In an effort to protect minors from sexual predators, a number of youth sports organizations have developed policies designed to educate adult volunteers, coaches, employees, parents and players regarding the prevention and detection of sexual abuse. Additionally, youth organizations have also started mandating criminal background checks of all adult volunteers, coaches and employees. Is the combination of education and checks enough, or must national sports organizations ensure that their state and local affiliates actually follow the national guidelines? That was the question the Court of Appeal of California, Sixth Appellate Division was asked to decide in Jane Doe v. United States Youth Soccer Association, 8 Cal. App. 5th 1118; 2017 Cal. App. LEXIS 148.
Jane Doe was 12 years old when she played soccer in the West Valley Youth Soccer League. West Valley was part of the California Youth Soccer Association, which was affiliated with the United States Youth Soccer Association (US Youth Soccer), a national organization.
As Doe's coach, Emanuele Fabrizio violated several of US Youth Soccer's safety guidelines and was eventually suspended by the West Valley Youth Soccer League from coaching after several parents and coaches complained about his potentially inappropriate behavior. West Valley, however, never informed Doe's parents of Fabrizio's suspension, which involved inappropriate touching and contact with Doe. Fabrizio continued to have contact with Doe even after he was removed as coach.
Fabrizio would eventually plead no contest to continuous sexual abuse of a child and lewd and lascivious acts on a child under age 14. He is now serving a 15-year sentence in state prison.
Duty to protect
In addition to the criminal charges against Fabrizio, Doe sued US Youth Soccer, the California Youth Soccer Association and the West Valley Youth Soccer League for negligence, claiming that each defendant had a legal duty to protect Doe from the criminal conduct of Fabrizio and failed to do so.
In support of this argument, Doe pointed to the fact that the organizations knew that pedophiles were drawn to youth soccer programs to gain access to children, and that such programs presented an unacceptable risk of harm to children unless appropriate preventative measures were taken. To support this argument, Doe pointed to US Youth Soccer's KidSafe Program, which was developed to educate adult volunteers, coaches, employees, parents and players regarding the prevention and detection of sexual abuse. However, neither US Soccer nor the California Youth Soccer Association required its affiliates to administer the program. As a result, West Valley never conducted any meetings for parents to discuss the KidSafe Program.
In addition, Doe argued that under US Youth Soccer bylaws, state associations and each affiliate league are required to collect and screen criminal conviction information on coaches, trainers, volunteers and administrators who will be in contact with US Youth Soccer child members. However, neither the state nor local organizations conducted a criminal background check in 2010, when Fabrizio applied for a coaching position with West Valley. If they had, they would have discovered that he had a history of physical violence.
In rejecting Doe's negligence claim, the trial court ruled that the three defendants had no duty to protect her from Fabrizio. On appeal to the Court of Appeal of California, the court held that in order to establish an action for negligence, Doe must establish: 1) that the defendants owed her a legal duty; 2) that the defendant breached that duty; 3) the breach proximately caused the injuries; and 4) damages.
Since the current case involved the defendants' nonperformance of acts or nonfeasance (their failure to require or conduct criminal background checks and to warn or educate Doe about the risks of sexual abuse), the court ruled that Doe could only establish that the defendants had a duty toward her if they stood in a special relationship to her.
Under the special relationship doctrine, the court will only find a special relationship when the plaintiff is particularly vulnerable and dependent upon the defendant who, correspondingly, has some control over the plaintiff's welfare. Generally, a greater degree of care is owed to children because of their lack of capacity to appreciate risks and avoid danger. California courts have frequently recognized special relationships between children and their adult caregivers that give rise to a duty to prevent harms caused by the intentional or criminal conduct of third parties.
The defendants argued that since participation on the West Valley team was voluntary, there could be no special relationship. The court, however, rejected this argument, noting that like schools, youth sports leagues stood in loco parentis when parents drop their children off at sports practices and games since those parents entrust their children to the leagues with the expectation that they be kept physically safe.
Foreseeable wrongful acts
Having concluded that there was a special relationship between the defendants and Doe, the court held that it could only impose a duty to take affirmative action to control the wrongful acts of a third party where such conduct could be reasonably anticipated. The degree of foreseeability, the court held, must be high enough to charge the defendant with the duty to act on it.
Applying this standard, the court held that even though the defendants had no actual knowledge that Fabrizio had previously sexually or physically abused anyone or had a propensity to do so, they were aware of incidents of physical and sexual abuse of other members by its coaches at a steady rate of between two and five per year.
More importantly, in recognition of the risks of sexual abuse to its players and that sexual predators were drawn to its organization in order to exploit children, US Youth Soccer had developed the KidSafe Program. Therefore, the court concluded that it was reasonably foreseeable to defendants that a child participating in their soccer program would be sexually abused by a coach.
Background check 'burden'
US Youth Soccer argued that it would impose a tremendous burden to mandate criminal background checks of employees and volunteers in defendants' programs because the availability of criminal background checks varies among states.
In rejecting this argument, the court noted that US Youth Soccer has required criminal background checks for all coaches and referees participating in its youth Olympic development program in the state associations since 2008. In addition, the court found that US Youth Soccer had kept records of which state associations did and did not obtain these criminal background checks, and distributed reports of individuals who had been disqualified from participation in its youth programs. Therefore, the organization had already demonstrated the administrative ability to ensure compliance with mandatory criminal background checks.
When balancing the degree of foreseeability of harm to children in defendants' soccer programs against their minimal burden, the court concluded that defendants had a duty to require and conduct criminal background checks of employees and volunteers who had contact with children in their programs.
What does the court's decision in Doe v. United States Youth Soccer Association teach sports and recreation administrators?
First, the court made it clear there was a special legal relationship between sports and recreation organizations and children. Thus, sports and recreation organizations have a duty to protect children from sexual predators while they participate in activities. If an organization fails to conduct criminal background checks of its employees and volunteers who have contact with children in their programs it can be found negligent.
Second, while sports associations may have a duty to conduct criminal background checks, the court found that the creation and implementation of a sexual abuse education program to protect children in sports programs would be extraordinarily burdensome, and therefore the associations have no legal duty to protect children by those means.
Finally, the case makes it clear that preventing harm to children should be the paramount goal of sports groups. To accomplish this goal, sports and recreation associations should be taking every reasonable measure — short of the overly burdensome — to prevent pedophiles from gaining access to children.
Attorney John Wolohan is a professor of sports law in the David B. Falk College for Sport and Human Dynamics at Syracuse University. Gao Fei is a Ph.D. student in the Sport Management program at the University of South Carolina.
This article originally appeared in the May 2017 issue of Athletic Business with the title "How far must sports groups go to protect youths from predators?" Athletic Business is a free magazine for professionals in the athletic, fitness and recreation industry. Click here to subscribe.