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Five Questions About the Jordan McNair Situation at Maryland

The death of Jordan McNair has sparked several ongoing controversies at Maryland. Legal analyst Michael McCann answers five key questions regarding the fallout.

The ongoing controversies at the University of Maryland regarding a “toxic coaching culture” and the death of offensive lineman Jordan McNair pose significant legal questions. Here are five key questions and answers:

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1. Why would Maryland place DJ Durkin on administrative leave rather than suspend or fire him?

The short answer is Maryland does not want to prejudge Durkin. Most likely, the university has adopted this position both out of fairness to Durkin and out of concern that any appearance of prejudging Durkin would provide his attorneys with evidence that the university treated him unlawfully. As in most employment and disciplinary matters at a public university, procedure counts in Maryland’s handling of Durkin as much as substance. Let me explain.

Former players and former staffers have accused Durkin, 40, of imposing oppressive conditions on players as well as bullying and intimidating them. Durkin, who Maryland hired away from the University of Michigan in December 2015, also faces criticism for the manner in which he oversaw head strength and conditioning coach Rick Court. Court, who has also been placed on leave, allegedly threw weights in the direction of players and engaged in other dangerous behaviors. There are serious concerns about the circumstances and training conditions that led to the death of McNair, who died two weeks after collapsing while running sprints, and possible moral and legal responsibility on the part of Durkin’s coaching staff.

Durkin’s contract provides Maryland with multiple mechanisms to end its relationship with him. Should Maryland seek to sever its ties with Durkin, the procedure selected by the university would significantly impact how much it owes Durkin and whether Durkin could successfully sue the school for breach of contract, defamation, tortious interference, violation of due process and other claims.

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The easiest, but most costly, way for Maryland to fire Durkin would be to fire him without cause. Under his contract, the university can fire Durkin if it is in the “best interests” of the school. This is the approach normally used by schools to fire a coach: the school is unhappy with a team’s performance and wants someone else to take over. If Maryland fires Durkin without cause, it would have to pay him liquidated damages equal to 65% of the remaining aggregate pay and supplemental income on a contract that is set to expire on Dec. 31, 2021. (Durkin signed a five-year contract in 2015, but, per the contract, the term was automatically extended to six years by virtue of Durkin remaining head coach at the conclusion of the 2016 season.)

Durkin’s contract indicates that he will be paid approximately $7.8 million between 2019 and 2021. If fired without cause, Durkin would receive 65% of that (about $5.1 million) plus 65% of any remaining pay in 2018. Durkin is the second-highest paid state employee in Maryland behind Terrapins basketball coach Mark Turgeon. Especially given that Maryland taxpayers support the state university, it stands to reason that the school does not want to be in the habit of paying millions of dollars to former employees (which it did with Durkin’s predecessor, Randy Edsall).

Alternatively, Maryland could fire Durkin with “cause.” Such a firing would relieve the university of the obligation to pay Durkin going forward, except for any annual base salary, supplemental annual income, or potential compensation, which accrue prior to the date of termination.

Under Durkin’s contract, “cause” is defined in five ways—meaning any of the five definitions count:

(i) Material misconduct, which is wrongful, immoral (meaning inconsistent with the professional standards of conduct of an intercollegiate head football coach) or unlawful conduct, which adversely affects Durkin’s ability to meet the performance standards and performance commitment set out [earlier in contract];

(ii) Repetitive unprofessional or unsportsmanlike behavior (provided Durkin receives written notice and a reasonable opportunity to cure the first instance);

(iii) A material act of insubordination or repeated acts of insubordination;

(iv) Failure to substantially fulfill the material duties and obligations established in this Agreement—those duties include maintaining and enforcing disciplinary rules and sanctions fairly and uniformly for all players so as to promote academic and moral integrity (provided that Durkin first receives written notice and a reasonable opportunity to cure); or

(v) A finding by the NCAA that you have committed a major violation of any governing rule, whether while employed by Maryland or during prior employment at another NCAA institution, or a finding by the NCAA that the program committed a major violation of any governing rule for which Durkin is culpable.

