By Chelsea Ale
On January 5, 2021, oral arguments took place before the Supreme Court of California in the case of Brown et al v. USA Taekwondo et al. A few months prior to the hearing, the National Collegiate Athletic Association (NCAA) filed an amicus brief in support of the United States Olympic Committee (USOC) to the Supreme Court of California in relation to the USOC’s involvement as one of the 58 defendants in the case. The NCAA is concerned with the similarities the USOC and the NCAA have in the way they are structured. This similarity dictated the NCAA’s decision to get involved in the case in hopes to prevent possible future liability for the NCAA.
According to the NCAA, the California Supreme Court has to determine whether the three Plaintiffs (Kendra Gatt, Brianna Bordon, and Yazmin Brown) “can impose liability for sexual abuse on oversight organizations with no direct role in the abuse (p.9).” This brings up the question of whether or not the court can determine what the appropriate test would be for imposing a tort-law duty on an organization like the USOC. The Plaintiffs’ argue that the USOC not only had authority to issues guidelines and regulations to the organizations that were under them, but they had the responsibility to enforce those rules and regulations, primarily related to SafeSport. The NCAA believes the court has to determine if organizations like the NCAA and the USOC can be held liable for misconduct made by its member institutions or those institutions employees. In order to shield the NCAA, in their opinion, from such future liability, they decided to file an amicus brief for their support of the USOC.
The NCAA had three main arguments in their amicus brief. The first argument the NCAA stated is that they believe that the Court of Appeal correctly applied a two-step test in analyzing whether the USOC owed a duty. The court analyzed the question of duty by analyzing the Rowland factors as well as the ‘special relationship’ test. According to the NCAA “this Court made clear, the Rowland factors operate to narrow the potential scope of any duty that might be imposed on the basis of a special relationship—not to impose liability where no special relationship exists (p.19).” Further, the NCAA stated that “the existence of a ‘special relationship’ is necessary to the imposition of liability on an organization for the acts of a third party because absent such a relationship there would be no basis in the law for imposing a duty…it is not alone a sufficient justification for imposing a duty (p.20).” Using the two-step test the Court of Appeal concluded that “an exception to the general “no duty” rule is warranted only when both the ‘special relationship’ test and the Rowland factors are satisfied (p.21)” which the NCAA agreed with.
The second argument that the NCAA stated was that they agreed that the Court of Appeal held that the USOC owed no duty given its tenuous relationship to Plaintiffs. The NCAA believes that their own experience as a member-driven organization “underscores the potential negative policy implications and heavy burdens that imposing a duty on the USOC would create (p.21)” Further, the NCAA states that the special relationship test does not favor imposing a duty on the USOC, because “the USOC’s connection to the Plaintiffs and their abuser, Marc Gitelman, is far too attenuated to warrant imposing a duty under the ‘special relationship’ test (p.22).” The NCAA also stated that the Rowland factors do not support imposing a duty on the USOC. The NCAA agrees on the following issues related to the Rowland factors; there is no “close connection” between the USOC’s conduct and Plaintiffs’ injury the USOC’s issuance of best practices was not morally blameworthy, the policy of preventing future harm favors encouraging issuance of best practices, and the burden of recognizing a tort duty would be extensive.
The final argument that the NCAA makes is how courts across the country have recognized the harmful impact it can have to recognize this type of duty. According to the NCAA “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 (p.50)” Further, the NCAA explains that courts have “repeatedly refused to impose tort-law duties based on the issuance of policy guidance, because such a duty would disincentivize organizations from providing it (p.48).” Which the NCAA believes would not help the publics interests.
While the NCAA is not a defendant in this case the NCAA provides resources, guidelines, rules and regulations to its member institutions for their benefit, and the health and safety for all of their student-athletes and coaches. Similarly, to the NCAA the USOC oversees 49 sport-specific governing bodies comprised of thousands of programs, athletes, coaches, and employees. Based on the similarity between the make-up of the NCAA and the USOC the NCAA states that they have a vested interest in the way this case will be determined. According to the NCAA if the court determines that because the USOC made rules and regulations for their members they were required to actively enforce them than that means all organizations like the USOC, such as the NCAA, would also be required to enforce all of their rules and regulations they give to their institutions. The enforcement of these rules —according to the NCAA—would be impossible due to the number of members, and employees under each of these organizations and the number of hours it would take to constantly surveillance each member and employee. According to the NCAA they do not and cannot directly supervise and police the conduct of all of the members of their institutions. The NCAA also states that imposing a duty based on guidelines that were issued by the USOC would be dangerous and would make organizations have to reevaluate if those organizations should issue guidance to the entities they oversee. The NCAA believes that this ruling would “force standard-setting and oversight organizations to make an impossible choice: whether to issue guidance to their members and thereby trigger potentially crippling liability, or withhold such guidance to avoid the risk of liability (p.11)” Furthermore, according to the NCAA “future harm is best prevented by encouraging organizations like the USOC to enact policies, like SafeSport, that provide guidance and best practices for avoiding sexual abuse. If such guidance were instead a basis for tort liability, the USOC and others would be powerfully discouraged from issuing such guidance and might have to reevaluate how and whether they provide it, for fear of a far-reaching duty to thousands of athletes across the country (p.41).”
The way the NCAA and the USOC are structured is very similar to each other. Therefore, the NCAA likely found it critical to involve itself in the case, Brown v. USA Taekwondo, to help explain their beliefs on why the USOC should not be found to have a duty to the Plaintiffs. If the case does find the USOC responsible or to have liability, it could have future negative effects for other organizations like the NCAA or the USOC.
National Colligate Athletic Association, Brief amicus curiae. Brown, et al. v. USA Taekwondo, et al., Case No. S259216, available at https://www.courts.ca.gov/documents/8-s259216-ac-national-collegiate-athletic-assn-092220.pdf.
Chelsea Ale is a PhD student at Florida State University specializing in research related to marketing/advertising, consumer behavior, participation motivations, body image issues, sexual assault/harassment, human resources and diversity, primarily in Olympic sports.