Doe v. Nat'l Collegiate Athletic Ass'n
| Docket Number | 22-cv-01559-LB |
| Decision Date | 04 January 2023 |
| Parties | JOHN DOE 1, JOHN DOE 2, JOHN DOE 3, JOHN DOE 4, JOHN DOE 5, JOHN DOE 6, JOHN DOE 7, JOHN DOE 8, JOHN DOE 9, JOHN DOE 10, JOHN DOE 11, and JOHN DOE 12, individually and on behalf of all others similarly situated, Plaintiffs, v. NATIONAL COLLEGIATE ATHLETIC ASSOCIATION, THE UNIVERSITY OF SAN FRANCISCO, ANTHONY N. AKA NINO GIARRATANO, and TROY NAKAMURA, Defendants. |
| Court | U.S. District Court — Northern District of California |
JOHN DOE 1, JOHN DOE 2, JOHN DOE 3, JOHN DOE 4, JOHN DOE 5, JOHN DOE 6, JOHN DOE 7, JOHN DOE 8, JOHN DOE 9, JOHN DOE 10, JOHN DOE 11, and JOHN DOE 12, individually and on behalf of all others similarly situated, Plaintiffs,
v.
NATIONAL COLLEGIATE ATHLETIC ASSOCIATION, THE UNIVERSITY OF SAN FRANCISCO, ANTHONY N. AKA NINO GIARRATANO, and TROY NAKAMURA, Defendants.
No. 22-cv-01559-LB
United States District Court, N.D. California, San Francisco Division
January 4, 2023
ORDER GRANTING MOTIONS TO DISMISS IN PART RE: ECF NOS. 64, 65, 67, 68
LAUREL BEELER UNITED STATES MAGISTRATE JUDGE
INTRODUCTION
The plaintiffs in this putative class action are former University of San Francisco Division I baseball players who are proceeding, respectively, as Does 1-3 (more recent players) and Does 412 (earlier players). The plaintiffs allege that since 1999, USF head coach Anthony Giarratano and assistant coach Troy Nakamura created a sexualized environment - by being naked, miming and discussing sexual acts, belittling players with vulgar names, and handing out sex toys, among other conduct - and then berating and punishing players who did not participate. They sued the coaches for their behavior and USF and the NCAA for allowing the behavior to persist.
There are three putative classes: a nationwide class of all student-athletes who participated in NCAA sports at NCAA member institutions in the last four years, a California subclass of all student-athletes who participated in NCAA sports at California-based NCAA member institutions in the last four years, and a USF Baseball subclass of all members of the USF baseball team since 2000. The plaintiffs claim Title IX discrimination and retaliation by USF, discrimination in violation of California Education Code § 66270 by USF, a failure by USF to identify its genderdiscrimination policies in violation of California Education Code § 66281.5, negligence by all defendants, negligent supervision and training by USF and the NCAA, breach of fiduciary duty by the NCAA, breach of contract-based duties by the NCAA, and intentional and negligent infliction of emotional distress by all defendants.
The NCAA moved to dismiss under Federal Rule of Civil Procedure 12(b)(2) for lack of personal jurisdiction. All defendants moved to dismiss under Rule 12(b)(6) on the ground that the claims of Does 4-12 accrued outside the limitations period. All defendants moved to dismiss the claims under Rule 12(b)(6). The NCAA contends that it owed the plaintiffs no duty (for negligence or for breach of contract), and it is not vicariously liable. USF contends that (1) the plaintiffs alleged behavior that is not gender discrimination under Title IX or California Education Code § 66270 and also did not allege actual notice to USF, (2) the plaintiffs did not allege that they engaged in protected activity and thus do not state a Title IX retaliation claim, (3) the plaintiffs did not allege USF's failure to provide notice about the school's policies prohibiting gender discrimination and thus do not state a claim under California Education Code § 66281.5, and (4) the plaintiffs did not allege foreseeability for the negligence claims. The coaches generally contend that the plaintiffs did not plausibly plead their tort claims.
The court dismisses the claims against the NCAA for lack of personal jurisdiction: it is headquartered in Indianapolis, Indiana, and its activities here (including its regulation of athletes) are not the necessary minimum contacts with the forum. The statute of limitations bars the claims of Does 4-12 and is not tolled because they knew about the misconduct. The other plaintiffs plausibly alleged sex discrimination under Title IX and the California Education Code. They do not state a Title IX retaliation claim because they did not plead protected activity. They do not
state a claim under California Education Code § 66281.5 because they did not allege deficiencies in the policy or notice. The remaining tort claims survive.
