By Ellen J. Staurowsky, Ed.D., Senior Contributor, Professor, Department of Sport Management, Drexel University & Professor, Sport Media, Ithaca College (August, 2020), ejs95@drexel.edu
In March of 2020, three former female track and field athletes filed a class action lawsuit in the U.S. District Court Northern District of California against the National Collegiate Athletic Association (NCAA), the NCAA Board of Governors, and former college coach, John Rembao. The plaintiffs — Erin Aldrich (an Olympian and eight time all-American in the high jump), Londa Bevins (a seven time all-American middle distance runner), and Jessica Johnson (a two-time all-American in the high jump) allege that Coach Rembao subjected them to dozens of incidences of sexual harassment and sexual assault while he recruited them to, and coached them at, the University of Texas and/or the University of Arizona in the late 1990s and early 2000s. They further allege that the NCAA neglected its obligation to protect athletes by failing to adopt rules prohibiting sexual abuse, sexual assault, or sexual contact between athletes and coaches and by allowing coaches accused of sexual assault to move from school to school without impediment.
Overview
In this case, the plaintiffs are attempting to knit together four sets of facts — that athletes are at risk of being sexually exploited by their coaches; that sport governing bodies were aware of the need to establish prohibitions and policies regarding improper coach-athlete sexual relationships and sexual abuse in sport starting in the 1990s; that the NCAA knew or should have known about the actions of other sport governing bodies regarding prohibitions against sexual contact between coaches and athletes but took no action for 20 years; and the consequence of a failure on the part of the NCAA to adopt such policies and prohibitions enabled accused Coach Rembao to victimize a growing list of female athletes and to cover up wrongdoing by simply moving on from one job to another if his misconduct was detected and/or revealed at a particular institution.
Sport scholars since the 1990s have been developing a body of research documenting the specific issues that arise in coach-athlete relationships that lend themselves to sexually abusive and exploitative environments, including but not limited to an imbalance of power; long periods of time practicing, training, competing, and traveling together; intimate physical environments; the dynamic of athletes in early stages of emotional and social maturation dealing with authority figures who are older; the potential of coaches to take advantage of the trust placed in them by athletes; and a culture that can discourage individualism and independent self-advocacy. The plaintiffs cite that literature as evidence that there has been a general industry understanding that athletes are an at-risk population for sexual exploitation by coaches and others in positions of power. They further reference an NCAA publication entitled Staying in Bounds: An NCAA Model Policy to Prevent Inappropriate Relationships Between Student-Athletes and Athletics Department Personnel written in 2012 by two experts in the field, legal scholar Deborah Brake and author, Mariah Burton Nelson, which acknowledges these issues.
Not only was there research in the 1990s about coach sexual abuse, sport governing bodies were including standards regarding sexual harassment in policies pertaining to coaches. In 1992, the United States Olympic Committee (USOC) sought to establish minimum standards for coaches through the development of a code of ethics. Five standards in that code pertain to coaches and prohibitions pertaining to sexual harassment, exploitative relationships, sexual intimacies with current athletes, coaching former sexual partners, and sexual intimacies with former athletes. USA Hockey followed up the adoption of a sexual abuse policy, physical abuse policy, and background screening policy in 1993 with a publication entitled “Abuse and Screening Policies: Guidelines for Administrators” in 1997 and continued to develop further policies pertaining to hazing, locker room supervision, emotional abuse, bullying, threats and harassment, and electronic communication as the years went by. As early as 1998, USA Swimming included discipline for a person with authority over an athlete who directed sexual contact or made sexual advances toward an athlete in its code of conduct. The International Olympic Committee put forward a consensus statement on sexual harassment and abuse in sport in 2007.
The plaintiffs argue that despite the NCAA’s claims that the well-being and health and safety of athletes is a paramount concern, the NCAA failed in its duty to protect them and other female athletes from a sexually abusive coach. They note the NCAA was two decades behind in issuing its first guidance regarding the vulnerability college athletes face in their relationships with exploitative coaches and other athletic department personnel in positions of authority over them. And even after issuing that guidance, there was no mechanism put in place to hold coaches or institutions accountable if that guidance was not followed.
