Jordan McNair: Biggest questions for Maryland football, DJ Durkin

Jordan McNair: Biggest questions for Maryland football, DJ Durkin

The ongoing controversy at the University of Maryland about a "toxic coaching culture" and the death of offensive lineman Jordan McNair raise significant legal issues. Here are five key questions and answers:

1. Why should Maryland send DJ Durkin on vacation instead of suspending or dismissing him?

The short answer is, Maryland does not want to deprive Durkin. Most likely, the University has accepted this position both out of fairness to Durkin and because of concern that any allegation by Durkin would provide evidence to his attorneys that the university treated him unlawfully. As with most employment and disciplinary matters at a public university, the process in Maryland's treatment of Durkin counts as much as substance. Let me explain.

Former players and former employees have accused 40-year-old Durkin of putting players under pressure, harassing and intimidating them. Durkin, whom Maryland enrolled from the University of Michigan in December 2015, also faces criticism over his head and conditioning coach Rick Court. Court, also on vacation, allegedly threw weights toward gamblers 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 the crash while running sprints, and possible moral and legal responsibilities on the part of the Durkin coach.

Durkin's contract offers Maryland several mechanisms to end his relationship with him. Should Maryland try to break its ties with Durkin, the university's chosen procedure would greatly affect how much Durkin owes it, and whether Durkin could successfully sue the school for breach of contract, slander, tort, infringement, and other claims.

The easiest but most costly way for Maryland to fire Durkin would be to fire him for no reason. Under his contract, the University of Durkin may dismiss if it is in the "best interests" of the school. This is the approach that schools normally use to dismiss a coach: The school is dissatisfied with the performance of a team and wants someone else to take it over. If Maryland Durkin fires without reason, he would have to pay him a lump-sum compensation of 65% of the remaining total and additional income from a contract that expires on December 31, 2021. (Durkin signed a five-year contract in 2015, but by contract, the term was automatically extended to six years due to Durkin remaining head coach at the end of the 2016 season.)

Durkin's contract states that he will receive approximately $ 7.8 million between 2019 and 2021. Durkin would be dismissed for no reason, 65% of which (about $ 5.1 million) plus 65% of the remaining salary in 2018. Durkin is the second highest salary clerk in Maryland behind Terrapin basketball coach Mark Turgeon. In particular, given that Maryland's taxpayers support the state university, it does not seem likely that the school will be in the habit of paying millions of dollars to former employees (which they did with Durkin's predecessor Randy Edsall).

Alternatively, Maryland could fire Durkin with "cause." Such a dismissal would release the university from the obligation to pay Durkin in the future, except for annual basic salary, supplemental annual income, or potential compensation due before the date of termination.

Under Durkin's contract, "cause" is defined in five ways – that is, each of the five definitions counts:

(i) material misconduct that is unlawful, immoral (that is, inconsistent with the professional standards of conduct of an Intercollegiate Head Football Coach), or unlawful conduct that interferes with Durkin's ability to meet defined performance standards and performance obligations [earlier in contract];

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

(iii) a material act of insubordination or repeated disobedience;

(iv) not materially perform the essential duties and obligations set forth in this Agreement – these obligations include the fair and consistent maintenance and enforcement of disciplinary rules and sanctions for all actors promoting academic and moral integrity (provided that Durkin first receives a written communication) a reasonable opportunity to heal); or

(v) A statement by the NCAA that you have committed a material breach of a relevant rule, whether during your employment with Maryland or during your previous employment with another NCAA establishment, or upon a discovery by the NCAA that the program is a serious one Violation of any rule has a rule for which Durkin is guilty.

Save for (v), which requires a determination by the NCAA, the first four definitions (i) to (iv) are ambiguously formulated. Everyone offers the university a healthy level of interpretive license. In other words, if Maryland finds out that Durkin has practiced or tolerated abusive and unsafe practices, the school could plausibly conclude that his behavior is "immoral" or "unsportsmanlike" and therefore a cause for a fire effect.

Instead of Durkin or as a precursor to Maryland can impose a "disciplinary action". Per Durkin's contract, a disciplinary measure may include a selection of employment measures. They include, but are not limited to: a written reference; a suspension with payment; a suspension of up to 45 days without basic salary and / or supplementary annual income; Loss of future potential compensation or other benefits; Loss of the planned salary increase or increase in benefits; Probation; or temporary or permanent reassignment of tasks. Durkin's contract also provides for a suspension involving an investigation into a disciplinary measure. Suspension without payment during this period of investigation may not exceed 30 working days. If sports director Damon Dans Durkins suspended without payment, Durkin would have a contractual right to appeal against Maryland President Wallace Loh. An appeal would trigger a complaint process whereby Loh decides on the outcome of the complaint.

On Saturday, Maryland Durkin put on "administrative leave" and increased offensive coordinator Matt Canada to interim coach. The university has not specified whether Durkin will be paid while on vacation, but ESPN reports that the holiday is being paid. This is in line with normal practice: workers who go on vacation are usually paid and receive benefits. In most cases, administrative leave is equivalent to a paid suspension of work responsibilities and is usually issued while an employer is conducting an investigation into a potential misconduct of an employee. To be clear, the use of administrative leave does not mean that an employee is "guilty" of misconduct – it means that the employee has committed misconduct and the employer believes that it is in the best interest of the employee to investigate to separate the investigation.

