By Robert Greim
On January 4, 2021, Brian Lilly, a rower at the University of California – San Diego (“UCSD”), took his own life following a series of events in which he voiced concerns about the team climate and his mental health. Lilly’s parents filed an initial complaint in September 2021, with a First Amended Complaint and the current Second Amended Complaint filed soon thereafter. In the current filing, Lilly’s parents as Plaintiffs allege the following causes of action against select personnel including The University of California Regents (“The Regents”), head coach, associate athletic director (serving as sport supervisor), and athletic director:
- retaliation in violation of Title IX
- deliberate indifference in violation of Title IX
- denial of equal protection under 42 U.S.C. § 1983
- deprivation of substantive due process under § 1983
- wrongful death under California Code of Civil Procedure § 377.30
- negligent hiring
- negligent supervision
Defendants The Regents, head coach, associate athletic director, and athletic director subsequently filed Motions to Dismiss with the head coach also filing a Request for Judicial Notice.
This article casually summarizes the Court’s actions during a June 2023 hearing, then offers detailed practical considerations for the intercollegiate athletics industry going forward in hopes of protecting students, employees, and institutions all in the name of student-athlete welfare.
Background of case as agreed upon by Plaintiff and Defendants
In June 2019, the head coach was fired from University of Pennsylvania after members of his team protested the coach’s outdated training methods and his mentally abusive coaching methods. Nevertheless, UCSD associate athletic director oversaw the hiring of this head coach in October 2019 without exploring details of his past conduct. At UCSD the head coach continued his abusive treatment of student-athletes at his new institution, even using profane insults toward the team at a practice in front of the associate athletic director.
Although praised by the head coach during the first semester of his freshman year in fall 2019, Decedent soon found himself the target of ridicule by the head coach regarding his level of conditioning and his masculinity. The abuse directed at Decedent by the head coach accelerated following a team initiation in January 2020 in which freshmen were pressured to drink and participate in physical tasks typical of prohibited hazing activities.
Several other issues involving the head coach further drove Decedent to an unhealthy mental state, including a teammate who was allowed to stay on the team after allegedly groping female students, his completion of an anonymous survey which failed to yield any measurable response, and a phone call with the sport supervisor which also appeared to the Plaintiffs to not change any of the head coach’s behavior.
Court action pertaining to specific claims
Retaliation in violation of Title IX
If basing a Title IX retaliation claim on a Plaintiff speaking out against sex discrimination as a protected activity, Plaintiff must show that he or she was engaged in protected activity, that he or she suffered an adverse action, and that there was a causal link between the two. Plaintiff must allege that appropriate officials at UCSD had actual notice of the head coach’s retaliation and that the officials were then deliberately indifferent to that retaliation. In this case, the Second Amended Complaint fails to allege that the associate athletic director had actual notice of the alleged retaliation. As such, the Court dismissed Plaintiffs’ Title IX retaliation claim without prejudice.
Deliberate indifference in violation of Title IX
The courts have found that colleges carry a special duty of care when students engage in classroom or school-sponsored activities, including intercollegiate athletics. Like the retaliation claim, the individuals alleged by the Plaintiffs to have shown deliberate indifference in this case were found not to have sufficiently been put on notice since Decedent only reported his concerns in an anonymous department survey and unrecorded telephone conversations. As such, the Court granted the Regents’ Motion to dismiss Plaintiffs’ Title IX deliberate indifference claim without prejudice.
Denial of equal protection
Although Plaintiffs adequately established Decedent as a member of a protected class, the head coach’s verbal abuse, alone, was insufficient to establish an equal protection violation. Since the head coach could therefore not be found to have violated the equal protection clause, it was also not possible for either the athletic director or associate athletic director to have violated it by responding with deliberate indifference. Moreover, the head coach, athletic director, and associate athletic director were entitled to qualified immunity in this case; as such, the Court dismissed Plaintiffs’ equal protection claim against all three Defendants.
Deprivation of substantive due process
While the head coach did engage frequently in verbal abuse, verbal abuse is insufficient to state a claim for constitutional deprivation. While the associate athletic director’s delayed response to the student survey could be considered negligent, her actions do not qualify as a deprivation of substantive due process. Finally, Plaintiffs’ claims that the athletic director was presumably aware of the head coach’s actions was also insufficient to state a claim. As such, the Court dismissed Plaintiffs’ substantive due process claim against the head coach, associate athletic director and the athletic director.
