NCAA tells State Supreme Court the USOPC has no legal duty to protect athletes from sex abuse

The NCAA has filed a brief in support of the U.S. Olympic and Paralympic Committee in a potential landmark California Supreme Court case, asking the court to rule that the USOPC does not have a legal duty to protect athletes from sexual abuse and harassment.

The NCAA acknowledges in the filing that a Supreme Court ruling that the USOPC has legal obligation to protect athletes could also create major ramifications for the NCAA as well.

“This Court should hold that the USOC did not owe a duty to Plaintiffs” to protect them from sexual abuse and harassment, NCAA  attorneys write in the brief..

The State Supreme Court decision in January to hear an appeal of a 2nd District Court decision in October that found the USOPC did not have a legal responsibility to protect athletes came against the backdrop of a new state law that could see USOPC, and its 49 national governing bodies, as well as the NCAA, face dozens, if not hundreds, of sexual abuse lawsuits.

The new law, which went into effect January 1, creates a three-year window to file past claims that had expired under the statute of limitations. The law, authored by Assemblywoman Lorena Gonzalez (D-San Diego), also extends the statute of limitations for reporting childhood sexual abuse from the time a victim is age 26 to 40. The period for delayed reasonable discovery is also increased from three to five years.

The NCAA filing is the latest chapter in a lawsuit filed by three former Olympic taekwondo hopefuls who allege they were sexually abused by coach Marc Gitelman over a seven-year period and that the abuse was enabled by the USOPC and USA Taekwondo, the sport’s national governing body.

While the appellate court found that the USOPC did not have a duty to protect athletes, it did write that USA Taekwondo could be held liable for Gitelman’s sexual abuse of the three athletes. The ruling against USA Taekwondo was not appealed.

“If this Court were to find” that the USOPC can be held liable in such cases, NCAA attorneys write in the brief, “the NCAA and organizations like it would face the prospect of massive potential liability for conduct they can neither monitor nor control.”

An attorney for the alleged victims in the taekwondo case said he was not surprised by the NCAA filing.

“The NCAA has a long history of looking the other way when its institutions fail to protect athletes from sexual abuse,” said attorney Stephen Estey. “Despite thousands of student-athletes who were sexually abused at Ohio State, the University of Michigan, Michigan State and Baylor, it does not appear these four universities have received a single sanction or admonishment from the NCAA.

“Given the track record of both the USOPC and the NCAA, it’s not surprising that they are both fighting for legal loopholes to escape accountability. Instead, they should be using their vast resources to implement programs and training to protect athletes from sexual abuse better.”

The NCAA argument to the State Supreme Court echoes a similar filing by the organization with U.S. District Court for the Northern District of California earlier this year in which the NCAA said it has no legal obligation to protect student-athletes against sexual abuse and harassment.

In the U.S. District Court case, three former University of Texas track athletes allege they were sexually abused and harassed by their coach, John Rembao, long considered one of the world’s top high jump coaches. The three athletes, Olympian Erin Aldrich, Jessica Johnson and Londa Bevins, also allege the NCAA helped create a national sexual abuse epidemic by choosing not to implement rules or impose sanctions that would require member schools to take steps to prevent and report abuse by coaches and deter perpetrators.

While acknowledging that sexual abuse is a major problem on the campuses of its member institutions, NCAA attorneys argue in the Rembao case that the organization does not “owe” student athletes a legal duty to protect them.

In agreeing to hear the appeal of the lower court ruling in the taekwondo cases, the State Supreme Court wrote: “This case presents the following issue: What is the appropriate test that minor plaintiffs must satisfy to establish a duty by defendants to protect them from sexual abuse by third parties?”

The NCAA argued in the brief that the lower court correctly ruled that the USOPC did not have the “special relationship” necessary to meet the legal requirement to impose a “duty to prevent sexual abuse” on an organization.”

“The USOC lacked any ‘control’ over the environment in which the assaults on Plaintiffs occurred and was therefore not in the best position to prevent them,” NCAA attorneys write. “As a national organization that oversees dozens of sport-specific governing bodies, the USOC has only a limited relationship with each of those bodies, and no direct relationship with the thousands of coaches and athletes those bodies oversee. In particular, the USOC had no direct ability to exert day-to-day control over coaches’ (including Gitelman’s) behavior. Recognizing a ‘special relationship’ on these facts would create a novel and far-reaching duty to prevent unknown harm by third parties — a duty that courts have repeatedly rejected. The Court of Appeal correctly refused to find a ‘special relationship’ here.”

The NCAA attorneys also draw similarities between the organization and the USOPC.

“The NCAA, like the USOC, issues best practices and guidance for its nearly 1,100 member institutions,” NCAA attorneys write in the brief. “But the NCAA does not have the ability — with its few hundred employees — to police the day-to-day conduct of the thousands of coaches and student-athletes that work for or attend its member institutions. The NCAA therefore faces a choice familiar to all oversight or member-driven organizations (and similar to the choice that the USOC faced here) — whether it is better to issue best practices in an effort to prevent harm, even though it is logistically impossible to strictly enforce them

“The NCAA cannot exert day-to-day control over and monitor the thousands of coaches and student-athletes employed by and enrolled at its nearly 1,100 member institutions across the country or to ensure compliance with its guidance.”

A ruling in favor of the alleged victims would discourage organizations like the USOPC and NCAA from issuing sexual abuse and harassment guidelines, NCAA attorneys argue.

“That the issuance of policy guidance and best practices benefits society and should be encouraged,” the attorneys write. “If Plaintiffs’ arguments were accepted, though, the issuance of best practices would come paired with far-reaching tort liability. Organizations across the country (including ones like the NCAA) would be forced to think carefully about whether to restrict their issuance of policy guidance. This Court should avoid that negative result and, consistent with decisions from across the country, affirm the Court of Appeal’s decision that the USOC owed no duty here.”