Introduction

Horror stories of outlandish behavior by coaches in the sport milieu: many have heard the stories, to one extent or another. Many have personally dealt with the accompanying emotions of dread, humiliation, discrimination, and fear that coaches have imposed during practices and games. Many have suffered immeasurably while helplessly watching their child endure torment at the hands of an abusive coach or coaches. Many have asked the same questions: What can be done? What good can possibly come from garnishing discussion with the coach, athletic director or administrator? Will the ordeal continue with new vigor because the problem was brought out into the open? Parents often struggle with these types of questions, wavering in a sea of indecision, wishing for easy solutions to unfortunate situations. And so the questions remain: what can be done; are there potential solutions; and where can one seek advice?

Assuming that the parties involved have exhausted all possible common sense remedies such as speaking directly with the coach and/or the administration, the logical next step would be to turn to tort law within the legal system. A tort is defined in The American Heritage Dictionary of the English Language (1982) as “a wrongful act, damage, or injury done willfully, negligently, or in circumstances involving strict liability, but not involving breach of contract, for which a civil suit can be brought” (p. 1280). According to the Free Online Law Dictionary (2009) a tort has three elements that a plaintiff must ascertain in court. First, it must be established that the defendant be under a legal duty to act in a certain way. Second, it must be shown that the defendant breached this duty by failing to match his or her actions accordingly. Third, it must be shown that the plaintiff suffered injury or loss as a direct result of the defendant’s breach.

The difficulty faced by courts considering sport related tort cases in regards to coaching behaviors is to distinguish an exact point where coaches have crossed the line. Because the alleged abuse is emotionally centered, it is difficult to discern emotional abuse from coaching tactics used to motivate athletes to perform at higher levels. Tort law that specifically targets this type of behavior is intentional infliction of emotional distress (IIED).

IIED is a tort claim that focuses on intentional conduct resulting in extreme emotional distress which causes a mental reaction such as anguish, grief, or fright in response to another person’s actions that brings about recoverable damages. According to Personal Injury Law (2009), to successfully prove a claim for IIED, one must establish four elements: the defendant acted intentionally or recklessly; the defendant’s conduct was extreme and outrageous; the defendant’s act is the cause of the distress; and the plaintiff suffers severe emotional distress as a result of the defendant’s conduct. Unfortunately, these four elements consist of ambiguous wording including such terms as reckless, extreme, outrageous, and severe that attempt to describe defendant actions. Elusive terms such as these have helped to create a confused tort that means “entirely different things to different judges” (Russell, 2008) resulting in wide-ranging court decisions and ones that are difficult to win.

Purpose

The purpose of this paper is to identify and assess the elements of intentional infliction of emotional distress (IIED) and discover legal precedent. An attempt will be made to uncover potential solutions, if any are to be found, that can be employed when confronted with the unfortunate events that surround IIED within the sport environment.

Significance

Understanding the elements of intentional infliction of emotional distress will benefit athletic directors, coaches, athletes, parents, spectators, team owners, commissioners, and others associated with sport. It is essential to appreciate the legal aspects of sport because unique situational variables will inevitably arise in the sport milieu. Garnishing an appreciation of past legal precedent can benefit those suffering from the anguish created by IIED. Recognizing potential solutions can be a comfort to those directly and indirectly involved.

Review of Literature

Intentional Infliction of Emotional Distress

Intentional infliction of emotional distress (IIED) is a tort that was created to address the threat of emotional harm that results in extreme emotional distress. IIED is also referred to as the tort of “outrage” because the defendant’s conduct is so extreme that it produces the response “outrageous!” from an average member of the community (Rapp, 2008). Outrageous behavior must be conduct that is atrocious and beyond the standards of a civilized society.

To characterize conduct that is “extreme and outrageous” and consequently meet the second element of IIED, one must determine what types of conduct would go beyond all reasonable bounds of human decency. The Legal Aid Society of San Francisco (2009) notes that “outrageous conduct does not include annoyances, hurt feelings, insults, rough language, or bad manners that a reasonable person is expected to endure.” This statement begins to provide advice to those suffering emotional distress at different levels; the law is not intended to handle frivolous claims. Although the emotional distress may not seem frivolous to those involved, the courts take a look at the severity of the distress including the intensity and duration to meet the fourth element of IIED. Severe or extreme levels of emotional distress must be long lasting and of the nature that no reasonable person is expected to endure. Severe or extreme levels may consist of highly distasteful emotions such as fright, grief, shame, humiliation, embarrassment, anger, or worry. Behavior that breaks criminal law would automatically meet the “extreme and outrageous” standard.

