The Roots of Abuse: Expanding Vicarious Liability for Sexual Harassment, Assault, and Abuse in Women’s Soccer and Sports

By Ashlyn Stone

July 13, 2023

The Roots of Abuse: Expanding Vicarious Liability for Sexual Harassment, Assault, and Abuse in Women’s Soccer and Sports


By Ashlyn Stone

This article appears in the Entertainment, Arts, & Sports Law Section (EASL) Journal, a publication of the EASL Section. For more information please see NYSBA.ORG/EASL.

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, few are more familiar with the pervasiveness of abuse within women’s athletics than the players of the National Women’s Soccer League 3

For example, Sinead Farrelly was a renowned soccer player, starting over 90 games and playing over 7,000 minutes for one of the top soccer programs in the country, the University of Virginia.4 Due to her massive successes, Farrelly was drafted by former NWSL coach Paul Riley to Philadelphia Independence, beginning the spiral of sexual and emotional abuse.5

At the hands of Riley, Farrelly was subjected to inappropriate comments, unsolicited pictures, and coercion of sexual favors.6 This created an extremely uncomfortable and hostile work environment for Farrelly, ultimately leading to her early retirement from the sport.7 Unfortunately, Farrelly was one of many to report the offenses of Riley, though systemic failures reveal that simply reporting was not enough to push the League or owners into immediate action.8

On October 3, 2022, a report detailing not just Riley’s offenses, but 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.9 The report stirred conversations regarding abuse in women’s sports, pushing many into action who called for accountability for all involved actors, including League personnel, owners, and any other individuals who knew of these heinous acts and failed to react properly.10 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.11

This article will attempt to address this, providing a framework for accountability from the top down. Part I will address the structures of employment law, focusing on the tests in place that allow actors involved in abuse to evade liability, and different standards utilized in specific states. It will also address various alternative liability tests applied in minority jurisdictions, such as the New York standard for complicit actors, or the job-related power tests.

Part II will review the history and commonality of abuse in women’s sports, narrowing in on the allegations and findings as they relate to abuse within the NWSL. Part III will address the possible solutions for this persistent issue, including the adjustment of hostile work environment claims and the Ellerth defense, which would shift the test for vicarious liability for the leagues, the owners, and other executives.

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

A. Sexual Harassment Claims and Liability for Such

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.12 A plaintiff may establish a violation of Title VII by proving that discrimination based on sex by a supervisor to an employee has created a hostile or abusive work environment.13 A supervisor, for purposes of imposing liability under Title VII, is one who 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.14

Further, a sex-based hostile work environment is prohibited “whether or not it is directly linked to the grant or denial of an economic quid pro quo.”15 To be actionable under the hostile work environment theory, the sexual harassment must be “sexual in nature,” and “sufficiently severe or pervasive” so that it “alters the conditions of the plaintiff’s employment” and creates “an abusive working environment.”16

It is not a defense to a harassment claim that the employee’s participation was voluntary, but rather, the correct inquiry is whether the employee, by their conduct, indicates that the alleged sexual advances were unwelcome.17 Unwelcomeness must be expressed by the victim in the moment, and not after the fact.18 Severeness or pervasiveness is measured by the frequency of conduct, and further, by the type of conduct in comparison to other employees.19 The perspective of the reasonable person considering all the circumstances, and not that of the victim, is the measure of what is possibly abusive.20 This can mean that conduct that is often viewed as abusive, and severely so, such as a coach smacking players on their backsides before they head onto the field, may be viewed as reasonable by the trier of fact.21

Under Title VII, the term employer is defined as “a person engaged in an industry affecting commerce who has fifteen or more employees . . . and any agent of such a person.”22 Employers, while strictly liable for quid pro quo harassment,23 are not strictly liable for hostile work environment sexual harassment by their supervisors.24

According to the Supreme Court, employer liability for hostile work environment should be subjected to common law agency principles, including principles of actual or constructive notice.25 This can lead to a massive amount of sexual harassment going unaddressed, largely because notice is required for employers to be held liable, and nearly three of four sexual harassment claims in the workplace go unreported out of fear of retaliation.26

