The Roots of Abuse: Expanding Vicarious Liability for Sexual Abuse in Women’s Sports

The Roots of Abuse: Expanding Vicarious Liability for Sexual Abuse in Women’s Sports

11.28.2023

By Ashlyn Stone

Ninety-three percent of athletes experience sexual harassment, sexual assault or unwanted contact during their times in sport.[1] The majority of those sexually harassed or assaulted within their sport identify as women.[2] While this news could be stunning to some, fewer are more familiar with the pervasiveness of abuse within women’s athletics than the players of the National Women’s Soccer League (NWSL, or the League).[3] On Oct. 3, 2022, a report detailing the offenses of multiple coaches against many players, and the lack of real action by the NWSL and owners alike, was released to the public.[4] The report stirred conversations regarding abuse in women’s sports, pushing many into action who called for accountability for all involved actors.[5] It remains unclear as to what fundamental changes could best ensure that girls and women are safe to play sports without fear of abuse or sexual coercion.[6] This article will provide a framework for addressing these issues of abuse, pointing to the standards in New York and beyond as a guideline for handing sexual harassment and claims throughout the NWSL.

Part I: The Protections (or Lack Thereof) Afforded by Federal Employment Law

Sexual Harassment Claims & Title Structures

Under Title VII of the Civil Rights Act of 1964 (Title VII), it is prohibited for any employer to allow anyone to be sexually harassed at work by anyone else, regardless of sex, gender or sexual orientation.[7] A plaintiff may establish a violation of Title VII by proving that discrimination based on sex by a supervisor, who is one that is “empowered by the employer to take tangible actions against the victim” and does not include other individuals in positions of power who are not directly managing or supervising that specific employee.[8]

Employers can be held vicariously liable for sexual harassment unless they can prove the elements of the Ellerth defense, that is: (1) that they exercised reasonable care to prevent and correct promptly any sexually harassing behavior, such as through publishing policies and hosting regular trainings for employees, and (2) that the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm.[9] Considering that 95% of sexual harassers go unpunished in the workplace,[10] this defense is often viewed as a type of loophole to allow employers to avoid liability for the acts of sexual harassment by their supervisors.[11]

New York’s Standard for Sexual Harassment

New York has provided for more expanded liability for sexual harassment in the workplace.[12] For example, in New York, employers hold the burden of proving that the harassing conduct does not rise “above the level of what a reasonable victim of discrimination with the same protected characteristic would consider petty or trivial inconveniences,” rather than the plaintiff under Title VII.[13] Further, under New York law, the Ellerth defense is essentially eliminated through the addition of a clause that an employer’s liability will not be based on whether or not the individual made a complaint about the harasser.[14] Under New York City law, vicarious liability is imposed on an employer for harassment committed by an employee when (1) the employee or agent exercised supervisory or managerial responsibility; (2) the employer knew of the conduct, and acquiesced or failed to take immediate and appropriate corrective action, where actual knowledge is shown on the part of any other supervisory or managerial employee; or (3) the employer should have known and failed to exercise reasonable due diligence to prevent discriminatory conduct.[15]

Therefore, in New York City, any supervisor who was aware of the conduct and did not act, or any employer who failed to exercise reasonable care to prevent this conduct, can be held liable, expanding vicarious liability in such a way that captures many more complicit actors.[16] This new standard has proved to encourage more victims to come forward regarding sexual harassment, considering New York’s expansive language in defining harassment and the ridding of the harmless intent defense.[17] One example of the expansive nature of New York’s sexual harassment law is the expanded statute of limitations, which allowed victims to bring cases dating back 20 years.[18] The broadened New York laws have allowed for a greater number of sexual harassment investigations, leading to more offenders receiving consequences for their abuse in the workplace.[19]

Part II: A Pattern of Systemic Abuse in Women’s Soccer

The History of The NWSL & Abuse and Misogyny as a Central Theme

The History & Structure of the NWSL

The NWSL is a professional women’s soccer league, founded under the management of the United States Soccer Federation (USSF) and now operating as its own entity.[20] Under the initial regime, players who were members of their country’s national teams were paid by their respective Federations, and the rest of the club’s players were paid by the club under a salary cap bargained for by the NWSL’s Player’s Association (NWSLPA).[21] Since then, the USSF-supported NWSL Allocation system has been dissolved, meaning that there is no substantial difference between players who come from the United States Women’s National Team (USWNT) and players operating drafted directly into the League.[22]