Moreover, as the law in this area is not clearly established, all three defendants are entitled to qualified immunity; accordingly, the Court dismissed Plaintiffs’ substantive due process claim against each Defendant with prejudice.
Wrongful death claim
The associate athletic director, serving as sport supervisor, did review an anonymous survey completed by Decedent alerting department leadership to the head coach’s alleged emotional and mental abuse and she did have a phone call with Decedent. However, Plaintiffs were unable to show that the associate athletic director’s actions (or lack thereof) caused Decedent to have an uncontrollable impulse to commit suicide. Given that California law does not hold public employees liable for an injury caused by the act or omission of another person, the only other way the associate athletic director and athletic director could be liable is the specific duty test in which school personnel must have known facts from which they could reasonably conclude that suicide was likely. In this case, the courts found that neither of these individuals would have cause to foresee Decedent’s suicide. As such, the Court dismissed Plaintiffs’ wrongful death claim.
The Court, however, denied the head coach’s motion to dismiss the wrongful death claim against him, given that the Plaintiffs allege the head coach’s intentional abuse of Decedent led to the mental distress that caused his suicide.
Negligent hiring and negligent supervision
Plaintiffs allege negligent hiring and negligent supervision against the athletic director and associate athletic director. As part of their motion to dismiss the wrongful death claim, however, Defendants failed to directly address either of these claims. As such, the Court denied Defendants’ request to dismiss.
Practical suggestions for athletics departments
Regardless of the findings in a court of law, matters put forward by the parents of victims of suicide can adversely impact the reputation of an institution in the court of public opinion. Departments that intentionally take a more student-centric, proactive approach to addressing Title IX issues and mental health concerns, however, provide student-athletes with guidance for having their voice heard by the proper campus personnel and, thereby, avoid any appearance of employee indifference or impropriety.
Role of the sport supervisor
If a student has a concern about their team or coaching staff, a department should encourage the student to visit the sport supervisor and to put those concerns in writing. If a concern is raised related to Title IX, the sport supervisor should support the student in taking that concern directly to the campus Title IX Officer as these matters should not be handled in-house within the athletics department. If a student has a concern related to mental health, the sport supervisor should invite the student to reach out to the proper campus support service at that time of their conversation, knowing that the student has the full support of the employee.
To this end, when assigning the role of sport supervisor, department leadership should empower these individuals to constructively critique the head coaches they oversee by confidently calling out behavior that has no place in college athletics. Sport supervisors should, however, still empower head coaches to run the aspects of their program that fall under their areas expertise as they see fit while helping them identify those areas where they need to yield to other campus professionals.
Publicly endorsing campus support professionals
During student-athlete orientation, the campus Title IX Deputy should be introduced with the full support of the director of athletics and given the opportunity to address all student-athletes. Such an appearance can humanize the Title IX Office staff and allow students and staff to view the Title IX staff as supportive advocates to be engaged, rather than internal affairs investigators to be avoided.
Similarly, an intentional discussion of mental health resources during student-athlete orientation can shift the paradigm from believing that mental health struggles are a sign of weakness to seeing mental health support as a sign of resilience and strength. Departments can identify an influential upperclassmen and head coach to voluntarily share their past struggles alongside a campus psychologist to reduce any stigma.
Concerning head coaches
Finally, institutions should document their due diligence of thoroughly examining the past actions of each head coach candidate. It is common in the world of college athletics for a coach to be fired from a previous employer, which should not, on its face, remove a candidate from consideration, but rather should cause a director of athletics to read deeper into the candidate’s past behavior.
In this case, it is alleged that the head coach created a team culture antithetical to the institution’s claim of being an inclusive, safe environment for all students. Given the rise of the student voice and the proliferation of social media to expose misbehavior, department leadership should onboard coaches with the understanding that the mantra of what happens in the locker room stays in the locker room no longer has a place in intercollegiate athletics. As such, employees should no longer use language or address students in a way that could cause severe mental distress or that could bring disrepute to the institution.
Lilly v. Univ. of California-San Diego, 21-CV-1703 TWR (MSB) (S.D. Cal. Aug. 23, 2023)
Greim, a 25-year intercollegiate athletics administrator, is the owner of Student-Policy-Culture Athletics Consulting. Call or text 573-587-2137 for free initial consultation regarding the student-athlete experience, department policies and procedures, and workplace culture.
