Metropolitan News-Enterprise


Thursday, February 23, 2017


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Youth Leagues Must Search Backgrounds of Coaches—C.A.




Youth sports leagues owe their players a duty to conduct criminal background checks of potential coaches and other adults who would have contact with the youngsters, the Sixth District Court of Appeal ruled yesterday.

The panel reinstated a lawsuit by a former player in the West Valley Youth Soccer League in West San Jose. The complaint alleged that a background check would have revealed that the girl’s coach, who is now serving a prison sentence for molesting her, had a domestic violence conviction.

Justice Nathan Mihara said the foreseeability of harm resulting from the lack of criminal background checks, weighed against the minimal burden of conducting them, supports imposition of the duty argued for by the plaintiff, identified as Jane Doe. Defendants in the action include the West Valley league and the United States Youth Soccer Association, Inc. and California Youth Soccer Association, Inc., with which the league is affiliated.

 Emanuele Fabrizio was sentenced in October 2012 to 15 years in prison after pleading guilty to one count of continuous sexual abuse of a child and one count of lewd and lascivious acts on a child under 14. Police and the plaintiff alleged that the coach told the girl, who was 12 to 13 years old at the time and had dreams of becoming a top-flight player, that having a secret romantic relationship would give her the emotional maturity needed to become a better athlete.

The complaint cited several instances of what US Youth’s safety guidelines say is inappropriate behavior—driving the plaintiff, alone, to practices and games; holding practices and camps with no other coach present; having frequent and excessive physical contact with plaintiff; and using harsh discipline and foul language.

Fabrizio’s disciplinary methods led to his being reassigned as coach of a boys team in the fall of 2011, but he was subsequently suspended from coaching for using foul language and spending one-on-one time with players. Parents were informed of the suspension but not of the reasons, the complaint alleged.

Sex and Pornography

Fabrizio continued to have contact with Jane Doe after he ceased coaching the girls’ team, however. The complaint said the two had sex on five occasions, shortly after the girls turned 13, and engaged in other sexual activity multiple times, and that Fabrizio took pornographic photos of the girl.

The plaintiff presented evidence that US Youth bylaws barred persons convicted of felonies or crimes against persons from coaching or otherwise involving themselves in programs. Although the association arranged for an online vendor to perform background checks at a discounted rate, affiliates were not required to use the vendor, and were free to rely on self-reporting if they chose.

In fact, West Valley’s founder had been a coach and referee for 11 years after being convicted of misdemeanor sexual abuse of children, prior to being charged with multiple child molestation felonies in 2009.

Fabrizio filled out a form in 2010—three years after being convicted of spousal battery—declaring that he had never been convicted of a felony or a crime against a person. The form included a waiver allowing the league or the state organization to verify the information, but no background check was conducted.

Santa Clara Superior Court Judge Kevin E. McKenney sustained the defendants’ demurrers, holding that they had no duty to protect the plaintiff from third-party criminal conduct.

Prior Case

Mihara, however, cited Juarez v. Boy Scouts of America, Inc. (2000) 81 Cal.App.4th 377, which held that the national scouting organization might be liable for molestations by a local scoutmaster during “officially sanctioned scouting events, such as overnight camping trips” as well as at the scoutmaster’s home. The court concluded that organizations like the Boy Scouts have a special relationship with the children they serve, and thus owe more than the duty of ordinary care.

The defendants in yesterday’s case argued that the cases were distinguishable because they do not sponsor overnight activities, and because parents were always present at the games and practices. Mihara, however, said there was evidence that parents usually dropped children off for practice—which the justice noted involves more time around the coaches than playing games—and picked them up after the activity had concluded.

Like scoutmasters, the justice said, coaches act as “quasi-parents” and assume responsibility for players’ safety.

Mihara acknowledged that courts in other states have declined to apply the special relationship doctrine to youth activities in cases where adult volunteers were accused of molesting children. But those cases are less persuasive than Juarez, he said.

Rowland Factors

Imposing a duty to conduct criminal background checks, the jurist went on to say, is consistent with Rowland v. Christian (1968) 69 Cal.2d 108, which elucidated the factors that must be looked at to determine whether a duty will be imposed as a matter of public policy—foreseeability of harm, degree of certainty of injury, closeness of causal connection between the injury and the breach of alleged duty, moral blameworthiness, the extent to which imposition of duty would prevent future harm, the burden on the defendant and the community if the duty is imposed, and the cost and availability of insurance.

The harm in this case, Mihara said, was highly foreseeable, even though Fabrizio had never previously been accused of molesting children. US Youth, he said, was aware that children in its programs had been molested, and the state affiliate and West Valley were both aware of sexual abuse incidents involving the league founder, although it was unclear whether those incidents were related to soccer.

The justice rejected the argument that a broad requirement of performing background checks would be unduly burdensome, due to a lack of uniform availability. He noted that the American Youth Soccer Organization has a nationwide background check requirement, that US Youth has required such checks in its Olympic Development Program, and that other state affiliates of US Youth require background checks as well.

Nor is the cost of conducting such checks prohibitive, he said. Mihara noted that US Youth’s arrangement with its outside vendor makes checks available for $2.50 each, a cost the organization can pass along to the applicants or the teams, and that a California statute provides that no fee shall be charged to nonprofit organizations for criminal background checks.

The case is Doe v. United States Youth Soccer Association, Inc., H040688.


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