Santa Clara Sports Law Symposium

Friday USA Swimming Sex Abuse Roundup
September 13, 2013
Washington Post Editorial: ‘Guarding young swimmers from sexual abuse’
September 13, 2013

by Irvin Muchnick

For the third straight year of its four-year history, I thank the organizers for giving me a seat in the audience of the University of Santa Clara’s Sports Law Symposium. The lunch buffet and the program compendium of background articles were great. The depth of colloquy fell short, though in entirely expected ways, given that three of the four major sponsors are local major league sports franchises (San Francisco 49ers, Oakland Athletics, San Jose Sharks).

(My previous years’ reviews of the symposium are at https://concussioninc.net/?p=4528 and https://concussioninc.net/?p=5990.)

I enjoyed the opportunity to network with friends and colleagues, some of whom I had the pleasure of meeting in person for the first time. So as not to compromise their own more lubricous relationships with the hosts, I’ll name none of them.

The notable exception to my general criticisms below is Tom Farrey of ESPN and the Aspen Institute’s Sports & Society Program. In the panel he moderated, “Could Concussion Liability Reshape Youth Sports?”, Farrey did his best to propel a substantive conversation on the fraught future of public high school football. Unfortunately, despite his efforts to get out of the Kiwanis Club comfort zone, his co-panelists gave him nothing to work with. More on that anon.

The winner of this year’s Linda Robertson Award — named for the Miami sports columnist who last year was flown thousands of miles to the Bay Area for the purpose of saying absolutely nothing of intellectual heft — is Shawn Stuckey, the former National Football League linebacker who is now a Minnesota-based litigator for ex-players’ claims.

On the Farrey panel, Stuckey first said high schools had little to worry about from the recent $765 million NFL settlement with retirees, as the law is well established that the schools don’t have much custodial responsibility for the welfare of participants in extracurricular activities. Later, Stuckey said schools are liable if they don’t provide safe, up-to-date equipment. From there, he zigged and zagged like Barry Sanders in tanbark, with standard riffs on the NFL’s bottom-line avarice.

For all our sympathy for the plight of disabled pros who have been screwed by the NFL, Stuckey’s performance is a reminder that this population does not supply our most articulate or trustworthy arguments in the area of public policy.

As is the case every year, the main problem with the Santa Clara symposium is the preponderance of usual-suspect speakers, plus poor time management. These combine to kill audience feedback time. I don’t fetishize open mic per se, but an event advertised as offering continuing education for legal practitioners and freewheeling debate for the public should not be allowed to fritter the day away with filibusters and lame rubber-chicken-circuit mutual back-scratching. How about fewer redundant panelists and more hard-hitting Q&A?

Alan Schwarz of The New York Times was one of the keynote speakers, and I don’t begrudge Schwarz his victory lap as the granddaddy of mainstream concussion crisis coverage. Also, Schwarz was witty, informative, and well-prepared with a solid multimedia presentation. I was fascinated by audio clips of two of Schwarz’s earliest (2007) interviews with key figures. In one, the late National Football League Players Association president Gene Upshaw disclaimed a link between football and early cognitive decline — even as Schwarz politely pointed out that an NFLPA-funded study by the University of North Carolina said otherwise. In the other clip, NFL commissioner Roger Goodell had the nerve to blow off the concussion problem by mentioning a head injury his brother once sustained in a swimming pool.

The other keynoter, Hall of Fame defensive back Ronnie Lott, reprised his decades-old sensitive assassin shtick. I count myself among the minority who are thoroughly weary of this routine, which comes complete with weepy and inapt parallels between his bloodsport and the traumatic brain injuries and wanton death of military exercises. In other words, the entertainment of football, and wars to protect our sovereignty and freedom, are equivalent, and we’re supposed to be OK with that, even sentimental about it. Pat Tillman is fungible enough to be exploited by every conceivable agenda.

Lott recalled the 1989 paralysis of his 49ers secondary mate Jeff Fuller. I recall it, too: I was at Stanford Stadium that day reporting my cover story on Joe Montana for The New York Times Magazine. That was the day the media relations staff herded us down to the field with four minutes left because of changed post-game interview logistics (the game had been shifted from Candlestick Park after the big earthquake). Standing on the sidelines, I had close-ups of half a dozen car wrecks per play … all during garbage time of a game whose result had long ago been decided. For me, it was the day the football music died. I was 34 years old and ready to define adulthood for myself.