However, employers are held vicariously liable for sexual harassment unless they can prove that they have met the two-prong defense for hostile work environment harassment.27 Under this defense, if an employer can prove that by a preponderance of the evidence that it (1) 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 otherwise, such as refusal to work with Human Resources, then the employer will not be held vicariously liable for the harassment committed by their supervisors.28

While this burden may seem hard to reach, it once again puts the burden on the plaintiff to act, forcing some victims of harassment to work with the very company that has facilitated the harassment they have experienced. Further, considering that 95% of sexual harassers go unpunished in the workplace,29 and based on the general lack of effectiveness in sexual harassment policies at preventing acts of harassment in their offices,30 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.31

Some states have provided for more expanded liability for sexual harassment in the workplace.32 In New York, for example, 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.33

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.34 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.35 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.36

B. Sexual Assault Claims in the Workplace and Liability for Such

Vicarious liability of an employer for sexual assault committed by a supervisor is usually not found under common law.37 This is because the crime of sexual assault typically requires a personal motivation falling far outside the “scope of employment”38 required under agency principles.39 Still so, courts differ on what is the proper test to apply for sexual assaults taking place in the course of employment, with some focusing on personal gratification and the extreme nature of sexual assaults,40 while others focus on if the assault occurred in an exercise of corporate-created power and authority.41

Using the latter logic, courts in the minority have held the employer liable for intentional torts committed within the scope of employment who are “entrusted with great authority.”42 Some have argued that the traditional approaches of considering personal motivation fall outside of the scope of reasonable interpretations of the principle of respondeat superior,43 and that highlighting the job-created power the supervisor receives, implicitly or explicitly, through the sexual assault, is the best way to honor the traditional concepts of vicarious liability outlined in employment and tort law.44 Under this argument, the purpose of vicarious liability is satisfied: “that the employer should be liable for those faults which may fairly be regarded as risks of his business, whether they are committed in furthering it or not.”45

This rule is considered an expansion on vicarious liability for sexual assault in the workplace because of the rarity of courts to find liability for sexual assault in the workplace due to its difficult relation to the scope of employment.46 Here, the job-related power test would allow the presumption of no liability to shift, resulting in more employers being held vicariously liable for sexual assault by their supervisors.47 Furthermore, this test can also be utilized to provide strict liability for employers creating this job-related power within a supervisor.

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

A. The History of Women’s Athletics and Its Sexist Upbringing

In the 1800s, women were encouraged to limit their participation in recreational sports to more leisurely activities, such as horseback riding and swimming.48 However, the “Gay 90s” led to the increase of women’s professional competitions in the late 1800s, although the first participation of women in the Olympics did not occur until the summer of 1900.49 Despite making steps in the right direction regarding the progression of women in sport, the athletes faced backlash in the first half of the 20th century when organizations such as the National Amateur Athletic Federation insisted that women’s sports should not involve competition, record breaking, or monetary gain, enforcing the hard-to-escape patriarchal viewpoint of cisgendered white men into the practice of sport.50

The lack of men present during World War II allowed the flourishing that women’s sports deserved.51 That, along with the second wave of feminism, led to the formation of the first professional sports association in the United States – the Ladies Professional Golf Association, founded in 1950.52 Still so, due to societal pressures and lack of funding support, women’s leagues have largely developed only within the last 50 years.53 The formation of some of these leagues was dominated by white women, and the burden of overcoming the stereotypes of “rough women” common in the perception of women athletes remained just as difficult.54

The third wave of feminism, beginning in the 1990s, allowed for some institutional changes to women’s athletics.55 Further, the 2012 Olympics served as a landmark date for women’s achievement in sports internationally, due to the fact that all represented countries sent women participants for all events in which women could participate.56 Even though these successes have come about, women are still dealing with the repercussions of Victorian-era reasoning, labeling women as the “weaker sex” and therefore less entertaining to watch in sport.57 This is made evident in poor playing conditions, pay, and commonality of abuse of players, as discussed below.58