By failing to exercise its capacity to hold college and university athletic departments and personnel working in athletic departments accountable by adopting rules prohibiting sexual abuse, sexual harassment, and sexual exploitation, and enforcing existing rules pertaining to ethical conduct and ensuring the health and safety of athletes, the plaintiffs argue the NCAA allowed abusive coaches to persist in their misconduct.
Bright Futures Extinguished by a Sexually Abusive Coach
In the complaint, the stories of how each of the plaintiffs came to know Coach Rembao and the experiences they had with him are described in some detail. When read together, they paint a picture of a predatory coach who exploited the youth sport development circuit (volleyball and track and field junior camps) and the college recruitment process to target underage girls and entrap them in relationships they hardly had the emotional capacity and maturity to understand at a time when they were growing into who they were as young women.
All three describe meeting Rembao when they were in high school. Encouraging and supportive of their talents and dreams, Rembao developed relationships of trust with them and their families, courting them at times with gifts, favors, and compliments. Conversations by phone grew lengthy and more intimate as the girls went through high school, with the coach guiding them through disclosures about their dating status. Jessica Johnson provided letters and emails sent from Rembao’s University of Texas account while she was still in high school where he complimented her on her Miss America looks while urging her to keep what they discussed confidential.
By the time they arrived at college on athletic scholarships, the seeds of profound confusion had been sown. Confronted with a coach of international reputation who had taken an interest in them they struggled to deal with feelings of insecurity and uncertainty, fear, and anxiety. One of the women alleged she was seduced by Rembao, treated like a girlfriend but drawing his ire when she started to see someone else. All describe being beckoned to isolated spaces (hotel rooms, his office) where they felt cornered, with little room or opportunity to avoid his sexual overtures.
And so he progressively invaded their privacy, controlling what they ate, subjecting them to public commentary at weigh ins about their bodies, showing up at their dorm rooms, inviting them to his home, using the pretense of giving them massages to ease sore muscles after intense workouts to violate them. Overtime they suffered accusations from him about their sincerity of purpose and work ethic and had instruction withheld for perceived slights accompanied by threats of losing their scholarships or place on teams. Each describes growing ambivalence about their bodies in the wake of his piercing scrutiny, down to the fat cell, and the difficulties that they experienced with eating disorders, depression and anxiety, and in Johnson’s case with self-harm in the form of cutting.
They further detail the disruption that occurred in their lives when they transferred institutions. In the case of Aldrich, who started at the University of Arizona, she left there to trail Rembao to the University of Texas-Austin after their relationship was discovered by her roommate and Rembao was dismissed at Arizona. Johnson and Bevins transferred to the University of Arkansas to escape the toxic environment they were in. The move cost them financially because Arkansas offered them partial rather than full athletic scholarships. They also faced adjustment issues entering a new team and a new university and struggled to deal with having to encounter Rembao at meets where his harassment continued even when they were no longer being coached by him.
They also allegedly had to deal with the knowledge that people were aware of Rembao’s inappropriate behavior but they were more concerned about institutional interests than the safety of female athletes. Rembao seemingly had a permanent home within the coaching community. If an incident arose at one school, he was hired by another school. In 2000, after transferring to Arkansas, Johnson filed a formal complaint against Rembao with the University of Texas-Austin but received no satisfaction, despite his admission during the investigation that he had done many of the things she accused him of. Administrators at the University of Texas determined that Rembao’s behavior did not meet the definition of sexual misconduct. After that investigation, Johnson believed she had no claim against Texas or Rembao and no grounds to sue.
