What’s Next for USA Gymnastics, Michigan State University, and the NCAA?

By: Zade Shakir

“I just signed your death warrant.” The sound of camera lenses clicking filled the silence in the moments before Judge Rosemarie Aquilina delivered these six words on January 24, 2018, sentencing Larry Nassar to 40 to 175 years in prison for criminal sexual conduct.[1]

The former Michigan State University (MSU) and USA Gymnastics (USAG) doctor, who has already been sentenced to 60 years in federal prison on child pornography charges, had just finished hearing victim impact statements from over 156 accusers in Ingham County, Michigan, detailing the horrific extent of his sexual abuse.[2] While Nassar will almost certainly spend the rest of his life behind bars between his convictions in federal and state courts, the fallout of this case has tremendous implications for USAG, MSU, and the NCAA.[3] Over 150 civil suits have been filed, many of which name MSU and USAG as defendants, accusing the institutions for failing to protect Nassar’s patients and ignoring countless red flags.[4]  Allegations against the institutional defendants allege they “unreasonably failed to detect wrongful conduct…or worse, helped cover up those crimes.”[5]

USA Gymnastics

USAG employed Nassar as its team doctor, and was legally responsible for supervising his work and investigating allegations of misconduct.[6] Victims of Nassar’s conduct have accused USAG of being “grossly negligent” and willfully disregarding “necessary precautions to reasonably protect” those who came forward with accusations.[7]

Further, some have accused USAG of attempting to “silence” sexual assault victims through the use of non-disclosure agreements (NDAs), drawing comparisons to Harvey Weinstein’s alleged conduct.[8] Gold medalist McKayla Maroney has argued that MSU, USAG, and others are legally responsible for Nassar’s abuse of her when she was 15 years old.[9] Maroney’s attorney contends that Maroney was “forced” to sign an NDA in her 2016 settlement with USAG, which released USAG from liability in exchange for $1.25 million.[10] The concerning portions of the settlement are the non-disparagement and confidentiality provisions, which essentially state that Maroney would be contractually obligated to pay USAG $100,000 in damages if she spoke against Nassar.[11] When news of this contractual obligation hit the social media sphere, including Chrissy Teigen’s viral offer to pay the fine, USAG announced that it would not seek the damages against Maroney if she testified.[12]

From Weinstein to USAG, the growing concern over the use of NDAs lingers. As Michael McCann, SI’s legal analyst, succinctly describes, “[NDAs make] repeat sexual misconduct much more likely: when each victim is legally barred from publicly sharing what happened, the perpetrator becomes more capable to victimize someone new.”[13] While NDAs are generally permitted and enforceable under the law, with a few exceptions, there have been legislative pushes to void NDAs that have the purpose of attempting to conceal claims of harassment or discrimination.[14]

Amid the Nassar scandal, all USAG board members have resigned, the Karolyi Ranch training facility has been shut down, and USAG has adopted several new policies.[15] Nonetheless, USAG’s duty to protect the victims of Nassar’s abuse is still the subject of a number of lawsuits, likely leaving the organization on the hook for millions of dollars in damages and settlements.

Michigan State University

Some have compared Nassar’s crimes at MSU with Jerry Sandusky’s conduct at Penn State, citing similarities in the “total and consistent disregard by the most senior [institutional leaders] for the safety and welfare of [sexual assault] victims.”[16] One plaintiff alleges that, in 2014, she reported to MSU that Nassar had “cupped her buttocks, massaged her breast and vaginal area, and became sexually aroused” as “treatment” for a hip injury.[17] According to this plaintiff, MSU dismissed her complaint and told her that “she didn’t understand the ‘nuanced difference’ between sexual assault and appropriate medical procedure.”[18] Another plaintiff said that MSU’s then-gymnastics coach Kathie Klages discouraged her from filing a lawsuit in the late 1990s when she told her about Nassar’s abuse.[19] MSU’s campus police and Title IX office did not begin formally investigating Nassar until 17 years after the first complaint was made to a MSU coach.[20] MSU colleagues such as Dr. Brooke Lemmen actively aided in hiding Nassar’s conduct. Not only did she remove boxes of confidential treatment information from MSU’s Sports Medicine Clinic at Nassar’s request, but she was also one of the experts that MSU relied upon to clear Nassar in a 2014 internal Title IX investigation, where she told investigators there was nothing sexual about Nassar’s treatments.[21]  From the various allegations, influential individuals at the university appear to have been on notice for years; however, Patrick Fitzgerald, MSU’s lead attorney, argues that “the evidence will show that no MSU official believed that Nassar committed sexual abuse prior to newspaper reports in the summer of 2016.”[22]

While MSU administrators claim that the university properly handles sexual assault complaints, an Outside the Lines investigation alleges that MSU has a history of concealing secrets that extend beyond the Nassar case, discovering “a pattern of widespread denial, inaction and information suppression of such allegations by officials ranging from campus police to the Spartan athletic department.”[23] A former MSU sexual assault counselor left the university in 2015 over frustration with how administrators handled sexual assault cases, particularly how complaints involving athletes fell to former athletic director Mark Hollis’ department, or sometimes even coaches, to investigate.[24] The Outside the Lines investigation includes incidents involving both football coach Mark Dantonio and basketball coach Tom Izzo, and points to a system-wide lack of transparency. In 2015, the U.S. Department of Education’s Office for Civil Rights found that a “sexually hostile environment existed for and affected numerous student and staff on [MSU’s] campus,” and that the university’s “failure to address complaints of sexual harassment, including sexual violence, in a prompt and equitable manner caused and may have contributed to a continuation of this sexually hostile environment.”[25]

MSU officials such as Hollis and former president Lou Anna Simon have resigned in light of the Nassar findings, and the university has offered up millions to help the victims of sexual assault, yet MSU is still far from righting their wrongs. The university’s legal liability will continue to be debated in courtrooms across the country.