B. The History of Abuse in Women’s Athletics

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.”59 Take the sexual abuse scandal from Mali basketball, for example.60 In Mali, at least 200 female basketball players, mostly in their adolescent and teenage years, were abused by “a dozen or so [different] coaches since the early 2000s.”61 Players reported “extortion for sex by the coaches, promised playing time and sports equipment if they complied, [and being] kept out of games and competitions if they refused.”62 Players noted that Mali’s basketball federation and the president of FIBA basketball were fully aware of the sexual assault and harassment allegations, but ignored the players, did nothing to prevent further abuse, and even helped cover it up.63

The International Olympic Committee, the national governing bodies, and all other involved international sports federations noted their condemnation of the behavior, but since then, there has been no change in policy, behavior, or personnel to ensure that such abuse is prevented in the future.64 Further, no liability has been found for the actors who knew and did nothing to stop the abuse.65

This story is but one of many appalling cases that have come to light in recent years: Larry Nassar, the United States gymnastics doctor, was jailed for preying on hundreds of young women athletes who were participating in their sport, a coach sexually abused over a dozen women water polo athletes in California, leading to over $14 million in settlements, and the president of the Afghanistan soccer federation was barred for life for sexually abusing the players on the women’s national team.66

These stories all ended with the same result: a press release regarding the disturbing nature of the claims and hopeful remarks about wanting to make “change” for the future athletes, followed by another comment emphasizing their claiming a lack of liability, and subsequently, no fundamental follow-up action.67 The claims arising from the NWSL are no different.68

C. The History of the NWSL and Abuse and Misogyny as a Central Theme

1. The History and 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.69 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).70 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.71

The NWSL operates with 12 teams that participate in 22 regular-season games through a double-round robin format.72 Each year, the NWSL draft gets a bit more sophisticated, bringing larger media attention, promotion, and fanhood to the sport, although the reliance on the League by each team remains constant, at least for now.73 The NWSL has had many recent successes, including setting a record for its attendance of 32,00074 and an aired championship with CBS Sports, NEP Broadcasting, and VISTA Worldlink during sports primetime.75 On a worldwide scale, the Federation Internationale de Football Association recently launched commercial partnership structures geared directly at women’s soccer and esports, allowing for the growth of women’s sports.76 Those victories, although massive for women’s sports, have been overshadowed by the persistent and abhorrent sexism, sexual harassment, assault, and abuse within the League.77

2. The Sally Yates Report on NWSL’s Abuse Scandals

On October 3, 2022, former United States Deputy Attorney General Sally Yates released a report that exposed rampant abuse, sexual coercion, and underlying sexism in the NWSL, reporting failures of administration at multiple levels within the NWSL and USSF.78 The report states, “[s]ome 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.”79

Yates emphasizes that while the report focuses in on the abuse by three coaches: Paul Riley, Christy Holly, and Rory Dames, 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.80 Speaking on one particular charge of abuse concerning 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.81

Beyond reflecting on the behavior of the three coaches, the report found that the teams, the NWSL, and USSF repeatedly failed to adequately address reports and evidence of misconduct.82 The League often minimized the players’ stories, purporting that the athletes were “trying to kill the League,” or stood behind the abusive coaches, claiming that the coaches were “put in a bad position.”83 The report also points out that investigations failed to successfully “root out” the misconduct, focusing on the fact that the NWSL only implemented an anti-harassment policy in early 2021, leading to little-to-no claims being brought, even though abuse continued.84 Worse even is the fact that the newly established investigative process, narrowly focused on whether a coach acted “unlawfully” rather than analyzing for patterns of misconduct, or evaluating under a traditional hostile workplace lens, leads to outcomes almost always in favor of the coaches.85

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.86 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.”87 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.88

Beyond the sexual misconduct, the report noted that an overwhelming number of players, coaches, and USSF staff “observed that women players are conditioned to accept and respond to abusive coaching behaviors as youth players.”89 On top of that, player relationships with coaches are so normalized at a youth age that players learned to accept this as part of the game.90 The culture of women’s soccer, as described in the report, is known for protecting “open secrets” about abuse, misconduct, and exploitation of players.91

Many also feared retaliation, and in a League where until 2022, 75% of players were making less than $31,000 a year, this fear effectively solidified the power imbalance between coaches and players.92 Summing it up, Yates noted that: “Players simply wanted to play, and sought to maximize their chances of being called up to the National Team. They did not want to be seen as troublemakers.”93 That across the League, team, and Federation failures placed on the back of the players,94 paired with the system-wide desensitization to mass power imbalances in the sport,95 led to mass victimhood of women athletes, all in the name of keeping the image of the League protected.96

