The judge in the Shawn Nieto concussion case on Thursday strongly disputed comments by both Rio Rancho Public Schools and the New Mexico Activities Association regarding last week’s hearing on whether Nieto should be allowed to play in last Saturday’s state high school football championship.
District Judge Alan Malott, in a letter to the Journal, said there were “at least two glaring falsehoods” regarding information that appeared in a Thursday morning story about Nieto, the Cleveland High School running back whose eligibility to play in the Class 6A state title game reached Malott’s courtroom last Friday afternoon.
Malott granted a temporary restraining order against RRPS and the NMAA, making Nieto – whose health was in dispute – eligible to compete in the Storm’s 48-35 victory over Eldorado on Saturday in Rio Rancho.
Cleveland officials had said he was ineligible to play in the game because training staff diagnosed a concussion after Nieto suffered a hit to the head in a state semifinal game Nov. 28.
Rio Rancho Public Schools public information officer, Beth Pendergrass, told the Journal on Wednesday that the district did not receive sufficient advance notice to appear at the hearing in Albuquerque seeking the restraining order.
Malott said in his letter that was not true.
“A review of the record shows in fact, RRPS’ lawyers were aware of the pending hearing here in the 2nd Judicial District for several hours and took the opportunity to file documents disqualifying Judge Victor Lopez from proceeding with the hearing,” Malott said.
The letter goes on to say that Rio Rancho did not ask for a telephonic appearance or “otherwise communicate with the Court to further advance their position.”
The Santa Fe-based counsel for Rio Rancho Public Schools, Charlotte Hetherington, said the district was unaware which judge had been assigned the case after Judge Lopez was disqualified. She also said she didn’t receive the email notice from Nieto’s attorney regarding the time of the hearing until the hearing was beginning, 55 miles away. This was about 2:30 p.m. Friday, Hetherington said.
“From the school’s perspective and from my perspective, we did not know judge Malott was the assigned judge until the hearing began,” said Hetherington, who said she was in Santa Fe when the email arrived.
Hetherington said there was “a disconnect between what the judge understood to be happening and what we understood to be happening.”
The second piece of information that Malott said was incorrect was a statement to the Journal by NMAA executive director Sally Marquez, who said the organization did not argue in front of Malott and was there simply to support Rio Rancho Public Schools. NMAA counsel Mark Geiger “strongly” argued against the requested restraining order, Malott said.
Marquez told the Journal on Thursday that there was a miscommunication about the NMAA’s role in last week’s hearing.
“Mark was there supporting Rio Rancho,” Marquez said Thursday. “When no one (showed) up, he had to testify on his own.”
Marquez was adamant that the NMAA was there to help uphold the integrity of the state’s concussion law, a 5-year-old law that, in essence, says an athlete must sit out one week after being diagnosed with a concussion. Part of the Nieto family’s challenge involved when the one-week time frame starts, arguing he should have been eligible regardless of whether he had suffered a concussion or not.
“We were shocked (that Rio Rancho didn’t show up),” Marquez said. “Mark was there and Rio Rancho never showed, so Mark had to fight – without any documents. Because those are Rio Rancho documents. Rio Rancho had them all. Mark tried to fight, but didn’t have anything in writing.”
Nieto left the Nov. 28 Mayfield game and did not return. Cleveland said Nieto was knocked unconscious, but the junior running back disagreed.
Several days later, after being told he would have to miss the final against Eldorado because of the concussion protocol, Nieto consulted with a private doctor for a neurological evaluation. According to court documents, that doctor reported that it was unlikely Nieto “ever sustained a brain injury.”
That evidence was presented to Malott on Friday.
Malott said he determined that the doctor’s opinion “was more reliable than the opinion of the team’s trainer in giving effect to the statute’s purpose of protecting student athletes.”
Thus, Nieto was eligible to compete. But he only appeared on the field once, on a kickoff team near the end of the game. Cleveland head coach Heath Ridenour said he held Nieto out over safety concerns.