- Lester Munson, Legal Analyst
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Courtside Seat has a heart. You know that, right? We take no joy in addressing the sad situation in South Bend, Ind. But the legal issues facing the university right now are significant, and there is no point in avoiding them. So the view from this week's 'Seat' is of liability, of workers' compensation and of death benefits, along with a look at the next serious challenge to the NCAA. Today, we start with
The value of a young life
No one is ready to talk about it, but Notre Dame must soon answer a difficult question: What is the university willing to do for the family of Declan Sullivan, the 20-year-old football videographer who fell to his death while taping practice in 50 mph winds last week?
It was, of course, a tragedy of monumental proportions that sent waves of shock and grief through the university community. Sullivan was buried on Monday in his hometown of Buffalo Grove, Ill., and now both the university and the Sullivan family face a thicket of legal and moral issues. What is the responsibility of the university for the death of a student-employee who was put in harm's way? Is the family willing to make demands on a university that it clearly loves? (Declan's sister is a freshman at Notre Dame.) What does the legal system provide?
The Indiana laws that apply to this tragedy might not be helpful to the Sullivan family, if it wishes to seek redress for Declan's death. Notre Dame paid him for his work; so as an employee who was killed while on the job, his family is limited to what is available under Indiana workers' compensation law.
And it isn't much.
As a worker who had no dependents, Sullivan is limited to a payment of a $7,500 death benefit, according to Brad Varner, a workers' compensation specialist in Mishawaka, a town located adjacent to South Bend. If Notre Dame decides to adopt a highly technical and legalistic approach to the tragedy, it could easily try to limit any settlement to the $7,500 death benefit.
Notre Dame officials are not discussing the matter as they await the results of investigations by a state safety agency and insurance adjusters.
Is there any way for the Sullivan family to move beyond the limits of workers' compensation into a more equitable claim for damages, if they so desire?
The answer is a qualified 'yes.' There are some legal options; but all of them are difficult, if not impossible, to pursue successfully. They include: (A) a products liability claim against the manufacturer of the scissor lift that Sullivan rode to his death; (B) a claim against the company that leased the lift to the university; and (C) a claim against anyone who repaired or serviced the device. But according to Kenneth J. Allen, a highly successful trial lawyer in Valparaiso, these claims are not likely to succeed.
"Indiana law is not favorable to consumers and protects big companies and insurance companies," Allen said.
Looming over any attempt to go beyond the workers' compensation death benefit is an Indiana safety regulation that provides, "Work from scaffolds is prohibited during storms and high winds unless a competent person has determined that it is safe for employees to be on the scaffold and those employees are protected by a personal fall arrest system or wind screens."
It is not yet clear whether any Notre Dame officials directed Sullivan to use the lift in the high winds. But any attempt to blame anyone but Notre Dame for his death would collide with that state safety regulation. Only a Notre Dame official at the practice could have "determined that it [was] safe" for him to use the lift.
What will Notre Dame do? Will it rely on the law that limits the family to $7,500? Let's hope not. This is an issue that should be resolved between the university and the family. Rev. John Jenkins, Notre Dame's president, has taken the first step toward a reconciling settlement. In an open letter to the Notre Dame community on Friday, he took responsibility for the tragedy.
"Declan Sullivan was entrusted to our care, and we failed to keep him safe," Jenkins wrote. "We at Notre Dame, and ultimately I, as president, are responsible."
The responsibility that Jenkins describes is not a legal responsibility. It has nothing to do with the laws of Indiana or rules of liability or insurance coverage. His acceptance of responsibilty is, instead, an act of grace and compassion and love that will allow university officials and the Sullivan family to begin to talk and to find an equitable conclusion.
A challenge to the scholarship system
For Joseph Agnew, a star defensive back who led his Texas high school to two undefeated seasons and a state championship, the next step was supposed to be a "full ride," a scholarship for a student-athlete that would lead to a bachelor's degree from Rice University.
In 2006, his first year at Rice, it worked just the way it supposed to work. Agnew played -- and played well -- in all 13 of the Owls' games. But then things began to fall apart.
Todd Graham, the head coach who recruited Agnew, left for Tulsa after that first year, and Agnew's playing time began to diminish. Injuries to a shoulder and an ankle required surgical repairs, and he began to suffer migraines. When it became clear that he could no longer play, Rice didn't renew his scholarship for his junior year. Agnew appealed the decision and succeeded, winning another one-year scholarship. But during his senior year, Agnew was left without any assistance from the university.
