Legal issues
Thosea
2020PED515FlowChart.docxFlow Chart for Negligence in Physical Activity & Sport
Dr. Terry Conkle, Summer 2020
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Risk Management - Preventing Legal Liability for Physical, Psychological/Emotional, or Property Damage(s) “Foreseeability” |
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Civil Law or Tort Law Tort - A legal wrong resulting in direct or indirect injury to another individual or to property; it can be committed through an act of omission or commission. Tort Law – Law addressing the rights, obligations, and remedies applied by the courts to provide relief for persons who have suffered harm from the wrongful acts of others.
Lawsuits occur in the physical activity arena, associated with each of the four areas shown below. Criminal Charges are sometimes associated with negligence and hazing. Some cases of hazing can involve negligence |
Criminal Law Monetary Fines Jail or Imprisonment House Arrest Community Service Probation Etc. |
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1st , 4th, and 14th Amendments (Deals with Federal Law) |
Gender Equity / Title IX (Deals with Federal Law) |
Negligence & Legal Duties (Legal Duties typically stem from Binding Precedents or Persuasive Precedents) |
Hazing (Generally criminal, but often has a tort liability aspect too) |
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1st Amendment of The U.S. Constitution
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; …...”
Establishment Clause Congress shall make no law respecting an establishment of religion … .” The clause is absolute. It allows no law. It forbids more than the establishment of religion by the government. It forbids even laws respecting an establishment of religion.
Free Exercise Clause · The 1st Amendment's Free Exercise Clause reserves the right of American citizens to accept any religious belief and engage in religious rituals they choose. · Wording in the free-exercise clauses of state constitutions that religious opinion, expression of opinion, and practice are / were all expressly protected. · Protects religious beliefs AND actions made on behalf of those beliefs. · Wording of state constitutions suggest that free exercise envisions religiously compelled exemptions from at least some generally applicable laws. · The Free Exercise Clause protects religious belief and expression; and, seems to allow for violation of laws, as long as that violation is made for religious reasons.
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Title IX of the Education Amendments Act of 1972 is a federal law that states: "No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance." Gender Equity Issues (The 3-Prong Test for Gender-Equity/Title IX compliance, education entities must prove they meet ONE of the following by): 1) Presenting evidence documenting competitive sport opportunities for both males and females that are substantially proportionate to their respective rates of enrollment within the school. 2) Showing evidence of a history and continuing practice of expanding opportunities for the under-represented gender. 3) Proving that the organization has truly accommodated (fully and effectively) the interests and abilities of the under-represented gender. |
In the “Physical Activity World” we have the legal duties to: · Provide Adequate/Proper Planning (all program areas) a) Permission to Participate/”Informed Consent” b) Yearly, Blocks, Daily · Provide Adequate/Proper Instruction · Provide Adequate/Proper Supervision a) Direct and Indirect as Appropriate · Provide Adequate/Proper Warning of Inherent Risk(s) a) Permission to Participate/”Informed Consent” · Provide a Safe Physical Environment (for all entities) · Provide Adequate//Safe/Proper Equipment · Match Athletes/Participants Appropriately a) Physical/Psychological/Cognitive Readiness b) age//size/skill/etc. (practices & events/contents) · Know Participants’ Limitations & Strengths a) Physical/Fitness/Psychological/Cognitive b) Academic Eligibility for Practice/Competition · Evaluate Athletes for Injury/Incapacity a) Physical/Psychological/Cognitive Readiness · Provide Adequate/Proper Emergency Assistance/Care a) Including an Emergency Action Plan, all Facilities) · Keep Accurate Records (e.g., Proof of Athlete Insurance) · Provide Adequate/Safe Transportation · Pursue Continual Education/Training for “Best Practices” A) Selection of Personnel/Education/Training · Follow Due Process
Negligence, in a nutshell = failure to do what a reasonable and prudent person would do in similar circumstances |
NFHS (2002) Definition: “any act or ceremony which creates the risk of harm to the student or to any other party and that is committed as a form of initiation into a particular club or activity”
The National Federation of State High School Associations (NFHS) is the governing body that writes the rules of competition for interscholastic sports and activities in the United States.