The NWSL has had many recent successes, including setting a record for its attendance of 32,000[23] and an aired championship with multiple networks.[24] Those victories, although massive for women’s sports, have been overshadowed by the abuse within the League.[25]

The Sally Yates Report on NWSL’s Abuse Scandals

On Oct. 3, 2022, former United States Deputy Attorney General Sally Yates released a report that exposed massive abuse, sexual coercion and underlying sexism in the NWSL, reporting failures of administration at multiple levels.[26] The report states, “Some of the misconduct dates to predecessor leagues and some to youth soccer. The roots of abuse in women’s soccer run deep and will not be eliminated through reform in the NWSL alone.”[27] Yates emphasizes that while the report focuses in on the abuse by three coaches, this is simply to “illustrate the gravity and breadth of the misconduct at issue and the institutional failures that perpetuated it,” and that in the 2021 season, half of the NWSL’s 10 teams had to separate from coaches due to player allegations of misconduct.[28] Speaking on one particular charge of abuse concerning former North Carolina Courage Head Coach Paul Riley, his problematic behaviors were seen as an “open secret” that never prompted an institutional response, even though there was knowledge by the NWSL Executive Director, the USSF President, the NWSL General Counsel and the USWNT Head Coach.[29]

More so, the lack of official “jurisdiction” over player safety (though logically flowing, would likely come from the League itself) enabled each organization to label the mass abuse as “local” problems that individual teams had to address, rather than a sport-wide issue that called for collaboration of the USSF and the NWSL, as their single-entity employer, discussed below.[30] Yates asserted that, “In general, teams, the NWSL, and USSF appear to have prioritized concerns of legal exposure to litigation by coaches – and the risk of drawing negative attention to the team or League – over player safety and well-being.”[31] She reiterated that teams and leagues alike “cloaked” information about the coaches’ misconduct, claiming inappropriately attorney-client privilege, non-disclosure protections and non-disparagement as reasons for not informing other teams or the press about the real reasons for releasing coaches.[32]

Part III: Resolutions & Solutions in Preventing Future Harm in Women’s Sports

Employer Structures Under The NWSL

Many sports leagues operate under a unique structure of joint employment, where the league operates as a single-entity employer, the NWSL included.[33] A single entity refers to when “those leagues in which there is a centralized entity which substantially owns or controls the league’s operations and which contracts with the players” in which individual teams are shareholders in the central entity.[34] In these scenarios, players execute employment contracts with the league and not with their individual teams.[35] Courts have found that the league and teams in these single-entity relationships act as “concurrent employers,” where the individual teams are controlling the day-to-day operations of the players and contributing to the overall success of their ultimate employer – the league.[36] Therefore, when considering any sexual harassment case, the NWSL is operating under a standard where it is the employer of each individual player, regardless of its claims that it is not technically in the standing for liability as an employer. Additionally, each team is considered the employer. Finally, this could implicate the involvement of USSF as another technical employer, at least for the time when USSF was managing the NWSL.

Expanding Vicarious Liability to Complicit Actors in Sexual Harassment & Assault Claims Under the New York Model for Vicarious Liability

The New York model for sexual harassment essentially allows the plaintiffs to avoid the murky waters of the Ellerth defense, instead stating that an employee is not required to make a complaint and follow company procedures to bring a sexual harassment claim against their employer.[37] Further, under New York City law, a supervisor includes any individual that has managerial responsibility, and the burden is on the employer, rather than the traditional employee, to show that the employer did not know of the conduct.[38]

The New York standards, both the state and city combined, should be adopted under a Title VII amendment and applied correctly in the case of women’s soccer and women’s sports. The state of the NWSL is not unique from other women’s sports fields.[39] Women are subjected to tremendous amounts of abuse in the sports arena,[40] forcing the professional players into choosing between coming out about their abuse or staying on the field and generating more income.[41] Furthermore, the current structures of Title VII are not functioning as they are intended to, specifically in the realm of women’s sports.

