Organization argues it has no direct oversight or control over student athletes
In response to a lawsuit filed on behalf of three former student-athletes who claim that the NCAA failed to protect them and others from sexual abuse and harassment they suffered at the hands of their NCAA track and field coach, the NCAA argues it has no legal duty to protect NCAA student-athletes from such predatory conduct.
Erin Aldrich, Londa Bevins and Jessica Johnson filed the class action in March 2020 against the NCAA, the NCAA Board of Governors and former University of Texas at Austin and University of Arizona track coach John Rembao. The three former student-athletes allege that the NCAA puts student-athletes at NCAA member schools in harm’s way by failing to prohibit sexual abuse, sexual harassment, or sexual contact between coaches and student-athletes, and by permitting coaches accused of sexual abuse to move unfettered between NCAA schools.
"After these women took the courageous step to come forward about the abuse, the NCAA attempts to wash their hands of any degree of accountability – it’s repugnant," said FeganScott founder and managing member, Beth Fegan. "The NCAA’s declaration that it has no responsibility to students should be a shrill, stark warning to every student-athlete that the organization does not have their best interests in mind."
The lawsuit, filed by the law firms FeganScott and Lieff Cabraser Heimann & Bernstein in the U.S. District Court for the Northern District of California, alleges that the NCAA caused a national epidemic by perpetuating a cycle of sexual abuse — like that seen in the Catholic Church — because it chose not to implement rules or impose sanctions that would require schools to take steps to prevent and report abuse by coaches and deter perpetrators.
In response to the lawsuit, the NCAA and its Board of Governors contend that it has no duty, imposed either by law or by contract, to protect student-athletes at NCAA member schools from sexual abuse. This position is in sharp contrast to NCAA president Mark Emmert’s statement during a Senate committee hearing several years ago, when he was asked how he would reconcile the NCAA’s public statements that its priority is the health and safety of student-athletes with its private legal arguments that the NCAA doesn’t have a legal duty to protect student athletes. Emmert responded: "I will unequivocally state we have a clear moral obligation to make sure we do everything we can to protect and support student-athletes."
In its motion to dismiss, filed on May 22, 2020, the NCAA argues that its 444-page Constitution and Bylaws do "not make any promises for the student-athletes’ benefit," taking this position despite the fact that its Constitution and Bylaws specifically pledge that "Intercollegiate athletics programs shall be conducted in a manner designed to protect and enhance the physical and educational wellbeing of student-athletes."
"It’s shocking that the NCAA disavows its own Constitution and Bylaws and argues that these documents do not create any sort of legal duty between NCAA and the student-athletes, especially in light of the plain language promising to protect the well-being of students," Fegan said. "The fact that the NCAA is attempting to skirt responsibility to protect student-athletes from sexual abuse and harassment, but will freely dole out sanctions for student-athletes who receive bad grades or accept a free meal, speaks volumes about the NCAA’s misplaced priorities."
The NCAA also argues in its motion to dismiss that it has no ability to control the conduct of its student-athletes.
"The NCAA doesn’t shy away from stringent requirements for its member institutions, coaches and the athletes themselves," said Lieff Cabraser partner Annika K. Martin, who co-represents the plaintiffs in the suit. "When an organization shows that it has the ability and willingness to create policies for member institutions or coaches while also saying that it is founded on the health, safety and well-being of student-athletes, that suggests it has a duty to protect student-athletes."
Notably, the NCAA’s response to the lawsuit foists all responsibility for protecting student-athletes from sexual abuse on the colleges and universities, arguing that the organization only takes action where its member institutions have delegated responsibility, such as setting rules governing the recruitment of athletes and postseason competition.
"History shows that universities will turn a blind eye to abuse by athletics department personnel, such as Jerry Sandusky and Larry Nassar," Fegan said. "Who can force universities to establish meaningful policies and procedures to protect student-athletes if not the NCAA? The NCAA has the ability to impose sanctions on its members and has done so for infractions such as using non-coaching staff members in coaching roles. The time is ripe for the NCAA to address the elephant in the room and put in place policies that will protect its NCAA student-athletes."
FeganScott is a national class-action law firm dedicated to helping victims of sexual abuse, discrimination, and consumer fraud. The firm is led by acclaimed veteran, class-action attorney Elizabeth A. Fegan, who represents the women who were sexually abused by disgraced movie mogul, Harvey Weinstein. FeganScott has successfully recovered $1 billion for victims nationwide and is committed to pursuing successful outcomes with integrity and excellence while holding the responsible parties accountable.
About Lieff Cabraser
Lieff Cabraser represents individuals nationwide in sexual abuse lawsuits against their physicians, teachers, and clergy as well as other abusers, including the USC sexual abuse litigation filed on behalf of nearly 18,000 women abused by University gynecologist George Tyndall, where Lieff Cabraser partner Annika K. Martin serves as co-lead class counsel whose efforts led to a historic settlement for victims of $215 million and sweeping institutional reforms requiring USC to make changes to ensure such sexual abuse never happens again on campus.