By Elizabeth Catalano
Nearly two years after a thumb injury, an offensive social media post, and a decision to quit football and leave school, former George Fox University (GFU) football player-turned-pro se plaintiff Samuel Wani brought a variety of claims in a lawsuit against GFU, nine GFU employees, two deans, and several GFU athletic department employees (collectively, the GFU defendants), as well as Dr. Thomas Croy.
Claiming that the defendants caused his football career ending prematurely, Wani demanded tens of millions of dollars, asserting in his complaint that he would have made that much money in a six to eight-year NFL career, but for the defendants’ “negligence” in treating his injury.
Wani, a Sudanese refugee from Washington who joined GFU’s team for practices in 2015, sued in the District of Oregon, alleging federal question jurisdiction under a string of federal statutes and a series of theories.1 His claims included: (1) “Cyberbullying, racial verbal harassment,” (2) “Discrimination, medical false claim, fraud, negligence, and intentional infliction of physical/emotional pain and suffering,” (3) “Medical fraud, negligence and refusal of treatment,” (4) “Racial discrimination and hatred,” (5) “Wrongful Disclosure of Individually Identifiable Health Information/HIPAA Violations,” and (6) “Breach of contract.” Ultimately the GFU defendants sought and were granted dismissal on five of the six claims against them.
Many of Wani’s complaints arose from Head Football Athletic Trainer (AT) Gregg Boughton allegedly dismissing his thumb injury as a “booboo” that did not warrant excusal from practice and telling him to stick it out. Unrelatedly, a week after Wani sustained his thumb injury in practice, a teammate, Dominick Fix-Gonzalez, posted a photo on social media that eventually gave rise to the rest of Wani’s claims. In the post, Fix-Gonzalez compared Wani’s appearance to a “toilet mop,” altered his skin tone, and included several racially offensive remarks. Upon confrontation, Fix-Gonzalez agreed to remove the posts, and Head Football Coach Chris Casey informed Wani of this. Wani alleged that Casey told him to “get over it” because “things like that are going to be said.” Shortly thereafter, Wani stopped attending football practice, claiming that AT Boughton refused to allow him time off from practice to have his thumb examined or treated and that he was dealing with a “racially hostile environment” on the team.
Two weeks post-injury, Wani eventually sought treatment and learned he had a fractured thumb, which ended his season and required surgery to reconstruct a torn ligament. He then withdrew from classes and reported the social media posts by Fix-Gonzalez to the deans, who conducted an investigation meeting in which Wani claimed AT Boughton “falsely” denied that he refused Wani medical treatment and that the athletic director refused to communicate with him except to “taunt” him saying the school would not pay for his injury.
Two weeks after his social media incident report, GFU’s administration completed its investigation and sent Wani a letter informing him of the “community accountability decision” made regarding Fix-Gonzalez’s cyberbullying post. Fix-Gonzalez agreed not to post any further “look-alike” pictures on social media, lost his “good standing” status with the university, and was required to write an apology letter to Wani and partake in cultural sensitivity training. The school also found that although AT Boughton did not have the right to prevent Wani from seeking additional medical treatment, Boughton had spoken with Dr. Croy.
Turning to the legal merits of Wani’s six claims, the court considered Wani’s first claim of “cyberbullying” and “racial verbal harassment” and GFU’s alleged lack of response resulting in a “racially hostile environment.” The court found that a hostile environment did not exist and that the school took immediate action when informed of the social media incident. The two offensive Instagram posts by his teammate, who was disciplined for his actions, did not create an environment “permeated with discriminatory intimidation, ridicule, and insult.” Furthermore, an investigation was initiated the same day Wani reported the incident, which was not “clearly unreasonable.”
The “negligence” claims premised on the events surrounding the thumb injury included an alleged “collaboration” by GFU to “ensure Boughton would not get in trouble for refusing to let Wani get treated and ensure GFU would not have to pay for Wani’s thumb injury,” and the alleged refusal to allow Wani to leave practice to seek treatment. The court interpreted these as attempted claims of “deliberate indifference to medical needs.” Such claims are typically alleged by prisoners against prison administrators, not students against university administrators, and thus the second and third claims were also dismissed.
In his “HIPAA violations” claims, Wani relied on an inapplicable criminal statute with no private cause of action, warranting dismissal with prejudice of the fifth claim.
Finally, in his breach of contract claim, Wani alleged he had a “binding contract” with GFU regarding payment of sports team-induced injuries, and that GFU breached that contract by refusing to pay his medical bills. No contract was identified, nor was an insurance policy, and the unfounded claim was dismissed.
The GFU defendants also moved to strike the federal statutes Wani referenced in his bid for federal question jurisdiction, as each statute either governed public, not private actors or constituted a criminal offense with no private cause of action. Judge You recommended striking all references to the statutes from the complaint and granting GFU’s motions to dismiss Wani’s first, second, third, fifth, and sixth claims, with the fifth being dismissed with prejudice. The district court adopted Magistrate Judge You’s findings and recommendations, and instructed Wani to allege more specifically in any amended pleadings as to the conduct of the defendants and the harm caused, and how AT Boughton’s alleged refusal to allow Wani to seek treatment exacerbated his injury. Motions for summary judgment on Wani’s fourth claim (“racial discrimination and hatred”) as well as Wani’s motion for leave to file an amended complaint are currently pending.
Despite only practicing with the football team for two weeks, attending class for less than one week, and fruitless efforts by the university to encourage him to stay, Wani was able to demand significant effort and expenditure from GFU and its legal team to defend against his $70 million allegations. In an official statement about the suit, GFU stated that “Until this lawsuit, university staff believed they had adequately addressed Mr. Wani’s concerns…we certainly wish Mr. Wani the best in his academic and athletic endeavors.”2 It remains to be seen if those endeavors include an amended complaint or a six to eight-year career as an NFL defensive end or linebacker.
Wani v. George Fox Univ.; D. Or.; Case No. 3:17-cv-01011-YY 2018 U.S. Dist. LEXIS 59047 (D. Or., Feb. 22, 2018), adopted by, dismissed without prejudice by, in part, dismissed by, in part, motion granted by 2018 U.S. Dist. LEXIS 58822 (D. Or, Apr. 5, 2018).
Attorneys of Record: Samuel W. Wani, plaintiff, pro se, Covington, WA.; Martin William Jaqua, THE RICKLES LAW FIRM, PC, Portland, OR (for GFU defendants); Mark C. Sherman, Michael J. Wiswall, HART WAGNER, LLP, Portland, OR (for defendant Dr. Thomas Croy); Troy Garrett Sexton, MOTSCHENBACHER AND BLATTNER, LLP, Portland, OR (for defendant Dominick Fix-Gonzalez).
Elizabeth Catalano is a rising third-year law student at Villanova University Charles Widger School of Law, where she is a Student Works Editor of the Villanova Law Review. She is currently a summer associate at Montgomery McCracken Walker & Rhoads, LLP.
1. See Seth Gordon, GFU faces $70 million lawsuit, The Newburg Graphic, Jul. 19, 2017, https://pamplinmedia.com/nbg/142-news/366563-248287-gfu-faces-70-million-lawsuit.
2. See Jacks Whitehurst, Former GFU Football Player Files $70 Million Lawsuit, The GFU Crescent, Dec. 13, 2017, https://www.gfucrescent.com/news/2017/12/13/former-gfu-football-player-files-70-million-lawsuit.