The purpose of Title VII is to “improve the economic and social conditions of minorities and women by providing equality of opportunity in the workplace.”[42] In women’s sports, this purpose is plainly not being reached, in that women are unable to operate in the same conditions as the male athletes due to the enormous burden the women carry of overcoming sexual violence and abuse while maintaining their athletic performance.[43] Therefore, the adoption of the combined New York standards would give these athletes the most equitable means to address their grievances against consistently violent leagues and institutions. In the case of the NWSL, utilizing the New York combined standards would shift the burden from the players to the NWSL and the clubs as a joint employer.[44] The employer would have to prove that they were unaware of the abuse, or that the harassment was merely a petty slight, which would almost definitely fail due to the multiple individuals either being directly involved or at least substantially aware of the abuse within the teams, NWSL and USSF.[45] Each guilty supervisor, whether a coach or athletic trainer (a standard more flexible under New York Law), should be held liable, and the NWSL and USSF, as the employer at the given time, should be held vicariously liable as well.

Ashlyn Stone, a former collegiate soccer player, is a law clerk at Alston & Bird. She recently graduated from St. John’s University School of Law, where she focused on a combination of employment and intellectual property law, with a particular interest in their relation to sports. This article first appeared in the EASL Journal, the publication of the Entertainment, Arts & Sports Law Section. For more information, go to NYSBA.ORG/EASL.

[1] Dan Bryce, U.S. Olympic Report: 93 Percent of Athletes Surveyed Who Experienced Sexual Harassment Or Unwanted Contact Say They Didn’t Report It, CPR, July 15, 2021, https://www.cpr.org/2021/07/15/u-s-olympic-report-93-percent-of-athletes-surveyed-say-they-didnt-report-sexual-harassment-or-unwanted-contact-they-experienced-as-children/.

[2] See id.

[3] Candice Fabry, The Horrifying Abuse in the NWSL Is No Surprise to Anyone in the Game, The Guardian, Oct. 4, 2022, https://www.theguardian.com/sport/2022/oct/04/candice-fabry-nwsl-sexual-misconduct-systemic-us-soccer.

[4] See id.

[5] See Associated Press, Abuse in Women’s Pro Soccer League Was Systemic, Report Says, U.S. News, Oct. 3, 2022, https://www.usnews.com/news/sports/articles/2022-10-03/nwsl-abuse-was-systemic-damning-report-says; Amy Woodyatt, Fans Are Outraged and Players Are Exhausted After Damning Women’s Soccer Abuse Report. Here’s What’s Next, CNN, Oct. 7, 2022, https://www.cnn.com/2022/10/07/football/nwsl-soccer-abuse-explainer-intl-spt.

[6] Woodyatt, supra note 5.

[7] 42 U.S.C. § 2000e.

[8] Vance v. Ball State, 570 U.S. 421, 569 (2013).

[9] Id.

10 16 Alarming Sexual Harassment in the Workplace Statistics You Need to Know, Inspired eLearning, July 12, 2021, https://inspiredelearning.com/blog/sexual-harassment-in-the-workplace-statistics/ (reporting an ABC and Washington Post study that reflected the culture of companies to protect perpetrators and intimidate victims into remaining quiet).

[11] Testimony of Andrea Johnson, Senior Counsel for State Policy, Nat’l Women’s L. Center, May 24, 2019, https://nwlc.org/wp-content/uploads/2019/09/NWLC-testimony-Sexual-Harassment-hearing-5.24.2019.pdf (explaining the viewpoint of a national women’s center that the Ellerth defense is a type of loophole for accountability).

[12] See, for example, New York State Expands Employer Obligations and Liability for Workplace Harassment, Crowell & Moring, Aug. 15, 2019, https://www.crowell.com/NewsEvents/AlertsNewsletters/all/New-York-State-Expands-Employer-Obligations-and-Liability-for-Workplace-Harassment.

[13] N.Y.S. HRL § 296 (h).

[14] Id.

[15] N.Y.C. HRL § 8-107(13).

[16] Id.

[17] Leah Shephard, New York State Revises Sexual Harassment Prevention Guidance, SHRM, May 1, 2023, https://www.shrm.org/resourcesandtools/legal-and-compliance/state-and-local-updates/pages/new-york-sexual-harassment-prevention.aspx.

