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Durkin, Maryland could face negligence lawsuit, experts say

August 13, 2018

DJ Durkin was hired away from Michigan in 2015 to transform the Maryland Terrapins into a competitive Big Ten football program. Now a freshman player is dead, the coach is suspended and many in the state are wondering whether the university has lost its way.

This is not how the Durkin era was supposed to turn out.

Maryland placed Durkin and other staff members on leave Saturday in the midst of an investigation into the death of offensive lineman Jordan McNair in June and on the heels of an explosive investigative report saying the coach has created a “toxic culture” in College Park.

An ESPN report published Friday evening brought to light charges of verbal abuse and humiliation and the image of a strength coach who threw small weights in players’ directions. The report said the culture contributed to the death of McNair weeks after he collapsed during a team workout.

According to some anonymous sources cited in the report, McNair might have been fearful to speak up about feeling physically ill in a program where coaches belittled a player who passed out, mocked players who needed to lose weight and forced another to overeat until he vomited.

Wallace D. Loh, president of the university, said he was “profoundly disturbed” by the reports and called such actions unacceptable.

“Our responsibility as teachers is to inspire and enable students to perform at their best and expand the boundaries of their potential,” Mr. Loh said in a statement Saturday. “Humiliating and demeaning a student is not only bad teaching and coaching, it is an abuse of the authority of a teacher and coach.”

Maryland Gov. Larry Hogan, a Republican, supported the school’s move to suspend Durkin. Ben Jealous, the Democrat challenging Mr. Hogan in November elections, called early Saturday for suspensions of Durkin and athletic director Damon Evans.

Some feel that is not enough. On Sunday, McNair family attorney Billy Murphy called for Durkin to be fired.

Durkin, who is on paid leave, is the second-highest-paid public employee in Maryland. He made $2.5 million last year, according to the Baltimore Sun’s public salary database. Rick Court, the head strength and conditioning coach at the center of many of the abuse claims, earned $296,000.

If the McNair family files a lawsuit, they likely will bring charges of negligence or recklessness against the university and the individuals involved, including Durkin, sports law analysts told The Washington Times.

Because of the unique aspects of McNair’s case, a court might rule on whether the university can be held liable for “pushing athletes beyond their limit,” said Matthew Mitten, executive director of the National Sports Law Institute.

“This case could present very interesting, novel issues on which there’s not any clearly defined legal precedent,” Mr. Mitten said.

Durkin, Court and other staffers could be named as defendants in a lawsuit, Mr. Mitten said, but public employees in Maryland have qualified immunity to protect against ordinary negligence claims. The McNairs would have to prove that the coaches acted with gross negligence or malice.

Maryland hired the firm Walters Inc. to conduct an investigation, the results of which should be publicly released by Sept. 15, according to ESPN. That investigation may answer questions of how many athletic trainers were present and whether they were actively supervising the workout.

Barbara Osborne, a professor of sports administration at the University of North Carolina, said such information is critical to the case.

“In order for the family to win their case ... they have to prove that basically each of those people didn’t do what a reasonably prudent professional in their position would do in the same or similar circumstance,” Ms. Osborne said.

But the university would most likely settle such a lawsuit, legal analysts said, whether the investigation finds that negligence was involved or because it’s the best course of action from a financial and public relations standpoint.

It’s up to the NCAA if it wants to open its own investigation simultaneously, said N. Jeremi Duru, a professor of law specializing in sports law at American University.

“The NCAA would probably be looking to see whether the university and the athletic department have lost institutional control. If there’s a loss of institutional control, then that triggers certain penalties,” he said. “But it’s also conceivable the NCAA could step back and wait to see what the university’s investigation bears out.”

As for sanctions, the “death penalty” prohibiting the team from competing altogether is unlikely, Mr. Duru said. The NCAA has not given the death penalty to a Division I team since 1987, not even in the Penn State child abuse case.

The scandal nevertheless will overshadow the Terrapins’ 2018 season. It doesn’t help that their schedule opens with a high-profile game at the Washington Redskins’ FedEx Field on Sept. 1 against Texas, a nationally ranked team this season.

Offensive coordinator Matt Canada was named as interim head coach in Durkin’s absence. Maryland hired Canada in January, and he has not been linked to the behavior claimed in the ESPN report.

A current Maryland player told The Washington Times that he and his teammates “are working to collectively get through what is an incredibly difficult situation.”

The investigation and Durkin’s future are out of the players’ control, so all they can do is prepare to play.

“It’s important for us to focus on the upcoming season where we have big things planned, and that’s what we are going to do regardless of the external circumstances,” the player said. “They’re incredibly unfortunate and are not easy to ignore, but it’s out of our control and we won’t let it derail our season.”

Some current and former players, including running back Jake Funk, defensive lineman Jesse Aniebonam and linebacker Jermaine Carter Jr., tweeted messages supporting the coach over the weekend.

South Carolina coach Will Muschamp more forcefully defended Durkin, who was on Muschamp’s staff at Florida. He said the anonymous players ESPN quoted were likely disgruntled.

Former Terrapin captain Roman Braglio gave similar comments to The Sun.

The McNair family did not respond to a request for comment before publication.

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