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Martin Dyckman: Court to decide if college athletic programs can keep immunity

In considering the exploitation of college athletes, it’s usually about how little they share of the stupendous wealth they generate for the big football and basketball programs. Not much is said about the risks they take.

In that regard, it would be hard to find a worse case than what happened to Ereck Plancher and his parents before and after his death at a University of Central Florida practice facility in March 2008.

This isn’t just about football. It’s about the callous indifference of the State of Florida to the ongoing physical peril of every school athlete in a hazardous sport.

According to evidence in a three-week civil trial, some coaches and trainers knew that the 19-year-old sophomore had tested positive for the sickle cell trait, which can be fatal under severe physical stress. It’s not clear whether they told him.

He died after a conditioning drill that was tough enough to make players vomit. Teammates saw him struggling and helped him through the obstacles.

When he collapsed and they tried to help him again, Head Coach George O’Leary shouted to them to “back the f— up.” Or so it was testified.

Plancher got to his feet, only to fall again. As buddies tried to carry him off the field, an unidentified coach shouted, “Put his ass down and make him walk.” Or so it was testified.

A trainer eventually called to the scene dialed 911, but Plancher was dead by the time emergency workers arrived.

O’Leary denied seeing Plancher in distress.

The jury awarded Plancher’s parents $10 million, which has grown to $15 million with costs, interest and fees during three years of appeals.

“It is difficult to comprehend how one human being can ignore another in obvious distress or prevent someone else from offering aid to one in distress, but, inexplicably, that is what happened here,” wrote Wendy Berger, a judge at the Fifth District Court of Appeal.

Yet she wrote that as a footnote to the court’s decision slashing the award to a miserly $200,000, the maximum to which the state has waived its “sovereign immunity.”

She actually wanted to reverse it altogether, because of a liability waiver Plancher had signed, but two other judges wouldn’t go that far.

The panel of Jeb Bush and Rick Scott appointees effectively nullified a $21-million liability policy purchased by the University of Central Florida Athletic Association (UCFAA).

The Great American Assurance Company is the big winner in the case. The UCFAA gets nothing for its premiums but a shrewd — and so far successful — legal strategy.

Technically, O’Leary wasn’t working for the university and Plancher wasn’t playing for it. The school outsources its entire athletic program to the UCFAA, which is a “direct support organization” under Florida law.

That’s the case at the University of Florida also.

The arrangement exempts the athletic programs from many state laws, such as open records. It’s almost as if they were private businesses.

So shouldn’t they be exempt from sovereign immunity as well?

The appellate court applied it despite admissions that the UCFAA was entirely unsupervised by the university.

It was enough, said the court, that the university retained supervisory authority, even if it didn’t wield it.

“Florida’s sovereign immunity is not intended to secure a windfall for a private insurer that charges premiums for insurance coverage it will never provide,” the attorneys for Plancher’s father argue in an appeal brief at the Florida Supreme Court.

Fortunately for fairness, decency, and the fate of other student athletes, the court has accepted the case. Justice Charles Canady, he of the famously flint-hearted soul, dissented to taking it.

Unfortunately, every other state school has supported the UCF, fearful of the potential exposure to their own athletic programs if sovereign immunity is weakened.

They should be fearful. Sovereign immunity, which should have vanished from our shores along with the reign of George III, is a special outrage in the context of big-time, big-money college athletics that are professional in all but name.

In another sickle-cell death case, Florida State University agreed to a $2-million settlement with the family of football player Devaughn Darling, who died after conditioning drills in 2001. But the state paid only the $200,000, and the Legislature has refused year after year to take up claims bills that would fulfill the bargain.

What if Darling and Plancher had not died, but survived with total disabilities? How far would $200,000 go?

There’s another question but it’s not one the Supreme Court can answer.

Why is O’Leary still coaching at UCF?

Martin Dyckman is a retired associate editor of the St. Petersburg Times. He lives near Waynesville, North Carolina. Column courtesy of Context Florida.

 

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