The long-term effects of Rembao’s alleged mistreatment continue to play out in their lives years later. In the case of Aldrich, she has and continues to seek psychiatric support and believes the training regimen and dietary restrictions imposed on her by Rembao have led to her difficulty having children. Johnson reports suffering depression and anxiety warranting both psychiatric and counseling treatment as well as a history of eating disorders. She has difficulty finding peace, regularly suffering from nightmares about Rembao’s misconduct. Bevins, who attempted suicide while in college, continues to experience anxiety and panic attacks triggered by certain situations. She reports that both her work and personal life have been affected as a result of not being able to trust people.
Claims Against the NCAA and John Rembao
The plaintiffs make a total of 12 claims, seven on behalf of the plaintiffs and the nationwide class of athletes (all athletes competing under the NCAA umbrella from 1992 to the present) and five against the NCAA and John Rembao on behalf of the plaintiffs and the Rembao subclass (all athletes coached by Rembao at an NCAA member institution). The plaintiffs argue that the NCAA and its Board of Governors had a duty, grounded in the NCAA Constitution and Bylaws, to pass and implement legislation that addressed what they knew or should have known was a serious problem with coach and athletic department personnel sexually abusing athletes. In their failure to fulfill that duty, the NCAA and Board of Governors contributed substantially to the abuse experienced by Aldrich, Johnson, and Bevins resulting in financial, physical, and psychological harm. They further violated the contract they allegedly had with the plaintiffs. Coach Rembao and the NCAA stand accused of civil battery, assault, false imprisonment, intentional infliction of emotional distress, and negligent infliction of emotional distress. The NCAA is further accused of ratifying Rembao’s behavior and allowing it to persist by covering it up and failing to discipline coaches like Rembao for their misconduct. Aldrich, Johnson, and Bevins (2020) argue that because the NCAA stood by and did nothing to stop coaches who were sexual predators, despite having knowledge, that it is “responsible for Rembao’s acts of assault, battery, and intentional or negligent infliction of emotional distress” (p. 100).
Relief Sought
Aldrich, Johnson, and Bevins (2020) request a trial by jury and seek relief for both themselves and for the class and subclass they wish to represent including injunctive relief that requires the NCAA and its Board of Governors to implement and enforce rules pertaining to sexual harassment and sexual assault that are consistent with consensus best practices; compensatory and punitive damages, recompense for their pain and suffering, and any other relief legally available to them as well as legal fees.
The NCAA’s Response — Motion to Dismiss
On May 22, 2020, the NCAA filed a motion to dismiss in response to Aldrich, Johnson, and Bevins (2020). The NCAA argued that there are four global deficiencies in the case, including lack of jurisdiction; the Board of Governors do not constitute a body separate from the NCAA and therefore are not proper defendants; the plaintiffs lack standing to request injunctive relief because they are not current college athletes; and the statutes of limitations bar their claims from being heard. Specific to the negligence claims, the NCAA argues that while it provides support to its members through the formation of task forces and publication of materials it does not have a duty of care, members of the Board of Governors do not voluntarily or gratuitously assume a duty of care simply because the NCAA makes aspirational rather than affirmative statements about the health and safety of athletes; and the NCAA does not owe a fiduciary duty to college athletes. The NCAA further argues that it has no duty to disclose information to athletes about what is known industry wide about how coaches exploit the power difference inherent in college coach-athlete relationships. With regard to the contract claims, the NCAA denies that there is either an express or implied contract between college athletes and the NCAA. Efforts to build the case that the NCAA was vicariously liable for what befell the plaintiffs fail, according to the NCAA, because Rembao was under the control of the institutions employing him, not the NCAA. And finally, the NCAA rejects the notion that it ratified Rembao’s conduct by pointing out that there was no agency relationship between them.
Coach John Rembao’s Response — Motion to Dismiss
There are two primary defenses Coach Rembao offers. The first is a request to dismiss on the grounds that the allegations are time barred. In California, a plaintiff is by law expected to file a complaint within two years of the alleged incident. Aldrich’s explanation that she was not aware that what had happened to her constituted sexual assault until she watched the film Leaving Neverland in 2017 was viewed by the defendant as highly improbable. And the request by the plaintiffs for the court to issue a judicial exception to the statute of limitations called for an act of judicial activism on a matter best left up to the legislature to resolve.
