The two hardest words to say might be “I’m sorry.” As we all know, an admission of fault is meaningful on a personal basis. Acknowledging we erred can sometimes cause us to question our abilities, values and judgment.
An admission can also carry enormous legal and social consequences. This is particularly true when the apology is for someone’s death and when a grieving family demands justice. Attorneys often discourage clients—especially institutional clients with “deep pockets”—to refrain from bluntly accepting blame. An admission can eliminate leverage the client would otherwise have to bargain a favorable settlement. Particularly early on in a dispute, sometimes the preferred tactic is to muddy the waters through deflection and overcomplication. An attorney and client can then hope that various stakeholders and prospective jurors come away uncertain as to why something unfortunate occurred.
It was thus astonishing to hear University of Maryland president Wallace Loh and athletic director Damon Evans straightforwardly acknowledge on Tuesday that the university’s “mistakes” and “misdiagnoses” led to the death of 19-year-old Jordan McNair. The 6-foot-5, 325-pound redshirt freshman football player, who had played high school football at the McDonough School in Owings Mills, Md. and hailed from Randallstown, Md., died on June 13. Two weeks earlier, McNair experienced a heatstroke in the aftermath of running sprints during a practice held in 80-degree weather. About an hour passed between the time McNair exhibited symptoms and 911 was called. The delay might have gravely worsened the destructive effects of McNair’s heatstroke, a condition which, if left untreated, can substantially damage the heart, kidneys and other organs. McNair’s family has retained prominent Baltimore attorney Billy Murphy to represent them. As I explain in another SI article, Murphy is well-positioned to file a wrongful death lawsuit against Maryland and potentially other parties, including the NCAA and Big Ten Conference.
Instead of averting blame—or, worse, insinuating that McNair could have done more to make the training staff aware of the severity of his condition (in other words, “blaming the victim”)—Loh and Evans calmly and remorsefully explained in a College Park press conference that university-employed trainers were at fault. They failed, Loh and Evans noted, to implement two basic preventative steps: they forgot, or incredulously didn’t know, to take McNair’s temperature and they neglected to place ice on his clearly overheated body.
Loh stressed that he and Evans met earlier in the day with McNair’s parents and he told them that the university is deeply sorry. Loh admitted to the parents that the school had been entrusted with their son’s care—an important admission since it confirmed the university knows it took on a legal duty of care for McNair’s health—and that the school “accepts legal and moral responsibility for the mistakes that our training staff made.” Loh and Evans added that there may be other findings from a report being prepared by Walters Inc. Maryland retained Walters Inc., a medical consulting company, to review the circumstances that led to McNair’s death. The review is expected to be finished by Sept. 15.
Loh and McNair’s statements strongly imply that the school and its insurance companies are confident that they will be able to reach a settlement with McNair’s family. A settlement would include a substantial monetary payment to McNair’s family in exchange for the family contractually relinquishing any legal claims it may have against the school. A settlement might also include a university-funded scholarship in McNair’s name, and a sizable donation by the school to not-for-profit entities that conduct research on college athletes’ health and heatstroke. The family has every right to demand their son’s death not be in vain. Using a settlement to improve the lives of others is one way to accomplish such a goal.
As detailed here, if no settlement is reached, McNair’s family would likely file a multi-million-dollar wrongful death lawsuit against the school (and perhaps others, such as the NCAA and Big Ten). While Maryland law caps pain and suffering damages for wrongful death to approximately $2 million, the state’s law doesn’t cap damages for economic loss. This is significant because McNair, who had been recruited by Ohio State, Penn State and other major DI programs, died relatively young. He presumably had a very bright future ahead of him—and perhaps one, a family-hired expert witness could argue, that was poised to include playing in the NFL. Although lost future earnings are inherently speculative, McNair’s trajectory was one that would make a wrongful death lawsuit on his behalf very concerning for potential defendants.
To defend against a wrongful death lawsuit, Maryland could argue that it is immunized under the state’s sovereign immunity law. Like sovereign immunity laws in other states, Maryland sovereign immunity law generally instructs that lawsuits against public universities and other public entities are barred unless the defendant (the University of Maryland) agrees to be sued. In reality, sovereign immunity is more complex. It also often proves unpredictable in individual cases. This is particularly true due to exceptions and qualifications to the application of sovereign immunity. One such exception is if the plaintiff can show that the defendant’s gross negligence (as opposed to ordinary negligence) is responsible for the victim’s harm.
Here, McNair’s family would argue that the treatment of their son was much worse than unreasonableness and amounted to gross negligence. Admissions by Loh and Evans during their press conference could be interpreted to corroborate that view, since they admitted that school employees badly failed to follow best practices (on the other hand, Loh and Evans might argue they only admitted to unreasonable conduct, not anything worse). How it would all play out in a litigation is difficult to predict.
Instead of litigation, the odds seem to favor Maryland reaching a settlement with McNair’s family.
There are still many other questions to be answered in the days, weeks and months ahead:
• Could criminal charges be brought against the university’s trainers and staff who treated McNair? Criminal charges are theoretically possible in this situation, but as I explain in the accompanying article they are also very unlikely. Deaths that have occurred during football practices have rarely led to charges and without accompanying convictions.
• Will head coach DJ Durkin remain as coach after his administrative leave concludes? The university is adhering to a carefully designed procedure to ensure that if it fires Durkin, it could attempt to do so “with cause” and save 65% of the remainder of his contract. Durkin could then sue the school for breach of contract. It is notable that Loh and Evans directed blame towards the training staff, rather than the coaching staff, and that the school has fired strength and conditioning coach Rick Court.
• Will the four-person “independent” commission announced by Loh on Tuesday provide meaningful information? Loh revealed that a commission of four persons will review allegations of bullying and harassment in the football program. Three of persons were named: retired federal judge Benson Legg, DLA Piper attorney Charles Scheeler (who the NCAA retained in the Penn State matter and who former U.S. Senator George Mitchell retained in the Major League Baseball performance-enhancing substances investigation), and retired federal judge and former state’s attorney Alexander Williams Jr. Each is clearly qualified to lead the investigation. Each also has professional reputations to uphold.
Two important caveats. First, the commission is not really “independent.” The university is presumably financing the commission and yet the university is a potential defendant in litigation with McNair and with anyone fired by the school over the controversy (including Court and potentially Durkin if he’s fired for cause). The university could also be punished by the NCAA. Furthermore, the ability of Loh and Evans to retain their jobs could be impacted by the commission’s findings. In other words, the university—and its leadership—has a vested stake in the findings of the university-financed commission.
Second, private investigations are limited in a variety of ways. For instance, they lack subpoena power to compel persons to relinquish emails, texts and other records and provide testimony. Also, persons who speak with private investigators do not so while under oath. The commission might, therefore, struggle to gather all of the pertinent facts.
• If McNair’s family and Maryland reach a settlement, could the family still bring a wrongful death lawsuit against the NCAA, Big Ten Conference and the health care professionals who treated McNair before he passed away? Yes. If McNair’s family believes that multiple parties are legally responsible for their son’s death, they can pursue litigation against any and all parties with whom they fail to negotiate settlements.
• Will the NCAA punish Maryland? This will be a question that warrants attention in the months ahead. It seems likely the NCAA will investigate. Loh has previously been a proponent of strict NCAA sanctions. In 2017, he advocated for the NCAA to punish the University of North Carolina with the death penalty in the wake of UNC’s academic scandal.
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.