June 2017 - Parks & Recreation - 26

L AW R E V I E W

with the duty to act on it. " According to
the court, " Heightened foreseeability can
be shown by evidence of prior similar
criminal incidents or other indications of
a reasonably foreseeable risk of violent
criminal assaults. "
In this particular instance, the specific
issue before the court was " whether it was
foreseeable that a soccer coach would
sexually abuse a player. " The plaintiff
had contended there was " heightened
foreseeability of sexual abuse by a coach
based on the defendants' knowledge of
prior incidents and other indications of
risk. " In response, Cal North and West
Valley argued that the plaintiff has
shown only " a mere possibility of the
risk of sexual abuse. "
US Youth also maintained there was
" no foreseeability as a matter of law, because it did not have actual knowledge
of Fabrizio's assaultive propensities. "
Specifically, US Youth claimed it had
" no knowledge that Fabrizio had previously sexually or physically abused anyone or had a propensity to do so. " The
appeals court rejected this argument.
As noted by the appeals court, US
Youth was " aware of incidents of physical and sexual abuse of US Youth Soccer's members by its coaches at a steady
yearly rate of between 2 and 5 per year. "
Moreover, the court found US Youth had
adopted the KidSafe Program " in recognition of the risks of sexual abuse to its
players " (http://kidsafefoundation.org/
sexual-abuse-prevention-program/).
Moreover, the court noted that the
KidSafe Program included a pamphlet
that acknowledged the following:
One out of every 4 girls and one out
of every 6 boys will be sexually abused
before the age of 18....Pedophiles are
drawn to places where there are children.
All youth sports, including youth soccer,
are such places.
In the opinion of the appeals court,
these facts were indicative of " an acknowl24

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edgement by US Youth that children playing soccer were at risk for sexual abuse. "
Similarly, Cal North and West Valley had
adopted the KidSafe Program, effectively
acknowledging their soccer programs attracted those who might sexually abuse
their players, including past incidents of
sexual abuse. Further, the appeals court
noted " the year before Fabrizio submitted
his application, both Cal North and West
Valley were aware of multiple sexual
abuse incidents involving the founder of
West Valley. "
Based on these facts, the appeals court
concluded " it was reasonably foreseeable
to defendants that a child participating in
their soccer program would be sexually
abused by a coach. "
The present case involved criminal
conduct by a member of an organization
that provided activities exclusively for
children. More importantly, here, defendants were aware that sexual predators
were drawn to their organization in order to exploit children and that there had
been prior incidents of sexual abuse of
children in their programs.
Fabrizio was an employee of West
Valley and a member of US Youth, and
these organizations controlled which individuals had access to the children in
their programs.
Background Check Burden
Having found sexual abuse by a coach
was reasonably foreseeable, the appeals
court also considered " the burden to defendants of requiring and implementing
criminal background checks. "
US Youth had argued that it would " impose a tremendous burden to mandate
criminal background checks for employees
and volunteers in defendants' programs,
because the availability of criminal background checks varies among the states. "
Further, US Youth claimed " volunteers
working with children in the majority of
states are not required to undergo criminal

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background checks and private entities are
not allowed to obtain national criminal
background checks on volunteers in many
states. " The appeals court disagreed.
As noted by the appeals court, " the
American Youth Soccer Organization,
another national youth soccer organization, has required criminal background
checks for its volunteers and coaches in
these jurisdictions. " Moreover, the court
found US Youth had " required criminal
background checks for all coaches and
referees participating in its youth Olympic development program in the state associations since 2008. "
In addition, the appeals court noted
US Youth had " kept records of which
state associations did and did not obtain
these criminal background checks and
distributed reports of individuals who
had been disqualified from participation
in its youth programs. "
In the opinion of the appeals court,
these facts demonstrated US Youth had
" the administrative ability to ensure
compliance with mandatory criminal
background checks. " As a result, the
court concluded " the burden would not
have been significant " to require criminal background checks.
Similarly, the appeals court concluded criminal background checks would
not have been overly burdensome to Cal
North and West Valley. In reaching this
determination, the appeals court noted
" nearly all of the state associations in
Region IV had been conducting criminal background checks on all volunteers,
coaches and trainers since 2010. "
US Youth had also argued that " the
cost of mandating criminal background
checks would be substantial. " According to US Youth, if criminal background
checks cost $2.50 per check, registration for " over 900,000 administrators,
coaches and volunteers " annually would
" amount to $2.25 million. "
The appeals court, however, found

June 2017 - Parks & Recreation

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