[18] Lindsay Goldbrum, New York’s Brand-New Law Protecting Sexual Assault Victims Rejects Old Excuses and Revives Old Claims, Outten & Golden, Jan. 12, 2023, https://www.outtengolden.com/insights/media/blogs/new-yorks-brand-new-law-protecting-sexual-assault-victims-rejects-old-excuses-and-revives-old-claims/.

[19] If It Happens to You, Report It: Victims of Sexual Harassment Can Get Justice in NYC, NYC Human Rights, Oct. 12, 2017, https://nychumanrights.medium.com/if-it-happens-to-you-report-it-victims-of-sexual-harassment-can-get-justice-in-nyc-2c35b9651ec4.

[20] David Fleenor, NWSL: Your Complete Guide, World Soccer Shop, June 11, 2020, https://www.worldsoccershop.com/guide/what-is-the-nwsl.

[21] Id.

[22] Id.

[23] San Diego Wave Smashes NWSL Attendance Record With 32,000 Crowd vs. Angel City FC, ESPN, Sept. 18, 2022, https://www.espn.com/soccer/united-states-nwsl/story/4747515/san-diego-wave-smashes-nwsl-attendance-record-with-32,000-crowd-vs-angel-city-fc.

[24] Brandon Costa, National Women’s Soccer League Ready for First Primetime Broadcast Window With NWSL Championship on CBS, Sports Video, Oct. 28, 2022, https://www.sportsvideo.org/2022/10/28/national-womens-soccer-league-ready-for-first-primetime-broadcast-window-as-nwsl-championship-hits-cbs/.

[25] Sally Q. Yates, Report of the Independent Investigation to the U.S. Soccer Federation Concerning Allegations of Abusive Behavior and Sexual Misconduct in Women’s Professional Soccer, King & Spalding 1, 49, Oct. 3, 2022, https://www.kslaw.com/attachments/000/009/931/original/King___Spalding_-_Full_Report_to_USSF.pdf.

[26] Id.; see also Steph Yang, Abuse in the NWSL: A Complete Timeline of Allegations, Reports, and Inaction, The Athletic, Oct. 10, 2022, https://theathletic.com/3677339/2022/10/10/nwsl-abuse-allegations-timeline/.

[27] See Yates, supra note 25, at 6.

[28] Id.

[29] Id. at 7–8.

[30] See id; see also infra notes 33-37 and accompanying texts.

[31] See Yates, supra note 25, at 25.

[32] Id.

[33] Christopher R. Deubert, Labor & Employment Law Guidance for Professional Sports Teams, 32 Marquette Sports L. Rev. 359, 398 (2022).

[34] Id.

[35] See, for example, Fraser v. MLS, 284 F.3d 46, 53–55 (1st Cir. 2002).

[36] The court reached this conclusion in a case where it found that Major League Soccer and D.C. United were both considered an individual player’s employer. Namoff v. D.C. Soccer, LLC, No. 2012-CA-7050, 2014 WL 3254596, at *2 (D.C. Super. May, 8, 2014).

[37] N.Y.S. HRL § 296(h).

[38] N.Y.C. HRL § 8-107(13).

[39] See infra note 40 and accompanying texts.

[40] Scandals of abuse in women’s sports carry an “awful sameness: allegations of systemic sexual, physical and psychological abuse of young athletes, many of them teenage women, by the officials and coaches who are supposed to nurture and protect them.” Women in Sports: The Good, The Bad, The Sexist, Nat’l Women’s L. Center, Mar. 10, 2022, https://nwlc.org/women-in-sports-the-good-the-bad-the-sexist/. Some examples of this repetitive abuse include the abuse of over 200 young female basketball players in Mali, the sexual assault of United States’ gymnasts by their doctor, Larry Nassar, and the harassment by a professional water polo team in California that led to over $14 million in settlements, though this list is hardly exhaustive. Id.

[41] Id.; see also, generally, Yates, supra note 25.

[42] 29 C.F.R. § 1608.1 (b).

[43] See Bryce, supra note 1 (noting that a vast number of women experience abuse in their sport, and largely at the hands of male staff or supervisors).

[44] See supra notes 33–37 and the accompanying texts.

[45] Yates, supra note 25.