Student-Athlete’s Recruitment Did Not Create Jurisdiction

Wednesday, April 30, 2008

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Student-Athlete’s Recruitment Did Not Create Jurisdiction—C.A.

By KENNETH OFGANG, Staff Writer

Efforts by an out-of-state university to recruit a California student-athlete to play college sports did not constitute minimum contacts sufficient to confer long-arm jurisdiction on the state’s courts, the Fourth District Court of Appeal ruled yesterday.

Div. Two affirmed San Bernardino Superior Court Commissioner Michael Gassner’s order quashing service of summons on Liberty University in a suit by former football standout Marlon Brando Roman.

Roman, a 2003 all-Big South Conference selection as a freshman, suffered catastrophic brain injuries in a fall from a train trestle in Lynchburg, Va., where Liberty is located. The fall allegedly occurred after Roman was assaulted by his roommate and fellow California recruit, Shane Lancaster, from San Marcos, after the two had been out drinking.

Negligence Alleged

In his complaint against Lancaster and the university, filed though a guardian ad litem, Roman claimed that Liberty was negligent in failing to discipline Lancaster and allowing him to remain a student, even though he was “a disruptive influence to the residential community.”

It was also alleged that Lancaster was responsible for the fall because Roman would not have attempted to walk back to the Liberty campus had Lancaster not assaulted him.

Lancaster denied responsibility, saying Roman had left the bar with several young women after consuming eight to 10 beers.

A student at nearby Randolph Macon Women’s College said she was at the bar, saw Roman and Lancaster arguing, and offered to drive Roman back to campus. Roman, she said, initially joined her and her friends and accompanied the group to a restaurant, but went outside, saying he wanted to smoke marijuana.

The witness said she later went out to look for Roman, but he was nowhere to be found.

Liberty responded to the complaint by moving to quash service and submitting a declaration by its vice chancellor and general counsel—and son of the school’s founder—Jerry Falwell Jr. Falwell explained that the university had no office, employees, property, or business agent in California and did not pay California taxes of any kind.

The only university employees to have contact with Lancaster and Roman while they were being recruited, Falwell added, were the head recruiter and director of spiritual development for the football team, both of whom lived and worked in Virginia.

Insufficient Contacts

Gassner ruled that Liberty had insufficient contacts with California and that Lancaster, who agreed to waive any statute of limitations defense if sued in Virginia, was entitled to have the action dismissed on the ground of forum non conveniens.

Justice Thomas Hollenhorst, writing for the Court of Appeal, said the commissioner was correct as to both defendants.

Hollenhorst rejected the plaintiff’s reliance on State of Oregon v. Superior Court (1994) 24 Cal.App.4th 1550, in which the court held that the state of Oregon and Oregon State University had subjected themselves to California jurisdiction with respect to a suit by an OSU basketball player who died of a stroke while on a road trip. The player’s family claimed that the university was negligent in clearing the athlete to play after he had suffered a stroke.

A later California Supreme Court case, the justice explained, rejected the “but for” test of personal jurisdiction relied on in State of Oregon. Besides, Hollenhorst wrote, the cases are distinguishable because in State of Oregon, the earlier stroke had occurred in California and the player died in California.

Nor, the justice said, did the fact that Liberty had seven California athletes on its team rosters establish minimum contacts. There was no evidence as to how many of those athletes were recruited in this state, the jurist explained.

“[T]he only conduct plaintiff has established was that Liberty’s recruiting coordinator visited plaintiff in California to recruit him to play football for Liberty, and thereafter, Liberty mailed plaintiff a scholarship agreement and amended scholarship agreement that plaintiff executed in California,” Hollenhorst wrote.

The justice also distinguished Snowney v. Harrah’s Entertainment, Inc. (2005) 35 Cal.4th 1054, which allowed the defendant, which advertised heavily in California for business for its Nevada hotels, to be sued here based on alleged deceptive practices by those hotels.

“Here, in contrast, plaintiff has shown only that Liberty’s recruiter made a single visit to California, and the scholarship agreement and amended scholarship agreement were executed in this state,” Hollenhorst wrote. “Moreover, the nexus between Liberty’s activities in California and the injury plaintiff suffered is so attenuated as to be virtually nonexistent.”

As for the claim against Lancaster, Hollenhorst agreed that a Virginia court is the appropriate forum, because the accident occurred there, Lancaster lives there, most of the witnesses are located there, and the quashing of service on the university means that the same issues would have to be litigated in both states if the claim against Lancaster went forward in California.

The case is Roman v. Liberty University, Inc., E042838.