TRUST: THE COACH-YOUTH ATHLETE FIDUCARY RELATIONSHIP

ATHLETE VULNERABILITY AND THE FIDUCIARY COACH RELATIONSHIP

Athlete Clearance to Participate in Sports, Recreation, and Exercise (SRE) is an on-going series of examinations, beginning with the “Cleared to Participate” Status when the SRE begins on any level high schools and NCAA member colleges and universities. Injury Records must be maintained.

“Cleared to Participate” Status continues following injury. Only the Doctor or other Health Care Personnel can Clear an Athlete to Play SRE at any given time. “Cleared to Participate” is one of the main requirements for complete Eligibility to Participate in High School and College SRE. [2011-2012 Sports Medicine Handbook, NCAA, P.O. Box 6222, Indianapolis, IN, NCAA.org]

“At this time, 50 of 51 states (including the District of Columbia) require some form of physical evaluation before participation in sports at the high school level, of which some are legal requirements.” [Sports Physicals, Medscape, Jun 7, 2011, Anthony J Saglimbeni, MD; Chief Editor: Craig C Young, MD]

“The U. S. Court of Appeals for the Third Circuit in Kleinknecht v. Gettysburg College, 989 F.2d 1360 (3d Cir. 1993), held that a special relationship existed between a college and a student athlete that was sufficient to impose a duty of reasonable care on a college.35

Florida has imposed a duty on universities to protect their students in limited situations. The Fourth District Court of Appeal in Gross v. Family Services Agency, Inc., 716 So. 2d 337 (Fla. 4th DCA 1998), held that a university had a duty to students to use ordinary care in providing educational services and programs.36 In particular, the Gross court concluded that “[w]hile a person or other entity generally has no duty to take precautions to protect another against criminal acts of third parties, exceptions to this general rule have emerged, including the ‘special relationships’ exception.”37

Universities also are liable under other theories of negligence, including negligent hiring, retention, and supervision of employees (i.e., athletics staff).38 Therefore, the existence of a special relationship between a university and its students imposes a corresponding duty of care.39

Florida courts also have imposed a duty on public schools to supervise students placed within its care.40 In these cases, the courts have held that “a negligent failure to act in carrying out this duty of the school is actionable.”41 In carrying out the supervisory duty, a school, and its officials and teachers, “must use the degree of care ‘that a person of ordinary prudence, charged with the duties involved, would exercise under the same circumstances.’”42 A breach of this duty, furthermore, exposes a school to liability for “reasonably foreseeable injuries caused by the failure to use ordinary care.”43 The supervisory duty in Florida is based on the notion that the school is partially standing in place of the student’s parents.44

Similarly, the university has two primary duties to student athletes under a fiduciary relationship. First, the university has an implied duty to limit institutional conduct that unreasonably interferes with the student athletes’ ability to develop and participate athletically.45 For example, arbitrary and capricious conduct that interferes with an opportunity for student athletes to participate in intercollegiate athletics would be precluded under this duty.46 Second, institutional conduct which promotes its interests ahead of that of the student athlete, is prohibited under this duty.47

The referral of student athletes to sports agents by athletics staff for compensation specifically would be prohibited under this duty because of the coach’s conflict of interest.

[The Florida Bar Journal, University Liability in Florida When Coaches Refer Student Athletes to Sports Agents: A Fiduciary by Michael L. Buckner, April, 1999 vol. LXXIII, No. 4]

———————————————————————————–

“Breach of duty is part of a negligence lawsuit and the most important aspect in proving such an issue. If no duty was ever breached then no negligent damages are owed.

In a negligence lawsuit there are four elements to consider: duty, breach of duty, causation and damages. For breach of duty, it must be decided whether or not the defendant, the one being accused of negligence, behaved in a way that a reasonable person would have under similar circumstances. If no duty is owed then there is no negligence lawsuit.

To determine breach of duty’s existence, a determination is made as to the standard of care and an evaluation of the defendant’s conduct in reflection of that determined standard. If duty of care by the defendant can be proven, using the reasonable care standard, then negligence can be an issue. The defendant needs to have recognized the risks created by her or his actions and to understand what could happen from those risks taken. The general standard of care is then applied to the specific circumstances of the situation and the jury must establish whether the defendant’s conduct was negligent.

