Over the years, students have made various legal challenges to high school and collegiate athletic associations in an attempt to preserve participation in a sport, from claims of third–party beneficiary status (Oliver v. NCAA, 2008 CV 762 (Ohio Ct. of Common Pleas, February 2009)) to defense of athletic reputation as a protectable interest (Joscelin Yeo v. NCAA, No. 03–0753 (Texas 2005)). Recently, however, a new type of challenge has emerged: Injury as disability worthy of protection from discrimination. At least at the trial level, students can claim a victory.
After suffering a near fatal heat stroke during the second half of two–a–days football practice at Towson University in Maryland in August 2013, most people, including his treating physicians, thought Gavin Class should simply be thankful to be alive. The heat stroke led to Class' body temperature spiking at more than 108 degrees, causing him to lose consciousness and undergo massive organ failure.
Class' recovery was no picnic either, involving: a collapsed lung, cancer, loss of 100 pounds of weight, shingles, pancreatitis, appendicitis and pneumonia. After undergoing 14 surgeries including a liver transplant, Towson officials told Class that he could no longer safely participate on the college's football team.
Determined to return to the football field and compete, Class filed a disability discrimination case against his school in U.S. District Court in Maryland. Finding that his physical recovery was substantial, if not near complete, and the accommodations that Towson would have to provide to Class were not significant in either cost or effort, Judge Richard Bennett ruled that the university must allow Class to participate (the decision was stayed to allow for an expedited appeal, which Towson has indicated it is pursuing).
Note that Bennett's ruling does not guarantee that a coach will actually play Class; merely that he should be given the opportunity to compete for playing time.
As part of the accommodations requested, Class, an offensive lineman, will wear protective abdominal padding and will take a thermometer pill, which will allow a trainer to wave a wand near his abdomen and take his core temperature every five to 10 minutes.
Bennett, over Towson's objection, ruled that this would not strain Towson's manpower or resources, with the Class family offering to pay for the equipment and a trainer from the not–for–profit Korey Stringer Foundation performing initial medical monitoring as needed by the school.
The case (1:215–cv–01544) is now before the 4th U.S. Circuit Court of Appeals, which on Thursday granted a motion by Towson that would prevent Class from practicing with the school's football team until the appeal of Bennett's ruling is decided. Apparently, Towson's motion, which is being challenged by Class, includes evidence that was not previously provided in the hearing at the district level. Football practice starts Sunday.
If ultimately successful in getting the ban lifted, the precedential value of the Class case is not difficult to glean. If medical clearance is not given to a player to return to competition, and that player can provide credible medical evidence that refutes the denial of clearance, this case has provided a roadmap to potential success: allege disability discrimination.
Further, the current legal climate and public opinion have made a significant shift toward the rights of student–athletes versus athletic associations (see, e.g. O'Bannon vs. NCAA), along with a judiciary that is constantly continuing to turn over to the next generation of judges who have grown up with attitudes trending to inclusion regardless of disability, proclivity or lifestyle choice framed by everything from the Americans with Disabilities Act to Caitlyn Jenner.
While Towson's argument that it will not break from its commitment to student–athlete safety and well–being with the support of medical testimony would seem to be a slam dunk before a judge, inclusion at one's own risk may end up carrying the day.
Further, if Class is ultimately successful in his quest to return to the football field, having a life–threatening illness or injury that previously was an outright bar to participation may now simply be a minor setback as long as reasonable accommodations can be made by the school for the student, and the student executes a not–so–minor waiver of liability in the school's favor.