By Dylan Henry and Kim Sachs
In the following article, we summarize the case of Wani v. George Fox University, and we discuss two takeaways from this case that universities and its employees should consider in order to minimize potential liability stemming from alleged physical and non-physical harm to a student-athlete both on the field and online.
In 2017, Samuel Wani (“Wani”), a former football player at George Fox University (“GFU”), filed a federal lawsuit in Oregon against GFU, nine GFU employees, and a former teammate seeking over $70 million in damages. He alleged that the Defendants were negligent and discriminatory in handling an injury to his thumb and that they improperly handled his complaint of racial harassment by a former teammate. His complaint alleged six causes of action: cyberbullying, negligence, medical fraud, racial discrimination, HIPAA violations, and breach of contract. After a series of motions, the Court dismissed all of Wani’s claims except for his personal injury action, which is the only claim that remains in litigation.
Refusal to Seek a Second Opinion and Racial Discrimination in Medical Treatment
Wani’s issues with GFU began in the summer of 2015 when Wani transferred to GFU and joined the football team. During the first week of practice, Wani injured his thumb. Gregg Boughton (“Boughton”), GFU’s head football athletic trainer, evaluated Wani’s thumb and diagnosed a sprained thumb ligament, and proceeded to ice and splint Wani’s thumb during down time and taped Wani’s thumb for practices. Wani disagreed with the diagnosis; he insisted he fractured his thumb. Boughton regularly examined Wani’s thumb over the next three days and decided to continue the ice-tape-splint regiment. Wani requested another doctor examine his thumb, but Wani claimed Boughton refused this request. Wani also claims that around this same time head coach Chris Casey (“Casey”) issued an edict that players were not allowed to leave practice without approval from Casey or a head athletic trainer.
Two weeks later, Wani took it upon himself to seek a second opinion. The hospital radiologist concluded that an x-ray of Wani’s thumb showed no fracture, but the attending emergency department physician nevertheless diagnosed Wani with a closed left thumb fracture. Wani had to wear a thumb splint for two weeks and then “weaned” to a wrist cast. GFU football team’s volunteer doctor eventually reviewed the x-ray film of Wani’s thumb and also concluded that no fracture appeared in the x-ray.
Wani contended that his thumb never fully healed, and he alleged that Casey’s edict that players could not leave practice, and Boughton’s refusal to let Wani leave practice, and his disregard for Wani’s assertions that the thumb was broken caused further injury. The Court found that Wani’s contentions sufficiently stated a claim for negligence (duty, breach, causation, and damages). Boughton, as head athletic trainer, had a duty to treat student-athletes adequately, which he breached by failing to send Wani to the doctor for evaluation. Wani alleged this breach caused further damage to his thumb and ultimately led him to undergo reconstructive thumb surgery in November 2016.
Wani sought to hold GFU liable for negligence related to his personal injury, a common cause of action in the sports-injury world—as well as racial discrimination related to his personal injury, a claim less common in the sports-injury world. He contends the GFU coaching staff (specifically Boughton) refused to refer black football players to outside medical providers while permitting white players to obtain immediate and premium treatment, but the Court found these contentions wholly unsupported by the record.
Cyberbullying by Teammate
Around the same time that Wani was dealing with his thumb injury, he learned that his teammate Dominic Fix-Gonzalez (“Fix-Gonzalez”) was bullying him on social media. According to court documents, Fix-Gonzalez posted several photos of Wani on Instagram; one of the photos depicted Wani with a “deeply blackened face,” and another superimposed an image of a mop over Wani’s head. Upon learning of these pictures, Casey met with the entire staff and team to discuss GFU’s policies. He also met with Fix-Gonzalez individually, informing him of the seriousness of Wani’s complaints. When Associate Dean of Students Dave Johnstone (“Johnstone”) got wind of the situation, he also investigated the matter and forwarded his findings to Dean of Students Mark Pothoff (“Pothoff”), who ultimately stripped Fix-Gonzalez of his good standing with GFU and demanded Fix-Gonzalez issue an apology and engage in cultural sensitivity training.
Despite these actions, Wani claimed he was disappointed by GFU’s handling of the cyberbullying incident. In his lawsuit, he alleged that the responses of Casey, Johnstone, and Pothoff were racially motivated, a claim that the Court ultimately dismissed.
