The family of a former University of Central Florida football player who collapsed and died following a 2008 off-season workout may only receive $200,000 in damages, a Florida appeals court ruled last Friday. The three-judge panel reduced the original jury award of $10 million after concluding the University of Central Florida Athletic Association (UCFAA), the named defendant in the lawsuit, was essentially a state agency subject to legislative limits on damages. The University of Florida and nine other state universities previously filed a brief in support of UCFAA’s appeal. This was more than an academic issue for Florida; in 2001, a Gator player died after suffering heat stroke during a team workout.
Ereck Plancher was a freshman wide receiver at Central Florida. After a conditioning drill supervised by head coach George O’Leary and his staff, Plancher collapsed and died. An autopsy revealed Plancher had a blood condition known as sickle-cell trait, “which predisposed him to vascular stress during periods of physical stress and contributed to his death,” according to a 2010 paper by Alejandro Bautista in the Marquette Sports Law Review. Bautista noted there were at least 14 SCT-related deaths involving college football players dating back to 1974. In April 2010, as part of a legal settlement with the family of a Rice football player who died due to SCT complications, the NCAA recommended all member schools screen players for the condition.
College Football Is a Government Activity
Plancher’s parents sued the UCFAA, which is the operating arm of the UCF athletics department. The UCFAA is what’s known under Florida law as a “direct support organization,” meaning it’s a non-profit corporation that holds and invests property for the benefit of UCF and its athletic program. Many SEC schools, including Florida and Georgia, have similar organizations. A key benefit of direct support organizations is that boosters can make anonymous donations to the athletic department.
In July 2011, following a two-week trial, a jury in Orange County, Florida, found the UCFAA negligent in Plancher’s death and awarded his parents $5 million each in compensatory damages, for a total of $10 million. (The jury declined to award punitive damages.) The UCFAA appealed the jury’s decision to the Florida Fifth District Court of Appeal in Daytona Beach.
The appeal centered on two issues. First, the UCFAA argued that it was entitled to “limited sovereign immunity” as it is an extension of a state university. Sovereign immunity is a common law principle that holds a government cannot be sued in its own courts without its consent. Florida law waives sovereign immunity for personal injury actions, including negligence, but limits damages to $200,000.
The trial judge held that the UCFAA was not entitled to sovereign immunity. The appeals panel disagreed. The judges noted that the UCFAA “is not an autonomous and self-sufficient entity,” but rather a creation of the University of Central Florida. After all, the athletic teams are identified with UCF, not the UCFAA.
Does the Player Assume All Responsibility?
The second issue raised in the UCFAA appeal—and the one that football fans should pay closer attention to—involves the applicability of a medical release signed by Plancher when he joined the football team. These releases are commonplace in every athletic department, including SEC programs. The release acknowledges that football may lead to serious injury (or death) and that the player assumes “all risks associated with participation” in football.
The UCFAA argued the release waived any right by Plancher, or his parents as his legal heirs, to sue the athletic program. The trial judge declared the release was “ambiguous” at best and “unenforceable as a matter of law.” On appeal, The appeals court agreed with the trial judge.
At least, two of the three judges on panel agreed. A third judge, Wendy B. Berger, wrote separately to argue in favor of enforcing the release. She argued the following language was, in fact, quite clear and unambiguous:
In consideration of the University of Central Florida Athletic Association, Inc. permitting me to participate in intercollegiate athletics and to engage in all activities and travel related to my sport, I hereby voluntarily assume all risks associated with participation and agree to exonerate, save harmless and release the University of Central Florida Athletic Association, Inc., its agents, servants, trustees, and employees from any and all liability, any medical expenses not covered by the University of Central Florida Athletic Association’s athletics medical insurance coverage, and all claims, causes of action or demands of any kind and nature whatsoever which may arise by or in connection with my participation in any activities related to intercollegiate athletics.
The Planchers (and the other two appeals judges) said this language only absolved the UFCAA for injuries arising from Ereck Plancher’s participation in college athletics—i.e., normal football activities—and not from the athletic department’s own negligence. Notably, the release does not mention “negligence.” Most Florida courts require such express language. Judge Berger disagreed.
What Could This Mean for the SEC?
Medical releases will continue to present legal issues for college football as concussion-related litigation continues to spread through the nation’s courts. This particular decision may have no impact beyond Florida and its universities (and not even that, should the Florida Supreme Court eventually hear the case and reverse the appeals panel). But all schools, especially attractive litigation targets like SEC members, will no doubt examine this decision carefully and review every word and punctuation mark in their own medical releases.
The sovereign immunity issue is also an important reminder that, for all the attacks on college football as a greedy corporate behemoth, the sport is largely the province of government institutions. This affects not only negligence lawsuits like the Plancher case, but more celebrated media cases like the Ed O’Bannon class action, which is directed against the NCAA, which the courts treat as a private corporation, not a government agency.
Sovereign immunity is something of a double-edged sword, however. It is granted or revoked at the discretion of elected state legislators. And a high-profile case like the Planchers’ lawsuit could prompt a political backlash against “greedy” athletic programs. There could be a push in Florida and other SEC states to raise or eliminate sovereign immunity limits on awards against direct support organizations—which would ultimately raise the cost of doing business and put further strain on athletic budgets.