By Eugene Egdorf and Ryan D. Ellis, of the Lanier Law Firm
Eugene Egdorf
March 18, 2008 began like any other spring day for freshman Ereck Plancher and the rest of the University of Central Florida (UCF) football team—with an offseason strength and conditioning session. The team gathered at 9 a.m. for an hour of weightlifting followed by 30 to 45 minutes of agility drills and sprints. At around 10 a.m., although it was 72 degrees outside (cool by Orlando standards), with 50 percent humidity and a 9 mph breeze, Head Coach George O’Leary ordered his team into the Nicholson Fieldhouse—nicknamed “The Oven” due to the often hot and stuffy atmosphere inside—for the speed and agility portion of the workout. Witnesses testified that the industrial-sized fans inside The Oven were turned off and the doors were shut.
What happened next was later described by some players as the toughest offseason workout they had ever faced. After a series of high-intensity agility drills, O’Leary set up a 100-yard obstacle course the players were required to navigate at full speed. After completing the course, the players were made to flip onto a mat, and then sprint the length of the field back to the starting point. The unusually taxing nature of the exercise caused several players to vomit. According to his teammates, Ereck Plancher began exhibiting a heightened degree of distress during the second run-through. Other players had to hold Ereck up, help him through the obstacles, flip him onto the mat, and support him during the return sprint. Although coaches and trainers observed Ereck struggling, none of them came to his aid.
Even after the team completed the obstacle course, the workout was not finished. O’Leary lined his team up for “gassers,” 107-yard sprints that span the width of the field and back. During the gassers, Ereck collapsed from what appeared to be sheer exhaustion. Rather than calling for trainers to tend to Ereck, coaches yelled for him to stand up and finish, and cursed at teammates who attempted to help him to his feet. Eventually, Ereck was able to stand up and finish, but only in “slow motion” and in obvious distress.
In the post-workout huddle, Coach O’Leary reportedly berated and cursed at Ereck. When the team was then ordered to do jumping jacks, Ereck’s body was “like jello” and he collapsed a second time. As his teammates attempted to carry him off of the field, a coach yelled for them to put him down and make him walk. They put him on the ground where he lay motionless. Only at this point did trainers approach Ereck. By the time the head trainer arrived on the scene and called 911, Ereck’s pulse had stopped. Shortly after arriving at the hospital, 19-year-old Ereck Plancher was pronounced dead.
The Preventable Death of an Exceptional Young Man
A native of Naples, Florida, Ereck Plancher was by all accounts not only a terrific athlete, but a bright and courteous young man. Ereck’s family, teammates, coaches, and pastors universally describe him as humble, hard working, and admired by everyone with whom he came into contact. Ereck was a stand-out running back at Lely High School, but had been recruited to play wide receiver at UCF. He graduated high school a semester early with a 3.9 GPA, and enrolled at UCF in the spring so that he would have time to adjust to college academics before football season began.
Unfortunately, Ereck’s devotion to his studies and humble demeanor were not the only things that set him apart. Ereck—like roughly one in twelve African Americans—was born with the sickle cell trait, a hereditary condition that can become dangerous during heavy physical exertion. While generally harmless, extreme exercise can cause the red blood cells in a person with the trait to “sickle,” thus restricting the flow of oxygen through the blood and causing the body to shut down. By taking simple precautions with athletes who have the trait, the dangers posed by the condition can be largely avoided. Such precautions include a gradual progression in workouts, additional time for recovery, and immediate withdrawal from training upon the onset of symptoms. Sadly, none of these common sense precautions were taken by O’Leary or his staff on March 18, 2008, and the medical examiner later concluded that Ereck had died from complications due to the sickle cell trait.
The dangers posed by the sickle cell trait to athletes were well known to UCF coaches and trainers. Indeed, policies adopted by the University of Central Florida Athletic Association (UCFAA)—the private corporation that administers the UCF sports program and employs coaches and trainers—require all African American student athletes to be tested for the trait, and require the athlete, trainers, and coaches to be informed of a positive test result. Although Ereck had twice tested positive for the trait—and Coach O’Leary knew about those results—Ereck’s position coaches and many of the athletic trainers were never informed. Moreover, not only did UCFAA fail to counsel Ereck on precautions he should take because of his sickle cell trait, they never even advised him that he had the trait to begin with.
Immediately after Ereck’s death, Coach O’Leary—yes, the same George O’Leary who was forced to resign after five days as head coach of Notre Dame after it was discovered that he lied on his résumé—and UCFAA attempted to downplay the intensity of the workout, calling it “light” and “not taxing.” UCFAA later backed down from those statements when Ereck’s teammates expressed concern over their lack of truthfulness. At a private team meeting, O’Leary urged the players not to talk about Ereck’s death, and many players reported feeling like their scholarships would be in jeopardy if they spoke candidly about the workout. Despite O’Leary and UCFAA’s attempts to cover up their negligence, every indication pointed to the fact that Ereck had died an unnecessary death due to the carelessness of UCFAA employees.
