Maryland Parent: University Regents Should Discuss Derek Sheely’s Death and Safety in College Sports. Governor O’Malley Should Join Them.

We’ve made the point that the National Football League’s $765 million settlement with retired players will not calm the ferment in the football industry’s feeder systems. On Monday’s Good Morning America on ABC, the parents of Derek Sheely talked about their lawsuit over his 2011 death while playing football at Frostburg State University in Maryland. See the video at http://www.wjla.com/articles/2013/08/derek-sheely-s-parents-sue-frostburg-state-university-over-son-s-death-93210.html.

The Sheely case also has drawn the interest of Maryland parent and advocate Tom Hearn, whose guest column we are pleased to publish below.

At http://muchnick.net/hearnletter.pdf, we uploaded Hearn’s nine-page fully footnoted letter last week in which he asked Maryland’s university regents to discuss Sheely’s death and sports safety issues. By law, Governor O’Malley is invited to each regents’ meeting, and Hearn urged the governor to attend the next one.

Hearn’s piece raises questions every university governing board in the country should be asking about their athletic programs:

· Have you discussed sports concussions and other sports injuries at your meetings?

· Have you abdicated your responsibility on football head trauma by delegating decisions on limiting contacts to the NCAA rather than following the leads of the Ivy League and the Pac-12 Conference?

· For public universities, does limited sovereign immunity for coaches, administrators, and even Regents create perverse incentives that make sports more dangerous for students?

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by Tom Hearn

Last Friday the Maryland Board of Regents, which oversees the state’s university system, met by conference call. The day before, I emailed the Regents a letter, asking them to add to their agenda a discussion of Derek Sheely, the Frostburg State University student who died two years ago of head trauma sustained in football practice with the school’s team.

On August 22, Sheely’s family filed a complaint in which they allege that his death stemmed from misconduct by Frostburg ‘s football coaches and an athletic trainer.

The day after I sent my letter-the day of the Regents’ meeting-the University’s Chancellor explained that the Regents’ bylaws did not allow them to discuss Sheely’s death at Friday’s meeting. He committed that he and the Regents would review my letter carefully and follow up with me.

The most pressing question is whether Frostburg football is currently safe. According to the Sheely lawsuit, the football coaches conducted dangerous helmet-to-helmet “Oklahoma-style” tackling drills over three days that caused Sheely to sustain a bleeding gash on his forehead and that the two football coaches an athletic trainers named in the suit ignore concussion signs that he displayed before collapsing unconscious on the field. Each of these staff currently serves in these positions at Frostburg.

It is not clear that the Regents are aware of Sheely’s death, of the suit his family has filed, or of the broader issues of concussions in college football and other sports. A review of the minutes of the Regents’ public meetings since August 2011 reflect no discussion of Sheely’s death. The minutes also reflect no discussion of concussions in intercollegiate football.

There is no discussion in the Regents’ minutes of the long-term risk that repetitive head blows in football may lead to chronic traumatic encephalopathy (CTE) not only in retired NFL players but also in college football players, for example, Owen Thomas, a University of Pennsylvania football player who committed suicide in April 2010.

There is also no discussion in the Regents’ minutes of the short term risks that repetitive head blows in football can lead to altered brain function, even in players who are not diagnosed to have sustained a concussion, and that such altered brain function can take months to return to baseline.

Further, on September 28, 2012, 13 months after Sheely’s death, the Regents adopted Policy V 2.10, University System of Maryland Policy on Intercollegiate Athletics. The Policy requires a university president to report to the Regents information about a school’s intercollegiate athletics program such as student participants’ academic performance and financial aspects of the program.

The Regents’ Policy, however, requires no reporting on concussions or other injuries that students sustain from participating in intercollegiate athletics. The report filed by Frostburg State University for the 2010-2011 school year contains no information about concussions or other injuries. (No report by Frostburg State University is available at the Board of Regents website for the 2011-2012 school year, the year in which Sheely died.)

By law, the Regents are required to invite Governor O’Malley, Treasurer Nancy Kopp, and Comptroller Peter Franchot to attend each of its meetings. If you will recall, in 2011 Pennsylvania’s Governor Tom Corbett exercised a similar role to lead the Board of Trustees for Penn State University to address the child abuse scandal related to Penn State football coach Jerry Sandusky.

I respectfully urge Governor O’Malley, Treasurer Kopp, and Comptroller Franchot to attend the Regents’ next meeting and play a similar leadership role on the issue of the safety of students when they participate in intercollegiate athletics within the University System of Maryland.

At their next meeting, the Regents needs to get a report from staff of whether football at Frostburg is being conducted safely and whether football at other Maryland Schools is being conducted safely.

At their next meeting, the Regents should also adopt limits on full contact football practices similar to those adopted by the Ivy League, the PAC-12 Conference, and the NFL. The NCAA has not adopted such limits and appears to be committed to studying the issue. The Regents’ deference to the NCAA amount to an abdication of their responsibility to keep Maryland students safe when they participate in interscholastic sports.

Finally, Regents need to evaluate whether it is appropriate for football and other sports programs to be covered by the limited immunity from tort liability that Maryland law provides to State institutions and their personnel. Under Maryland law, the liability of a state agency such as the Board of Regents for tort damages up to $200,000.

School personnel, that is, coaches, athletic directors, university presidents, the Chancellor, and even Regents are only liable for torts – like a student dying in a school-organized football practice – if their conduct is malicious or grossly negligent. For negligence, these school personnel get a free pass.

The Regents need to ask whether the limited immunity has created perverse financial incentives for the universities it supervises. Football and other sports programs represent significant revenue source and an opportunity to market a school’s “brand.” If liability for a tragedy like Derek Sheely’s death is capped at $200,000, in a perverse Ford Pinto-like cost benefit analysis, does this represent a small operating cost with no financial incentive for a University to correct dangerous conditions?

One private sector discipline that gets lost by intercollegiate athletics being conducted by state employees is the discipline of liability insurance. If the University System of Maryland had to obtain insurance on the private market for the football program at Frostburg, would an insurer be willing to provide coverage? If so, would the premiums be affordable?

Would a private insurer condition coverage on the Regents banning dangerous football tackling drills, like the Oklahoma drills that the Sheely family allege caused their son’s death?

These serious issues may be beyond the Regents’ willingness to address. That is why Governor O’Malley needs to step in.

Tom Hearn is a parent from Montgomery. Last year, after his son sustained a concussion playing JV football, he advocated to the Maryland State Board of Education that they take steps to address concussions in high school sports. Hearn is @ConcussionMCPS on Twitter.