Did Penn State unlawfully fire its former team physician because he blew the whistle on James Franklin directing still-injured football players to return to the field?
In a lawsuit filed on Monday in the Dauphin County (Pennsylvania) Court of Common Pleas, Scott Lynch, MD, defiantly claims the answer is “yes.”
Lynch, an orthopedic surgeon who graduated from Penn State in 1984, treated Nittany Lion players in his capacity as team physician and director of athletic medicine from August 2014 until March of this year. Lynch’s lawsuit names Penn State, Penn State Health (a multi-hospital health system), Franklin, Penn State athletic director Sandy Barbour, senior associate athletic director Charmelle Green and several others as defendants.
Unpacking Lynch’s lawsuit
Lynch claims that in January, Barbour and Green demanded that Lynch be relieved of his roles with the team. The demand, Lynch claims, was relayed to Kevin Black, MD. Black is currently the interim dean of the university’s college of medicine. He has held other leadership positions in the university and Penn State Health (a multi-hospital health system), and through them directed Lynch. Lynch, who is also a professor at Penn State, names Black as one of the defendants.
Lynch contends that the order he be terminated constituted pure and illegal retaliation. He insists it “arose as a result of [Lynch’s] good faith reporting of Franklin’s attempts to influence and interfere with [Lynch’s] medical management and return-to-play decisions related to student-athletes.”
To that end, Lynch’s complaint portrays Franklin as willfully endangering the health of football players. Franklin, Lynch maintains, “created a culture and climate which, at a minimum, obstructed full compliance” and that defied “rules implemented to safeguard the medical management of student-athletes.” Lynch charges that Franklin repeatedly “attempted to interfere” with Lynch’s “authority” to determine medical management and return-to-play decisions.
Lynch assures that he rebuffed Franklin’s alleged attempts to interfere. Lynch also claims to have reported Franklin’s alleged transgressions to various Penn State officials, including Barbour, Green, Black and the school’s integrity officer (Robert Boland, who is not a defendant). Instead of addressing Lynch’s concerns and safeguarding players from Franklin, the group of defendants—as depicted by Lynch—conspired to get him fired.
As Lynch tells it, this purported conspiracy to oust him was premised on a “false narrative” and “pretextual justification.” Namely, Penn State wanted to replace Lynch with a more local orthopedic surgeon, specifically one who resides in State College. Lynch practices mainly in Hershey, which is about 100 miles away. Wayne Sebastianelli, MD, who served as team physician prior to Lynch taking the job in 2014, is now back in the position.
Much of Lynch’s complaint highlights that Penn State football and Franklin in particular are obligated to follow safety rules as adopted by the Big Ten and the NCAA. Relevant conference rules include measures to prevent coaches from directing medical or athletic training staff or impermissibly influencing their decisions. They also place a priority on the player’s health over other considerations. Similarly, NCAA Bylaw 220.127.116.11 provides that member schools “affirm the unchallengeable autonomous authority of primary athletics health care providers (team physicians and athletic trainers) to determine medical management and return-to-play decisions related to student-athletes.” Lynch contends that the university and Franklin blatantly violated these rules.
Lynch also contends he offered valuable policy recommendations to the school, but those recommendations were ignored. The recommendations focused on strategies to separate the health care staff who treat players from the coaching staff. Medical decision-making, Lynch contends, ought to be up to those who are knowledgeable about medicine rather than those who are paid to win football games.
To that end, Lynch’s complaint lists a number of recommendations he claims he provided the school. They include:
· The athletic trainer will be the main conduit for medical information to the coach.
· Coaches are not permitted in the training room unless requested to be there by the medical staff.
· Coaches will not discuss injuries with players, either positively or negatively.
The main area of law invoked by Lynch and his attorney, Steven Marino (who, like Lynch, is a Penn State alumnus and also a one-time member of the U.S. National Gymnastics Team), is the Pennsylvania Whistleblower Law. This law protects employees of public entities, including public universities, from retaliation in the event they relay a “good faith report, verbally or in writing, to the employer or appropriate authority an instance of wrongdoing.”
