NCAA argues in sex abuse case it has no legal duty to protect athletes

By Scott M. Reid
Orange County Register
June 02, 2020

https://www.ocregister.com/2020/06/02/ncaa-argues-in-sex-abuse-case-it-has-no-legal-duty-to-protect-athletes/

Olympic high jumper Erin Aldrich was not surprised when she read the NCAA’s latest response to the lawsuit she and two other track and field athletes filed against the organization.

Frustrated, yes, but not surprised.

The NCAA, facing a potential landmark class action lawsuit, said it has no legal obligation to protect student athletes against sexual abuse and harassment, according to a filing in U.S. District Court Northern District of California.

“You don’t expect a coward to come out and take responsibility,” Aldrich said. “They’ve basically responded sadly in the way they’ve responded for years.”

The NCAA in the filing also said it will ask Judge Edward J. Davila in July to dismiss the suit in which Aldrich and former Texas track athletes Jessica Johnson and Londa Bevins allege the NCAA has 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.

“We aren’t hoping for change here. We are demanding change from the NCAA,” Aldrich said.

Aldrich, Johnson and Bevins allege in the suit filed in March that they were sexually abused and harassed by their coach John Rembao, long considered one of the world’s top high jump coaches.

Rembao, a former SMU head coach and Texas, Arizona, Stanford, and a Cal Poly/SLO assistant, was placed on temporary suspension for allegations of misconduct by the U.S. Center for SafeSport in December.

That abuse was enabled, the women allege, by the NCAA’s failure to establish rules addressing sexual misconduct and thus creating deterrents to sexual abuse and harassment.

“I absolutely feel like they’re selling us out,” Aldrich said. “They’re selling out all athletes by taking this huge step back and not protecting against sexual assault that happened during a time when a student athlete is at an age when it’s an incredibly important developmental time in their life.

“That’s when you need to them to be most present when they’re not.”

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

“Colleges and universities across the country recognize that sexual abuse on their campuses is a serious problem, and the NCAA has supported its member institutions with resources those members can use on their respective campuses to combat sexual abuse,” attorneys wrote in a May 22 filing. “This case is not about whether the NCAA opposes sexual abuse and works to support its member institutions in eradicating it—it does.”

But NCAA attorneys argue “this case is about what the NCAA’s legal duty is to take action with respect to sexual abuse on campuses nationwide and, more specifically, what the NCAA’s legal responsibility is for the alleged sexual abuse (all outside California) by one track coach twenty years ago. The NCAA respectfully submits the Complaint is flawed as a matter of law and that all claims against the NCAA and its Board be dismissed and/or stricken.”

Specifically the NCAA argues are that “The direct negligence-based claims  should be dismissed because the NCAA does not owe a related legally cognizable duty to Plaintiffs. The contract-based claims fail because there is no enforceable contract between Plaintiffs and the NCAA, nor were Plaintiffs third-party beneficiaries of any contract between the NCAA and its members. Finally, the indirect claims that allege the NCAA is vicariously liable for Rembao’s conduct are deficient because Rembao was not the NCAA’s agent and even if he was, the alleged abuse was outside the scope of his employment.”

Donald Remy, the NCAA’s chief legal officer, said in a statement Wednesday said “The NCAA is committed to working with its members to combat sexual abuse on college campuses and providing schools with the resources and support needed to maintain campuses free of sexual violence. In terms of our more specific legal arguments regarding the deficiencies in the claims against the NCAA, they are set forth in detail in our brief.”

“We believe the law supports our claim that the NCAA has abrogated its responsibility,” said Elizabeth Fegan, an attorney for the three women. “Since we filed the case, we’ve heard from student-athletes with similar experiences, so this is certainly a broader, more widespread issue than the NCAA would like the public to believe.”

The NCAA stance echoes similar claims made by the U.S. Olympic and Paralympic Committee during the Larry Nassar sexual abuse scandal, according to Olympic swimming champion Nancy Hogshead-Makar.

Nassar, the former U.S. Olympic and USA Gymnastics women’s national team physician, is serving a 60-year federal prison sentence on child pornography charges. He was also sentenced in Ingham County, Michigan, in January 2018 to 40-to-175 years for child sexual assault and 40-125 years in Eaton County, Michigan, on similar charges in February 2018.

“The NCAA is trying to take the same approach the Olympic committee took with Larry Nassar and other sexual predators and it’s not working out well for them,” said Hogshead-Makar, a Georgetown Law Center graduate and founder and CEO of ChampionWomen, a non-profit advocacy group for women and girls in sports.

