4th Circuit halts Towson U. football player’s return to field

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A federal appellate panel has granted a stay of a judge’s decision that would have allowed a Towson University football player to return to the field after suffering a near-fatal heatstroke.

The ruling raises the possibility that Gavin Class, who only a few days ago was celebrating his trial-court victory, will miss out on the upcoming football season after all.

U.S. District Judge Richard D. Bennett ruled earlier this month that Towson could not ban Class from playing football but stayed the decision to give the university the opportunity to appeal.

Towson filed a motion for a stay of judgment pending appeal on July 24, which the 4th U.S. Circuit Court of Appeals granted Tuesday in a 2-1 decision.

“It’s very frustrating,” said Andrew Dansicker, one of Class’ lawyers. “It’s bad for Gavin and it’s bad for the team that the university has decided to fight what should be a very inspirational story.”

Tuesday’s stay was issued pending further order of the 4th Circuit, which Steven M. Klepper, an appellate lawyer for Class, believes means his client should be able to request reconsideration.

Regardless, Class’ lawyers will file for an expedited appeal to attempt to accelerate the process due to the impending start of football season.
The Towson football team begins practice Aug. 6, and the Tigers’ first game is Sept. 5.

When asked if playing Class could play this year, Klepper said, “We will try the best that we can.”

Traevena Byrd, general counsel for Towson, did not respond to a request for comment Tuesday afternoon.

Class collapsed on the field during practice two years ago and required a liver transplant but has since been cleared by his doctors to play football with accommodations, including monitoring his core body temperature during practices. He sued the university earlier this year, alleging that the school violated the Americans with Disabilities Act and the Rehabilitation Act by refusing to allow him to play again.

Towson argued at a hearing July 14 in U.S. District Court in Baltimore that its own doctors have the final say on when an injured student can return to competition.

In its motion to stay the judgment, Towson maintained that there were no conditions that would adequately ensure Class’ safety and that the suggested accommodations would place an undue burden on the school.

Regulating Class’ core body temperature would require Class to swallow a tablet that would transmit his core temperature to a handheld device a trainer would operate by pointing it at him for a few seconds every five or 10 minutes.

‘Fundamentally unfair’

The university also attached affidavits to its appellate motion, including from two witnesses who did not testify at trial and three witnesses who testified beyond the issues they spoke to at trial, according to Dansicker, of the Law Office of Andrew M. Dansicker LLC in Hunt Valley, who represented Class at trial.

Dansicker said he has never seen additional testimony submitted since the appellate court must base its decision on a review of what happened in the lower court without supplemental information.

“It’s fundamentally unfair,” Dansicker said, adding the 4th Circuit is traditionally very strict about prohibiting new evidence on appeal.

Alan Brody, a spokesman for the attorney general’s office, said Wednesday the Federal Rules of Appellate Procedure permit a motion to stay pending appeal to be based on “matters outside the trial record.” The attorney general’s office is representing Towson on the appeal.

“We appropriately relied on affidavits, including those from three Board-certified physicians, attesting that Mr. Class’s participation in the University’s football program would place him at an unacceptable high risk of serious, potentially fatal injury,” he said.

Klepper, a partner at Kramon & Graham P.A. in Baltimore, said he hopes the 4th Circuit may reinstate the injunction after reviewing the full transcript of proceedings from the trial court, which is expected to be available by Friday.

“We think that the state misrepresented what the testimony was below and once the 4th Circuit sees the trial transcript, it will be willing to reconsider,” he said.

The appellate case is Gavin Class v. Towson University, No. 15-1811.