In the course of cliched encomiums to the late coach Bill Walsh, Lott bragged that the 49ers’ offensive linemen “were real good at” crack-back blocks: sadistic blind-side shots behind the opponents’ knees. Of course, Lott would do it all again at the stroke of a stroke. But of course, he would do so repentantly — this time he’d practice “safe football.” It’s so important to save football from itself — for it is only by means of this precise outlet for mitigating phenomena such as “childhood obesity” (have you looked at a “run-stuffing” defensive tackle lately?) that America’s boyly boys can be transformed into manly men. Some of us feel otherwise, that the process can be achieved in multiple ways; for instance, by teaching boys (and girls) to use their heads — including to think.

Lott concluded his stem-winder with a wish list for all youth football players, including and especially in the ghetto from whence he came: brand-new helmets and pads every year, a sideline athletic trainer, baseline neurocognitive tests starting the day they were weaned from mama’s breast, and a municipal ambulance service on standby to cart off quickly every kid whose brain matter gets mooshed or spinal cord cracked. The Santa Clara Sports Law Symposium offered no platform for the point of view that the proponents of “concussion awareness” and “safe football” don’t even bother to put forth back-of-the-envelope projections of what this would cost our society and whether it would be worth it.

*****

The lunchtime presenters were Jack Clark, the legendary Cal rugby coach, and Jim Thompson, the cloying CEO of an organization called the Positive Coaching Alliance. These two gentlemen flashed the infamous video of jackass Rutgers basketball coach Mike Rice’s verbal and physical abuse in practice. The Melissa McCarthy spoof of the footage on Saturday Night Live got both Rice and Rutgers athletic director Tim Pernetti fired. Clark and Thompson shook their heads and earnestly agreed that this is not positive coaching.

From the buffet line, I was recognized and allowed to ramble for a minute about a contemporaneous and much worse coach outrage: the widespread sexual and physical abuse of swimmers at the University of Utah by coach Greg Winslow. The difference was that nobody cared and Utah athletic director Chris Hill, after covering up for Winslow for years, wasn’t canned. (An “independent review” of the cover-up, commissioned by the university trustees, concluded that Winslow should have been fired a year earlier, for being a boozer.)

I might as well have been speaking in Serbo-Croatian. Thompson thanked me and moved right along to such questions as whether girls start crying more quickly than boys when coaches yell at them.

In a subsequent email, Thompson told me, “I had not heard about the [Winslow] case.  We most often focus on high school and youth sports so I don’t keep up with college sports in general.”

That doesn’t explain the session’s  theme of Mike Rice, a college coach. Nor does it explain why the Positive Coaching Alliance seems to have zero knowledge, much less a position, on the Catholic Church-level problem of sexual abuse of far too many of the 400,000 youth by far too many of the 12,000 coaches in USA Swimming.

*****

On to Tom Farrey’s panel. Admirably, Farrey tried to lock on the question of how much it would take for public high schools to get out of the football business.

My first criticism here is a quibble. Though Farrey correctly used the recent NFL settlement as his hook, his cite of the fast-following Dougherty family $2.8 million wrongful-death settlement with their high school in Montclair, New Jersey, missed an opportunity to talk about not just liability costs, but also the dubious effectiveness of preventive measures. The Dougherty case includes facts about the school district’s incipient use of the ImPACT concussion management system, developed by the ever-reputable medical director of the WWE, Dr. Joe Maroon.

More Dougherty-style lawsuits are sure to follow. Baseline testing is a key component of the pie-in-the-sky state-by-state concussion awareness mandates, the so-called “Lystedt Laws,” which NFL lobbyists love because they shift the football industry’s public health tab completely on the back of the public sector. If ImPACT and all the other nice-sounding measures don’t do the job anyway, then what are we talking about here, besides continuing mass delusion?

The other basic flaw of Farrey’s panel is that he talked about the cost side for schools only in terms of lawsuit exposure, insurance premiums, and equipment. But Farrey did press panelist Michael Pilawski, the athletic director of Saint Francis High School in Santa Clara, to disclose the total “nut” for the football program. Pilawski finally said around $80,000 — an obviously low-ball number, as it didn’t account for insurance, facilities maintenance, and other line items not charged to the athletic department budget. Moreover, Pilawski acknowledged that as a private school, Saint Francis has a lot more flexibility to subsidize football than a public institution.

Perhaps next year the Santa Clara conference can give us a public high school athletic director, tasked with providing real and transparent answers to these questions. And in order to give that presentation time, maybe the organizers can scale back on the blathering of the Positive Coaching Alliance.

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