By Shawn Schatzle, Esq. of Havkins Rosenfeld Ritzert & Varriale, LLP
The issue of head trauma in football is once again a focus of national news headlines. The New York Times recently published the findings of a detailed study regarding the prevalence of chronic traumatic encephalopathy (“CTE”) among players in the National Football League (“NFL”). The findings, which were published in the July 25, 2017 edition of the Times, were startling: the brains of 111 deceased NFL players were studied and 110 were found to have had CTE. The degenerative condition is believed to be caused by repeated blows to the head. Symptoms can include memory loss, confusion, depression and dementia — problems that may not arise until years after players have stepped off the field for the last time. Dr. Ann McKee, a neuropathologist, conducted the study, the findings of which were initially published in The Journal of the American Medical Association.
CTE in sports is, of course, not a new issue. The billion-dollar settlement of a class action lawsuit against the NFL for its alleged concealment of evidence relating to head trauma became final in January of this year, after six years of litigation. Hollywood recently dramatized the issue in a film, “Concussion,” starring Will Smith. Pop Warner, the nation’s largest youth football program, was sued in 2015 by the mother of Joseph Chernach, a 25-year old man who killed himself in 2012. An autopsy revealed that he had CTE, which was purportedly the result of multiple concussions sustained while playing football in his youth. A confidential settlement was reached in March of 2016. Later that year, Pop Warner was sued yet again in a class-action suit commenced by two parents whose children died, only for autopsies to reveal evidence of CTE. The parents are suing for damages and to have “CTE” printed prominently on all youth football helmets.
With the prominence of this issue in the media over the years, the flood of litigation regarding CTE is no surprise. One recent suit, however, focuses not on the physical and mental welfare of players, but on a high school coach who was allegedly terminated for taking measures to minimize the hits players took during practice. After a 3-7 season, which the school’s Principal attributed in part to the players’ poor tackling technique, the coach was fired.
The coach, Jeffrey Cruce, brought suit in South Carolina State Court against the Berkeley County School District in early 2016, asserting causes of action for wrongful termination and defamation. The action was initially reported on in an April 1, 2016 article published in Sports Litigation Alert. The author noted that legal issues such as Mr. Cruce’s at-will employment status and sovereign immunity would be significant hurdles in pursuing the claims, regardless of whether the coach was in fact terminated for his attempts to minimize head trauma to teenage football players.
From a factual perspective, the school district disputes Mr. Cruce’s contention that he was fired for failing to have his players “hit” enough during practice, as he contends. Per the protocols he instituted, Mr. Cruce’s players were only permitted to have twelve full-contact plays in practice in total per week leading up to weekend games. Instead, the school district argued that Mr. Cruce — who was also a teacher and the school’s Athletic Director — implemented various strategies that resulted in poor field performance by his team, such as abandoning punting, gambling on fourth down and often opting for two-point conversions after touchdowns, all of which help result in a losing record, among other allegations. The district contends that these performance issues were part of the reason he was terminated.
District officials also contend that Mr. Cruce’s termination was due to his failure to complete evaluations of other coaches and an inability to increase parent involvement in athletics. Although he was terminated from his position at Berkeley High School, Mr. Cruce was provided with a lesser paying position as a guidance counselor at a local middle school within the district. He retired from the district after the 2015-2016 school year.
Not surprisingly, the Berkeley County School District recently filed a motion for summary judgment. Regardless of the factual dispute as to the actual reason of Mr. Cruce’s termination, the school district’s motion for summary judgment focuses in large part on its contention that his claims are subject to dismissal as a matter of law, even if his allegations are true.
With regard to his wrongful termination claim, Mr. Cruce specifically asserts that his termination was a violation of public policy. In its motion, the district asserts that the claim fails because the former coach cannot identity a specific public policy at issue and, even if he could, there is no evidence that he was forced to violate it to keep his job. The district highlighted the fact that South Carolina is an at-will employment state, meaning that employees “may be terminated for any reason or no reason at all,” absent a contrary to the contrary. Dovenant v. Town of Surfside Beach, 414 S.C. 396 (S.C. Ct. App. 2015). One narrow exception exists where an employee suffers a “retaliatory termination … in violation of a clear mandate of public policy.” Barron v. Labor Finders of S.C., 393 S.C. 609 (S.C. 2011).