A Florida jury agreed. In the lawsuit that followed, the jury examined the evidence during a three week trial and found UCFAA liable for Ereck’s death. They awarded his family $10 million—$5 million for each of his parents. The Plancher family attorneys joined UCFAA’s liability insurer in the judgment (UCFAA had up to $21 million in coverage), and final judgment was entered.
Judgment Eviscerated on Sovereign Immunity Grounds
On appeal, UCFAA claimed that, although it was a private corporation, it was actually an “instrumentality of the state,” and as such, it was entitled to the state’s sovereign immunity protection. This would limit the amount of its liability to $200,000. UCFAA had tried a similar argument at trial, which was rejected by the trial court. Specifically, trial court Judge Robert Evans concluded that UCFAA “has not been substantially controlled by UCF in either the day-to-day decisions or major programmatic decisions.”
The Florida Court of Appeals disagreed with the Planchers, finding that even though UCF—or any state entity for that matter—had failed to exert any meaningful control over UCFAA’s operations, the organization was still an instrumentality of the state because of its stated purpose to “promote the health and physical welfare of UCF students through intercollegiate athletics,” and because the university technically had the “power to control” the organization by reviewing its budget and appointing several of its board members. In reversing the trial court, the appellate court obliterated the judgment against UCFAA and its out-of-state insurance company by a whopping 98 percent.
On May 28, 2015, the Florida Supreme Court effectively upheld the Court of Appeals sovereign immunity decision, and instructed the Plancher family that they would need to seek the grace of the Florida Legislature by filing a claim bill in order to recover any part of the remaining $9,800,000 awarded by the jury. Because it will literally take an act of congress for that effort to succeed, it is unlikely that the Plancher family will ever be compensated for their loss in the amount that the jury deemed appropriate.
Sovereign Immunity: Wrong for Sports Law Cases
The Ereck Plancher tragedy starkly illustrates how the doctrine of sovereign immunity can be abused in sports law cases to provide a windfall to rich and powerful private interests. After examining the primary rationale that exists for the sovereign immunity defense generally, it is plain to see that this reasoning does not support the application of sovereign immunity to sports negligence cases like Ereck’s. It is high time that state legislatures remove the shield of sovereign immunity from the defense arsenals of multimillion-dollar college sports programs, private corporations, and their insurers.
The doctrine of sovereign immunity has long been viewed with skepticism in the United States, and rightfully so. The doctrine was inherited from the ancient English notion that “the King can do no wrong,” and thus could not be sued unless he had specifically consented to be sued. As noted by USC law professor Erwin Chemerinsky, “Sovereign immunity is an anachronistic relic and the entire doctrine should be eliminated from American law . . . Throughout American history, United States courts have applied this principle, although they often have admitted that its justification in this country is unclear.”
The most common justification offered for the sovereign immunity doctrine in the United States is that it protects the government treasury from being depleted by civil lawsuits, and thus saves the taxpayers money. However, this justification is largely inapplicable to sports negligence cases like Ereck Plancher’s where the defendant was a private corporation that generates annual revenues in excess of $30 million. Indeed, UCFAA has its own CFO, adopts its own team policies and business procedures, maintains its own bank accounts, and files its own tax returns. Coach O’Leary, his staff, and all of the athletic trainers were UCFAA—not university—employees. Perhaps most tellingly, UCFAA did not participate in Florida’s State Risk Management Trust Fund, but instead purchased its own liability insurance with policy limits totaling $21 million.
What’s more, UCFAA was intentionally chartered as a private organization so that money could be raised to support UCF athletic teams without triggering the reporting requirements accompanying a donation directly to the university. As UCFAA’s Director of Athletics said, privatizing the athletics program in this way allowed UCFAA to hire coaches “without having it, you know, be public.” As argued by the Planchers on appeal, permitting UCFAA to avail itself of the sovereign immunity defense allowed it to “enjoy the benefits of operating as a private corporation, free from any State control, while at the same time shielding itself from liability as if it were a State agency.”
Even if Coach O’Leary and his staff had been employed directly by UCF, the application of sovereign immunity in Ereck Plancher’s case would still make no sense. College football is big business in the United States, and the UCF football program alone brings in more than $15 million each year. This presents a vastly different scenario from when, for example, a police or fire department is sued. Not only are these government entities notoriously cash-strapped, but they frequently perform high-risk yet essential public services, thus arguably legitimizing the application of sovereign immunity. There is no reason why public college athletic departments should not be held accountable to the same extent as their private school counterparts. The life of a student athlete is not worth less simply because he or she chose to attend a public school.
College athletics has become a billion-dollar, profit-generating machine. Unfortunately, many administrators and coaches refuse to put their money where their mouths are when it comes to prioritizing the well-being of their student athletes. Whether it’s failing to observe proper concussion treatment protocols, unlawfully profiting from the names, images, and likenesses of the players, or negligently supervising a student with the sickle cell trait, many college athletic departments—both public and private—have demonstrated a reluctance to do right by their players in the absence of the threat of lawsuits. The sovereign immunity doctrine has been twisted to serve the interests of well-heeled athletic programs, private corporations, and their insurers. It’s high time state legislatures stepped in to close this loophole.