3. Allegations and Events following the Yates Report

Beyond stirring conversation regarding the need for a safe environment for players to operate under, with the Yates Report came more allegations, with players feeling empowered to discuss their own experiences after seeing their teammates do the same.97 Specifically, in December 2022, the NWSL and the NWSLPA released their own report on the systemic abuse taking place in women’s soccer.98 This report confirmed the details of the Yates Report, and revealed that the “history and culture of the league and its member clubs discouraged reporting of potential conduct” while the “league and clubs failed to take adequate steps to protect players in hiring and filling positions.”99

Within this investigative report, 10 coaches were directly named for their participation in sexual misconduct or abuse, while over eight clubs’ owners or executives were also named for their involvement.100 Furthermore, the joint report detailed the systematic failures of U.S. Soccer, including the knowledge and failures of multiple executives, as well as the executive failures of the NWSL front office, where both the Commissioner of the NWSL and the General Counsel were both aware of abuse, yet did nothing.101 Since this report, fines have been dealt to involved teams and coaches have been permanently banned from the League.102 However, no legal action was brought against the offending coaches and owners, and while suggestions were made by multiple legal authorities, no structural change was implemented that protects players from the top down, other than a change in personnel.

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

A. Employer Structures Under the NWSL

An employer is defined differently based on the law at issue, and under Title VII, an employer includes an individual or company with over 15 employees engaging in commerce.103 Many sports leagues operate under a unique structure of joint employment, where they operate as single-entity employers, the NWSL included.104 A single entity, in the league aspect, 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.105

In these scenarios, players execute employment contracts with the league, and not with their individual teams, therefore making the league their technical employer.106 Further, 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.107

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, as well. Further, the coaches and staff of each team serve as supervisors,108 managing the employees, and thereby allowing for implications of vicarious liability if guilt is found for the coaches. Finally, this could implicate the involvement of USSF as another technical employer, at least for the time when USSF was managing NWSL.

B. Implications and Expansions of the Hostile Workplace Harassment Analysis for Sexual Harassment

The NWSL (and during the time of its management, the USSF) failed to take adequate measures to protect players in many ways, but perhaps the most surprising was the lack of a formal investigatory process for discrimination and harassment within the workplace, considering the complex histories of sexism for women in sport.109 As previously discussed,110 the current standards of vicarious liability focus on agency principles, drawing on the need for an act to be “within the scope of employment”111 for both sexual harassment and sexual assault.

For sexual harassment, under Title VII, the Ellerth defense functions as a tool for employers to evade liability, allowing them to place the burden back on the victims of sexual harassment so long as they can prove that the victim did not utilize methods to work with the employer-provided resources.112 First, under Title VII’s current test for hostile work environment, the employer here, i.e., the NWSL, and possibly the USSF in the applicable time period, should be held liable for the actions of their supervisors, i.e., the coaches and other involved “supervising” actors, leading to a public dismissal where employees are properly informed of the reasons. Additionally, as the team is the “employer” as well under the single-entity structure, team executives, owners, and other members of the team’s employer board should also be held liable for the sexual harassment done by the coaches and other supervisors involved.

To bring a hostile work environment claim, there must be conduct that is (1) sexual in nature, (2) unwelcome, and (3) severe or pervasive to a reasonable person, and that the victim perceives as abusive at the time of the conduct.113 Here, the players could clear this burden for the actions of all three coaches, and likely many more, based on the investigative report.114 Take Paul Riley, for example. Riley’s coercion of multiple players to kiss each other, have sexual relations with him, and his practice of exposing himself to players all qualify under the requirement for the conduct to be “sexual in nature.”115

Next, the actions were unwelcome, evidenced by one player pushing Riley away in the moment, saying no, leaving the hotel room when coerced, and emailing to complain about his behavior to him and the League – all of which was met with no formal investigation.116 Finally, the behavior would meet the burden of severe or pervasive, which requires that the behavior “alters the conditions of the employment” and creates “an abusive work environment.”117 Players were quoted as saying, “I just don’t feel safe. I didn’t enjoy playing. It was a bad situation,” and “It was a nightmare,” regarding the conditions of their employment.118 A proper investigatory practice would have reviewed all of these factors to find that Riley’s, and the multitude of other offending coaches, were creating a hostile work environment League-wide, leading to immediate action to protect the players – but this did not take place.119