At that point, according to Agnew and his lawyers, he ran into two NCAA regulations that place what the attorneys say are unlawful restrictions on scholarships. Current NCAA rules limit the number of football scholarships in Division I to 85, and restrict any scholarship to a single year.
In a lawsuit filed in federal court in San Francisco, Agnew and his lawyers are asking that these restrictions be eliminated. If they prevail, the limit on the number of football scholarships a big program could offer could be eliminated, and coaches could offer recruits scholarships guaranteed for four and five years. Without the restrictions, Agnew's lawsuit asserts, he would have been offered a four-year guaranteed scholarship to Rice; instead, he suddenly and unexpectedly was put in the position of paying his own way through school as the result of the new coach's decision.
The attack in Agnew's lawsuit on the NCAA's long-standing scholarship restrictions is based on America's antitrust laws; and conceivably, it could easily succeed in producing a radical change in NCAA rules.
Here is how the legal theory works from the perspective of the Agnew suit. It is based on the idea that the NCAA has monopoly control over the "market" for bachelor's degrees for student-athletes. The suit submits that because of its stranglehold on the market, the NCAA must conform to laws that govern monopoly cartels and cannot place restrictions on the market that would harm the market's consumers -- in this case, student-athlete football players.
The market for football scholarships should be free and open, according to the argument, with schools permitted to offer as many scholarships as they want and free to offer scholarships guaranteed for four or five years.
Instead of a free and open market for scholarships, Agnew and his lawyers charge that the NCAA restrictions are designed to make sure that the income from football is devoted to huge salaries for NCAA officials, coaches and athletic directors. The rules limit investments of football revenue in scholarships for players (or, perish the thought, modest salaries for players), and protect the money for use in salaries for the grown-ups.
"The supply of available scholarships is kept artificially low by NCAA rules," Agnew's lawsuit states. Rather than invest in additional scholarships, "NCAA top executives use money earned off the backs of student-athletes to pay themselves salaries of hundreds of thousands of dollars and to pamper themselves with plush headquarters and perks normally associated with Fortune 500 companies."
Agnew attorney Stuart Paynter of Washington, D.C., cites numerous examples of huge salaries awarded to NCAA executives and coaches, including John Calipari's eight-year, $31.7 million deal at Kentucky and Lew Perkins' $4.4 million salary as athletic director at Kansas.
If, for example, Perkins' salary at Kansas were limited to a mere $400,000, it would free $4 million for the football and basketball teams. If you assume 100 football players and 15 basketball players, that would be nearly $35,000 per player, enough for tuition and expenses and a bit of walking around money.
Variations of the Agnew theory have worked in previous antitrust cases filed against the NCAA, including successful attacks on an NCAA attempt to establish a maximum salary for the fourth assistant basketball coach and on the failure of numerous schools to grant sufficient scholarship funds to pay all of a student-athlete's expenses.
Although the NCAA has not yet responded specifically to the Agnew lawsuit, it is expected that the organization will argue that its rules are necessary to protect the amateur standing of student-athletes and to enhance "competitive balance."
The lawsuit anticipates responses from the NCAA on both points. It cites the famous observations of former NCAA president Walter Byers, who wrote in his 1995 book "Unsportsmanlike Conduct: Exploiting College Athletes" that, "Collegiate amateurism is not a moral issue. It is an economic camouflage for monopoly practice." If anyone was uncertain of his meaning, Byers added that the scholarship restrictions were "nothing more than a device to divert money" to NCAA executives and the schools.
On the expected NCAA claim that it must protect "competitive balance," the Agnew attorneys respond that any contribution toward competitive balance is outweighed by unlawful restrictions on the market for scholarships.
The "competitive balance" defense is nothing new. NFL owners tried to stop the NFL Players Association's quest for free agency by arguing that it would result in a few teams signing all the great players and eliminate competitive balance. The argument did not work for the owners, and it is not likely to work for the NCAA.
Agnew and his lawyers have a long legal road ahead of them as they battle the NCAA. But when it's over, there quite likely may be people at NCAA headquarters in Indianapolis and at Rice who wish Agnew had been given a scholarship for his senior year in college. This appears to be a case that Agnew and other similarly situated student-athletes can win, which would force the NCAA to change its rules and pay out big money in treble damages.
Lester Munson, a Chicago lawyer and journalist who reports on investigative and legal issues in the sports industry, is a senior writer for ESPN.com.
Declan Sullivan was laid to rest and a campus mourned this week. Now Notre Dame faces the legal and moral issues surrounding his death. Courtside Seat examines the options.