US Legal, Inc. Definition An abusive, often humiliating, form of initiation into or affiliation with a group, including: · Any willful action taken or situation created which recklessly or intentionally endangers the mental or physical health of another · Any willful act by any person alone or acting with others in striking, beating, bruising, or maiming; or seriously offering, threatening, or attempting to strike, beat, bruise, or maim, or to do or seriously offer, threaten, or attempt to do physical violence to another
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1st Amendment (Deals with Federal Law) |
Gender Equity (Deals with Federal Law) |
Negligence & Legal Duties
(Legal Duties typically stem from Binding Precedents or Persuasive Precedents) |
Hazing |
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The 3 Tests Court Tests that as Religion in School Case Must Pass:
The Lemon Test Lemon v Kurtzman (403 US 602, 1971). The U.S. Supreme Court decided a Rhode Island law allowing the state to pay partial salary of parochial school teachers was unconstitutional.
“A government practice is constitutional if: · * it has a secular purpose, · its primary effect neither advances · * nor inhibits religion, · * and it does not excessively · entangle government with · religion.”
The Endorsement Test Lynch v. Donnelly [465 U.S. 668, 687-694 (1984] and County of Allegheny v. ACLU [492 U.S. 574, 594 (1989)], determines if a fully informed hypothetical observer would view a government practice as either endorsing or disapproving of religion.
The Coercion Test Lee v. Weisman [505 U.S. 577 (1992)], the court must consider a school-sponsored religious activity in terms of the coercive effect that the activity has on students.
· Santa Fe Independent School District v. Doe 530 U.S. 290 (2000), U.S. Supreme Court ruled that a policy permitting student-led, student-initiated prayer at high school football games violates the Establishment Clause of the 1st Amendment [Binding Precedent for jurisdictions of USA and its territories].
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The 3 parts of Title IX - applied to athletics: 1) Participation: Title IX requires that women and men be provided equitable opportunities to participate in sports. Title IX does not require institutions to offer identical sports but an equal opportunity to play; 2) Scholarships: Title IX requires that female and male student-athletes receive athletics scholarship dollars proportional to their participation; and, 3) Other benefits: Title IX requires the equal treatment of female and male student-athletes in the provisions of: (a) equipment and supplies; (b) scheduling of games and practice times; (c) travel and daily allowance/per diem; (d) access to tutoring; (e) coaching, (f) locker rooms, practice and competitive facilities; (g) medical and training facilities and services; (h) housing and dining facilities and services; (i) publicity and promotions; (j) support services and (k) recruitment of student-athletes.
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The 4 Questions to Determine if Negligence Exists to any Degree (Meeting The Standard of Care) are: *Did a legal duty existed or was owed to the injured party – yes or no? *Was there a failure to fulfill the duty – yes or no? *Was there injury/damage to whom the duty was owed – yes or no? *Did failure to fulfill the duty cause/lead to the injury/damage – yes or no?
Common Defenses in a Negligence Lawsuit * Plaintiff had Preexisting Knowledge of Activity's Inherent Risk * Plaintiff Contributory Negligence * Plaintiff Comparative Negligence * Sovereign Immunity * Good Samaritan Law(s) * Transfer of Risk in other ways * Product Liability * Act of God
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Hazing often prosecuted as: · Sexual assault, aggravated assault, kidnapping, involuntary deviant sexual intercourse, providing alcohol to minors, or assault/battery · Athletes jailed for as long as life sentences · Athletes losing possibilities of scholarship awards, if not actual scholarships they had already earned · Athletes w/ criminal record can prevent future hires · Juvenile status / sealed records often no help in high profile cases · Administrators and coaches losing jobs and serving jail/prison-time
Battery - Intentional, unpermitted, and offensive touching of the person of an individual by another (not necessarily resulting in injury).
Assault - The crime or tort of threatening or attempting to inflict immediate offensive physical contact or bodily harm that one has the present ability to inflict and that puts the victim in fear of such harm or contact; or, an intentional act by one person that creates an apprehension in another of an imminent harmful or offensive contact.
Actual physical contact is not necessary; threatening gestures or words ( Verbal Assault ) that would alarm any reasonable person can constitute an assault.
Court-Defined Standard for Hazing as Depraved Indifference: "the defendant's conduct must be 'so wanton, so deficient in a moral sense of concern, so lacking in regard for the life or lives of others, and so blameworthy as to warrant the same criminal liability as that which the law imposes upon a person who intentionally causes a crime'," it is Depraved Indifference
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1st Amendment (Deals with Federal Law) |
Gender Equity (Deals with Federal Law) |
Negligence & Legal Duties
(Legal Duties typically stem from Binding Precedents or Persuasive Precedents) |
Hazing |
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The 3 Tests Applied Together: · The “Lemon” Test - To pass constitutional muster, a governmental action must: 1. Does it have a secular legislative purpose? 2. Does its principal or primary effect be one that neither advances nor inhibits religion? and 3. Does it foster an excessive entanglement with religion?
