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Testimony of former Florida Atlantic football players ruled ineligible in Doug Brenner’s case against UO, Willie Taggart, NCAA

EUGENE — The University of Oregon, former Ducks football coach Willie Taggart and the NCAA won the most important ruling to date in their civil trial against former offensive lineman Doug Brenner. But whether it hurts them in the long-run will be determined based, at least in part, on the outcome of the case.

Following briefs from the legal teams representing Brenner and UO, Taggart and former strength and conditioning coach Irele Oderinde, Lane County Circuit Court judge Clara Rigmaiden stood by her initial ruling, issued on Friday, that testimony of former football players at Florida Atlantic University would be inadmissible.

The players addressed experiences with “dawn patrol” exercises at FAU — where Taggart has coached since 2020 — which mirrored the acts some of Oregon’s players were briefly subjected to during his tenure at UO.

“I find that the probative value for the purpose for which they are offered is outweighed substantially by the prejudice … and the likelihood that it would mislead or confuse the jury,” Rigmaiden said Monday afternoon. “The issue of punitive damages against the NCAA depends on the plaintiff showing as they offered in their opening statement, that the widespread abuse of players by coaches in workouts cause injuries and the NCAA, despite having known about this failing (didn’t) regulate . Offering simply more cumulative testimony against coach Taggart’s practices, I find the probative value of that very low and I find it prejudicial against the University of Oregon that the only coach’s practices that are being offered are coach Taggart’s. I do find in addition to the (Oregon Evidence Code) 403 analysis that because of its such low value probatively, that it is propensity evidence that’s being disguised as punitive damages and it will not be allowed.”

The “dawn patrol” exercises involved players who committed an infraction of some kind — the specifics have been disputed in the case — being required to arrive at the football facility at 6 am and push a 45-pound weight with both hands 20 yards and back on a field and repeat the process 20 times.

During an offer of proof Friday, former FAU punter Jaden Gold claimed to have performed “dawn patrol” workouts four times, and described them exactly as how they were carried out briefly at Oregon before an athletic trainer stopped the practice.

Also on Friday, Taggart testified that he reinstituted “dawn patrol” at Florida State, that they continue at FAU, and he views them as “discipline (and) accountability” and not punishment. However, Taggart said “dawn patrol” at FAU no longer involves pushing the 45-pound plate, but rather a five-pound bag, which Gold said he “never experienced.”

The brief filed by Stephen English of Perkins Coie, which is defending UO, Taggart and Oderinde in the case, attempted to clarify the discrepancy by claiming the “dawn patrol” methods of FAU changed since Gold left the team after last season. Gold told The Oregonian/OregonLive his last day of practice at FAU was Feb. 3 and he entered the transfer portal on Feb. 5.

“The University Defendants would stipulate that at the time Mr. Gold was on the team, dawn patrol was still being conducted with a 45-pound plate,” English wrote. “As Coach Taggart tested, that is no longer true today.”

In its brief, Brenner’s legal team of Kafoury & McDougal and Eiva Law argued “the question is whether the conduct shows that the defendant continues a pattern of similar acts or omissions like those that caused the harms suffered by plaintiff. … For such testimony by Taggart to remain unrebutted would work an injustice to the plaintiff and deny critical evidence to the jury.”

Brenner’s legal team has characterized “dawn patrol” as serving no other purpose but punishment and elicited testimony from multiple witnesses to that end. “Dawn patrol” is being considered in the civil trial only for the purposes of the $100 million in punitive damages Brenner is seeking from the NCAA, whose legal team from Orrick Herrington & Sutcliffe LLP did not file a brief on the matter.

If the jury, which didn’t hear Gold’s offer of proof testimony, finds in favor of Brenner against the NCAA, the former FAU players could file a similar lawsuit for punitive damages.

However, also included in the brief filed by English was a screenshot of an online message Gold sent to an unidentified recipient in which he writes, “I don’t know what you are up to now but if we testify against taggart we could make so much money. If we testify every lawyer will want to work with us. I already got reached out to other fau guys saying they r [sic] gonna testify I had a terrible experience with coach (Raymond) Woodie and taggart and the workouts we were put through and everything will make a huge case for us. Let me know what you think.”

Travis Eiva, another of Brenner’s attorneys, filed three excerpts of a separate text conversation between Gold and another former FAU player in which he writes, “I think we can be spokespeople to help kids and really change the NCAA and make a mark.”

Brenner also is seeking $20 million for pain and suffering and $5.5 million for past and future medical expenses from UO, Taggart and Oderinde in relation to his hospitalization for rhabdomyolysis following unrelated strenuous strength and conditioning workouts in January 2017 and subsequent injuries that his treating nephrologist and another kidney expert tested have caused acute kidney injury and increased the likelihood of Brenner suffering chronic kidney disease and a shortened lifespan.

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