Next, to avoid liability, the League and the teams would try to claim the Ellerth defense, which, as stated previously, can be largely deferential to employers.120 The NWSL may very well be successful with this affirmative defense under Title VII. The NWSL can first claim that it had anti-harassment policies in place,121 satisfying the first element of the Ellerth defense, and that at least some players failed to work with the investigations department when questioned about possible misconduct,122 satisfying the second element. Though unclear on how the defense may hold, discussions on heightened liability through application of other tests, such as the job-related power or following New York’s model, are discussed below.

C. Expanding Vicarious Liability to Complicit Actors in Sexual Harassment and Assault Claims

1. 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.123 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.124

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.125 Women are subjected to tremendous amounts of abuse in the sports arena, forcing the professional players into choosing between coming out about their abuse or staying on field and generating more income.126 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.”127

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 are due to the enormous burden the women carry of overcoming sexual violence and abuse while maintaining their athletic performance.128 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 present case, the application of vicarious liability, utilizing the New York combined standards, would shift the burdens from the players to the NWSL and the clubs, as a joint employer.129 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 directly involved or at least substantially aware of the abuse within the teams, NWSL, and USSF.130 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.

2. The Job-Related Power Tests for Sexual Assault Claims

Along with New York’s combined standards in women’s sports, the use of job-related power tests for sexual assault and harassment claims could also function to expand liability of such abuses in the workplace. This could be implemented through an amendment to Title VII, creating a standard of strict liability for those specific employers where supervisors have discretionary power in situations where sexual harassment is more likely.

The job-related power tests for employer liability focuses on the role of power or authority possessed by the accused supervisor for sexual assaults and sexual harassment, and whether the nature of their employment granted them such power or authority.131 If the supervisor was given a specific kind of power or authority by the nature of their job, and if their employer placed them in that position of power, then the job-related power tests could apply.132

For example, a Louisiana Court of Appeals found vicarious liability for the police department for a sexual assault committed by a police officer, stating that the officer was able to “separate the plaintiff from her companions because of the force and authority of the position which he held.”133 Instead of requiring that the employer utilize the Ellerth defense to evade liability, this would be an automatic and strict liability for those employers who have created job-related power for supervisors engaging in sexual harassment and assault.

This test should specifically be implied for the club executives, the NWSL, and USSF, and the remainder of women’s sports personnel in similar positions. A coach, athletic trainers, and other team personnel are placed in positions of power that allow them to isolate players for various, socially accepted reasons, such as film, celebrations, treatment, evaluations, and so on.134

Players are naturally vulnerable in these scenarios, as the landscape of their employment is different than a traditional one – here, their ability to generate a higher salary for themselves depends on minutes on the field, which is directly tied to their participation in the isolated occasions provided before. Additionally, an employment that is directly tied to physical and mental exhaustion creates an even more vulnerable situation for players.

layers are especially exposed in this context, and coaches hold the key to their future – the ability to place them on the field. In this way, coaches hold a job-related power instituted by the leagues and the teams’ executives, as the NWSL, USSF, and team officials alike are aware that the coach will have players, typically of the opposite gender, in numerous isolated situations, and that the coach has the special ability of directly affecting the player’s ability to generate more income through playing time and exposure to the pitch.

While people are rarely employed to commit acts of harassment and abuse in the workplace, employers often put employees in a position where they can, and are more likely, to do so.135 Here, the placing of coaches in a position where they can, and are more likely to, engage in inappropriate activity with players should apply strict liability for all the complicit employers who granted such power, including team executives, the NWSL, and the USSF, during the applicable managerial time period.