In a statement explaining Durkin's term, Loh announced that Maryland would hire an outside expert to "conduct a comprehensive review of our coaching practices in the football program." Loh emphasized that "humiliation and humiliation of a student is not only bad teaching and training, it is a misuse of the authority of a teacher and coach." Durkin, says Loh, remains on leave for leave. The external expert probe will obviously be a different probe than that of Walters Inc., which investigates (as explained below) the circumstances of McNair's death.

Maryland's approach to Durkin in the wake of the controversy is clearly designed to deprive Durkin of the possibility of later claiming he has been treated unlawfully. Maryland knows that if Durkin fires it for cause, Durkin will consider sue the school for breach of contract and other claims. As a government employee, Durkin can make more than breach of contract, defamation, and other typical claims for the dismissal of a contract employee. Durkin can also appeal to constitutional protection under the United States Constitution and the Constitution of Maryland, which guarantee him (and other state employees) a fair trial.

To minimize the likelihood of Durkin succeeding in a potential lawsuit, Maryland seems to be reviewing every procedural step. The university is conducting an investigation and has hired an external expert. Such an expert gives credibility to the investigation and the results. He or she is at least partially independent of the university.

Likewise, Maryland avoided using the word "suspension" in relation to Durkin. This is most likely because "suspension" is associated with a finding of misconduct. Maryland does not say Durkin did anything wrong. It wants to signal both in substance and in appearance that Durkin has a fair chance to explain itself. In this way, if Maryland finally decides to dismiss Durkin for a good reason, the university could provide a thorough and detailed report, and Durkin would have the opportunity to try to refute the allegations. If, instead, the Durkin University initiates for reasons based solely on worrying media company reports and public reaction, Durkin could argue that the school reached conclusions without proper verification or validation.

Of course, Maryland does not want to argue with Durkin. Even if the legal status of the school is stronger than Durkin's, he may have emails, texts, and other communications that could negatively impact school officials. In this sense, if the university administration knows about Durkin's treatment of its players and does nothing, these administrators could suffer their own negative consequences. To avert such a result, the school is likely to try to negotiate an agreement with Durkin.

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

The short answer is that the university will most likely try to reach a financial settlement with McNair's family before filing a lawsuit. If such negotiations fail, then expect an unjustified death suit.

The death of a 19-year-old student is tragic. This certainly applies to McNair, a 6'5 ", 325-pound Redshirt freshman who played high school football at the McDonough School in Owings Mills, Maryland. McNair was joined by Ohio State, Auburn, Penn State and other elite DI programs before deciding to stay close to home The relevant legal issue is whether McNair's death was an avoidable tragedy and if and if so whether the university, the coaches, the medical Personnel, the Big Ten Conference, the NCAA and the healthcare providers have some responsibility.

Reports of McNair's collapse on Tuesday, May 29, have been published in several media, including ESPN. Testudo times and The diamond back, They are based on reviews of 911 recordings and witnesses memories. As with any re-telling of an incident, additional, and sometimes more complicated, information will appear the further the incident is investigated. In other words, the current picture of what has happened is almost certainly incomplete.

With this important caveat, McNair seems to have respiratory problems after participating in 10, 110-meter sprints in very warm weather (about 80 degrees). The sprints took place sometime between 16.30 and 17.00 o'clock. Seeing McNair's breathing and cooling problems, the training staff instructed him to follow up. At 17:57, 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 pm McNair was admitted to the emergency department of the Washington Adventist Hospital. Later that night, McNair was flown to the Cowley Shock Trauma Center in Baltimore, which is affiliated with the University of Maryland Medical Center.

After several treatments during hospitalization, McNair died on June 13th. Published reports indicate that the state medical examiner did not perform an autopsy. Among other things, this would mean that health professionals were likely to agree with the cause of death and that the cause was not considered suspicious. A lack of autopsy also means that a forensic pathologist did not investigate the organs in McNair's body, a point that could become legally relevant should there be a lawsuit over who was responsible for McNair's death.

McNair's family has stated that the cause of death is complication of heat stroke. As described by the Mayo Clinic, heat stroke is a medical condition in which the body becomes severely overheated, often up to a body temperature of 104 degrees or higher. If left untreated, a heat stroke can damage the heart, kidneys and other organs. At the time of his first hospitalization, McNair's body temperature was reportedly 106 degrees.

3. How would the lawsuit be filed and what would McNair's family demand?

McNair's family has retained a prominent lawyer from Baltimore, Billy Murphy. Murphy represented the family of Freddie Gray, the Baltimore man, whose death in police custody sparked a debate over prosecutors handling him and other African-Americans. Murphy, who is also a former district court judge, told ESPN that McNair's family is likely to file a lawsuit. Murphy also raised questions about why about an hour passed before the University of Maryland staff called 911 – a particularly annoying point as McNair seemed to suffer from heat stroke symptoms. Murphy also claims that McNair suffered a seizure after the sprints and while in the care of university employees (the university disputes this account). It is clear that Murphy's questions imply that university employees in the care of McNair were negligent and that such negligence has contributed to McNair's death.