When the courts decide if duty was owed they consider the objective or subjective standard. Objective standard considers the defendant’s actions against a hypothetical reasonable person. With the subjective standard, the court considers whether the tortfeasor, the person who is allegedly negligent, believes her or his actions were reasonable. For example, if someone attempts to rob an elderly woman in a parking lot and she happens to have a gun and shoots her attacker, the objective standard would ask if a reasonable person would have acted the same way. In the subjective standard the courts would ask the elderly woman if she thought she was acting in a reasonable fashion.

Professionals are held to a higher standard of care than an ordinary reasonable person would be. Police officers, for example, must behave as a reasonable officer would do so rather than a reasonable person. The perspective of an officer would be different than an ordinary person and that difference matters in the court.

Occasionally, statutes, or laws, will decide the reasonable standard of care rather than the courts interpreting the behavior. When statutes determine the standard of care owed, violations would be called negligence per se.

If a plaintiff, the person alleging negligence, is unable to prove the defendant’s negligence because pertinent information is inaccessible, then the plaintiff can rely on res ipsa loquitur. What this means is that the act speaks for itself and needs no other information to determine negligence. But, in order to use this, the plaintiff must prove two things: the event which injured themselves only happens when negligence has occurred; the item or instrument which caused the injury was under exclusive control of the defendant and the plaintiff’s injuries were not due to their own actions.

The key factor to remember in considering negligence is whether the duty of care was ever owed to the plaintiff, by the defendant, and whether or not that duty was breached.”

[Defining Breach of Fiduciary Duty, Essorment, Your Source for Knowledge, Understanding the importance of breach of fiduciary duty in a negligence case will help you understand whether the complaint will be succesful]

Today’s Youth Athletes, primarily College and Olympic Athletes, are extremely vulnerable, because of the Power Gap that exists between them and the Coach, the College or Olympic Team.

Comparing and contrasting the Ancient Olympic Athlete and the Ancient Roman Gladiator helps place this concept in perspective.

“The Olympic Games reached their Zenith in the 6th and 5th centuries BC. The Olympic Games program now consists of 26 sports, 30 disciplines and nearly 300 events.”[Wikipedia]

“The ancient Olympics were based on a philosophy of balance between physical + athletic and spiritual + moral development that was a cornerstone of Greek democracy.”

“The Olympic games became a link, a bond between people of a common blood. The Games were seen as a way of fostering friendship among the warring Greek city-states with the aim of forming a nation.”

“The ‘Athletic Ideal’ was the motivation behind the original Olympic Games in ancient Greece. The “Athletic Ideal” is the primary legacy of the Olympic games. It is an ideology and legacy unique in the history of the world.”

“The goal of the ‘Athletic Ideal’ was ‘a healthy mind in a healthy body’. The ancient Greeks believed that the development of the mind, spirit, and body were linked, and that a well-educated person was instructed in all areas. An athletic victory was considered a credit to both the athlete’s physical and moral virtues. Physical training was valued for its role in the development of such qualities as endurance and patience.”

“The motivation was the development of a disciplined, devout, virtuous citizen of the democracy. The philosophy was that the success of self-government (democracy) depended on the moral character of the citizenry. This was a large part of the motivation for the combined athletic + moral training.”

“This goal demanded a holistic training of mind, body, and spirit. In ancient Greece athletics were an everyday part of all areas of life religion, education, society, the arts, and politics. Physical disciplines wove themselves into the very fabric of society, leaving no area untouched. This phenomenon is completely unique in world history. Ancient Greece was the birthplace of this ideology, the Athletic Ideal.” [OLYMPIC-LEGACY.com]

All Ancient Olympic Athletes were required to take an oath that they would observe all the rules and standards for Olympic Participation. In spite of the luxurious facilities offered to athletes, all had to remain amateurs. [Origin and History of the Olympic Games From Grolier On line’s New Book of Knowledge]

Ancient Olympic Athletes were treated well. They had entourages, trainers, coaches, and masseuses. Top athletes in antiquity were equivalent to modern day NBA stars. [The Ancient Olympics, by Howard Nowes, 11/19/2004]

Ancient Olympic Athletes certainly were not victims of Athlete Abuse. They were protected and revered not maltreated. Ancient Olympic Athletes were not vulnerable. Today’s NBA Stars are well treated and not abused by Coaches and other members of the Athletic Community, because they are not vulnerable. Similar to Ancient Olympic Athletes prestige, they have the wealth and power to reject maltreatment.
The Greecian Olympic Athletic Ideal is contrasted to the Ancient Roman Gladiators .