Similarly, this strict liability for job-related power should be applied across women’s sports, ensuring the utmost protection from a problem that is experienced by girls and women across sports.136 Following theories of distributive justice, as well as the very reasoning for the creation of vicarious liability, the employer should be held liable for situations it curated through the placement of employees and supervisors in certain situations.137 Furthermore, this creates an incentive for employers to actually address their practices and standards in employee supervision, training, and policies, rather than push aside liability under the guise of thoughts and prayers. Here, this could be an incentive for the leagues to finally put their money where their mouths are and invest in a safer profession for all women, pioneering women athletes’ safety, rather than destroying them.


Abuse is pervasive in women’s sports.138 Time and time again, reports are made regarding sexual misconduct to team leaders, leagues, and federations – yet little fundamentally changes.139 The adoption of the New York combined standards in employment situations like women’s sports would allow for more victims to operate in an equitable environment to their male counterparts, and would force the leagues and teams alike to take the threat of liability more seriously, enacting real change. If such a presumption of vicarious liability is not universally adopted, however, creating a standard of strict liability for job-related power within Title VII, and specifically applying it to women’s sports, could address the ways not only coaches, but entire structures of women’s sports are held accountable. Such accountability could create real change, encouraging leagues to take the reports of sexual misconduct more seriously out of fear of losing money, trust, and job security. Therefore, to ensure that women’s sports, and specifically, women’s soccer, no longer operate under a culture where “abuse runs deep,”140 vicarious liability for sexual misconduct should be implemented.

Ashlyn Stone is a recent law graduate 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. A North Carolina native who grew up playing women’s soccer up to the collegiate level. Stone will begin her career as a law clerk with Alston & Bird in the fall. She wants to thank Professor Joseph Salvo and Professor David Marshall, who both assisted her in the editorial process of this article. She also wants to thank her teammates of Appalachian State University Women’s Soccer, who continue to inspire her to advocate for the betterment of women’s sports today.


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),

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),

4 Abby Nichols, Former women’s soccer star Sinead Farrelly’s revelations lead to bombshell report detailing sexual misconduct within NWSL, The Cavalier Daily (Oct. 12, 2022),

5 See id.

6 Id.

7 Alex Azzi, Mana Shim and Sinead Farrelly: Paul Riley ‘took away our careers,’ NBC Sports (Oct. 5, 2021),

8 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),

9 See id.

10 See Associated Press, Abuse in Women’s Pro Soccer League Was Systemic, Report Says, U.S. News (Oct. 3, 2022),; 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),

11 Woodyatt, supra note 10.

12 42 U.S.C. § 2000e.

13 Meritor Savings Bank v. Vinson, 477 U.S. 57, 65 (1986).

14 Vance v. Ball State, 570 U.S. 421, 569 (2013).

15 Meritor Savings, 477 U.S. at 65.

16 Id. at 67 (quoting Henson v. City of Dundee, 682 F.2d 897, 804 (1982)).

17 Id. at 68-69.

18 Harris v. Forklift Systems, 510 U.S. 17, 23 (1993).

19 Meritor Savings, 477 U.S. at 67.

20 Forklift Systems, 510 U.S. at 21.

21 Onacle v. Sundowner Offshore Services, 523 U.S. 75, 81 (1998). This standard requires that the surrounding circumstances, expectations, and relationships are considered, meaning that “teasing” can be used as a way to evade the characterization of harassment. Onacle, 523 U.S. at 81-82.

22 42 U.S.C. § 2000e (b).

23 Burlington Industries v. Ellerth, 524 U.S. 742, 745 (1998). Quid pro quo harassment requires a tangible act where a boss conveys to an employee that they will base an employment decision on the employee’s satisfaction of a sexual demand. Ellerth, 524 at 750.

24 Meritor Savings, 477 U.S. at 69-70.

25 Id. at 71.

26 Harassment, HR & Compliance, 16 Alarming Sexual Harassment in the Workplace Statistics You Need to Know, Inspired eLearning (July 12, 2021), This fear of retaliation is not unfounded, however, considering that 55% of victims experience retaliation after speaking up or making a formal complaint regarding sexual harassment. Id. (quoting EEOC Releases Fiscal Year 2020 Enforcement and Litigation Data, U.S. EEOC (Feb. 26, 2021)).

27 Ellerth, 524 U.S. at 745.

28 Id.

29 Harassment, HR & Compliance, supra note 26 (reporting an ABC and Washington Post study that reflected the culture of companies to protect perpetrators and intimidate victims into remaining quiet).

