Friday, August 30, 2013

At Today’s Maryland Board of Regents Meeting, the Governor, Treasurer, and Comptroller Should Attend and Discuss Derek Sheely’s Death and Safety in Maryland College Sports

Today, the Maryland Board of Regents, which oversees the State’s University System, will hold a meeting by conference call.  On the agenda for discussion are (1) topics for the upcoming Board retreat; (2) topics for education forums at future Board meetings; and (3) the Board’s process for reviewing the performance of the University presidents they supervise.  (The Board also has an undisclosed item to be decided in executive session.)

The Board needs to add to its agenda a discussion of Derek Sheely, the Frostburg State University student who died two years ago yesterday of head trauma sustained in football practice with the school’s team.  On August 22, 2013, Sheely’s family filed a complaint in which they allege that his death stemmed from misconduct by Frostburg ‘s football coaches and an athletic trainer.  

The Sheely family alleged last week that the football coaches conducted dangerous helmet-to-helmet “Oklahoma-style” tackling drills over three days that caused Sheely to sustain a bleeding gash on his forehead and that the two football coaches an athletic trainers named in the suit ignore concussion signs that he displayed before collapsing unconscious on the field.   Each of these staff currently serves in these positions at Frostburg.  

It is not clear that members of the Board of Regents are aware of Sheely’s death, of the suit his family has filed, or of the broader issues of concussions in college football and other sports.   A review of the minutes of the Board of Regents’ public meeting since August 2011 reflect no discussion of Sheely’s death.  The minutes also reflect no discussion of concussions in intercollegiate football. 

There is no discussion in the Board’s minutes of the long-term risk that repetitive head blows in football may lead to chronic traumatic encephalopathy (CTE) not only in retired NFL players but also in college football players, for example, Owen Thomas, a University of Pennsylvania football player who committed suicide in April 2010.

There is also no discussion in the Board’s minutes of the short term risks that repetitive head blows in football can lead to altered brain function, even in players who are not diagnosed to have sustained a concussion, and that such altered brain function can take months to return to baseline.

Further, on September 28, 2012, 13 months after Sheely’s death, the Board of Regents adopted Policy V 2.10, University System of Maryland Policy on Intercollegiate Athletics.  The Policy requires a University president to report to the Board of Regents information about a school’s intercollegiate athletics program such as student participants’ academic performance and financial aspects of the program.  

The Board of Regents’ Policy, however, requires no reporting on concussions or other injuries that students sustain from participating in intercollegiate athletics.   The report filed by Frostburg State University for the 2010-2011 school year contains no information about concussions or other injuries.  (No report by Frostburg State University is available at the Board of Regents website for the 2011-2012 school year, the year in which Sheely died.)

By law, the Board of Regents is required to invite Governor O’Malley, Treasurer Nancy Kopp, and Comptroller Peter Franchot to attend each of its meetings.  If you will recall, in 2011 Pennsylvania’s Governor Tom Corbett exercised a similar role to lead the Board of Trustees for Penn State University to address the child abuse scandal related to Penn State football coach Jerry Sandusky. 

I respectfully urge Governor O’Malley, Treasurer Kopp, and Comptroller Franchot to attend tomorrow’s Board of Regents meeting and play a similar leadership role on the issue of the safety of students when they participate in intercollegiate athletics within the University System of Maryland.  

At tomorrow’s meeting, the Board of Regents should discuss whether football at Frostburg is being conducted safely and whether football at other Maryland Schools is being conducted safely. 

The Board should also adopt limits on full contact football practicies similar to those adopted by the Ivy League, the PAC-12 Conference, and the NFL.  The NCAA has not adopted such limits and appears to be committed to studying the issue.   The Board of Regents’ deference to the NCAA amounts to an abdication of its responsibility to keep Maryland students safe when they participate in interscholastic sports. 

Finally, the Board of Regents needs to evaluate whether it is appropriate for football and other sports programs to be covered by the limited immunity from tort liability that Maryland law provides to State institutions and their personnel.   Under Maryland law, a state agency like the Board of Regents liable for tort damages up to $200,000. 

School personnel, that is, coaches, athletic directors, university presidents, the Chancellor, Board of Regents members are only liable for torts—like a student dying in a school-organized football practice—if their conduct is malicious or grossly negligent.  For negligence, these school personnel get a free pass.

The Board of Regents needs to ask whether the limited immunity has created perverse financial incentives for the universities it supervises.  Football and other sports programs represent significant revenue source and an opportunity to market a school’s “brand.”  If liability for a tragedy like Derek Sheely’s death is capped at $200,000, does this represent a small operating cost with no financial incentive for a University to correct dangerous conditions?

One private sector discipline that gets lost by intercollegiate athletics being conducted by state employees is the discipline of liability insurance.  If the University System of Maryland had to obtain insurance on the private market for the football program at Frostburg, would an insurer be willing to provide coverage?  If so, would the premiums be affordable? 

Would a private insurer condition coverage on the Board of Regents banning dangerous football tackling drills, Oklahoma drills, that the Sheely family allege caused their son’s death?

These serious issues may be beyond the Board of Regents willingness to address.  That is why Governor O’Malley needs to step in.  He is being talked about as a Presidential contender for 2016. 

If the Governor can’t protect Maryland students from what some call the Football Industrial Complex, how can Americans expect him to protect them from Al-Qaida and other national threats?

Tom Hearn is a parent from Montgomery.  Last year, after his son sustained a concussion playing JV football, he advocated to the Maryland State Board of Education that they take steps to address concussions in high school sports.

A link to the letter Hearn sent to the Board of Regents is at this link

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