Rembao also argues that the plaintiffs have not provided a sufficient basis to allege false imprisonment, pointing to the fact that Johnson and Bevins were given permission to transfer to Arkansas and that when asked, Aldrich and Johnson willingly went to Rembao’s home.
Conclusion
This case adds to a growing list of cases filed by former college athlete plaintiffs accusing the NCAA of negligence for failing to exercise its duty of care. Is the NCAA’s argument that its statements regarding athlete health, safety, well-being and welfare are aspirational and not affirmative convincing? What does it mean, given the interlocking infrastructure of the NCAA with its members, that when efforts are made to hold the Association accountable it throws the burden of responsibility back on individual colleges and universities, distancing itself from the very rules structure that it plays such a part in creating and maintaining? Why has the NCAA lagged behind in its policy making regarding key issues pertaining to health and safety when compared to other sport governing bodies? How will Coach Rembao’s recent suspension by US SafeSport factor into this case if at all? All of these questions and more await further developments in this case.
References
Erin Aldrich, Londa Bevins, & Jessica Johnson v. the National Collegiate Athletic Association, the Board of Governors of the National Collegiate Athletic Association, and John Rembao. (2020). Case No. 5:20-CV-01733-NC. Retrieved from https://www.classaction.org/media/aldrich-et-al-v-national-collegiate-athletic-association-et-al.pdf
Erin Aldrich, Londa Bevins, & Jessica Johnson v. the National Collegiate Athletic Association, the Board of Governors of the National Collegiate Athletic Association, and John Rembao. (2020). Case No. 5:20-CV-01733-NC. Defendant John Rembao’s Notice of Motion and Motion to Dismiss Class Acton Complaint (Fed. R. Civ. P. 12(b) (6)] and Memorandum Points and Authorities in Support.
Erin Aldrich, Londa Bevins, & Jessica Johnson v. the National Collegiate Athletic Association, the Board of Governors of the National Collegiate Athletic Association, and John Rembao. (2020). Case No. 5:20-cv-01733-EJD Defendants The National Collegiate Athletic Association and the Board of Governors of the National Collegiate Athletic Association’s Motion to Dismiss or Strike. John Rembao’s Notice of Motion and Motion to Dismiss Class Acton Complaint (Fed. R. Civ. P. 12(b) (6)] and Memorandum Points and Authorities in Support.
Additional Background Reading
Brennan, C. (2020, March 11). Prominent track and field coach John Rembao accused of sexual harassment in lawsuit. Burlington Free Press. Retrieved from https://www.burlingtonfreepress.com/story/sports/2020/03/11/sex-harassment-prominent-track-and-field-coach-accused-lawsuit/5010694002/
Firmani, M. (2020, May 28). The NCAA claims it owes no legal duty to protect NCAA student-athletes in legal filings according to FeganScott and Lieff Cabraser law firms. Businesswire.com. Retrieved from https://www.businesswire.com/news/home/20200528005813/en/NCAA-Claims-Owes-Legal-Duty-Protect-NCAA
Snider-McGrath, B. (2020, March 11). Three former U.S. collegiate athletes accuse coach John Rembao of sexual harassment. Running Magazine. Retrieved from https://runningmagazine.ca/the-scene/three-former-u-s-collegiate-athletes-accuse-coach-john-rembao-of-sexual-harassment/
Brake, D., & Burton Nelson, M. (2012). Staying in bounds: An NCAA Model Policy to Prevent Inappropriate Relationships Between Student-Athletes and Athletics Department Personnel. Indianapolis, IN: National Collegiate Athletic Association. Retrieved from https://www.ncaa.org/sites/default/files/Staying+in+Bounds+Final.pdf