· The “Coercion” Test - Does the government have a statute or practice that uses the machinery of the state to coerce believers, as well as nonbelievers and dissenters to enforce a religious ideal or orthodoxy?
· The “Endorsement” Test - Has the government taken action or pass a statute that: 1. has a secular purpose for the action? and 2. In the eyes of a reasonable observer, familiar with history and context, can they see that the primary effect of the action does not endorse religion?
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Sexual Harassment/Discrimination What falls under the scope of Title IX? All educational programs and activities that receive federal funds must comply with Title IX. This includes all public schools and most private schools. Notably, this definition also includes after-school programs, extracurricular activities, libraries, museums, and vocational rehabilitation agencies that receive federal funding. Who does Title IX protect? All students are protected from discrimination by Title IX, regardless of sexual orientation, gender identity, nationality, immigration status, race or ability. Title IX protects boys and men as well as girls and women. Title IX also applies to organizational employees, such as coaches, teachers, staff, and administrators. What counts as sex discrimination? Under Title IX, sex discrimination includes sexual harassment and gender-based harassment. Sexual harassment comes in many forms, such as: unwanted sexual comments or advances, cyberbullying, or any non-consensual sexual contact. Gender-based harassment is when an individual is harassed or bullied because they do not conform to gender stereotypes (for instance, a boy being bullied by his peers for wearing a dress to school.)
Harassment is prohibited by Title IX when it creates a hostile environment for the victim such that he or she can no longer fully participate in or benefit from school. A hostile environment can be caused by a single incident or by repeated instances of harassment.
Schools must act against harassment or discrimination regardless of where incidents occur. Instances of harassment that occur off-campus may be sufficiently serious to create a hostile learning environment and therefore fall under Title IX. What does Title IX require schools to do? First, schools/school systems MUST create, publish, and widely distribute an anti-discrimination policy. This policy must affirm the school’s commitment to non-discrimination based on gender and include clear definitions of consent, sexual harassment, sexual discrimination, and sexual violence. The policy must also provide instructions on how students and members of the community can make complaints and contact their Title IX coordinator. |
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Court-Defined Standard for Hazing as a form of Sexual Harassment:
"if it causes a concrete [sic, negative] effect on the victim's education or access to school-related opportunities or resources," it is Sexual Harassment
3 Levels of Hazing: 1) Subtle 2) Harassing 3) Violent
Hazing Includes. But is not limited to” risk of physical harm, whipping, branding, substance ingestion, sleep deprivation, over-exposure to extreme temp's (hot / cold), restraint, nudity, or kidnapping
and may include:
Sexual acts or simulations, acts that cause unreasonable embarrassment or shame, acts that create a hostile or abusive or intimidating environment for the hazee
The more of these questions that are answered “Yes,” the more likely it is considered Hazing; but, it can take only 1 “Yes” to constitute Hazing: 1) Is alcohol involved? 2) Will current members of the group refuse to participate w/ the new members / do exactly what newbies must do? 3) Does activity risk emotional or physical abuse? 4) Is there risk of injury or a question of safety? 5) Would vets have any reservation describing the activity to their parents, a teacher, or school official? 6) Would veterans object to the activity being photographed for a school newspaper or filmed by a TV news crew? |
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FERPA v HIPAA (Deals with Federal Law) |
Gender Equity (Deals with Federal Law) |
Negligence & Legal Duties
(Legal Duties typically stem from Binding Precedents or Persuasive Precedents) |
Hazing |
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FERPA The Family Educational Rights and Privacy Act (FERPA) (20 U.S.C. § 1232g; 34 CFR Part 99) is a Federal Law that protects the privacy of student education records. The law applies to all schools that receive funds under an applicable program of the U.S. Department of Education. It applies to any record that directly relates to a student and is maintained by an educational agency or institution or by a party acting for the agency or institution.
HIPAA The federal Health Insurance Portability and Accountability Act was interpreted initially, in the physical activity-sport realm, as restricting those with informed knowledge from releasing health/medical information for a student or athlete to anyone without the “patient's” express consent.
Under Current interpretations, as noted in the act, it applies specifically to a “Covered Entity,” including: (1) A health plan, (2) A health-care clearinghouse, or (3) A health care provider who transmits any health information in electronic form in connection with patient health/medical information transaction, that Discloses, releases, transfers, provides access to, or divulges in any manner, a patient's health/medical information outside the entity holding the information.