Lynch insists that he was fired unlawfully for reporting that Franklin had attempted to interfere with player health decisions in direct violation of Franklin and the university’s legal and ethical responsibilities. Plaintiffs who prevail in Pennsylvania whistleblower cases can receive payment of back wages, attorneys’ fees and, in some cases, reinstatement.
Penn State and Franklin will likely raise questions about Lynch
In the coming weeks, Penn State and the other defendants will answer the complaint. As an initial response, a Penn State Health spokesperson issued a statement to Matt Miller of Penn Live (The Patriot-News). In it, the health care entity “rejects” Lynch’s claims and vows to “vigorously defend our program and its representatives.” Penn State Health—which still employs Lynch, including for the delivery of sports medicine care—insists that Lynch was replaced “with the best interests” of the delivery of care and student-athletes in mind.
In answering the complaint, Penn State will surely contend that the decision to replace Lynch had nothing to do with retaliation. The school might claim that Lynch failed or needed improvement in certain job responsibilities. Penn State would advance such an argument if the university possesses corroborating documentation, including negative performance reviews or inaccurate or intemperate emails sent by Lynch. Penn State will also likely detail the ways in which Franklin cares about player safety, including health-related memos sent by Franklin to his players and any safety-related conferences attended by Franklin. The school will focus on assembling a factual record that attempts to debunk Lynch.
Attorneys hired by the school might also cast doubt on Lynch’s favorable self-depiction as a protector of football players’ health. As David Chao, MD observes on Twitter, Lynch waited to come forward until after he lost his job. If Franklin was as dangerous as Lynch claims, why didn’t Lynch go public earlier and, if necessary, resign from his position? While Lynch would not have been able to publicly name specific players due to privacy issues, he could have spoken generally about incidents involving Franklin. Lynch could have also employed the type of vague language about Franklin he uses in his complaint.
Pretrial discovery could prove problematic for all involved
If Lynch’s litigation advances, pretrial discovery might shed substantial—and eye-opening—light on the claims against Franklin and the university.
Lynch’s attorneys will likely demand emails, texts and other communications sent between the defendants. If, for example, Franklin sent emails to other athletic department officials in which Franklin wrote, in so many words, that the school should fire Lynch because Lynch was too protective of players’ health, those emails would not only enhance Lynch’s case but they would be highly damaging to Franklin’s reputation.
Lynch’s complaint omits mention of specific incidents involving players, but the advancement of his litigation would lead to their disclosure. That said, individual players’ names would likely be redacted due to health privacy and educational privacy restrictions, including those required by the Health Insurance Portability and Accountability Act and the Family Educational Rights and Privacy Act.
In addition, football coaches and players could be called to provide sworn testimony about how the school handles players’ injuries. Lynch seems to be aware of specific players who he believes were strongly and improperly urged to return to the field. If those players provide testimony supportive of that view, their testimony would be damaging to the football program and the university.
For one, the testimony would consist of potentially current and former players denouncing Franklin. In addition, those players could be more inclined to pursue their own legal actions against the school. Consider former TCU wide receiver Kolby Listenbee's lawsuit filed last year against TCU and coach Gary Patterson over Listenbee’s claim that he was pressured to play hurt (the lawsuit was settled earlier this year). Also the NCAA and the Big Ten—particularly only a year after the controversial death of Maryland football player Jordan McNair—might consider taking action against Penn State if player health decisions violated NCAA and conference safety rules.
The most likely outcome? Lynch’s case settles long before it poses a reputational risk to anyone at Penn State. Sometimes, though, cases last longer than expected. We’ll be covering it.
Michael McCann is SI’s Legal Analyst. He is also an attorney and Director of the Sports and Entertainment Law Institute at the University of New Hampshire Franklin Pierce School of Law.