By Elizabeth Catalano and Kimberly Sachs, of Montgomery McCracken Walker & Rhoads LLP
After the tragic death of Zachary Tyler Martin-Polsenberg, a former football player at Riverdale High School in Fort Myers, Florida, Laurie Giordano, his bereaved mother, brought a federal lawsuit against the School Board of Lee County, Florida, Coach James Delgado, and Lee County EMS (collectively, the “Defendants”). The suit alleged common law counts of negligence and wrongful death, as well as two federal 42 U.S.C. § 1983 claims for alleged violations of Zachary’s substantive due process rights under the Fourteenth Amendment to the United States Constitution. Essentially, Giordano maintained that Coach Delgado and the School Board’s actions constituted a “deliberate indifference to [Zachary’s] health and safety.” In January 2020, a federal court in Florida granted the Defendants’ motion to dismiss the constitutional claims with prejudice, finding Coach Delgado’s actions did not “shock the conscience.” Despite this victory for the Defendants, Zachary’s story is another catastrophic example of what can go wrong when coaches use exercise for punishment and those in charge of student-athlete safety ignore safety protocols.
The Warm-Up: The Facts[1]
On June 29, 2017, a ninety-degree summer day in Southwest Florida, Zachary attended a several-hour-long voluntary football practice at Riverdale High. Despite the piercing heat, Coach James Delgado pushed the bounds of safety, withholding water from players, discouraging players from taking breaks, and threatening to punish those who asked for water by kicking them off the team. Zachary, who was sixteen years old at the time, displayed clear signs of heat exhaustion, which the coaches ignored. Instead, the coaches forced Zachary and the rest of the team to run “never-ending sprints” at the end of the practice while continuing to withhold water.
During the post-practice huddle, Zachary “collapsed, began convulsing, and vomited” due to heat exhaustion. Coaches, however, continued to ignore his symptoms and did nothing for several minutes. After another player informed Zachary’s mother that Zachary had collapsed, Coach Delgado finally decided to call 911 to request an ambulance. During the call, Coach Delgado intentionally downplayed the severity of the situation, saying Zachary was “fine,” thereby contributing to Lee County EMS’s slow arrival and inadequate emergency care. As a result, the EMS service arrived without any means to transport Zachary to the hospital and failed to perform any life-saving measures such as the “cool first, transport second” method. Zachary’s temperature reached 107 degrees when he fell into a heat-induced coma that he could not recover from. He passed away several days later from complications related to the heat exhaustion.
The Work-Out: The Constitution and Sports
First Set—The Court’s Ruling
The Fourteenth Amendment of the United States Constitution prohibits states from “depriving any person of life, liberty, or property, without due process of law.” Section 1983 of the United States Code imposes liability on the individual actor who, acting on behalf of the state, deprives a person “of any rights, privileges, or immunities secured by the Constitution and laws.”
Giordano alleged that the coaches and the school board owed an affirmative duty of care to Zachary, and that Coach Delgado violated Zachary’s constitutional rights to due process “by forcing him to perform physical drills in the intense heat, denying him water, and failing to seek emergency medical care when he was injured.” Furthermore, she argued that Coach Delgado acted “in an unrestrained manner and with absolute power,” and that his actions, including denying Zachary adequate hydration through verbal threats, demonstrated a conscious indifference and callous disregard for Zachary’s health and safety.
The Defendants argued there was no underlying constitutional violation in Giordano’s claims.
The Court agreed with the Defendants. In arriving at this decision, the Court noted the Constitution imposes affirmative duties of care on state actors only in limited circumstances, such as where the state has a “custodial relationship” with an individual (such as in a prison or mental institution), or where the state’s conduct “shocks the conscience.” Both standards are difficult thresholds to prove.
Relying on a similar case that held a school had no custodial relationship with a football player who chose to participate in an extra-curricular activity, the Court determined that Zachary’s mother failed to allege that Zachary had a custodial relationship with the Defendants at a voluntary summer football practice. The Court also reasoned that despite the egregious, conscious, and intentional decisions and acts that Coach Delgado made to deprive Zachary of water and downplay his condition, the allegations did not rise to the level of “conscience-shocking” because there were no allegations of physical conduct by the Coach or corporal punishment with an intent to punish or injure. After granting leave for the plaintiff to amend, the Court dismissed the constitutional claims with prejudice, and dismissed the negligence and wrongful death claims without prejudice.
Second Set—Constitutional Claims and State Actors
Plaintiffs face several challenges when asserting constitutional claims in the sports-injury setting and when the defendants are state institutions and state actors.
As the Giordano case demonstrated, plaintiffs face a stricter pleading requirement when alleging violations of Section 1983. To successfully assert a Section 1983 claim in this setting, a plaintiff must show that the actor’s conduct “shocks the conscience” and that there was a custodial relationship that created an affirmative duty on the state and state actors. This is a more stringent requirement than a typical negligence claim.