“Life was cheap during Roman times, and no one knew that better than gladiators – men pitted against one another in fights to the death for the viewing pleasure of both society’s elite and the masses.

Since Roman times gladiators and athletes have fought to the death and competed to the bitter end for societies’ elite and the fans.

Gladiators in ancient times lived and died by the impulses and fancies of their more powerful leaders. Even when they were victorious on the battlefield, all they won was the chance to fight and hopefully survive for another day.

College Athletes today face the same predicament.
[NCAA Sacked with Lawsuit Aligning conspiracy and Ant-Competitive Scholarship Practices, Steve Berman, Oct 26, 2010 Seattle PI]

“Gladiators of ancient times lived and died by the whims of those more powerful than themselves and even when victorious on the battlefield, all they ever really won was the chance to fight – and maybe survive – another day.[ NCAA Sacked with Lawsuit Alleging Conspiracy and Anti-competitive Scholarship Practices, by Steve Berman, Hagens Berman Oct. 26, 2010]

Gladiators were named after the Roman sword called the gladius. Gladiators were mostly individuals who were condemned criminals, prisoners of war and slaves. They had no Freedom. Some gladiators were volunteers (mostly freedmen or very low classes of freeborn men) who chose to take on the status of a slave for the monetary rewards or the fame and excitement.”

“Anyone who became a gladiator was automatically infamis, beneath the law and by definition not a respectable citizen.

All gladiators swore a solemn oath (sacramentum gladiatorium), similar to that sworn by the legionary but much more dire: “I will endure to be burned, to be bound, to be beaten, and to be killed by the sword” (uri, vinciri, verberari, ferroque necari, Petronius Satyricon 117).

“The gladiator, by his oath, transforms what had originally been an involuntary act to a voluntary one, and so, at the very moment that he becomes a slave condemned to death, he becomes a free agent and a man with honor to uphold” (The Sorrows of the Ancient Romans: The Gladiator and the Monster [Princeton University Press, 1993] 15).

Trained gladiators had the possibility of surviving and even thriving. Some gladiators did not fight more than two or three times a year, and the best of them became popular heroes (appearing often on graffiti, for example: “Celadus the Thraex is the heart-throb of the girls”). Skilled fighters might win a good deal of money and the wooden sword (rudis) that symbolized their freedom. Freed gladiators could continue to fight for money, but they often became trainers in the gladiatorial schools or free-lance bodyguards for the wealthy.

The manager of a gladiatorial troupe provided lengthy and demanding training in schools especially designed for this purpose and usually located near the great amphitheaters. During the imperial period all the gladiatorial schools in Rome were under the direct control of the emperor. [Gladiatorial Games, Belorussian Translation by Bohdan Zograf, Barbara F. McManus, The College of New Rochelle]

“Today’s college athletes face a similar dilemma. Though often lavished with adulation by college coaches and fans due to their extraordinary physical gifts, student-athletes are vulnerable, able to be cast aside like damaged goods due to injury or some other external circumstance beyond their control. [NCAA Sacked with Lawsuit Aligning conspiracy and Ant-Competitive Scholarship Practices, Steve Berman, Oct 26, 2010 Seattle PI]

Since Roman times gladiators and athletes have fought to the death and competed to the bitter end for societies’ elite rulers and the fans.

Gladiators in ancient times lived and died by the impulses and fancies of their more powerful leaders. Even when they were victorious on the battlefield, all they won was the chance to fight and hopefully survive for another day.
Many Youth, College and Olympic Athletes today face the same predicament as Gladiators. They are not like their Ancient Olympic counterparts.
[NCAA Sacked with Lawsuit Aligning conspiracy and Ant-Competitive Scholarship Practices, Steve Berman, Oct 26, 2010 Seattle PI]

“A fiduciary duty (from Latin fiduciarius, meaning “(holding) in trust”; from fides, meaning “faith”, and fiducia, meaning “trust”) is a legal or ethical relationship of confidence or trust regarding the management of money or property between two or more parties, most commonly a fiduciary and a principal.”