Before filing a lawsuit, Murphy sent a letter of solicitation to Maryland's General Counsel (as well as the lawyer for other potential defendants, including the NCAA). There would then be a negotiation on whether the matter could be resolved by a financial agreement. The school would emphasize to Murphy that Walters Inc., a medical consultancy, has reviewed the circumstances that led to McNair's death. According to ESPN, the review of Walters Inc. is expected to be completed by September 15. Maryland would also stress that it has put the members of its training and strength and conditioning staff on vacation. In other words, the school would signal that it is seriously trying to get to the bottom of what has happened. In return, the school asked Murphy for patience before filing a lawsuit on behalf of the family. For its part, McNair's family does not have to file a lawsuit in the near future: the Maryland Law provides for a three-year limitation period for unlawful deaths.

If no agreement is reached, Murphy could eventually sue several parties on behalf of the McNair family. These include 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 physicians, doctors, and nurses). ,

If a lawsuit arrives, it would be for an unlawful death. The claim would claim that several parties in their care did not adequately act on McNair. For example, Murphy would argue that McNair should not have been asked or sprinted in such warm weather, and that Durkin and other coaches imposed unsafe training conditions. Similarly, Murphy may insist that the NCAA and Big Ten have failed to adequately monitor schools for compliance with acceptable heat and hydration guidelines. Murphy also questioned whether Maryland adequately monitored McNair's state of health prior to sprinting. McNair's treatment after the sprint would also be studied closely. Whether, for example, the McNair symptoms should have led to alternative treatments – including previous hospitalizations – would be controversial.

Murphy would also be inclined to deny any statements by Walters that tend to relieve the school. Murphy would point out that Walters was maintained by the school and thus is not independent. Murphy would probably retain his own group of experts whose conclusions could differ dramatically from those of Walters and the school.

Given McNair's young age and bright future, his family could demand several million dollars in a lawsuit. On the one hand, the Maryland Law covers pain and suffering for unlawful death and related survival claims of approximately $ 2 million. On the other hand, the state does not limit the damage caused by the economic damage. McNair's family could retain football experts to claim that McNair had a future NFL career and earned millions (in response, the defendants would insist that the projection of a future NFL career for McNair – a three-star) Recruit for rivals – speculative, especially) given that McNair had not yet proven he could play well at school).

4. What types of legal defense could Maryland apply?

If McNair's family sued, Maryland could argue that McNair's treatment was always followed by industry-standard protocols. The university would look for texts, e-mails and other correspondence suggesting that its staff had handled the situation appropriately. Testimony would also be critical. To this end, the school could imply that such an error has occurred to the extent that McNair's death reflects human error after McNair left the care of university staff (the decision to rely on such a defense made it difficult for McNair to be treated in a hospital connected to the university's medical system and the university was trying to blame it on a related entity to steer).

The university could also argue that it is immune from such a claim under the doctrine of sovereign immunity. Such a doctrine is recognized under Maryland law and prohibits many types of lawsuits against public bodies, including public universities, if they do not agree. There are exceptions to sovereign immunity, and under certain circumstances this may be waived, but it would probably serve as a defense to the school should it be sued.

Maryland officials would also regularly contact representatives of their insurance companies. Such companies often play a crucial role in injury litigation and death litigation.

5. Will McNair's death lead to criminal charges?

It is theoretically possible that McNair's death could lead to criminal charges, even though this would be an extremely unusual outcome. Even coaches who impose oppressive conditions on players have kept away from criminal charges. Prosecutors and grand juries often abstain from subjecting athletics to criminal law. This is partly due to the potential impact of the criminalization of coaching techniques, and partly to the heavy burden of being "beyond any doubt" necessary to convict someone of a crime.

An exception to the inapplicability of criminal law to the conditions of football training occurred in 2009 in the wake of the death of Pleasure Ridge High School (Louisville, Kentucky) in 2008. Gilpin collapsed after performing several wind sprints at temperatures above 90 degrees. He was hospitalized with 107 degrees body temperature and died a few days later.

Prosecutors sought and received reckless murder and willful charges from Gilmore's coach David Jason Stinson from the grand jury. The prosecutors argued that Stinson subjected Gilpin to a "barbaric conditioning" that was part of the effort to punish and tyrannize his players. They claimed that Stinson did not perceive any substantial and unjustifiable risk, and that this alleged failure was a gross departure from the proper care that resulted in Gilpin's death. The jury, however, did not find Stinson guilty. The Gilpin case, which in turn has led to an acquittal rather than a conviction, remains an exception to the norm that criminal law and football practices remain in separate universes.

It is therefore very unlikely that McNair's death will turn into a criminal matter. Nevertheless, the death of this young man has raised serious questions about the treatment of student-athletes and the extent to which the law should play a role in protecting student-athletes from unsafe conditions.

Jake Fischer contributed to this article.

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

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