By Adrienne M Arlan and Geoffrey A. Leskie, of Segal McCambridge
In September 2020, citing the “interests of justice,” the United States District Court for the Northern District of California ruled that a lawsuit filed in the Court by multiple current and former student athletes against, inter alia, the NCAA and the NCAA Board of Governors (collectively, the “NCAA”) needed to be transferred to the Southern District of Indiana as the California Court did not have personal jurisdiction over the NCAA, but the Indiana Court would. Following the transfer of the Aldrich case to the Southern District of Indiana, the NCAA again moved for dismissal of the plaintiffs’ Second Amended Complaint (“Complaint”).
NCAA’s Motion to Dismiss
The NCAA contested the Complaint on the basis of: (1) standing; (2) timeliness; and (3) improper defendant entity.
The NCAA initially argued that plaintiffs, Erin Aldrich (“Aldrich”), Jessica Johnson (“Johnson”), and Londa Bevins (“Bevins”), former athletes, lacked standing to pursue injunctive relief, and that remaining plaintiff, Beata Corcoran (“Corcoran”), a current athlete, lacked standing for both damages and injunctive relief. The plaintiffs only challenged the NCAA’s arguments regarding Corcoran’s standing.
The Aldrich Court outlined a three-part test to analyze standing that requires: (1) a plaintiff to have suffered an injury in fact that is concrete, particularized, and actual or imminent, and not merely conjectural or hypothetical; (2) the existence of a causal link between the injury and the conduct alleged; and (3) it must be likely, as opposed to merely speculative that the injury will be remedied by a judicial decision.
Crucial to the analysis in this particular case is that Corcoran is not alleging she was actually abused but that her alleged injury is the increased risk of sexual assault she faces as a student athlete. Comparing the situation to that of Plotkin v. Ryan, 239 F. 3d. 882 (7th Cir. 2001) where the plaintiff brought suit alleging a harm of increased risks of accidents as a result of bribes exchanged for commercial drivers’ licenses, the Aldrich Court held that Corcoran’s alleged injury was too speculative.. Accordingly, all claims for injunctive relief and all claims by Corcoran were dismissed.
Generally speaking, Indiana law, which was applied in this case, acknowledges that claims may survive even if the statute of limitations has run if an equitable doctrine intervenes. In response to the NCAA’s arguments, Aldrich argued that the discovery rule and the law of the case doctrine deem the accrual of her claim to be 2019 and thus timely. Bevins and Johnson argue that fraudulent concealment or equitable estoppel tolled their respective statutes of limitations periods.
As to Aldrich, the Court held that “the ascertainable damage rule” for determining when the period of limitations begins to run best applies to this case which holds that, pursuant to Indiana’s statute of limitations rules, the period does not begin to run until the time that the damage is or could be ascertained, citing to Hildebrand v. Hildebrand, 736 F. Supp. 1512 (S.D. Ind. 1990). Notably, in applying the ascertainable damage rule the Aldrich Court rejected a narrowly applicable alternative rule sometimes applied in child sexual abuse cases which originated in Doe v. Schults-Lewis Child & Family Services, Inc., 718 N.E.2d 738 (Ind. 1999).
Delving into a fact-specific inquiry, the Aldrich Court found that Aldrich had not plausibly established that she could not have ascertained her damages until 2010 as she claimed. While all of Aldrich’s numerous and grotesque factual allegations against her coach/mentor, John Rembao (“Rembao”), are not repeated herein, the Court found most troubling an allegation that Rembao physically and sexually exploited Aldrich while on a flight to Australia in 1999. The Court opined that given the nature of the incident, the relationship between Aldrich and Rembao, Aldrich’s isolation on an airplane in a foreign country, and the lack of any other parents or authority figures should have made damage ascertainable with some ordinary diligence. Acknowledging its sympathy for Aldrich’s situation and finding the abuse deplorable, the Aldrich Court found that the “discovery rule” did not obviate the running of the applicable statute of limitations barring Aldrich’s claims.
Turning to Aldrich’s arguments regarding the law of the case doctrine, the Court noted Aldrich’s prior contention that Arizona law applied to her claims because the California Court previously applied it when ruling on the NCAA’s initial Motion to Dismiss. The Aldrich Court held that the law of the case doctrine did not apply in this case because the California Court had only applied Arizona law to Aldrich’s claims against Rembao, not the NCAA. Secondly, the California Court concluded that it did not have personal jurisdiction over the NCAA, so it could not have “decided the issue” as required by the law of the case doctrine. Accordingly, all of Aldrich’s claims were dismissed on the basis of timeliness.
Johnson and Bevins advanced different arguments in an attempt to overcome the NCAA’s challenges to timeliness—fraudulent concealment and equitable estoppel. Passive fraudulent concealment, the type argued by Johnson and Bevins, requires a special relationship between the parties that could be described as a confidential or fiduciary relationship. The Aldrich Court acknowledged there is certainly trust between the plaintiffs and the NCAA, but mere trust does not rise to the level of a fiduciary or special relationship. The Aldrich Court then held that the NCAA does not have a duty to inform student-athletes of other sexual abuse cases. Thus, without any duty to “speak” required by equitable estoppel, the non-disclosure of other sexual abuse cases by the NCAA did not warrant equitable estoppel. Accordingly, Johnson and Bevins’ claims were also dismissed for lack of timeliness.
Improper Defendant Entity
The NCAA also advanced the argument that specifically the NCAA Board of Governors (“Board”) was not an entity with the capacity to be sued. The plaintiffs cited to a New Jersey case, Nahas v. Shore Med. Ctr., No. 13-6537, 2018 U.S. Dist. LEXIS 70785 (D.N.J. Apr. 27, 2018), that permitted suit against a hospital’s Medical Executive Committee, but the Aldrich court distinguished Nahas because New Jersey has a specific statute which sets forth a standard for evaluating capacity—unlike Indiana. To the contrary, a prior federal decision applying Indiana law, Manassa v. NCAA, No. 1:20-cv-03172-RLY-MJD (S.D. Ind. Sept. 13, 2021), held that the Board was not a suable entity under Indiana law. While unnecessary given the dismissal of all of the plaintiff’s claims, the Court reiterated the position that the Board is not a suable entity.
Other Considerations and Future Implications
If the September 2020 Aldrich opinion was illustrative of anything, it was that that suing the NCAA is a procedurally complex process that can only be done with any regularity or certainty in the United States District Court for the Southern District of Indiana. This most recent Aldrich opinion further illustrates that even if plaintiffs navigate the initial personal jurisdiction issues, they face an uphill battle regarding standing and the applicability of statutes of limitations, not to mention that the Court has twice decided that the NCAA Board of Governors is not a suable entity pursuant to Indiana law. There are certainly circumstances where plaintiffs can clear these procedural hurdles such as recent, actual abuse that has been timely litigated, but this latest ruling makes it extremely difficult for those former athletes who have been abused in the past to seek justice against the NCAA.