So why do plaintiffs assert Section 1983 claims if these claims are more difficult to prove? The answer is qualified immunity.
Qualified immunity (which was not an issue in the Giordano case) arises in cases where a state institution (like a state university) and its employees (state actors) are the defendants. The state actors, who could otherwise be liable for their negligent conduct, will likely assert that they are immune from suit under the qualified immunity doctrine. Qualified immunity is a form of legal immunity that protects state actors from lawsuits arising out of their discretionary acts performed within their official capacity. Here’s the kicker, qualified immunity does not protect from actions that violate “clearly established” federal law or constitutional rights. Because of this, creative plaintiff’s lawyers in the sports-injury setting will assert Section 1983 claims in an attempt to circumvent qualified immunity, which would otherwise prevent suit in a typical negligence case, because the state-actor defendant (coaches, athletic trainers, physicians) allegedly violated a constitutional right.
Max Reps—Raising the Bar for the Standard of Care
Zachary’s unfortunate story also highlights a broader issue: what is the standard of care for schools, coaches, and athletic trainers in heat stroke cases and how is that standard met or breached?
In the Giordano case, Zachary’s mother argued that defendants failed to follow the standards set forth by the Florida High School Athletic Association (FHSAA) for handling heat acclimatization, precautions for hot weather, and medical emergencies. She claimed that Coach Delgado and the School Board failed to comply with these policies by intentionally failing to hydrate players, by not having trainers or other medical personnel present during the workout, and by not having ice packs, immersion tubs, or other helpful equipment contemplated by the FHSAA policy available for the coaches to use.[2]
After Zachary’s death, his mother began campaigning for the FHSAA to improve player safety and prevent heat exhaustion and heat stroke by requiring, among other things, cold water immersion tubs and wet bulb globe thermometers at every school. Florida leads the nation in football player heat-stroke related deaths, with four high school athlete deaths in the past nine years.[3] Zachary’s mother reasoned that “if there had been a cold water immersion tub available, that would have been the difference between [Zachary] still being here today and passing away.”[4] “Extensive medical research shows there is a 100 percent survival rate if a person with heat stroke is immersed in ice-cold water within 10 minutes.”[5] The FHSAA Sports Medicine Advisory Committee recommended that all member schools have cold water immersion tubs. In 2018, the FHSAA eventually approved a new policy requiring Florida athletes and coaches to pass a heat illness prevention course before participating in sports, and voted to “strongly recommend,” but not mandate, wet bulb globe thermometers and cold-water immersion tubs near any athletic activity.[6]
The Cool-Down: Eliminating Exercise as Punishment
Ultimately, complicating all the issues with constitutional claims and the applicable standard of care is the serious problem of coaches using exercise as punishment for athletes. Sports Medicine and the Law recently published an article on the NCAA Sports Science Institute’s Interassociation Recommendations: Preventing Catastrophic Injury and Death in Collegiate Sports recommendation that physical activity should never be used for punitive purposes. The National Athletic Trainers’ Association similarly recommends that “No additional physical burden that would increase the risk of injury or sudden death should be placed on the athlete under any circumstance.”
Certainly, Coach Delgado’s use of the “never-ending sprints” conditioning drills at the end of a three-hour long practice in excessive heat, while deliberately withholding water from athletes, would constitute an additional physical burden and problematic punitive exercise. Coaches should be educated in both the dangers of punitive exercise and the preventative safety measures related to issues like heat stroke to protect players and ensure that the standard of care is upheld under their watch.
[1] All facts are taken from the face of the pleadings and filings in this matter.
[2] Apparently, Riverdale did have this equipment and ice available in the school building, but it was not readily available and “no one knew what to do.” Nate Foy, Major policy approved to prevent heat illness for high school athletes, NBC 2 (April 30, 2018) https://www.nbc-2.com/story/38078598/major-policy-approved-to-prevent-heat-illness-for-high-school-athletes
[3] Michelle Kaufman, Ice tubs save athletes’ lives after heatstroke, so why don’t all schools have them?, Miami Herald (Oct. 23, 2019) https://www.miamiherald.com/sports/high-school/article236483518.html (noting 64 total heat-related athlete deaths, with 90% occurring in practice and the majority being high school players).
[4] Nate Foy, After her son died, this mother is fighting for high school football player’s safety, NBC 2, (April 16, 2018) https://www.nbc-2.com/story/37968890/after-her-son-died-this-mother-is-fighting-for-high-school-football-players-safety
[5] See Kaufman, supra note 4.
[6] See Foy, supra note 3; Sean Barie, FHSAA Board votes to ‘strongly recommend’ cold water tubs for athletes, NBC 2 (June 12, 2018) https://www.nbc-2.com/story/38408616/fhsaa-board-votes-to-strongly-recommend-cold-water-tubs-for-athletes
