SPECIAL REPORT : A Question...

The 75 students at the annual Delaware Valley College sophomore class picnic consumed about six or seven half-kegs of beer in the course of an afternoon. But what else happened that day is muddled. All Donald Bradshaw remembers was leaving the picnic and waking up after a car accident that left him a quadriplegic.

Bradshaw, then 18, was a passenger in a car driven by another student, Bruce Rawlings. He sued Delaware Valley College, Rawlings and others for negligence, alleging that the college owed him a “duty of care” to control the drinking of its students.

A jury found in favor of Bradshaw, but a U.S. Court of Appeals in Pennsylvania reversed the judgment against the college, noting that the modern American college is “no longer an insurer of the safety of its students.”

The Bradshaw opinion has become a reference point for a number of subsequent cases involving a college’s legal obligation to its students, wrote Barbara Lorence in an article published in the Duquesne Law Review that used the Hank Gathers case as a premise. Lorence said there was no case precedent similar to that of Gathers.

“I set out researching the article with the idea that colleges should have a legal responsibility to its student-athletes, but what I found is that case after case shows that students are now held responsible for their actions and colleges no longer are considered as substitute parents, “ said Lorence, who works for a law firm in Pittsburgh.

Lorence concluded that Loyola Marymount University, where Gathers played basketball, “probably did not” have a legal obligation to stop its top scorer and rebounder from playing after his first collapse on the court, Dec. 9, 1989.

“What changed my mind was a case similar to Bradshaw where the court held that 18-year-olds who are not students are held responsible for their actions as adults,” Lorence said. “So why should an 18-year-old who has the luxury of attending college be given special consideration?”

Gathers died less than two hours after he collapsed on March 4, 1990, while playing in a postseason tournament game. The autopsy listed the cause of death as unknown cardiomyopathy, a heart disorder. He was being treated with medication at the time to slow a rapid heartbeat.

Still, Lorence says she wonders if Gathers was given all the information he needed to decide whether or not to play basketball.

“That’s something I guess we will never really know,” Lorence said.

With the courts’ modern perspective in mind, it came as little surprise that after two years of debate over who was legally responsible for the death of Gathers, the issue suddenly became a moral one.

The multimillion-dollar wrongful death suit filed by Gathers’ mother, Lucille, against Loyola was settled two weeks ago. Her attorney said that it would have been difficult to prove to a jury that the school had a legal responsibility to Gathers, but he stated unequivocally that the school had a moral responsibility.

Wayne Boehle, the school’s attorney, said the settlement of $545,000 was made because it made economic sense and was also the school’s moral obligation. Boehle stated unequivocally that the school had no legal responsibility.

Each side had its army of experts prepared to go to trial. Each expert had read through thousands of pages of pretrial testimony and then written a hundred pages more of opinion.

In the end, opinions are really all this case has produced. But those opinions have nevertheless unleashed varying degrees of impact and fear among college administrators and student-athletes throughout the country.

Brian Quinn, Loyola’s athletic director, suffered through the emotional loss of an athlete as well as two years of agony of being a defendant in the related lawsuits.

“It has made college administrators, doctors and many others fearful, fearful to treat people because of the litigious society in which we live,” Quinn said.

“It’s been hard, sad, at times embarrassing, and I would be lying if I didn’t admit that I’m scarred by it. Now, when I make decision, I am much more nervous than I used to be.

“I stand by my decisions, and we make good ones, but you are

used to making judgments based upon advice and research you do and get from experts. It’s still that way, but now, you wonder, ‘Gee, what else?’ ”

Suddenly, a defibrillator--a device that shocks the heart back to a normal rhythm and the centerpiece for the remaining litigation in the Gathers’ case--has become standard equipment in some athletic departments.

“Whenever these kind of situations occur, it clearly causes self-examination on the part of the institutions,” said Mike McGee, USC athletic director.

“What are our emergency procedures? Do we have a defibrillator and if we do, does it work? In our own situation, we found we were in good shape both in emergency procedures and in protocol related to the issue of doctors solely controlling the medical clearance to compete and practice.”

From another perspective, some athletes say the Gathers’ tragedy complicated their personal situations.

Stephen Larkin, brother of major league baseball player Barry Larkin, passed out during baseball practice at Moeller High in Cincinnati two days before Gathers died. Tests revealed he suffered from hypertrophic cardiomyopathy, a thickening of the heart walls. It is the most common underlying cause of arrhythmias--irregular heartbeats--leading to sudden death in athletes.

Gathers’ condition was different. He had a rapid heartbeat, but did not have a thickening of the heart walls.

“Moeller wouldn’t let me play, and the main reason was because of Gathers’ death,” said Larkin, who is a freshman on baseball scholarship at the University of Texas.

“Doctors said I had a 2% higher risk than other players of dying, but Moeller didn’t want to take the chance if something happened because they were afraid our family would sue them. So we went to court for a temporary restraining order to let me play (both football and baseball), but the judge wouldn’t grant it.

“All year long, I kept waiting to see if Moeller would let me play, and they kept saying they didn’t know yet. They did that until the end of the season.”