“In a fiduciary relation one person, in a position of vulnerability, justifiably places confidence, good faith, reliance and trust in another whose aid, advice or protection is sought in some matter. In such a relation good conscience requires one to act at all times for the sole benefit and interests of another, with loyalty to those interests,” the best interest at heart of the other person.

“A fiduciary is someone who has undertaken to act for and on behalf of another in a particular matter in circumstances which give rise to a relationship of trust and confidence. —Bristol & West Building Society v Mothew [1998] Ch 1 at 18 per Lord Millett

“A fiduciary duty is the highest standard of care at either equity or law. A fiduciary (abbreviation fid) is expected to be extremely loyal to the person to whom he owes the duty (the “principal.”

“A fiduciary must not put his personal interests before the duty ato the principal and must not profit from his position as a fiduciary. Otherwise there might result a breach of that fiduciary duty.

A fiduciary relationship is “one founded on trust or confidence reposed by one person in the integrity and fidelity of another.” A fiduciary has a duty to act primarily for the client’s benefit in matters connected with the undertaking and not for the fiduciary’s own personal interest. [Wikipedia]

“Scrupulous good faith and candor are always required. Fiduciaries must always act in complete fairness and may not ever exert any influence or pressure, take selfish advantage, or deal with the client in such a way that it benefits themselves or prejudices the client.” [Black’s Law Dictionary]

Youth Athletes are defined by the United Nations General Assembly as Athletes who are age 15 to 24. This group includes some High School, Elite, Olympic and College and University Athletes.

Youth Athletes are extremely reliant on universities, colleges, Olympic and other officials and Coaches. There is a Fiduciary Relationship and a Power Gap between those in charge and the Youth Athlete. Those in charge of Youth Athletes are in Power.

If all Student-Athletes sincerely wanted and played for education and love of the game and all Elite and Olympic Athletes participated for love of the game, the Fiduciary Duties and Power Gap would be lessened. Youth Athletes would be less Vulnerable Student Athletes and Olympians.

College Football, College Basketball and Olympic Athletes are the most Vulnerable of all Athletes. They are the most dependent on the Fiduciary Duties and most susceptible and defenseless in the Power Gap.

These Athletes are greatly reliant on extremely powerful, highly compensated Coaches and Others. Coaches of these Athletes are particularly powerful.

Often Admissions departments of schools have lower admission standards for Athletes than other students making them a more vulnerable group to Power and Fiduciary Duties than the mainstream class of students. For instance at “Duke, a school that prides itself on high academic standards for its athletes, scholarship athletes nevertheless maintain an average SAT score 400 points below regular students.”

“Many big-time collegiate Athletes, sadly, are simply not on par intellectually with their student peers.”

The socio-economic background of many Division I Football and Basketball Athletes increases their vulnerability. 11% (1/9) black male students at Division I Schools is a Scholarship-Athlete, compared to 2% (1/50) white male students.

Numerous Athletes believe that sports participation is a means of escaping poverty. “44% of black college athletes expect to play professionally.” However, less than 2% (2/100) of NCAA Division I men’s football and basketball players actually play professionally.

It is different for Student-Athletes who actually want an education. For this group, Coaches advertise a free education, a quality education and tools to succeed in life. This Student-Athlete is less susceptible to vulnerability. The Ivy League in the U.S. is an example.

The employer-employee relationship, concluded by analysis of applicable fiduciary duties, is the postulation. While the duties owed in an employer-employee relationship are typically set forth in contracts, a fiduciary duty analysis or the arrangement is appropriate if the employer is disproportionately powerful and reduces the employee to a lop-sided vulnerability and exploitation of the employee occurs. Exploitation in that regard gives rise to breaches such as disloyalty, failure to exercise due care and protection, commercialism and even fraud.

The Coach-Athlete relationship in some instances ascends to an Employer-Employee relationship after analysis of Fiduciary Duties.