30 Ninety-eight percent of U.S. organizations have an anti-sexual harassment policy and the vast majority of those companies also offer trainings to prevent harassment, yet the numbers of harassment claims have not decreased in time. Stefani K. Johnson, et. al., Why We Fail to Report Sexual Harassment, Harvard Bus. Rev. (Oct. 4, 2016),

31 Testimony of Andrea Johnson, Senior Counsel for State Policy, Nat’l Women’s L. Center (May 24, 2019), (explaining the viewpoint of a national women’s center that the Ellerth defense is a type of loophole for accountability).

32 See, for example, New York State Expands Employer Obligations and Liability for Workplace Harassment, Crowell & Moring (Aug. 15, 2019),

33 N.Y.S. HRL § 296 (h).

34 Id.

35 N.Y.C. HRL § 8-107(13).

36 Id.

37 Rochelle Rubin Weber, Scope of Employment Redefined: Holding Employers Vicariously Liable for Sexual Assaults Committed by Their Employees, 76 Minn. L. Rev 1513, 1514 (1991).

38 Restatement (Second) of Agency § 228 (1958).

39 Weber, supra note 37, at 1514.

40 See Doe v. U.S., 769 F.2d 174, 175 (4th. Circ. 1985) (finding the employer not liable for the sexual assault of a social worker because he was “acting for his personal gratification”).

41 See, e.g., Kimberly M. v. L.A. Unified Sch. District, 242 Cal. Rptr. 612, 620-21 (Cal. Ct. App. 1987).

42 See Kimberly M., 242 Cal. Rptr. at 619. The court reasoned that deterrence would fall from an imposition of liability, “creat[ing] a strong incentive for vigilance by those in a position ‘to guard substantially against the evil to be prevented.’” Id. at 1348.

43 Weber, supra note 37, at 1530.

44 Id. at 1535.

45 See Fleming James, Jr., Vicarious Liability, 28 Tul. L. Rev. 161, 178 (1954).

46 Weber, supra note 37, at 1532.

47 Id.

48 A Brief History of Women’s Sports, Georgia State University Library,

49 Id.

50 See id.

51 Id.

52 The Rise of Women’s Professional Sports, Georgia State University Library,

53 Id.

54 See Dr. Bonnie J. Morris, Women’s Sports History, National Women’s History Museum (Aug. 4, 2016),

55 Flickr, Tracing the challenging history of women’s participation in sport, Sports and Dev (March 22, 2021),

56 Maya Wei-Haas and Jackie Mansky, The Rise of the Modern Sportswoman, Smithsonian Mag. (Aug. 18, 2016),

57 Id.

58 Women in Sports: The Good, The Bad, The Sexist, Nat’l Women’s L. Center (March 10, 2022),

59 Id.

60 Id.

61 Id.

62 Id.

63 Id.

64 Id.

65 See id.

66 Id.

67 See, for example, NWSL abuse allegations, as they happened: Portland Thorns and Washington Spirit timelines, day by day, ESPN (Oct. 6, 2022),

68 Id.

69 David Fleenor, NWSL: Your Complete Guide, World Soccer Shop (June 11, 2020),

70 See id.

71 @USWNTPlayers, Twitter (Dec. 13, 2021),

72 See Players, supra note 40; see also Teams, NWSL,

73 Molly Geary, NWSL’s 10-Year Growth Through the Eyes of Its Lifers, Sports Illustrated (Apr. 28, 2022), In fact, the 2022 draft was aired on TV for the first time in women’s soccer history by CBS sports. Id.

74 San Diego Wave smashes NWSL attendance record with 32,000 crowd v. Angel City FC, ESPN (Sept. 18, 2022),,000-crowd-vs-angel-city-fc.

75 Brandon Costa, National Women’s Soccer League Ready for First Primetime Broadcast Window With NWSL Championship on CBS, Sports Video (Oct. 28, 2022),

76 FIFA, FIFA launches new commercial partnership structure including dedicated programs for women’s football and esports, FIFA (Dec. 13, 2021),

77 See Yates, supra note 8, at 1.

78 See generally Yates, supra note 8; see also Steph Yang, Abuse in the NWSL: A complete timeline of allegations, reports, and inaction, The Athletic (Oct. 10, 2022),

79 See Yates, supra note 8, at 6.

80 Id.

81 Id. at. 7-8.

82 Id. at 12.

83 Id.

84 Id. at 13. For instance, the claims arising out of the Riley complaint began as early as 2011. See Nichols, supra note 4.