As counsel to athletic trainers and universities, the Wani case presents two issues our clients commonly face: how to address requests for additional medical treatment, and how to deal with athlete-to-athlete disputes. Based on our experience in this area of law, we have analyzed Wani andprovided effective takeaways for athletic programs and staff faced with these issues. Coaches and athletic trainers should use Wani as a learning tool and an opportunity to audit their own policies and practices to reduce their exposure to liability in the future. Perhaps most importantly, coaches and athletic trainers should keep informed of these issues and continue to stay up to date with important legal developments.
Takeaway # 1—Support Athletes Who Want a Second Opinion . . . and Document
The Wani case presents an issue athletic programs commonly face: what to do when an athlete wants a second opinion? The answer is simple: support the athlete’s request. As counsel to athletic trainers and universities, we emphasize that a program should never deny an athlete the ability to seek additional medical treatment, or maintain a culture where seeking additional medical treatment is discouraged. In today’s litigious society, doing so will inevitably expose the program to additional allegations that the program’s actions or culture led to further harm. Supporting an athlete’s request for additional medical treatment can also help mitigate the risks associated with potential misdiagnoses by the program’s medical staff, while simultaneously strengthening the relationship of trust between the athlete and program.
Before the season even begins, programs should ensure that a policy is in place that prohibits denying or discouraging an athlete from obtaining additional medical treatment, and ensure that the staff and athletes are educated on the policy’s prohibitions. Further, a program’s medical staff should compile a list of referral resources and establish a referral procedure before an athlete makes a request for a second opinion.
Of course, schools are not prisons. An athlete is technically free to seek additional medical treatment regardless of a program’s culture or coach’s rule. An athlete, however, may not see it that way. Programs need to acknowledge the power imbalance (or perceived imbalance) in the athlete-program relationship that leads athletes to believe they do not have free choice and that they must do as the staff or culture dictates. Injured student-athletes already face a host of pressures that push them to continue playing while injured (lack of playing time, letting the team and staff down, loss of scholarship). The additional pressures such as going against the program’s culture or coach’s rule should not discourage an athlete from seeking outside medical treatment. A program should make clear to its athletes that it will assist and support an athlete in a time of injury, including seeking additional medical treatment, if necessary.
Programs must also ensure that members of its staff document their actions should they ever need to provide written proof of what they did or said. In the Wani case, a note from the athletic trainer stating that he discussed with Wani the options for seeking additional medical treatment, coupled with a formal policy, would have gone a long way in defeating Wani’s claim that the athletic trainer or coach refused or discouraged Wani from seeking additional medical treatment. Further, documentation can help defeat claims such as Wani’s claim that GFU decided which athletes got premium medical care and which athletes did not based on their race, a claim the Court found to be baseless based on GFU’s documentation.
Takeaway # 2—Follow Your Program’s Policies When Handling Athlete-to-Athlete Issues . . . and Document
The Wani case is also a good reminder that athletic programs need to be concerned with more than just an athlete’s physical safety and wellbeing, and that an institution could be sued for maintaining an environment that permits harassment and discrimination among its athletes. In short, a school must have anti-harassment, anti-discrimination, and complaint procedure policies in place; must train and educate the staff and athletes on the policies (what they prohibit, who receives and investigates complaints, what to do when a complaint is received); and follow the policies and complaint procedures to the letter.
Immediately after Wani notified Coach Casey of the racial harassment, he held an unscheduled team and staff meeting to discuss GFU’s policies, and he met privately with the alleged harasser to discuss the seriousness of Wani’s complaint. It is unclear if this was in accordance with GFU’s policies. Most likely, Coach Casey should have immediately reported this complaint to the proper GFU administrators, and then let the investigation run its course. A program should not maintain a culture of handling things “in house” and should strive to follow the policies at all times under all circumstances.
Ultimately, the matter was reported (by a student) to the Associate Dean and Dean of Students, who also investigated the matter and stripped the harasser of his good standing with GFU and demanded he issue an apology and engage in cultural sensitivity training.
By acting promptly, and in accordance with its policies, a school can help reduce its exposure to liability from harassment and discrimination claims. Just like with providing medical treatment to student-athletes, carefully and purposefully documenting what was said and done is crucial in these situations as well, and it can prove to be a silver bullet to the plaintiff’s case in a lawsuit down the road.
Dylan Henry and Kim Sachs are associates in Montgomery McCracken’s Litigation Department and members of the firm’s catastrophic sports injury defense team. The team represents universities, schools, athletic trainers, and other sports programs and staff in a variety of sports-related and head injury litigation, which include claims for negligence (e.g., failure to warn, premature return to play), products liability, breach of contract, and professional malpractice, and advises clients on complying with various rules, regulations, and laws, and maintaining policies in compliance with best practices and industry standards.