“The NCAA has the authority and the power to remove an athlete or coach from within its system and have done so (in cases not related to sex abuse). So they can clearly do it.”

Aldrich said the NCAA is selectively choosing what misconduct it is addressing or ignoring. For example, the NCAA routinely sanctions schools, coaches and athletes for recruiting or improper benefit violations.

“They can fire someone for that but they have a hard time coming out in public saying the coach we hired is having sex with their athlete,” Aldrich said. “The mission statement of the NCAA is ‘our purpose is to govern competition in a fair, safe, equitable and sportsman like manner and integrate and include intercollegiate athletes into higher education so the educational experience of the student athlete is paramount.’ But the truth is that sexual assault ruins competition and the athlete’s educational experience. If you don’t address sexual assault more intentionally then you’ve failed your mission statement.”

Aldrich, who also competed in the high jump at four World Championships, alleges in the suit that Rembao sexually abused her while she attended Arizona and sexually harassed her while he coached her at Texas.

Johnson and Bevins allege Rembao sexually abused and harassed them at Texas. Both women said they gave up their scholarships at Texas because of the alleged sexual misconduct and transferred to Arkansas.

Johnson alleges Rembao licked her neck, touched in her inappropriate ways and made a series of sexual comments about her.

Rembao, Hogshead-Makar said, “used the fact that he was their coach as a way to exert power over them.”

Rembao has said the charges against him are false.

Johnson, according to the suit, “became increasingly depressed, had a hard time getting out of bed, developed an eating disorder (alternating between starving herself and bingeing), and developed panic attacks. She went to the University of Texas student health center, which prescribed her an anti-depressant and sleeping pills. She could not effectively compete due to her mental and physical state.”

Bevins and Aldrich said they also suffer from depression related to Rembao’s alleged sexual abuse and harassment.

Johnson submitted a formal complaint to the University of Texas, according to the suit. “During the course of Texas’ investigation, Rembao admitted to the majority of the conduct about which Ms. Johnson complained. Nonetheless, Texas attacked Ms. Johnson, found that Rembao’s conduct did not constitute sexual misconduct, and led Ms. Johnson to believe she could not sue and/or did not have a claim against Texas or Rembao,” the suit alleges.

In filing the suit in March, attorneys for the three women said, “Student-athletes arrive at college with the expectation that they will become the best athlete they possibly can be under the supervision of educated, skilled, and fully vetted athletics department personnel looking out for their best interests. The student-athletes trust and believe in these individuals because they are taught to do so from a young age, and accord their coaches and trainers deference, respect, and unquestionable loyalty. 10. This trust – coupled with the NCAA’s failure to implement and enforce rules prohibiting sexual relations and abuse by athletic department personnel of student-athletes and failure to impose significant sanctions that would incentivize schools to report abuse and deter perpetrators – has created a national epidemic perpetuating a cycle of sexual abuse, similar to that seen in the Catholic Church.

“ Rather than create a system that requires member institutions to report coaches who are perpetrators to the NCAA, the NCAA has created a system that permits the perpetrators to move unchecked among schools, prioritizing the protection of athletic revenue, alumni donations, and tuition that schools receive at the expense of student-athletes.”

The  failure of the NCAA to enforce the suspensions or bans of coaches, athletes or officials sanctioned for sexual misconduct by SafeSport and/or national governing bodies, critics charge, raises questions about the organization’s commitment to athlete and student safety and allows alleged sexual predators access to college campuses.

The NCAA came under fire in January following a Southern California News Group report detailing how two prominent college volleyball coaches continued to coach at NCAA institutions while suspended by the U.S. Center for SafeSport or USA Volleyball, the sport’s national governing body, while under investigation for sexual misconduct.

The NCAA ‘s failure to enforce the suspensions or bans of coaches, athletes or officials sanctioned for sexual misconduct by SafeSport and/or national governing bodies, critics charge, raises questions about the organization’s commitment to athlete and student safety and allows alleged sexual predators access to college campuses.

“The NCAA has no respect for the well being of the athletes they should be protecting,” said Katherine Starr, a former All-American swimmer at Texas and founder of Safe4Athletes, a non-profit foundation that advocates for athletes and helps sports organizations adopt policies and programs to prevent the abuse of athletes.

“No coach should be above the moral and ethical responsibility of an institution,” Starr, a two-time Olympian, continued. “When the NCAA is continuing to allow these coaches to coach at these schools, ignoring these suspensions, what message does that send?”