The first element of IIED points to the intentionality of the infliction of emotional distress. To meet this element, the defendant must conduct behavior that is pre-meditated and intended to cause harm rather than simply demonstrate mean-spirited actions. Ultimately the courts have the final say as to what is “extreme and outrageous” since case law has not provided an exact definition. The LSU Law Center’s Medical and Public Health Law Site (2009) points out that Missouri courts have stressed in Viehweg v. Tanny that a defendant’s conduct must be “more than malicious and intentional…and liability does not extend to mere insults, indignities, threats, annoyances, or petty oppressions.” It then stands to reason if the first element is established as a result of the defendant’s intentional conduct, then the third element (the defendant’s act is the cause of the distress) is also established.

Ambiguity

The ambiguity of the tort of outrage may open a window of doubt by giving a person enough skepticism to wonder whether the legal system can provide relief. Michael P. Ehline, Personal Injury Attorney (2009) provides a vivid example in his video clip that may give a bit more insight into what exactly is an “outrageous” situation. His example describes a circumstance where a person can claim IIED. If an individual’s child is attacked and killed in front of them by a person with ax, then claiming IIED is appropriate. This illustration gives us a graphic example of what type of heinous behavior would constitute as an utterly intolerable action in a civilized society. Other examples would include watching a child die in an accident from a distance or receiving a letter from someone falsely claiming that a parent, child, sibling, or spouse had died. These examples are ones in which the emotional distress is a reaction to some type of gruesome event or a horrible incident occurring in a violent situation. These examples help to put the tort of IIED into perspective. The majority of emotional distress that many have endured is not compensable.

Gap-filler

Over the years, the tort of IIED has become a “gap-filler” according to the Texas Supreme Court (Intentional Torts, 2009). The gap-filler’s purpose is to supplement other forms of recovery by providing an answer for barbaric conduct that might otherwise go unresolved. In other words, IIED is to be claimed only when more established tort doctrines are not applicable and the intentional harm is so severe that the plaintiff has no other means to rectify the situation. Thus IIED is a “gap-filler” as it can never overlap another tort.

Accepting that IIED is often characterized as a “gap-filler” and used very rarely only whenever the emotional distress is so extreme and outrageous, it makes one question if this tort can be of any help at all when it comes to dealing with abusive coaches in the sport milieu. As noted earlier in the case of Viehweg v. Tanny, IIED liability does not include mere insults, indignities, threats, annoyances, or petty oppressions. Also previously noted is the fact that outrageous conduct does not include hurt feelings, rough language, or bad manners that a reasonable person is expected to endure. Because the legal system is designed to address wide-ranging, ambiguous situational behaviors, one may never know if their own personal circumstances are behaviors that a reasonable person is expected to endure, unless the case is taken to the courts. The conduct endured may turn out to be extreme or outrageous in the eyes of a jury.

“Outrageous” Cases

It is pertinent to discover court cases that have dealt with claims of outrageous behavior to gain a better understanding of legal precedent. One case described by Simon (2009) recently met the definition of “outrageous” when a claim for IIED concerned an employee that was abused at work. In the case of Rothwell v. Nine Miles School District, the plaintiff, employed as a custodian, was ordered to clean up the mess of a suicide victim of whom she knew personally. Prior to cleaning up the mess, which included gruesome remains of the deceased, Rothwell was ordered to go through classrooms to look for bombs. At the suicide scene, she had found a book bag of which she began to open the contents until the police told her to stop. A little later, she watched the bomb squad detonate a bomb that was found in that same book bag and learned that there was another bomb also detonated at the football field. Rothwell became sick from post traumatic stress disorder (PTSD) and won her case due to emotional distress that was intentionally inflicted as a result of the District and Superintendant’s actions.

In a recent sports related case, a Kentucky high school head football coach, David Stinson, has been indicted on the charge of reckless homicide for the death of one of his players. On August 20, 2008, 15 year old Max Gilpin collapsed at practice from heat stroke and died three days later (FindLaw, 2009). Allegations were made in the case that the coaching staff denied the players water breaks on a day with a heat index of 94 degrees. Truman (2009) stresses in his blog that coaches “use denying water as punishment and somehow they feel the kids need to tough it out” and feels that this type of behavior is “inexcusable recklessness.” Even though the case was criminal in nature, one can imagine the emotional distress the athletes endured on that extremely hot day. Not to mention the distress of watching their teammate collapse and eventually die from heat stroke. If the coach punished the athletes by denying them water on a hot day, one can only imagine other kinds of emotionally distressing tactics that may have been put into practice with the team. In this case, the coach was caught utilizing these kinds of tactics through the untimely death of Max Gilpin.

