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Liability of Schools for Encouraging Use of Illegal Techniques

By Lee Green, J.D. on November 10, 2015 hst Print

The Legal Issue

Recent incidents involving allegations that schools and coaches have permitted or actively encouraged student-athletes to engage in excessively violent play, to use techniques banned by the rules of a sport, or to take actions tantamount to criminal assault or battery have brought renewed attention to the legal duties of athletics personnel to exercise reasonable care to protect the safety and well-being of all of the constituents associated with school athletics events, including student-athletes, officials, spectators and other third parties.

Victims injured in such incidents have filed civil lawsuits for money damages either for the intentional torts of assault and battery or for the tort of negligence, typically naming as defendants school districts, superintendents, principals, athletic directors, coaches and other individuals in the hierarchy of potential vicarious liability for the victim’s injuries. Often paralleling such civil suits are criminal prosecutions against the direct perpetrators of “bad acts” committed during a sports contest that clearly fall outside the normal parameters of the game and which rise to the level of unlawful assault and battery.

A Recent Incident

On September 4, 2015, two football players for John Jay High School, a science and engineering magnet academy in the Northside Independent School District in San Antonio, Texas, attacked umpire Robert Watts during the final moments of a road game at Marble Falls High School. Strong safety Victor Rojas was the first to assault the official, blindsiding him from behind as the referee watched a play, knocking him face-first onto the ground. Defensive back Michael Moreno then dove on top of the official, helmet-spearing him in the back. The players later admitted that they had targeted the referee, claiming that they were instructed to do so by a John Jay assistant football coach, Mack Breed.

Video of the incident circulated widely on the Internet, with one recording captured by a spectator on his smartphone garnering more than 11 million views on YouTube, sparking a national conversation about sports ethics and the supervisory obligations of coaches regarding excessively violent play and the use of explicitly illegal techniques.

In a September 18 interview with the two players conducted by George Stephanopoulos on the ABC show Good Morning America, Rojas stated, “I can’t explain it. I was just doing what I was told” and Moreno said that the assistant coach (Breed) had told him, “You need to hit the ref. He needs to pay the price.” Stephanopoulos then asked, “Your coach told you to attack the official?” Moreno answered, “Yes. That’s correct. The coach pulled me and another player aside and told us you need to hit the ref. He needs to pay the price. I was just doing what I was told.”

As the interview continued, both players expressed their remorse and their desire to apologize to the referee. Both also claimed, while looking nervously back and forth between one another and speaking furtively to Stephanopoulos, that the official had made racist comments to teammates earlier in the game. It was unclear whether they had directly heard the alleged inappropriate comments or whether the claims were hearsay communicated to them after their attack on the official by either the coach (Breed) or by other players on the John Jay team.

During a September 24 meeting in Austin, Texas of the University Interscholastic League’s State Executive Committee, convened to hear testimony regarding the incident, representatives of the Texas Association of Sports Officials presented an analysis of the game film and the results of an extensive investigation into the allegations that Robert Watts had made racial slurs. Based on interviews with players on both teams, coaches on both teams, the other game officials, other individuals who were on the sideline during the contest, and fans in attendance at the game, the TASO officials stated that there was no evidence that Watts had made any statements at any time during the game referencing the race or ethnicity of any of the players.

NISD Superintendent Brian Woods, District Athletic Director Stan Laing, John Jay Principal Robert Harris and head football coach Gary Gutierrez all testified at the UIL hearing, addressing the events that transpired during the game and the overall team culture at the school. Laing stated, “This whole incident has lack of self-control written all over it, so that’s where we’re going to start.” Gutierrez acknowledged that two Jay players had been ejected earlier in the game, the first in the third quarter for throwing a punch and the second in the fourth quarter immediately before the assault on the official, but stated “this is not reflective of our team or our program.” Harris testified that the assistant coach (Mack Breed) had admitted to ordering the hit, saying “I later met with Coach Breed at John Jay High School. He wanted to take full responsibility for his actions.”

On the same day as the UIL hearing, Breed resigned from his coaching position, but then recanted his admission that he told the players to attack the referee, stating “I only made my earlier statement to try and save the boys from being kicked off the team. I wanted more time to teach them the discipline and character they need.”

