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Original Issue


A liability waiver is a bad way to deal with an athlete's health risks

A dangerous precedent was set recently by Long Beach State University when the school agreed to let wide receiver Mark Seay rejoin its football team, the 49ers (SI, May 7, 1990). In October 1988, Seay, now 23, lost a kidney as the result of a drive-by shooting. Though completely recovered, he still has a bullet lodged in his chest, an inch from his heart. School officials originally ruled that Seay could not play for the team. Citing supporting medical evidence, they felt that football was too risky for someone with one kidney.

Seay hired an attorney to fight the school's decision. The case was scheduled to be heard this spring, but in March, Long Beach State agreed to let Seay play after he signed a liability waiver absolving the school of any responsibility if his remaining kidney was damaged while he was playing. Seay also agreed to wear a flak jacket on the field.

Said Seay, "I'm a young man. I want to live like one."

Long Beach State should not have settled the matter this way. By agreeing to the liability waiver, the school opened the door for other athletes with serious medical conditions to sign similar waivers and compete against the advice of their doctors.

In 1986, Dr. Milton Sands of New Britain, Conn., discovered that Tony Penny, a forward for Central Connecticut State's basketball team, had a heart irregularity and advised the school that he should not play. Two other doctors concurred with Sands's opinion. Penny wouldn't accept their decision and found other doctors to back his point of view. In 1988, the Connecticut state attorney general ruled that Penny could play as long as he underwent periodic cardiac tests and signed a liability waiver, and he rejoined the Blue Devils for his senior year. He also sued Sands for having interrupted his college basketball career, though he dropped the suit last December after going to England to play pro ball. On Feb. 27, at the age of 23, he collapsed during a game in Manchester and died. Said Sands, "I like being right, but I sure don't like to be right this way."

Ironically, Penny's death came barely a week before the death of Loyola Mary-mount star Hank Gathers. In December, after collapsing on a basketball court, Gathers had been found to have an abnormal heartbeat, but he was cleared by doctors to rejoin his team as long as he took a prescribed medication and was tested regularly. When he collapsed and died during a game in March, it was unclear whether Gathers, who had complained that the medicine made him feel sluggish, had been strictly following his doctors' orders.

What is clear is that some athletes want to compete no matter what the cost—including the risk to their lives. And that's why it's important that a school stand its ground and heed the counsel of medical experts. Even a parent can't always change a son's or daughter's mind.

For instance, Millicent Copeland does not want her son Ron, 19, to compete for Southern Cal's track team. Ron's 17-year-old brother, Kevin, died of a heart attack while playing in a high school football game last fall. Their father, Ron Sr., a former UCLA wide receiver and hurdler, died of a heart attack at age 28. After his brother's death Ron, a high hurdler, was given a comprehensive physical and a full complement of heart tests, which failed to reveal an impending problem. But the doctors also couldn't guarantee that what happened to Kevin and his father would not happen to Ron. The doctors, USC officials and Millicent Copeland have refused to allow Ron to rejoin the team. But Ron wants to compete, and he has been working out on his own.

"I know the risk might be death," he said a month after Kevin's death. "But we risk death every day, driving to school, sitting here right now. I could have some other kind of heart problem because I didn't work out."

It would be a mistake for USC—or any other school or track organization—to allow Copeland to compete, even if he signs a liability waiver. Doctors make recommendations for good reasons.

Furthermore, waivers don't always stand up in court. "To a sympathetic jury, a waiver is meaningless," says Frank Uryasz, director of sports sciences for the NCAA. "I understand how badly a kid wants to compete. But you have to be reasonable. Schools have to abide by medical rulings."

Young people don't always make the best decisions for themselves. By allowing someone with a known health risk to compete, a school may be helping the athlete make the worst decision of all.