A recent, well-publicized sport case between Major League Baseball pitcher Roger Clemens and his former trainer Brian McNamee actually did involve an IIED claim. Clemens claimed that McNamee fabricated the pitcher’s steroid abuse in an account that appeared in Senate Majority Leader George Mitchell’s 409 page report on the illegal use of steroids and other performance enhancing drugs. Clemens alleges that the untruths spoken by McNamee caused him severe emotional distress. Rapp (2008) suggests that there is one thing that McNamee did that might successfully make one claim the response of “outrageous!” Rapp avows that McNamee “kept dirty bandages, and Roger’s bodily fluids, in sealed bags for years, just in case he might need them later.” This type of behavior is, admittedly, highly unusual and disturbing. So much so that one can see the logic in making an IIED claim in this sport case.

These three lawsuits, the Rothwell, Gilpin, and Clemens cases, are three examples where one can easily see behaviors that were extreme and outrageous. A large amount of litigation that center on IIED claims contains elements that are more ambiguous in nature and are difficult to prove. Taking a look at successful and a bit vague IIED court cases, although not sport related, will provide a deeper understanding of legal precedent.

Successful ambiguous cases

Litigation victories for cases claiming IIED are not abundant especially in the sport venue. IIED claims that have awarded large sums of money for emotional distress establish precedent and provide background knowledge for future, potential litigation. The following two cases are extremely different, yet both show aspects of emotional distress that was severe and invasive.

The first case involves a civil suit brought forth by the plaintiffs regarding outrageous behavior of their next door neighbor. The case, Efros, et al., v. Giles, awarded the plaintiffs $350,000 for their claim of IIED. Giles was already criminally charged with aggravated stalking, malicious destruction of property, and malicious annoyance by writing (Verdicts & Settlements, 2008). Police discovered Giles to be the source behind the anonymous graphically suggestive and threatening letters directed toward the plaintiffs and also the vandalism of their home where Giles had thrown rotting fruit, eggs, D-cell batteries and feces. He also smeared feces on the automobiles in their driveway. For this behavior, the plaintiffs won their IIED claim as they stated they have been forever changed by Giles’ behavior which caused their severe and continual emotional distress. This case does show extreme criminal actions of which the defendant was sentenced two to five years in prison; however, it also shows that individuals can lean on the legal system when dealing with extreme and outrageous behavior of this sort.

The second civil court case finds a former high school teacher awarded a monetary amount for her IIED claim. Janis Adams alleged that administrators did not take proper action when an underground student newspaper made crude assertions about her (Walsh, 2002). The newspaper included articles written about Adams as a porno star and made vulgar references about the teacher and members of her family. Ms. Adams claimed that although preliminary disciplinary action was taken up with some of the students involved, school administrators did nothing to stop the distribution of the newspapers on campus. As a result, she was subjected to a severe, outrageous, and offensive work environment, which the administrators failed to remedy. Ms. Adams was awarded $1.1 million for lost earnings and $3.25 million for the IIED claim – totaling an award of $4.35 million.

Both of these unique cases show that it is possible to receive monetary damages for the intentional infliction of emotional distress. Although each case dealt with extremely different issues, together they show that individuals in society are not expected to deal with such outlandish behavior that causes emotional distress.

“Something more”

After a thorough review of legal precedent, one can begin to compare the emotional distress that is occurring within their individual sport milieu to determine the next step to assuage the problematic situation. If it is determined that the behavior of the one in charge (typically the coach) is bringing forth harmful consequences, then one is encouraged to seek legal counsel and sue for damages under the tort of IIED. However, if it is determined that the behavior is simply not bizarre enough to claim outrage in a civilized society, then court costs may not be worth incurring litigation.

Determining that legal recourse is not a viable option and assuming that the coach’s behavior is not going to change because all efforts have led down a windy path to nowhere, there must be “something more” that one can do to handle an oppressive situation. Each scenario will be different than the next and that “something more” solution will vary from case to case. Simply stated, there are no easy answers. It all boils down to making a determination as to what one can and cannot control.

Summary and Conclusions

Restatement of the Purpose

The intent of this paper is to identify and assess the elements of intentional infliction of emotional distress (IIED) and discover legal precedent. An attempt will be made to uncover potential solutions that can be employed when confronted with the unfortunate events that surround IIED within the sport environment.

