claims. In this case, the plaintiffs most likely argued that the failure to warn would be gross negligence, rather than negligence, and thus summary judgment was not appropriate.

I think that is probably the correct result. I certainly do not want to see extreme sports companies (or any sport provider) faced with a rash of lawsuits for simply providing the survive that the customer wants. However, in cases where there is a factual dispute about the nature of the warning, and whether it was complete given a unique weather situation, perhaps the question should go to the jury. What the legal system must ensure, though, is that this limitation on summary judgment is not extended any further, as this would greatly increase the potential legal costs for sports providers and potentially jeopardize the recreational sports industry.

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Supreme Court Broadens the Scope of Title IX

Those that were concerned about the reach of Title IX in the wake of last week's Policy Clarification (here, here, here) can rejoice today. The Supreme Court held today, with Justice O'Connor writing, that Title IX not only protects girls and women who might be victims of discrimination, but also those who seek to enforce its guarantee of equal treatment. In Jackson v. Birmingham BOE, the Court ruled that a male high school basketball coach that was fired for complaining about the lack of funding for his women's team should be able to bring a lawsuit under Title IX.

The decision seemed to come down to one fundamental question: How should statutes be read? The majority believes that statutes should be read broadly, taking into consideration the context in which they were passed and the believed policy goal of Congress. The dissent, on the other hand, takes the position that these factors are subservient to the actual language of the statute, which the Court must follow as the only indicator of Congressional intent. Which of these positions you agree with also determines whether you will agree with the decision in Jackson.

Title IX states that, "No person in the United States shall, on the basis of sex, be...subjected to discrimination under any education program or activity receiving Federal financial assistance..." (20 USC s.1681). The majority opinion states that Title IX has always been "construed broadly" to prohibit intentional discrimination based on gender and that the retaliation Jackson claims to have been subject to is clearly a form of intentional discrimination. The Court also found it important that the statute was passed three years after the decision in Sullivan v. Little Hunting Park, which implied a right of action for retaliation in a different anti-discrimination statute (42 USC s.1982). Perhaps most importantly, the Court held that Title IX applies to Jackson, a male coach.

The statute is broadly worded; it does not require that the victim of the retaliation must also be the victim of the discrimination that is the subject of the original complaint. * * * Where the retaliation occurs because the complainant speaks out about sex discrimination, the "on the basis of sex" requirement is satisfied. The complainant is himself a victim of discriminatory retaliation, regardless of whether he was the subject of the original complaint.

For the Court, this broad construction of Title IX is the only way to ensure the policy goals of the statute, to prevent gender discrimination, are protected.

The dissent takes a very different view and sees the majority as ignoring the law in order to reach a desired result. In the eyes of the dissenting Justices, providing a right of action for retaliation is the role of Congress, and Congress must "speak unambiguously" to subject recipients of federal funds to potential liability. Using numerous examples, the dissent claims that Congress has not done so in this case. The opinion argues that retaliation is not discrimination "on the basis of sex." Jackson suffered no discrimination; he was fired for complaining about potential discrimination. For the dissenting Justices, this is too far removed from the purposes of Title IX to allow such a claim without specific Congressional authorization. The fact that the word "retaliation" does not even appear in Title IX, when Congress has specifically authorized such claims in other statutes, indicates a desire to exclude it. For the dissent, allowing such a claim creates a "prophylactic enforcement mechanism" that Title IX does not support.

The most interesting part of these opinions is how they largely ignore administrative remedies (i.e., taking away part of the school's funding). Although discussed at length in the oral argument (see transcript here), the Court seems to indicate that the only plausible enforcement mechanism is private lawsuits. This potentially can be justified because of the largely individual nature of retaliation, but it nevertheless is alarming to those who are concerned about the proliferation of litigation. For statutes that deal with federal funding, administrative remedies need to serve as an efficient deterrent or else plaintiff's attorneys will dictate the anti-discrimination policies of our country. If the current administrative remedies are too draconian, or conversely, too weak, then they should be re-examined so as to remain a plausible alternative, or even substitute for, private litigation.

The full opinion can be found here.
For the briefs and other links about the case, click here.

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Supreme Court Decision on Title IX

The Supreme Court ruled today in Jackson v. City of Birmingham that a teacher who is disciplined after complaining about gender discrimination can bring a retaliation claim under Title IX. The decision was 5-4, with Justice O'Connor writing the majority opinion.