In his action, Mr. Cruce relied upon certain provisions of the South Carolina Constitution and a state statute requiring protocols for concussion management in youth sports, which the Berkeley County School District argues cannot service as the basis for a violation of a public policy claim. Even if these laws could serve as the basis for his claim, the district asserts that the evidence is clear that Mr. Cruce was not asked to violate them. With specific reference to the concussion protocol statute, the district contends that the statute merely requires school districts to develop guidelines and protocols relating to concussions, and that asking Mr. Cruce to have his players engage in more contact during practice would therefore not have violated any specific in the statute. In other words, even if Mr. Cruce had been asked to alter his minimalist protocols related to full contact in practice, the district contends that doing so would not have violated South Carolina public policy, even assuming the statute in question qualifies as the public policy of the state.
As for the defamation claim, Mr. Cruce argued that certain newspaper articles relating to his reassignment constituted defamation, as did certain statements contained in internal school e-mails and a verbal statement offered by the school’s Principal at a public event. He argued that the statements could be viewed as inferring that Mr. Cruce was incompetent with regard to his work. In its motion for summary judgment, the Berkeley County School District contends that any statements made were true and protected by qualified privilege.
More importantly, for purposes of its summary judgment motion, the district asserts that Mr. Cruce was a limited public figure at the time the statements were made, requiring dismissal of his claims. The district contends that his position as a limited public figure requires that he prove the statements were made with “actual malice,” a requirement that the “defendant was activated by ill will … with the design to carelessly and wantonly injure the plaintiff, or that the statements were published with such recklessness as to show a conscious disregard for the plaintiff’s rights.” Swinton Creek Nursery v. Edisto Farm Credit, 334 S.C. 469 (1999).
The “actual malice” element is particularly important to the district’s argument relating to Mr. Cruce’s defamation claim. This is due to the South Carolina Tort Claims Act (“SCTCA”). The district contends that South Carolina and its political subdivisions — such as the Berkeley County School District — are immune from tort suits and that they may only be sued in limited circumstances where they have waived immunity, as set forth in the SCTCA. Notably, the district points to the fact that South Carolina has not waived its immunity for “employee conduct … which constitutes … actual malice.” See S.C. Code § 15-78-60(17). Therefore, the district argues that Mr. Cruce’s action must be dismissed, as it cannot be sued for actual malice, the very element Mr. Cruce must establish to succeed on his defamation claim in light of his purported status as a limited public figure.
In opposition to the district’s request for dismissal of his wrongful termination claims, Mr. Cruce notes that the “primary source of the declaration of the public policy of the state is the General Assembly.” Citizens’ Bank v. Heyward, 135 S.C. 180 (S.C. 1925). He argues that the South Carolina Constitution and the state’s statutes prohibit exposing student athletes to unnecessary harm, and that his claim is essentially that the district fired him because he failed to implement policies that would have exposed his players to increased harm, in violation of public policy.
As part of his opposition to the district’s arguments relating to his defamation claims, Mr. Cruce notes that a jury could conclude that the public statements and internal e-mails from the district and its official are susceptible to having a defamatory meaning. He argued that the district’s alternative contentions as to the reasons for his termination are all a pretext for the actual reason: its officials were unhappy with the protocols he implemented on the football practice field to minimize contact and therefore minimize injuries. As for the actual malice issue, Mr. Cruce contends that his claim is one of defamation per se and that malice is presumed in such a claim, because the defamatory statements at issue charge a plaintiff with unfitness in one’s business or profession. See Fountain v. First Reliance Bank, 398 S.C. 434 (2012). As such, Mr. Cruce contends that he does not have to prove actual malice as it is a presumed element based on the nature of his claim, and therefore that his defamation claim is not barred by the SCTCA.
The Berkeley County School District’s motion was recently marked fully submitted after oral argument. It remains to be seen how the court will rule. Regardless of the outcome, the decision itself will be an interesting one. If Mr. Cruce’s allegations are true, then he was retaliated against by a school district for seeking to protect the well-being of teenage student-athletes who were playing a sport that we now know can cause life-altering effects on the human brain. The success or failure of his action, however, will largely hinge on legal details that are in many ways separate from moral right and wrong. If Mr. Cruce’s action is dismissed outright by way of the pending motion, it may be time to re-evaluate the merits of legal standards that do not offer protection or recourse to a man who lost his livelihood for attempting to protect children from harm.