STATEMENT
1. The Abusive Conduct
The plaintiffs all played baseball on USF's NCAA Division I team: John Does 1-3 more recently (2020 on) and John Does 4-12 during earlier seasons (1999 through 2018).[1] (John Does 412 became plaintiffs when they “discover[ed] that they . . . had viable claims” after the San Francisco Chronicle published an article about the case.[2]) The coaches during their tenure were Head Coach Anthony Giarratano and Assistant Coach Troy Nakamura.[3]
The plaintiffs allege that the coaches subjected them to an “intolerable sexualized environment” - by being naked on the field or in windows, using abusive language, miming and discussing sexual acts, and handing out sex toys, among other conduct - and then punishing players who did not participate.[4] The sexualized conduct included the following:
• Coach Nakamura - during a 2013 practice - gestured to the undergraduate dorms and said, “Sometimes girls will stand at their windows, pull up their shirts, and show their boobs. We're here to play baseball, so just look at them and jerk off about it later. Trust me, I want to fuck them too.” In fall 2020, he “persistently” encouraged the female students at the dorms to “flash their breasts by whistling and lifting his shirt to suggest the females do the same. Coach G[iarratano] would laugh.”[5]
• In practice sessions, any pitcher who made an error had to take off an item of clothing. Sometimes, they had to strip down to their underwear, and the coaches and other players
would laugh. This happened to John Does 6, 7, and 8 in the 2012-2014 seasons and John Does 10 and 12 in the 2017-2018 season.[6]
• During a gift exchange during the 2011-2013 seasons, a coach gave a player a lifesized, blow-up female sex doll telling him that he would “make him run” if he did not bring the doll to practice the next day. The player, forced to walk home from practice, encountered a police officer, who yelled at him and popped the doll.[7]
• Coach Nakamura began practices in 2020 and 2021 by having players identify what they would bring to a barbecue or fast-food meal. He sexualized the exercise, and encouraged players to do the same, by referring to woman's body parts, fluids, and excretions he wanted to eat (“Jennifer Aniston's boobs” or “whipped cream from Pamela Anderson's crotch”). Coach Giarratano did the same. The coaches demanded participation through laughter and pressure to participate.[8]
• In 2017-2018, when players were doing butterfly stretches, coaches asked John Does 4 and 12 on at least a weekly basis where their “butterflies were flying to.” Coach Nakamura responded that they were going to get strippers and strippers' asses (or like comments). The players “felt extreme pressure” to respond in a “sexual manner” because Coach Nakamura became angry if they did not.[9]
• Coach Nakamura regularly talked about how he was bisexual, how little clothing women wore on campus during warm weather, and what sexual acts he would like to perform on them. When he moved on campus, his comments about campus women became increasingly sexual and distressing to players. Coach Giarratano “heard and participated in these conversations,” which seemingly were an everyday event and a regular topic of conversation among the players.[10]
• Coach Nakamura engaged in calculated displays of nudity, exposing himself to players and coaches. He required sexualized skits before practice and would participate in them. For example, on multiple occasions in 2017, 2018, and 2021, he pretended that he was at a buffet, required a player to do a handstand, grabbed and split open the player's legs, and pretended to eat spaghetti from the genital area, to many players' disgust.[11]
• John Doe 12 (2017-2018) recalls Coach Nakamura's telling a player to get on his hands and knees and riding the player like a bull, as if Coach Nakamura were having sex.[12]
• During a practice, Coach Nakamura said that he would take care of the day's skit, crawled out of the dugout naked, knelt in front of the players, and swung his penis around, to the players' disbelief, embarrassment, and disgust.
• Coach Nakamura often was naked or holding a bat between his legs, pretending it was his penis. Another time, a player fielding balls heard Coach Nakamura calling his name, turned, and saw him standing on a table, naked, swinging his penis in a helicopter motion while yelling, hey, [Player X].[13]
• Coach Giarratano did not condemn Coach Nakamura's behavior but instead kissed the cross on his necklace and mimed looking at the sky to ask for God's forgiveness. He said to older players, “we could get fired for this,” and said that his wife was “mad at him because his job was in jeopardy due to Coach Nak[amura's] nudity and behavior.” But he normalized the behavior by playing along with it.[14]
• The coaches would shower with the players and walk around the locker room, naked or barely dressed. In fall 2000, Coach Nakamura asked a player if he could shower in his first-year dormitory. In 2021, he asked players if he could shower in their hotel room and, after he got out of the shower, walked around naked, talking about his bisexuality.[15]
• In the 2017-2018 season, John Does 4 and 12 recall military-like training exercises at 6:00 a.m. on Saturday mornings where, at the beach, the players would strip to their underwear, float in the water with arms linked, and then emerge, when the coaches would comment that their penises were shriveled.[16]
• Degrading skits at the annual roast for incoming freshman included a skit in 2013 that depicted two players (John Doe 5 and another teammate, both gay, but not out at that time) biking to Whole Foods and having anal sex. Another teammate, who did not trim his pubic hair, was mocked in a...
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