I will have more on this landmark case later in the day.

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Greek Duo Cleared of Drug Charges

In another bizarre twist to a bizarre story, the two Greek athletes that skipped town on the eve of the Olympic Games, presumably to avoid a drug test, have now been cleared of any wrongdoing by the Greek Athletics Federation, an independent tribunal.

[The two athletes] had been charged with avoiding drug tests in Tel Aviv, Chicago and Athens and failing to notify anti-doping officials of their whereabouts before the Olympics.

They withdrew from the Olympics after missing a drugs test at the Olympic Village on 12 August. The pair then spent four days in a hospital, claiming they had been injured in a motorcycle crash.

It was the International Olympic Committee's demand that the IAAF investigate the affair that led to the hearing of the Greek tribunal.

The head of that tribunal, Kostas Panagopoulos, said it had not been proven that the athletes refused to take the test in Athens.

The international track and field governing body (IAAF) has the option of contesting the decision at the Court of Arbitration of Sport.

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The Next Generation of Baseball Cheating?

The results of Congress's hearings into steroid use in baseball continue to grow. Baseball has re-worked its new drug enforcement policy so that it now mandates suspension. Barry Bonds, besieged by both questions and injuries, may not play this season. Mark McGwire, once considered a lock as a first-ballot Hall of Famer, is now facing critics who say he does not belong there at all.

But steroids may not be the worst form of cheating that baseball will see. As Wired Magazine discusses, innovations in medicine and technology may produce a new form of advantage that baseball, and other professional sports, will need to regulate:

Let's say you're a big-league pitcher, blessed with a good but not great arm. You've played several seasons in the majors, yet you've never managed to hold down a steady place in a starting rotation, mainly because you can't get quite enough velocity on the ball. You work with different pitching coaches and sports psychologists. You try new exercise and diet regimens. Ultimately, you decide that your innate talents aren't going to take you to the all-star level you've always dreamed of. You need a little help.

So you find a surgeon willing to drill a series of small holes in the humerus and ulna bones at your elbow, slice open your wrist and remove a tendon from it, and then weave the tendon in a ­figure eight loop through the holes. After a year or so of rehab, you're throwing a 97-mph fastball for the first time in your life, and your career is transformed.

***

To date, pitchers have opted for the surgery only after suffering ligament damage, but elective-enhancement surgery in baseball is inevitable - and it will show up in lots of other professional sports, too.

The article points out the first of these surgeries that have become common: laser eye surgery that corrects vision to better than 20/20. Should this type of "enhancement," and others that will come later, be prohibited by professional sports? Legally, can it be? The real question may not be these surgeries, but perhaps the next generation of enhancements that now can only be considered science fiction. Sports most likely will have to draw a line somewhere, but where and how will be questions that puzzle scientists, lawyers and sports fans for years to come.

Thanks to TJ Graham for the link to the article.

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Playing Pepper: Fast and Furious Headlines

A California jury has ordered former NFL linebacker Bill Romanowski to pay ex-teammate Marcus Williams $340,000 for a punch delivered during practice that ended Williams's career.

Mickey Mantle's widow has sued (scroll down) a maker of baseball bats, claiming the company made a limited edition bat bearing the ex-Yankee's name and likeness without her permission. The suit alleges trademark violations and asks for $75,000.

A man in Arkansas was arrested for drunken cycling (the actual charge was for public intoxication). No word on whether his Schwinn will be taken away.

Finally, bad news for the pseudo-monopoly Clear Channel. A federal jury has assessed damages of $90 million against the company, finding that it engaged in unfair practices against a small Chicago promoter in a battle over holding Supercross motorcycle races. From the story: "Some analysts suggested that the case would invite closer scrutiny of the company's conduct, and potentially more litigation from competitors." Clear Channel plans to appeal the ruling.

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Jets Sue Madison Square Garden

"The New York Jets have sued the owner of Madison Square Garden, claiming it holds a monopoly over major events. The lawsuit claims Cablevision Systems Corp. – the Garden's owner and an opponent of a proposed stadium for the Jets in Manhattan – took steps to exclude any competition, resulting in fewer choices and higher ticket prices for New York fans. It also claims Cablevision has spent millions of dollars on a 'false and misleading disinformation campaign' against the stadium and denied the Jets a chance to 'set the record straight' for New Yorkers by denying them a chance to buy ads on their cable systems."

Read more here.

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