The two players were expelled from the football team, suspended from school, reassigned to an alternative high school, and following an NISD disciplinary hearing were informed they will be allowed to return to John Jay for the spring semester. On October 15, the UIL announced its sanctions, suspending the players from all 2015-16 UIL activities and requiring a hearing for any request of future reinstatement. Mack Breed was suspended from coaching any UIL sports for the remainder of the 2015-16 school year, was issued a public reprimand, and received two years of probation. Gary Gutierrez was issued a public reprimand and two years of probation. Police in Marble Falls, where the game was played, are continuing a criminal investigation into the matter and as of October 21, no decision had yet been made whether to charge Rojas and Moreno with assault, battery or violation of the Texas state law criminalizing assault against sports officials.

Civil Liability Court Cases

There have been numerous civil lawsuits over the years involving allegations that coaches have actively encouraged excessively violent play or affirmative misconduct by players, the cases typically asserting vicarious liability for school districts, athletic directors or head coaches for the actions of subordinate athletics personnel. The following are two such cases, each illustrating important standards of practice for school athletics programs and administrators.

In Molina v. Christensen and Wichita State University, a 2001 decision by the Court of Appeals of Kansas and a landmark case at the college level with repercussions for scholastic sports, Anthony Molina was severely injured when struck in the eye by a pitch intentionally thrown at him prior to an April 23, 1999 baseball game between WSU and the University of Evansville at Rusty Eck Stadium in Wichita. WSU pitcher Ben Christensen, widely regarded at the time as the best pitcher in college baseball and who would finish his college career 21-1, was on the pitcher’s mound warming up. Molina was standing outside the Evansville dugout stretching when Christensen intentionally threw a pitch at Molina’s head, shattering his eye socket and ending his playing career. Christensen maintained that his actions were motivated by instructions given to him consistently throughout his time at WSU by head coach Gene Stephenson and pitching coach Brent Kemnitz that pitchers were to always throw at any opposing players who appeared to be timing pitches and that it looked to Christensen at the time of the incident as though Molina was timing Christensen’s warmup pitches.

Christensen and Kemnitz were suspended for the remainder of the 1999 season. Molina’s suit against Christensen was settled for a reported $400,000 after Christensen was chosen with the 26th pick in the draft by the Chicago Cubs and received a $1.06 million signing bonus from the team. In the part of the suit against WSU and its coaches for encouraging the use of a clearly dangerous and explicitly illegal (per the rules of the game) technique, although the court ruled in favor of the defendants based on procedural technicalities, the written decision stated that “there is no doubt that the injury to the plaintiff was deliberate and unjustifiable” and the ruling made it clear that an educational institution would incur vicarious liability for the actions of coaches whose promotion of excessive violence or illegal techniques was considered to be gross negligence involving willful or wanton conduct.

In Brokaw v. McSorley and Winfield-Mount Union Community School District, a 2010 decision by the Supreme Court of Iowa, Brokaw was a player for Iowa Mennonite High School who was viciously and intentionally elbowed away from the game action by McSorley, a player for WMU High School, an act resulting in the offending player receiving a technical foul and ejection from the game. The state high court upheld a trial court award to Brokaw of $23,000 against McSorley for committing the intentional tort of battery, but ruled in favor of WMU’s coaches regarding Brokaw’s $1.5 million request for damages against them for having allegedly encouraged WMU’s players to go beyond the limits of competitive play and to engage in excessively violent play. The court found no evidence that the WMU coaches had in any way encouraged intentional or willful disregard of the rules of basketball or that they had used the type of overly-emotive language often found in cases where liability is assigned to coaches for making statements such as “we need to take out a certain player” or that “we’re going to go out there and kill them” or similar communications to players affirmatively promoting the use of techniques expressly illegal in the rules of the sport. The court’s ruling made it clear, however, that if the evidence had indicated that the coaches had encouraged or promoted excessively violent play or the use of techniques banned under the rules of the sport, the district and district personnel would have been found vicariously liable for Brokaw’s injuries. The court also acknowledged the “contact sports exception,” a principle that there is no liability to an injured athlete or other individual (official, coach, fans) for merely accidental conduct during a contest and that liability arises only from intentional, willful or wanton conduct resulting in harm to the victim.


School and athletics administrators must take affirmative steps to communicate to all coaches the imperative of avoiding any form of explicit or implied encouragement to student-athletes to engage in excessively violent play or to use techniques that are expressly prohibited by the rules of a sport. Courts have made it clear through multiple rulings that the “contact sports exception” will shield individuals against liability in situations where athletes are merely engaged in aggressive play within the rules of the game; it is only when athletes are specifically encouraged to intentionally and willfully inflict harm outside the normal parameters of the competition that co-participants and coaches will be found legally responsible for injuries.