OC Register: Details of Tyler Skaggs’ death cast further legal questions over Angels

[AngelsWin.com]

In the wake of a report that an Angels media relations official provided drugs to Tyler Skaggs for years before his overdose, legal experts say the Angels might face repercussions, but it won’t be an easy case to make.

Eric Kay, a member of the media relations staff for 24 years, reportedly told Drug Enforcement Administration investigators that he purchased illegal opioids on behalf of Skaggs for years, and they used them together. Kay also reportedly gave the DEA names of five other players he believed used opioids while with the Angels, although they have not been identified.

Kay, who has been on paid leave from the Angels since shortly after Skaggs’ death in July, is subject to criminal charges for his part in purchasing illegal drugs.

The larger question, though, is what the legal implications might be for the Angels, and that’s not so simple.

The Angels have distanced themselves from Kay with a blanket denial that anyone in the organization had any knowledge of Skaggs or any other players using drugs. While the DEA continues to dig for the truth, lawyers for Skaggs’ family and officials from Major League Baseball are waiting to see if anyone beyond Kay should be disciplined.

Given the normal timeframe for such investigations, any decision on a wrongful death lawsuit from Skaggs’ family would come well into next year, at the earliest. Skaggs’ family hired noted Texas lawyer Rusty Hardin.

A handful of legal experts said on Monday the Angels could theoretically be held liable – and therefore subject to pay Skaggs’ family millions of dollars – but there are several steps before that could be considered.

Even if a suit is filed, the most likely outcome would be a settlement, because neither side would be eager for a trial.

“An intensely public entity like a professional sports team has some considerable interest in this not being a story,” said Paul H. Haagen, co-director of the Center for Sports Law and Policy at Duke University “They want to talk about Mike Trout, not drug use.”

Skaggs was found dead in his Southlake, Texas, hotel room on July 1, and the medical examiner ruled that he had choked on his own vomit after ingesting a deadly combination of opioids oxycodone and fentanyl, along with alcohol.

Law enforcement officials have said all along there was no evidence that anyone else was responsible for Skaggs’ death to the point of a murder or manslaughter charge. However, civil liability has a much lower bar.

In California, there is a standard of “comparative fault.” That means another party can be held liable, even if only partially liable. A jury could determine how much of Skaggs’ death was the fault of the Angels and award his family proportionally.

Determining liability is complicated.

The first break in the chain of causation is that Kay reportedly told the DEA he did not provide Skaggs with the drugs he used the night he died. Kay reportedly said he had last given him oxycodone a few days earlier, and Skaggs typically ingested the drugs immediately after receiving them.

Beyond that is a question of who in the organization knew about Skaggs’ drug use at a time when the tragic ending could still have been prevented.

“You would have to have knowledge pretty high up in the food chain before you could attribute any of this to the organization,” said Ken Jacobsen, a professor of sports law at Temple University. “If it’s someone lower level, it’s unlikely they could bind the Angels to what they were doing, especially illegal conduct. There would have to be someone higher up in the organization that knew about this.”

Marc Edelman, a law professor at City University of New York who specializes in sports, said there are two routes to prove liability.

The first would be to show that the Angels were negligent in providing care for Skaggs, by failing to act on knowledge that he was using drugs.

A more direct liability would be if the Angels somehow were complicit in Skaggs’ drug use, by fostering the use of the pain-killers to allow him to pitch.

“If there was evidence that the Angels knew he was taking these substances, particularly to make himself ready to pitch despite an injury, and this person encouraged him to take these substances to pitch,” then the Angels could be held liable, Edelman said.

Experts agree that it is a difficult standard, though, particularly because Kay was a member of the media relations staff, rather than a doctor or trainer.

“It makes it more plausible that since he’s operating totally outside the scope of his employment that there should be more defenses (for the Angels),” Haagen said. “You would be less likely to be looking for certain kinds of problems in your communications person than in your training and medical staff.”

Haagen suggested that the negligence angle could be an issue if Skaggs had exhibited any traits or behaviors that should have alerted the team to his drug use.

“The other problem the Angels could have is if reasonably competent medical people would have picked up the problems,” Haagen said.

Since the Aug. 30 release of the medical examiner’s report, all those around the Angels who were asked publicly about Skaggs said they had no idea he was using drugs.

Skaggs was not subject to any testing for opioids because major league players are only tested for performance-enhancing drugs unless there is cause to test for drugs of abuse. The Skaggs case, however, might prove to be the impetus to change that.

Tony Clark, head of the Major League Baseball Players’ Assn., said in a statement last month that “it’s appropriate and important to re-examine all of our drug protocols.” A source close to the negotiations said Monday that it’s “probable” that drug testing will be expanded to include opioids as soon as next season.

In the meantime, Major League Baseball will be conducting its own investigation into the Angels once the DEA is done. The commissioner’s office, of course, does not need to stick to the same standard as the courts in meting out discipline.

“The commissioner has very broad powers to impose disciple on teams and owners,” said Len Simon, a practicing lawyer who teaches sports and law at the University of San Diego. “Teams and owners and non-uniformed employees have fewer rights than players do because they don’t have a union.”

Simon said the commissioner could discipline anyone he believed had knowledge of a player’s drug use and didn’t act appropriately on it. Major league rules mandate that anyone who knows of drug use by a player report it.

The only two Angels employees allegedly identified by Kay as being aware of Skaggs’ drug use were former vice president in charge of communications Tim Mead and traveling secretary Tom Taylor. Both have issued statements denying they knew.

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The commissioner’s office also could investigate Kay’s claim about the five other players he believes used opioids.

All of that is weeks, if not months, away, though. All parties will have to wait for the DEA.

Former DEA agent Thomas Martin, the president of Martin Investigative Services in Newport Beach, said the DEA is likely most interested in determining the source of the drugs. Kay’s cooperation obviously helps his position in terms of the charges he might face, but the investigation will continue, and be exhaustive.

“Angels baseball and Arte Moreno can’t write a memo and this thing will disappear,” Martin said. “The DEA has a greater responsibility to make sure to get to the bottom of it. …

“Everybody should just take a breath, as hard as that is because we want instant gratification and everyone is upset. Let’s see how the powers that be decide to play this out. The DEA has a number of ways to go. Trust me. It’ll all come out in the end.”

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