Before the incident, Larkin was recruited heavily by colleges. “But they all backed off, telling me they were waiting to see what Moeller was going to do,” Larkin said. In the end, only Miami of Ohio and Texas still wanted him. He chose Texas, ranked No. 6 nationally, and currently leads the team in batting.

How did this affect Larkin? “I don’t want to be a lawyer, I know that,” he said.

Larkin’s family offered to sign a waiver releasing the school of liability. The school’s opinion was that the waiver wouldn’t mean anything should a lawsuit result.

DeLoss Dodds, Texas’ athletic director, says his school has followed all the proper steps. “Stephen was cleared by our team physician and by a top cardiologist in town and that is being constantly monitored and he is being constantly tested as well,” Dodds said.

Mark Seay, the Cal State Long Beach football player who lost a kidney in a drive-by shooting, sued the university under the Federal Rehabilitation Act of 1973 when the school refused to let him play with one kidney. After months of pretrial litigation, the school agreed to arbitration.

“The agreement to arbitrate the final issue happened about the time that Hank Gathers died, so the papers sat on the chancellor’s desk because it was suddenly, ‘What are we getting into?’ ” said Richard Foster of Irvine, Seay’s attorney.

“As an attorney representing someone who is disabled you have to have some concern for what you are doing for your client. With Mark, I told him from the start that I was not going to do anything to get him back on the field if an expert says that just by participating his life would be in serious jeopardy.

“And Mark said if he was told that, he would drop the case and not even try to play.”

Seay successfully returned to play football and is now finishing his degree at Long Beach.

Joe Rhett, who was a senior basketball player this season at the University of South Carolina, also says his situation was complicated by Gathers’ death. Two weeks before Gathers died, Rhett, at 19, had a pacemaker installed. Rhett said that because of Gathers death, he spent so many months in meetings with lawyers and doctors that he missed preseason conditioning and then spent the remainder of the season trying to catch up.

And in January, on the day that Oregon State basketball player Earnest Killum was buried after suffering a stroke, Rhett collapsed while playing in a game. This time doctors found a rapid heartbeat, and Rhett knew that his chances to return were slim. In the end, he said it was his choice to quit playing while doctors found medication to control his arrhythmia. But had he not made the decision to quit, it is believed the university would have made the same decision for him.

“Gathers’ death made everybody more sensitive to tragedy--that it could happen to all of us,” said Wayne Wright, Pepperdine’s athletic director. “But Pepperdine has never had to refuse a student playing status. We are fortunate we have never had a serious problem of any kind.”

Months before Gathers’ death, USC was confronted with its own tragic situation. Kevin Copeland, the 17-year-old brother of USC track star Ron Copeland Jr., died of a heart attack while playing in a Dorsey High football game. Copeland’s father, Ron Sr., also died of a heart attack, when he was 28.

After Kevin’s death, USC had Ron examined by a number of cardiologists, none of whom found conclusive evidence that he shouldn’t play. But on the basis of Copeland’s family history, Ron’s scholarship was continued but he was removed from the team.

“We would have never forgiven ourselves if we would have allowed him to play and something would have happened,” USC’s McGee said. “It was a very difficult situation. But it was a decision we have never looked back on.”

That decision, however, might become easier for athletes to challenge. The Americans with Disabilities Act, a federal law passed two years ago that is currently being implemented, might limit a school’s ability to deny a student with a disability the right to compete in athletics. Currently, school administrators are attending seminars to learn more about it.

“It is something that administrators need to look into in order to determine the applicability of it to high school and college athletics,” said Jim Gray, of the Sports Law Institute at Marquette University.

Kent Waldrep’s neck was broken when he was tackled and landed head first on artificial turf playing football for Texas Christian University in 1974. His subsequent lawsuit against the school and the artificial turf company took nine years before it was settled out of court.

Now, Waldrep, who is vice chairman of the National Council on Disability, is suing TCU again. This time he’s suing for workers’ compensation filed on the premise that athletes are employees of universities, hired to play sports.

“Scholarship athletes are indeed employees of the university,” Waldrep said. “If you don’t play the sport, you lose your scholarship. This would be a precedent-setting case if we can get a positive ruling.”

Bruce Fagel, Lucille Gathers’ attorney, also says that a university’s duty to athletes on scholarships transcends moral responsibility.

“The law does see an 18-year-old as an adult,” he said. “But the problem with that is that student athletes--especially inner-city athletes that are thrust into the big city far away from home--are taken care of, that is what these school boosters do.”

Fagel had an additional problem: proving that Lucille Gathers was financially dependent on her son, a requirement for her to sue for wrongful death.

“The payments made to Hank and then to Lucille were in cash--and then there was the car and apartment--and the principals deny giving Hank money,” Fagel said.

A television movie on the life of Hank Gathers is currently being shown across the country. It will be broadcast in Los Angeles on April 22.

Not by accident, the movie, titled, “Final Shot: The Hank Gathers Story,” ends with screams at the hospital and the family in tears when they are told Gathers is dead.

The producer, Jim McGillen, somehow managed to avoid raising or answering any of the questions surrounding the basketball star’s death. There is no litigation, no accusations. Instead, viewers are treated to a boy who grows up holding a basketball and longing for the day he will be drafted as a lottery pick by a professional team.

If only it were that easy.