Geoffrey Leskie and Adrienne Arlan analyze a recent federal lawsuit against the NCAA pertaining to alleged sexual assault in an article titled "Sexual Assault Victims May Only Sue the NCAA in Limited Jurisdictions Despite Its National Presence."
Please see below for the full article, originally published in Sports Litigation Alert.
Sexual Assault Victims May Only Sue the NCAA in Limited Jurisdictions Despite its National Presence
Athleticism in our country represents may things to many people. For some, it provides an opportunity to socialize, and for others, it represents a large part of their identity and provides a starting point for their professional careers. What is less apparent or often ignored is that off the field, the potential for sexual assault lingers in the background for many aspiring athletes. When lawsuits arise out of these circumstances, especially those that arise years later, there is a complex jurisdictional analysis that litigants must navigate as recently demonstrated in Aldrich v. NCAA, a September 3, 2020 decision out of the United States District Court for the Northern District of California.
From the mid-1990s to the early 2000s, multiple student athletes, including Plaintiffs, Erin Aldrich (“Aldrich”), Jessica Johnson (“Johnson”), and Londa Bevins (“Bevins”) (collectively, “Plaintiffs”), suffered through years of grooming and sexual assault at the hands of their trusted track and field coach, John Rembao (“Rembao”).
Rembao’s relationship with Aldrich began while she was a gifted high school athlete. After gaining Aldrich’s trust, Rembao used his position as her mentor and coach to shift their relationship to sexual in nature while Rembaio was Aldrich’s coach at the University of Arizona and subsequently the University of Texas at Austin (“UT Austin”).
Johnson, much like Aldrich, was a gifted high school athlete with whom Rembao developed a relationship by being supportive of Johnson during her personal and athletic struggles just prior to attending college at UT Austin. Just like with Aldrich, Rembao’s relationship with Johnson progressed into a sexual relationship while he was her coach at UT Austin. Johnson filed a complaint with UT Austin while a student at the university, but UT Austin officials investigated the allegations and ultimately dismissed Johnson’s allegations.
Bevins’ allegations regarding Rembao were investigated by UT Austin, alongside Johnson’s, but were similarly dismissed by the university. Her relationship with Rembao also begin while she was a high school athlete when Rembao began recruiting her to attend UT Austin, which she ultimately did.
Plaintiffs’ Amended Complaint and the NCAA’s Motion to Dismiss
In July 2020, Plaintiffs and others similarly situated filed their First Amended Complaint against not only Rembao, but the NCAA and the NCAA Board of Governors (collectively, the “NCAA”) as well. The NCAA, in response, filed a Motion to Dismiss alleging that the California federal court did not have personal jurisdiction over the NCAA. As the Aldrich Court noted, the “exercise of personal jurisdiction over a nonresident defendant must be authorized under the state's long-arm statute and must satisfy the due process clause of the United States Constitution.” (Perez v. United States, 103 F. Supp. 3d 1180, 1197 (S.D. Cal. 2015)). Importantly, personal jurisdiction can be general or specific.
The NCAA’s Motion to Dismiss for Lack of Personal Jurisdiction
Plaintiffs first attempted to hold the NCAA liable for the conduct of its coaches, and specifically, that of Rembao. Plaintiffs’ claims against the NCAA were based on the NCAA’s alleged failures to: “(1) create and implement rules targeting sexual misconduct, (2) protect student-athletes from athletic personnel like...Rembao, and (3) protect Plaintiffs from...Rembao.” Under federal law, Plaintiffs then needed to establish that either the NCAA is "at home" in California or has sufficient contacts with California relating to these allegations.
General Personal Jurisdiction
The Aldrich Court primarily based its analysis of the jurisdictional issues on the United Sates Supreme Court case Daimler AG v. Bauman, 571 U.S. 117 (2014). The Aldrich Court noted that the Supreme Court, in Daimler, had actually “tightened” the reach of general personal jurisdiction to those locations where a corporation is incorporated and has its principal place of business and, in addition, any places where the defendant “defendant's relationship with the forum is so continuous, regular, and systematic that the defendant can be fairly regarded ‘at home’ there.” The Aldrich Court interpreted the reasoning in Daimler to imply that a “defendant cannot be ‘at home’ in all fifty states,” but only in those states where “...its ties to the forum are so strong and significant...as to render its connection with the forum unique.”
Plaintiffs then argued that the NCAA had sued and been sued in the California forum, citing George v. NCAA, 2008 U.S. Dist. LEXIS 106049, 2008 WL 5422882 (C.D. Cal. Dec. 17, 2008), inter alia. Going a step further, Plaintiffs argued that because the NCAA had conceded personal jurisdiction in George, personal jurisdiction could be presumed in this lawsuit. The Aldrich Court, rejecting both arguments, noted that acceptance of these theories would “transmute specific jurisdiction into general jurisdiction,” that it is a defendant’s choice whether to assert a jurisdictional defense or not, and that a defendant may strategically choose to permit suit in the improper forum. Moreover, George and the other decisions cited by Plaintiffs while making this argument were specific personal jurisdiction cases—not general jurisdiction cases—and for the cited cases, there were underlying state court actions giving rise to the federal lawsuits which were materially distinguishable from the case at hand. This further weakened Plaintiffs’ arguments in favor of general personal jurisdiction in the California forum.