Save for (v), which necessitates a finding by the NCAA, the first four definitions (i) through (iv) are worded ambiguously. Each provides the university with a healthy degree of interpretative license. Stated differently, if Maryland finds that Durkin partook in, or tolerated, abusive and unsafe coaching practices, the school could plausibly conclude that his conduct was “immoral” or “unsportsmanlike” and thus grounds for a cause firing.

Instead of, or as a precursor to, firing Durkin, Maryland can impose a “disciplinary action.” Per Durkin’s contract, a disciplinary action can include an assortment of employment actions. They include, but aren’t limited to: a written reprimand; a suspension with pay; a suspension up to 45 days without base salary and/or supplemental annual income; forfeiture of future potential compensation or other benefits; loss of planned salary increase or merit raise; probation; or temporary or permanent reassignment of duties. Durkin’s contract also contemplates a suspension pending an investigation related to a disciplinary action. Any suspension without pay during this investigatory period cannot exceed 30 workdays. If athletic director Damon Evans suspends Durkin without pay, Durkin would have the contractual right to appeal the suspension to Maryland president Wallace Loh. An appeal would trigger a grievance process with Loh having ultimate say over the grievance’s outcome.

On Saturday, Maryland placed Durkin on “administrative leave” and elevated offensive coordinator Matt Canada to interim head coach. The university has not indicated whether Durkin will be paid while on leave, but ESPN reports the leave is paid. This is consistent with normal practices: employees who are placed on leave are typically paid and receive benefits. In most cases, administrative leave is tantamount to a paid suspension from work responsibilities and is typically issued while an employer conducts fact-finding regarding an employee’s possible wrongdoing. To be clear, being placed on administrative leave does not mean an employee is “guilty” of wrongdoing—it means the employee might have committed wrongdoing and the employer believes it is in the best interest of the investigation to separate the employee while the investigation plays out.

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In a statement explaining the placement of Durkin on administrative leave, Loh announced that Maryland will retain an external expert to “undertake a comprehensive examination of our coaching practices in the football program.” Loh stressed that “humiliating and demeaning a student is not only bad teaching and coaching, it is an abuse of the authority of a teacher and coach.” Durkin, according to Loh, will remain on leave while the examination is conducted. The external expert’s probe will apparently be a different probe than the one conducted by Walters Inc., which (as explained below) is investigating the circumstances of McNair’s death.

Maryland’s approach to Durkin in the wake of the controversies is clearly designed to minimize opportunities for Durkin to later claim that he was treated unlawfully. Maryland knows that if it fires Durkin for cause, Durkin will consider suing the school for breach of contract and for other claims. As a state employee, Durkin can raise more than breach of contract, defamation and other typical claims that follow the firing of a contracted employee. Durkin can also invoke constitutional protections under the U.S. Constitution and Maryland Constitution that guarantee him (and other state employees) a fair process.

To minimize the likelihood of Durkin succeeding in a potential lawsuit, Maryland appears to be checking every procedural box. The university is conducting fact-finding and has retained an external expert. Such an expert lends credibility to the investigation and findings. He or she is also, at least to some degree, acting independently of the university.

Likewise, Maryland has avoided using the word “suspension” in reference to Durkin. This is most likely because “suspension” is associated with a finding of wrongdoing. Maryland does not claim that Durkin has done anything wrong. It wants to signal, both in substance and in appearance, that it is giving Durkin a fair chance to explain himself. That way, if Maryland ultimately elects to fire Durkin for cause, the university could provide a thorough and detailed report and Durkin would have an opportunity to try to rebut the allegations. If instead the university fires Durkin for cause based solely on disturbing accounts by media companies and public reaction, Durkin could argue that the school has reached conclusions without appropriate verification or corroboration.

Maryland, of course, does not want to engage in litigation with Durkin. Even if the school’s legal position is stronger than that of Durkin's, he could be in possession of emails, texts and other communications that could cast a negative light on school officials. Along those lines, if university administrators knew about Durkin’s treatment of his players and took no action, those administrators could face their own adverse consequences. To avert such an outcome, the school will likely try to negotiate a settlement with Durkin.

2. Will the death of McNair lead to a lawsuit?

The short answer is the university will most likely try to reach a financial settlement with McNair’s family before the filing of any lawsuit. If such negotiations fail, then expect a wrongful death lawsuit.