Summary

The tort of intentional infliction of emotional distress is designed to bring about recoverable damages for those who have suffered from mental anguish, grief, or fright in response to another person’s actions. The elements required to prove an IIED claim include ambiguous terminology that have resulted in wide-ranging court decisions. IIED, also designated as the tort of outrage, must include conduct that goes beyond all reasonable bounds of human decency. Because case law has not provided an exact definition of outrageous behavior, the courts must decide if the behaviors are severe enough to win an IIED claim. In review of successful case law, the wins demonstrate that individuals in a civilized society should not have to deal with emotionally distressing, outrageous behaviors. On the other hand, drawing the line between “extreme and outrageous” emotionally distressing behaviors and finding potential solutions outside the legal environment is not an easy matter.

Conclusions and Potential Solutions

When dealing with emotionally distressing coaching behaviors, an individual should review legal precedent and seek legal counsel if the behavior is deemed as severe and outrageous. Already formulating that one cannot control the coach, there are two potential solutions if legal action is not a viable option: to quit and do something else or to find a way to deal with the abusive situation. Choosing to remain on the team and deal with an unfortunate situation is not easy. It has already been determined that to make an IIED claim, outrageous conduct does not include mere insults, indignities, threats, annoyances, and petty oppressions. A coach that utilizes tactics such as these is truly not worth the accompanying mental anguish, yet many individuals love the sport so intensely that they cannot dream of quitting. If this is the case, one must turn to positive psychology to find a way to handle emotional distress that will inevitably be encountered.

Individuals may not be able to control the coach, but they can control personal reactions to bad coaching behaviors. Athletes (and often their parents) need to develop a mental strategy to cope with emotionally distressing situations. There are two strategies that can be employed to develop a personal mental plan. The two tactics are: 1) determining psychological type for self-understanding, development, and problem solving; and 2) utilizing cognitive strategies by accepting the importance of positive expectations and implementing positive self-talk.

The first part of the mental strategy is to determine psychological type by taking the Myers-Briggs Type Indicator (MBTI). The MBTI is a self-report questionnaire designed to provide feedback to enhance an understanding of personal self, motivations, natural strengths, and potential areas for growth (Myers, 1998). The MBTI, based on Carl Jung’s theory of personality and further developed by the mother/daughter team of Myers and Briggs, provides an individual with one of sixteen personality preference scales. Each of the sixteen types consist of a four letter personality preference code which can help an athlete understand the following: the way one prefers to focus their attention and energy; the way one prefers to take in information; the way an individual prefers to make decisions; and how one orients themselves to the external world. With this information, athletes can learn more about themselves. The type code allows an athlete to see their characteristics, view how others may see them, and identify areas of potential growth. In a perfect world, it would be nice to know the personality type of the coach or coaches to gain a better understanding of the characteristics frequently associated with his or her type. Even without this information, one can study the sixteen types and attempt to match characteristics of the coach with a particular type. Empowered with this information, athletes can better understand themselves and in the process begin to understand others around them – specifically to recognize and attempt to understand the coach’s behavior. Having this type of insight won’t completely take away the emotional distress factor, but it might soften the edges of the hurtful words or behaviors.

The second part of the mental strategy is concerned with cognitively appreciating the importance of positive expectations and utilizing positive self-talk. To prove the essence of positive expectations, Waitley (1978), conducted interviews with “winners” from various fields of endeavor. He then grouped the characteristics of the “winners” into categories of five “attitude qualities” which include positive self-expectancy, self-image, self-control, self-esteem, and self-awareness. These five “attitude qualities” are found within the self-talk of winners – no matter what circumstances come their way. With practice, athletes can internalize all five positive attitudes, which in turn affect positive expectations of self. To restate once again, athletes may not be able to control their coaches, but they can control their own state of mind when dealing with bad behaviors by incorporating cognitive strategies. In emphasis, Singer (1980) claims that implementing a cognitive (or mental) strategy can favorably affect one’s emotions, such as reduce anxiety, focus attention, maintain concentration, and cope with stress.

Concluding Statements

The tort of intentional infliction of emotional distress (IIED), otherwise known as the tort of outrage, is a viable legal option. Although the tort is not set up to handle frivolous claims, it is frustrating that the majority of emotional distress is not compensable. To be subjected to bad coaching behaviors with very little opportunity for recourse is extremely maddening to all involved. Is one supposed to chalk up the negative experience as a good life lesson – teaching the principle that “life’s not fair?” Is one supposed to simply deal with bad behaviors until something drastic happens like the untimely death of Max Gilpin? Other than the legal option of claiming IIED for extreme and outrageous activities, there are only two other viable solutions: to quit the sport and attempt to move on; or dig down deep into the trenches and develop a mental strategy in an effort to maintain sanity. Regrettably, either option is heartbreaking when one is submersed in a very unfortunate situation.

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