The Problem with Sport Industry Standards

This article will be published shortly in a defense attorney publication, but I felt it was important to convey the concern associated with sport industry standards.

One of the most annoying issues faced by many defense attorneys are expert witnesses who highlight an alleged industry standard-that does not exist. This article will focus on some key steps to verify if alleged standards exists in the sport, recreational, and athletic fields. The article is based on serving as an expert in numerous cases and listening to or reading testimony from alleged experts who claim that a standard exists and are proud to highlight which organization produced the alleged standard. They possibly thought that if it is published, it is a standard. The problem with such an approach is that numerous alleged standards in the industry are inaccurate or not followed.

One of the problems is that there are not a significant number of government regulations in the sport industry. Some government standards exists for certain industries such as boxing commission rules or licensing requirements for a given industry. Pools are one of the most regulated facilities and states/municipalities typically have significant rules relating to everything from the number of lifeguards needed to water chemical and clarity requirements. Furthermore, some physical education regulations require testing or even indicate how student testing should be conducted. Outside of these easier to find and prove standards, the industry is like the Wild West. For example, there are numerous testing organizations offering licensure or certification for personal trainers. Without critically reviewing the actual education and certification validity, an expert could claim that a personal trainer could meet the industry standard of being certified. However, under scrutiny it could be proven that the trainer should not have been working with any clients since they did not have the fundamental skills that a majority of personal trainers possess. That has been the hallmark of an industry standard-what do a majority of similar facilities, entities, or individuals follow?

A majority of cases I handle deal with facility related concerns. This is an area fraught with inappropriate standards. I am on record at numerous trials and depositions that something is not a standard unless around seven out of ten facilities in a give area engage in that conduct. This “standard” would invalidate many published standards. The following represent just a sample of alleged standards that are not really standards.

Gym air quality
In one case in the south, a basketball player dove for a basketball and hit his head against another player’s knee. The injury spawned a significant paraplegia claim. The opposing expert claimed the gym violated the standards set fourth by the American College of Sport Medicine (ACSM). The ACSM has published a standards/guideline book since the mid 1990s and it is in its third edition. The standards are not developed through testing or comprehensive industry surveys, but by what some people working on the publication think is appropriate. Of course this is not a legal defensible manner of developing anything that can be claimed as a standard. The alleged standard that was violated was the facility’s humidity level and temperature were too high. Since I have written a textbook on sport facility management I knew that I had never seen any studies on this topic. I asked the book’s editor where the numbers came from and it turns out they were from a book on office buildings, which have a completely different engineering, ventilation system, heat load, and other significant differences. Upon examination, the opposing expert was not able to prove that there was a specific industry standard for gymnasiums that was violated.

Crowd Management
In several defense cases I have handled involving crowd misbehavior at stadiums and concert venues, opposing experts have claimed that the facilities had violate the standards of the National Fire Protection Association (NFPA). The NFPA does significant good for the facility industry and some of their standards for fire suppression systems are widely adopted by various public agencies/officials. However, not all their standards are universally accepted. The NFPA requires large facilities to undergo a Life Safety Audit if they utilize general admission seating. I thoroughly support having a detailed safety audit conducted for every facility. However, the requirements of the Life Safety Audit, if mandated by a local government official, is a daunting and comprehensive document that could take weeks to prepare. Through all my research into these audits, many facility managers have never heard of them, but also I have not been able to find a completed example-even after asking for one from the NFPA. Thus, can it be an industry standard when there are few if any practioners in the industry who even know how to comply with the alleged standard?

The NFPA standards, in my perspective, lost a significant amount of their perceived teeth when they were significantly changed after The Station fire in Rhode Island back in 2003. Prior to the fire some of the key safety standards applied to public assembly facilities with an occupancy load of over 1,000 people. However, after the fire the same standards were changed to apply to facilities with occupancy loads of 250. Does that mean that the initial “standards” were wrong and needed to be downgraded? If the “standard” was reduced 75 percent after one incident, does that cast doubt on all the associated standards?

Stadium Screening/Fencing

In my earlier years I had believed in some of the industry standards that were out there. One such standard was that there should be an eight foot high fence surrounding a baseball field. That standard was developed by the American Society for Testing and Materials (ASTM).
6.5.1 [T]he top of the fence shall be a minimum of 8 ft, 0 in. (2.44m) above grade or a greater dimension that ensures protection of spectators from a fouled line drive or related trajectory.
6.7.4 [T]he backstop height and width may vary depending on the type of ball being played, the size and height of the spectator area around it….The minimum width of the panels is dependent upon the structural design supporting the chain-link or net fabric.
7.3 [T]he spectator fence shall be located where spectators will congregate to
watch the game or in front of bleachers of an 8 ft height or of a sufficient height to
protect spectators at the highest point of the bleachers. Standard Guide for Fences
for Ballfields and Other Sports Facilities, AMERCIAN SOCIETY FOR
TESTING AND MATERIALS. F-2000-00a (2000).

My faith in the standard was significantly diminished when I discovered that the standard was not developed by experts in the baseball security area-such as facility managers, but rather by individuals in the manufacturing industry. Thus, people who have a potential bias to sell more fencing would be trying to require others to buy additional fencing to meet the standard. That is not why standards are developed. Standards are developed to protect an industry by showing what is done in an industry not what an external entity or group (except government entities) would like them to do. Needless to say, in all my years in the sport facility industry I have not seen a single field that has met this standard.

These are just a sampling of some standards that do not really exist. When exploring retaining an expert or challenging an opposing expert, focus on what proof they have that there actually is a standard. Can they prove that seven out of ten facilities, coaches, programs, etc… act in a given manner? If they cannot prove with tangible evidence that an industry acts in a given manner, then that standard is probably worthless. Similarly, when noticing an expert’s deposition it is beneficial to ask for production of any research that supports their opinions. If the expert is from an academic institution and they have conducted any research, you should also ask for any approval they might have received from their institutional review board. Many universities have such boards to approve research instruments/procedures to make sure they do not harm people/animals and that all questions/procedures are appropriate.

As highlighted in this brief article, there are a number of problems with some alleged industry standards. The problem also extends to uninformed or unscrupulous expert witnesses who will prey on attorney and jury ignorance to promote a “non-standard.” However, through aggressive discovery procedures and retaining an honest expert you can rebuff some of these “non-standards.”

Gil Fried is a Professor at the University of New Haven focused on sport and entertainment risk management. His consulting company, Gil Fried & Associates, LLC has been involved in some of the biggest sport cases over the past twenty years. He can be reached through his web page www.gilfried.com.