The death of any 19-year-old college student is tragic. That is certainly true of McNair, a 6’5”, 325-pound redshirt freshman who played high school football at the McDonough School in Owings Mills, Maryland. McNair was recruited by Ohio State, Auburn, Penn State and other elite D-I programs before deciding to stay close to home. The relevant legal question is whether McNair’s death was an avoidable tragedy and, if so, whether the university, coaches, medical staff, the Big Ten Conference, the NCAA and health care providers bear some responsibility.

Accounts of McNair’s collapse on Tuesday, May 29 have appeared in several media outlets, including ESPN, Testudo Times and The Diamond Back. They are based on reviews of 911 recordings and witness recollections. Like in any retelling of an incident, additional—and sometimes complicating—information will likely surface the further the incident is probed. In other words, the current picture of what took place is almost certainly incomplete.

With that important caveat in mind, McNair appears to have experienced breathing problems following his participation in 10, 110-yard sprints during very warm (approximately 80 degrees) weather. The sprints occurred sometime between 4:30 and 5:00 p.m. Upon seeing McNair’s struggles in breathing and cooling down, training staff directed him inside for further observation. At 5:57 p.m. an unidentified person called 911 to say that McNair was experiencing hyperventilation and that medical care was urgently needed. Five minutes later, an ambulance arrived. At 6:36 p.m. McNair was admitted to the emergency room of Washington Adventist Hospital. Later in the evening McNair was airlifted to the Baltimore-based Cowley Shock Trauma Center, which is affiliated with the University of Maryland’s medical center.

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After undergoing various treatments while hospitalized, McNair passed away on June 13. Published reports indicate that the state medical examiner did not conduct an autopsy. This would mean, among other things, that medical professionals likely agreed on the cause of death and that the cause was not considered suspicious. A lack of autopsy also means that a forensic pathologist did not examine the organs in McNair’s body, a point that could become legally relevant should there be litigation over who was responsible for McNair’s death.

McNair’s family has indicated that the cause of death was complications of heatstroke. As detailed by the Mayo Clinic, heatstroke is a medical condition during which one’s body severely overheats, often to a body temperature of 104 degrees or higher. If untreated, heatstroke can damage one’s heart, kidneys and other organs. At the time of his initial hospitalization, McNair’s body temperature was reportedly 106 degrees.

3. How would the lawsuit be brought and what would McNair’s family demand?

McNair’s family has retained a prominent Baltimore attorney, Billy Murphy. Murphy represented the family of Freddie Gray, the Baltimore man whose death while in police custody sparked debate about law enforcement’s treatment of him and other African-Americans. Murphy, who is also a former circuit court judge, has told ESPN that McNair’s family is likely to file a lawsuit. Murphy has also raised questions about why approximately one hour passed before University of Maryland athletic department staff called 911—an especially vexing point given that McNair appeared to be suffering the symptoms of heatstroke. Murphy also asserts that McNair suffered a seizure following the sprints and while under the care of university staff (the university disputes that account). It is clear that Murphy’s questions imply that university staff was negligent in its care of McNair and that such negligence contributed to McNair’s death.

Before a lawsuit is filed, Murphy would send a demand letter to Maryland’s general counsel (as well as the counsel for other potential defendants, including the NCAA). A negotiation would then take place as to whether the matter could be resolved through a financial settlement. The school would emphasize to Murphy that it has retained Walters Inc., a medical consulting company, to review the circumstances that led to McNair’s death. According to ESPN, Walters Inc.’s review is expected to conclude by Sept. 15. Maryland would also stress that it has placed members of its training and strength and conditioning staff on leave. In other words, the school would signal that it is earnestly trying to get to the bottom of what happened. In turn, the school would ask for patience from Murphy before he files a lawsuit on the family’s behalf. For their part, McNair’s family does not need to file a lawsuit in the near future: Maryland law provides a three-year statute of limitations for wrongful death claims.

If no settlement is reached, Murphy, on behalf of the McNair family, could eventually sue multiple parties. They include the school training and medical staff who treated McNair, the coaching staff, the university as a whole and possibly the NCAA, the Big Ten and the various health care providers who cared for McNair (such as emergency medical technicians, physicians and nurses).

