The Danger Lurking Below: The Importance of a Safe Football Field
It was a clear, warm morning as I drove to work on August 9th. As I do every morning I was listening to 710 ESPN Radio, specifically Brock and Salk. I then heard words that terrified me. “The star received for the Washington State Cougars, Gabe Marks, left practice yesterday limping. It appeared that he hurt his leg because of field conditions.”
For those of you who don’t follow the Cougs as closely as I do, Gabe Marks is in competition to be an All American receiver this year. He was encouraged to go to the NFL last year, but returned to Washington State University (“WSU”) for his senior season. In addition, in the last two years the team has travelled to Lewiston, Idaho, to practice before the school year begins. The field on which they practice is located at Sacajawea Junior High School. You may ask: “Why is the team practicing in Lewiston? Why not just practice on campus and then go to Ferdinand’s afterwards for unlimited free cheese sampling, particularly Cougar Gold?” Other than the fact that it is a beautiful drive from Pullman to Lewiston Coach Leach practices there to get the team away from the distractions on campus during that time of year and to build camaraderie amongst the team. It has worked great in the past!
So, on August 8th, while Gabe Marks was running a route against one of WSU’s defensive backs, he fell to the ground and appeared to injure his leg. One can only imagine how could such an injury occur? And once the wheels in your head start turning and you recall that he was practicing at a junior high in Lewiston, Idaho, you might wonder if it had something to do with the field.
If you watch football, you’ve seen all the problems that a poorly managed field can create. Flashback to the NFC Wildcard game in 2012 when Robert Griffin III injured his knee due to the poorly maintained field at FedEx Field. After that injury he has never been the same quarterback, hence why he is now playing in Cleveland where quarterbacks go to end their careers (Sorry Browns fans). Even this preseason the NFL decided to cancel the Hall of Fame Game in Canton, Ohio, because officials believed the field was in an unsafe condition.
So the legal question that this gets down to is this: What responsibilities do football teams owe to their players to ensure the conditions (i.e. the field) are safe? And if a player is injured because the team failed to protect the player from an unsafe condition what is the players remedy and/or damages?
Regarding the first question, this depends on if the player is an employee of the team. If the football player is an employee, then the team needs to provide a safe work environment. That is the case in the NFL where players are employees of the team they play for. In this scenario, if the player is hurt then he will have a workers’ compensation claim that is handled consistent with the state’s workers’ compensation laws and/or the collective bargaining agreement that the players have with the league.
However, college student athletes, like Gabe Marks, are different. They aren’t employees. In fact, a few years back there was a push for student-athletes to be considered employees, but that was struck down by the National Labor Relations Board after the players of Northwestern University attempted to unionize (if you recall we wrote about it in Brief Opinions). So what responsibility does the school have to protect the student athlete? That depends on the state where the student attends school. In Washington, our laws state that schools owe a duty to their students to employ ordinary care to protect their student athletes. This includes anticipating reasonably foreseeable dangers and taking precautions to protect the athletes from such dangers.
So let’s think about that as it applies to the Gabe Marks’ scenario. For the purposes of this article let’s assume that the field was uneven and had shallow holes throughout the playing field. (Note - I have no reason to believe that was the case, but the discussion that follows will be more interesting if you just play along). What then? Well, for starters, we’d have to know if the uneven field and the small holes were a reasonably foreseeable danger. In my opinion, I think a junior high football field does present a reasonably foreseeable danger since traditionally those fields aren’t maintained in the same manner as a collegiate practice facility, particularly in the summer when the staff at the junior high is greatly reduced. Therefore, I think an uneven field and shallow holes are foreseeable and of course create a danger. And if those conditions were reasonably foreseeable, did the school use “ordinary care” to protect the student athletes from the danger that existed?
To answer this, you’d have to determine exactly what is “ordinary care”? At a minimum you would think it would include sending a field specialist to inspect and treat the field for any unevenness and/or repair any holes that could cause leg injuries. If the school used ordinary care to make sure the field was safe and free from hidden dangers, then the school would not be liable for any injuries that followed. On the other hand, let’s assume the school didn’t use ordinary care and the field was considered a foreseeable danger. If that were the case, then the school would be negligent and would be responsible for the damages that Gabe suffered as a result of the negligence.
The next issue would then be what could Gabe recover? For starters at the least it would include the medical expenses he incurred to repair the injury and the pain and suffering that resulted from the injury. It would also include any future wages he lost because of the injury. If you recall, Gabe Marks led WSU in catches last season, 104 to be exact. This year he could be an All American and also had a great first game against Eastern (unlike the Cougars’ defense). With a resume like this it is very likely that Gabe would have been an NFL receiver, but for the hypothetical injury he sustained to his leg. So what type of lost future wages would have been part of his injury claim? Again, this depends on state law. In Washington, when an injury results in permanent injury the injured person is entitled to compensation for loss of earning capacity, also known as “impaired earning capacity.” Loss of earning capacity is also an appropriate recovery when the injured person is not a wage earner (i.e. a student athlete).
In Gabe’s theoretical case part of his claim would be for future earnings he would have made in the NFL. He would need a few experts to establish his claim. First, he would need an expert that could comment on his likelihood (51%) that he would make it into the NFL, and then what his future playing capacity would be. The person who would could testify to this would probably be a long time agent, coach, etc. Then, with that information, you probably need an economic expert to comment on the amount of wages Gabe would have made in the future and then discount it to reflect the present value. Not exactly a simple process. And of course, the defendant in this hypothetical (i.e. WSU) would hire its own experts to say the opposite of everything Gabe’s expert would testify to. Ultimately, the final decision on what to award Gabe would be made by the judge or jury if the parties couldn’t settle the claim before trial. And a case like this could go on for a few years before it went to a trial.
Fortunately, for everyone (the fans, WSU, Gabe Marks and his family) Gabe Marks wasn’t severely injured at practice on August 8th. Turns out a few days later he was back on the field. (And I of course, as well all other WSU fans, were breathing a heavy sigh of relief). However, if he was injured, you can see how much liability WSU could be facing. Because of this liability and desire to protect their students, I’m quite sure WSU takes all necessary steps to make sure any field on which a player plays is safe and free of foreseeable dangerous conditions. By doing this, schools protect its students-athletes from the “danger lurking down below.”