When the pretense of an education is removed the relationship between Coach and Athlete is apparent. The Athlete is vulnerable. Coaches and schools pay athletes by giving them scholarships in exchange for athletic performance which generates school revenue, the almighty bottom line. Athlete Safety and Protection are potentially neglected, Athletes are perhaps Maltreated, Endangered, Harmed and Abused. Human and Civil Rights are possibly violated.

On one side are Student-Athletes who genuinely want a quality education and desire to complete their 4 year degree. They are capable of academic success. However, some Athletes are not capable academically on the College Education level. They become worse-off when they try.

Other less academically interested Athletes attend College and classes only after insistence by their academic advisors and Coaches. Because, rather than becoming educated, attendance is required for game participation and prospect of becoming successful professional Athletes.

Schools and Coaches are not able to offer, for the majority of Athletes, more than an education, the very reason for College and University existence, because odds are very long for becoming Professional Athletes.

For those who begin the sports profession, the odds are even longer for lasting any length of time and earning a financial livelihood.

In Real Life, in an Athletic Community where “winning isn’t everything it’s the only thing, Sports Violence and Youth Athlete Abuse are not far behind.” Athletes can expect:

• Athlete Vulnerability, Defenselessness
• Power Gap, Athlete Manipulation by the Coach
• Coercive, Forceful Coach Relationship over Athlete
• Potential Exploitation, Maltreatment, Endangerment and/or Abuse of Vulnerable Athletes
• Necessity to Endure for Another Practice and Game
[EDUCATING SOMEONE WHO CAN’T OR DOESN’T WANT TO BE EDUCATED: THE SHIFTING FIDUCIARY DUTY CONTINUUM OF BIG-TIME COLLEGE SPORTS By Richard Salgado]

The Breach of a Fiduciary Coach-Athlete Relationship is a serious violation and betrayal.

The Breach of the Fiduciary Duty is a failure to perform the legal and moral obligation owed to the Principal (Athlete) and a failure to act as required by the law and to exercise the care that a reasonable person would exercise in the same or similar situation. It is the failure of a fiduciary to fulfill the duties with a high standard of care. [Webster’s New World Law Dictionary]

Consequently, the Coach who violates Amateur Athlete Human Rights and causes Amateur Athlete Human Rights Disorders and/or allows any form of Athlete Racial, Ethnic, Religious, Social Harassment and/or who mismanages serious Youth Athlete Injuries, coercively persuades Athletes to “Play Through Injuries”, causes Emotional Depression from Verbal, Yelling, Emotional Abuse, is at Risk for investigation for potential Job Termination and Dismissal by College, University, High School, Olympic Committee, institution , league, societies and/or other authorities.

Additionally, any form of Physical and Psychological Maltreatment, Endangerment and/or Abuse and/or Sexual Abuse is at Risk for investigation for potential Job Termination and Dismissal.

Furthermore, the Coach is at Risk for Criminal Charges and Civil Liabilities.
___________________________________________________________________

The U.S. Supreme Court has ruled that sports participation consent to play a sport and waivers cannot void liability for gross negligence. Gross negligence is reckless, wanton or willful misconduct, not mere neglect. 100. [100. The Pinnacle, Friday, September 05, 2008 Liabilities and waivers for recreational activities By Ken Gorman Lombardo and Gilles]

The Center for Sports and the Law describes negligent supervision by a coach. The following are the 4 elements of coaching negligence:

1. A Duty of Care is owed; Duty not to expose players to unreasonable risk of injury.
2. The duty imposes a certain standard of care;
3. An injury or damage occurs;
4. And the damage or injury as a result of a breach in the standard of care. 21. [21. Coaches Report – Winter 2003 , Volume 9 Number 3, Part II: Dealing With Violence as a Legal Issue

Following Pre-Sports-Participation Examinations, Doctors are checking the box entitled “cleared to play” thereby clearing athletes to participate in sports in both proper and bad playing and sports participation conditions. That unprotected, exposed, vulnerable clearance by Doctors of Athletes to participate must cease.

Every doctor should add to their physical examinations over their signatures for clearance: “Only cleared to participate in sports that implement Athlete Standard Protection, Supervision and Duty of Care.

No Child or Youth Athlete should be cleared to participate in Sports that do not observe those Standards.

—————————————————————————-

Leave a Reply

Your email address will not be published. Required fields are marked *