If a lawsuit occurs, it would be for wrongful death. The claim would assert that multiple parties failed to act reasonably in their care of McNair. For instance, Murphy would argue that McNair should not have been asked or forced to sprint in such warm weather and that Durkin and other coaches imposed unsafe training conditions. Likewise, Murphy could insist that the NCAA and Big Ten failed to adequately monitor schools for adherence to acceptable heat and hydration policies. Murphy would also question whether Maryland adequately monitored McNair’s health condition prior to the sprinting. McNair’s treatment after the sprint would also be scrutinized. Whether, for instance, McNair’s symptoms should have led to alternative treatments—including earlier hospitalization—would be at issue.

Murphy would also be inclined to dispute any findings by Walters that tend to exonerate the school. Murphy would highlight that Walters was retained by the school and is thus not independent. Murphy would likely retain his own set of experts, whose conclusions might differ dramatically from those of Walters and the school.

Given McNair’s young age and bright future, his family could demand several millions of dollars in a lawsuit. On one hand, Maryland law caps pain and suffering damages for wrongful death and the related claim of survival action to approximately $2 million. On the other hand, the state does not limit damages for economic loss. McNair’s family could retain football experts to argue that McNair had a future NFL career and would have earned millions (in response, the defendants would insist that projecting a future NFL career for McNair—a three-star recruit according to Rivals—is speculative, especially given that McNair hadn’t yet proven he could play well in college).

If sued by McNair’s family, Maryland could argue that it adhered to industry-standard protocols at all times while treating McNair. The university would search for texts, emails and other correspondences that suggest its staff handled the situation appropriately. Witness statements would also be critical. To that end, the school might imply that to the extent to which McNair’s death reflects human error, such error would have occurred after McNair left the care of university employees (complicating the decision to invoke such a defense is the fact that McNair was treated at a hospital affiliated with the university’s medical system and thus the university would try to direct blame onto a related entity).

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The university might also argue that it is immune from such a lawsuit under the doctrine of sovereign immunity. Such a doctrine is recognized under Maryland law and it prohibits many types of lawsuits against public entities—including public universities—unless those entities consent. There are exceptions to sovereign immunity, and it can be waived under certain circumstances, but it would likely serve as a defense by the school should it be sued.

Maryland officials would also be in regular consultation with representatives from their insurance companies. Such companies often play crucial roles in personal injury and wrongful death litigation.

5. Will the death of McNair lead to criminal charges?

It’s at least theoretically possible that McNair’s death could lead to criminal charges, though it would be an extremely unusual outcome. Even coaches who impose oppressive conditions on players have steered clear of criminal charges. Prosecutors and grand jurors often refrain from placing athletics under the purview of criminal law. This is in part because of the potential ramifications of criminalizing coaching techniques and in part because of the high burden—"beyond a reasonable doubt”—necessary to convict someone of a crime.

One exception to the inapplicability of criminal law to football practice conditions occurred in 2009 in wake of the 2008 death of Pleasure Ridge High School (Louisville, Ky.) sophomore offensive lineman Max Gilpin. Gilpin had collapsed after running multiple wind sprints held in temperatures that exceeded 90 degrees. He was hospitalized with a 107-degree body temperature and passed away a few days later.

Prosecutors sought and received from grand jurors reckless homicide and wanton endangerment charges for Gilpin’s coach, David Jason Stinson. Prosecutors argued that Stinson subjected Gilpin to “barbaric conditioning” that was part of an effort to punish and bully his players. They claimed that Stinson failed to perceive a substantial and unjustifiable risk, and that this alleged failure constituted gross deviation from a reasonable standard of care resulting in Gilpin’s death. Jurors, however, found Stinson not guilty. The Gilpin case, which again led to an acquittal and not a conviction, remains an exception to the norm that criminal law and football practices remain in separate universes.

It is thus very unlikely that McNair’s death will become a criminal matter. Still, this young man’s death has sparked serious questions about the treatment of student-athletes and the extent to which the law ought to play a role in protecting student-athletes from unsafe conditions.

Jake Fischer contributed to this article.

Michael McCann is SI’s legal analyst. He is also Associate Dean of the University of New Hampshire School of Law and editor and co-author of The Oxford Handbook of American Sports Law and Court Justice: The Inside Story of My Battle Against the NCAA.