Plaintiffs next argued that the NCAA’s members (colleges and universities), were heavily concentrated in California. Rejecting this argument, the Aldrich Court relied again on Daimler and noted that it was true that the NCAA had fifty-eight members in California, but that amount was out of a total of 1,100 members across the United States. Under Plaintiff’s logic, the NCAA could be sued anywhere 5% or more of its members resided, which the Aldrich Court found contrary to the above guidance in Diamler that “any theory that would apply general jurisdiction in ‘every state’ is ‘unacceptably grasping.’” (Diamler, 571 U.S. at 138). Plaintiffs also tried to compare the issue to subject matter jurisdiction which turned on the location of an entities members, but the Aldrich Court rejected this argument as a “red herring” as subject matter and personal jurisdiction are materially different. Additionally, the contacts of the NCAA’s agents (the institutions) with the forum were irrelevant pursuant to Ranza v. Nike, Inc. 793 F.3d 1059 (9th Cir. 2015).
Finally, Plaintiffs argued that the California forum had general personal jurisdiction over the NCAA because the NCAA has a physical and economic presence in California. However, the Aldrich Court also rejected this argument as it was inappropriate to consider such connections to a forum in a vacuum, and when considering the NCAA’s connections to California, there was nothing that made them unique. Without Plaintiffs demonstrating how the NCAA’s connections to California were, in fact, unique, their argument failed.
Specific Personal Jurisdiction
In addition to general personal jurisdiction, Plaintiffs also argued that the California forum also had specific personal jurisdiction, which only exits when a plaintiff’s claims arise out of or relate to the defendant’s forum contacts. Bristol-Myers Squibb Co. v. Superior Ct., 137 S. Ct. 1773 (2017). The Aldrich Court began its specific personal jurisdiction analysis by noting that the Ninth Circuit applies a three prong test: “(1) the defendant must either purposefully direct its activities toward the forum or purposefully avail itself of the privileges of conducting activities in the forum; (2) the claim must be one which arises out of or relates to the defendant's forum-related activities; and (3) the exercise of jurisdiction would be reasonable.” Axiom Foods, Inc. v. Acerchem Int'l, Inc., 874 F.3d 1064, 1068 (9th Cir. 2017).
Plaintiffs’ claims are tantamount to alleging that the NCAA’s failure to legislate appropriately, the effects of which were felt in California as Rembao was permitted to be a coach at Cal Poly at one point, failed to protect Plaintiffs and similarly situated student athletes from Rembao and others like him. The Aldrich Court, after applying the above test, held that this reasoning failed to establish specific personal jurisdiction in this case because the NCAA’s legislating and decision-making occurred in Indiana where the NCAA is headquartered, not California. Further, there was no allegation that any abuse occurred in California, despite Rembao coaching there in the late 1980s. Finding that no general nor specific personal jurisdiction existed, the Aldrich Court granted the NCAA’s motion to dismiss, but “in the interests of justice,” pursuant to 28 U.S.C. § 1406, the Aldrich Court transferred the lawsuit to the Southern District of Indiana where there is undoubtedly jurisdiction over the NCAA.
Other Considerations and Future Implications
While the bulk of the Aldrich decision focused on jurisdictional issues, the Court also addressed Rembao’s arguments that the statute of limitations barred Plaintiffs’ claims and that Plaintiffs had failed to state a claim upon which relief may be granted. After undertaking a fact-specific choice of law analysis and determining that Arizona law applied to Aldrich’s claims and that California law applies to Johnson and Bevins’ claims, the Aldrich Court denied the requests to dismiss for statute of limitations purposes and for failure to state a claim, which is unsurprising given the nature of the claims and the factual background of the lawsuit.
An unpublished District Court decision out of the Ninth Circuit is not precedentially binding or particularly persuasive. Nonetheless, one would expect the NCAA to rely upon this decision in the future to argue for the transfer of lawsuits, and not just those related to sexual assault, from jurisdictions favorable to a plaintiff to a home-state federal court. Going one step further, the analysis espoused by the Aldrich Court could also be applicable to other athletic bodies and leagues, including major and minor leagues, should they find themselves the defendant in a lawsuit.
Geoffrey A. Leskie is a senior associate in the Detroit office of Segal McCambridge Singer & Mahoney. His practice focuses on sports, recreation and entertainment, commercial litigation, employment litigation and general litigation. He can be reached at email@example.com.
Adrienne M. Arlan is an associate in the Chicago office of Segal McCambridge Singer & Mahoney. Her practice focuses on sports, recreation and entertainment, construction, cyber risk and technology and toxic tort. She can be reached at firstname.lastname@example.org.