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Legal Precedent Terminology Clarified
There are two types of Legal Precedent: Binding Precedents and Persuasive Precedents.
Binding (mandatory) precedents, are based on Stare Decisis (stair – ee Duh – seye – sis),
which means “stand by the decision.” It is a policy of the courts to abide by or adhere to principles established by court decisions in earlier cases. It is a jurisdictional precedent that provides uniform standards of strictness by either individual state supreme courts over all courts under their jurisdiction, or The U.S. Supreme Court over all courts.
Another way of viewing it is: Stare decisis is Latin for “to stand by things decided.” In short, it is the doctrine of precedent. Courts cite to stare decisis when an issue has been previously brought to the court and a ruling already issued. According to the Supreme Court, stare decisis “promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.” In practice, the Supreme Court will usually defer to its previous decisions even if the soundness of the decision is in doubt. A benefit of this rigidity is that a court need not continuously reevaluate the legal underpinnings of past decisions and accepted doctrines. Moreover, proponents argue that the predictability afforded by the doctrine helps clarify constitutional rights for the public. Other commentators point out that courts and society only realize these benefits when decisions are published and made available. Thus, some scholars assert that stare decisis is harder to justify in cases involving secret opinions.
The doctrine operates both horizontally and vertically. Horizontal stare decisis refers to a court adhering to its own precedent. A court engages in vertical stare decisis when it applies precedent from a higher court. Consequently, stare decisis discourages litigating established precedents, and thus, reduces spending.
Although courts seldom overrule precedent, Justice Rehnquist explained that stare decisis is not an “inexorable command.” On occasion, the Court will decide not to apply the doctrine if a prior decision is deemed unworkable. In addition, significant societal changes may also prompt the Court to overrule precedent; however, any decision to overrule precedent is exercised cautiously.
Persuasive precedents, or Ratio Decidendi (Ray – she – oh Dee – sid – en – dye), are those decisions in lower courts (or courts of other jurisdictions) that can NEVER be binding; but, they can/may influence, inform, or guide a higher court's decision.
Obiter Dicta (plural / multiple, Oh – bit – her Dick – tuh) or Obiter Dictum (singular / one, Oh – bit – her Dick – tum) refers to statements made by judges in other courts that do not establish a precedent, but do provide insight or explanation(s) as to another judge's thinking or interpretations of fact(s) and legal principles. They lend support or weight to a given view concerning a legal matter, when making decisions.
Legal Duties for Coaches, PE Teachers, Athletic Administrators, Parks and Recreation / Leisure Professionals,
Fitness Employees (anyone working in the physical activity realm) are based on both types of Legal Precedents.
Court Jurisdictions/Binding Authorities
and Legal Precedents from Persuasive Authorities
This chart displays the principles associated with whether a legal issue is state or federal, and which court. Find the box in the left-hand column that applies to a given case. Then, read across that row to find out which courts bind the case and which courts are only persuasive. 1) State or Federal Issue? 2) Which court?
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Court Location |
Who is the Binding Authority |
Who has Persuasive Authority |
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State issue in state trial court |
That state’s state appeals court That state’s highest court |
All federal courts Other states’ state courts Other state trial courts in the same state |
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State issue in state appeals court |
That state’s highest court |
All federal courts Other states’ state courts State trial courts in the same state Other state courts of appeals in the same state |
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State issue in state’s highest court |
That state’s highest court |
All federal courts Other states’ state courts State trial courts in the same state State courts of appeals in the same state |
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Federal issue in state trial court |
US Supreme Court |
All federal district courts All federal circuit courts State courts |
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Federal issue in state appeals court |
US Supreme Court |
All federal district courts All federal circuit courts State courts |
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Federal issue in state supreme court |
US Supreme Court |
All federal district courts All federal circuit courts State courts |
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State issue in federal district court |
Interpretations from the state’s highest court |
All federal courts Other state courts |
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State issue in federal circuit court |
Interpretations from the state’s highest court |
All federal courts Other state courts |
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State issue in U.S. Supreme Court |
Interpretations from the state’s highest court |
All federal courts Other state courts |
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Federal issue in federal district court |
US Supreme Court Federal circuit court in the circuit where the district court is |
Other federal circuit courts Other federal district courts All state courts |
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Federal issue in federal circuit court |
That federal circuit court US Supreme Court |
Other federal circuit courts Other federal district courts All state courts |
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Federal issue in US Supreme Court |
US Supreme Court |
All federal circuit courts All federal district courts All state courts |