85 See Yates, supra note 8, at 13.

86 See id; see also infra notes 96-101 and accompanying texts.

87 Id. at 14.

88 Id.

89 Id. at 15.

90 Id.

91 Id. at 16.

92 Id.

93 Id.

94 See id. at 12-14.

95 See id. at 16.

96 Id. at 12.


98 Report of the NWSL and NWSLPA Joint Investigative Team, Covington & Burling 1, 1 (Dec. 14, 2022),

99 Id.

100 Id. at 100-08.

101 Id. at 108, 111.

102 Jesus Jiménez, Women’s Soccer Bans Ex-Coaches and Fines Teams After Misconduct Report, N.Y. Times (Jan. 9, 2023),

103 42 U.S.C. § 2000e (b).

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

105 Id.

106 See, e.g., Fraser v. Major League Soccer, 284 F.3d 46, 53-55 (1st Cir. 2002).

107 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).

108 Recall that a supervisor is someone who can take employment action against an individual, through traditional Title VII coverage. Vance v. Ball State, 570 U.S. 421, 569 (2013).

109 See Yates, supra note 8, at 15; see also supra notes 78-88 and accompanying texts.

110 See supra notes 12-19 and accompanying texts.

111 The “scope of employment” has been determined by a three-part test. Avtec Sys. Inc. v. Peiffer, 21 F.3d 568, 571 (4th Cir. 1994) (quoting the Restatement (Second) of Agency § 228 (1958)). A servant’s conduct is within the scope of employment if: (a) it is of the kind he is employed to perform; (b) it occurs substantially within the authorized time and space limits; and (c) it is actuated, at least in part, by a purpose to serve the master. Restatement (Second) of Agency § 228 (1958).

112 Burlington Industries v. Ellerth, 524 U.S. 742, 745 (1998).

113 Meritor Savings Bank v. Vinson, 477 U.S. 57, 65, 69-70 (1986); Harris v. Forklift Systems, 510 U.S. 17, 23 (1993).

114 See generally Yates, supra note 8.

115 Id. at 49-56.

116 Yates, supra note 8, at 51-52.

117 Meritor Savings, 477 U.S. at 70.

118 Yates, supra note 8, at 51, 55.

119 Id. at 8.

120 Burlington Industries v. Ellerth, 524 U.S. 742, 745 (2998).

121 The anti-harassment policies were only added in 2021, however, therefore weakening it ability to raise the Ellerth defense prior to 2021. Yates, supra note 8, at 13.

122 Some players avoided reporting the abuse altogether to avoid being labeled a type of “troublemaker.” Id. at 16.

123 N.Y.S. HRL § 296 (h).

124 N.Y.C. HRL § 8-107(13).

125 See supra notes 79-89 and the accompanying texts.

126 Id.; see also, generally, Yates, supra note 8.

127 29 C.F.R. § 1608.1 (b).

128 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).

129 See supra notes 125-30 and the accompanying texts.

130 See Yang, supra note 106.

131 Weber, supra note 37, at 1527.

132 Id.

133 Applewhite v. City of Baton Rouge, 380 So. 2d 119 (La. Ct. App. 1979).

134 See, e.g., player interactions with Coach Holly in a standard “one-on-one” film session. Yates, supra note 8, at 132.

135 Stropes v. Heritage House Children’s Ctr. of Shelbyville, Inc., 547 N.E.2d 244, 249 (Ind.1989) (“[O]ther courts have recognized that the resolution of the question does not turn on the type of act committed . . . rather, these courts indicate that the focus must be on how the employment relates to the context in which the commission of the wrongful act arose.”).

136 See supra notes 28-31 and accompanying text.

137 Weber, supra note 37, at 1529.

138 See supra notes 78-88 and accompanying texts.

139 Id.

140 See Yates, supra note 8, at 6.

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