NCAA

A new development hit social platforms on January 27, 2018, when The Athletic’s Nicole Auerbach reported that NCAA president Mark Emmert was put on notice in 2010 of 37 sexual assault incidents at MSU.[26] In a letter written to Emmert, Kathy Redmond, the founder of the National Coalition Against Violent Athletes, raised concern that MSU was not taking proper disciplinary action against athletes that had committed sexual violence.[27] Emmert penned a letter to the NCAA’s Board of Governors in response to Auerbach’s piece, claiming that “[t]he assertion that [he] and the NCAA are not reporting crimes…is blatantly false.”[28]

The NCAA officially initiated its investigation into MSU on January 23, 2018. Some expect the NCAA-imposed punishments to be similar to those given to Penn State (a $60 million fine, postseason ban, and scholarship restrictions), while others are calling for the NCAA “death-penalty,” which would terminate Michigan State gymnastics—or the entire athletic department—for a year or two.[29] What could prove to be problematic is if plaintiffs begin naming NCAA as a defendant alongside MSU and USAG by arguing that the NCAA’s constitution binds the NCAA to protect student-athletes. McCann contends that “it would be awkward, at a minimum, for the NCAA to investigate a fellow co-defendant, whose interests are not all aligned with the NCAA.”[30] With a special prosecutor set to “investigate every corner of Michigan State University,” it may be wise for the NCAA to defer to this investigation so as to ensure the findings are comprehensive and credible.

[1] Scott Cacciola & Victor Mather, Larry Nassar Sentencing: ‘I Just Signed Your Death Warrant’, N.Y. Times (Jan. 24, 2018), https://www.nytimes.com/2018/01/24/sports/larry-nassar-sentencing.html.

[2] Tracy Connor, ‘Army of Women’ Fights Gymnastics Doctor Larry Nassar with Words, NBC News (Jan. 24, 2018, 2:29PM), https://www.nbcnews.com/news/us-news/army-women-fights-gymnastics-doctor-larry-nassar-words-n840481.

[3] Michael McCann, Four Key Sports Law Implications of the Larry Nassar Scandal, Sports Illustrated (Jan. 19, 2018), https://www.si.com/olympics/2018/01/19/larry-nassar-scandal-sports-law-implications.

[4] Tracy Connor & Elizabeth Chuck, Gymnastics Doctor Scandal: What’s Next in the Larry Nassar Case?, NBC News (Jan. 24, 2018, 10:19PM), https://www.nbcnews.com/news/us-news/gymnastics-doctor-scandal-what-s-next-larry-nassar-case-n840781.

[5] McCann, supra note 3.

[6] Id.

[7] Id.

[8] Id.

[9] Id.

[10] Rebecca Davis O’Brien, USA Gymnastics, McKayla Maroney Had Confidentiality Agreement to Resolve Abuse Claims, The Wall Street Journal (Dec. 20, 2017), https://www.wsj.com/articles/usa-gymnastics-reached-settlement-over-abuse-claims-with-gold-medalist-mckayla-maroney-1513791179.

[11] Id.

[12] Heather Tucker, USA Gymnastics Says it Will Not Fine McKayla Maroney if She Speaks Out Against Larry Nassar, USA Today (Jan. 16, 2018, 10:40PM), https://www.usatoday.com/story/sports/olympics/2018/01/16/usa-gymnastics-mckayla-maroney-larry-nassar/1039025001/.

[13] McCann, supra note 3.

[14] Id.

[15] Nicole Chavez, What Others Knew: Culture of Denial Protected Nassar for Years, CNN (Jan. 25, 2018, 11:21AM), https://www.cnn.com/2018/01/23/us/nassar-sexual-abuse-who-knew/index.html.

[16] Rochelle Riley, An Open Letter to Lou Anna Simon About Larry Nassar, Detroit Free Press (Jan. 24, 2018, 12:49PM), https://www.freep.com/story/news/columnists/rochelle-riley/2018/01/24/lou-anna-simon/1061207001.

[17] McCann, supra note 3.

[18] McCann, supra note 3.

[19] Jason Hanna, The Fallout from Larry Nassar’s Sexual Abuse is Just the Beginning, CNN (Jan. 27, 2018, 2:49PM), https://www.cnn.com/2018/01/26/us/larry-nassar-investigation-fallout-march/index.html.

[20] Paula Lavigne & Nicole Noren, OTL: Michigan State Secrets Extend Far Beyond Larry Nassar Case, ESPN (Jan. 25, 2019, 8:27 AM), http://www.espn.com/espn/story/_/id/22214566/pattern-denial-inaction-information-suppression-michigan-state-goes-larry-nassar-case-espn.

[21] Matt Mencarini, MSU Doctor Resigned After Removing Nassar Patient Files, Lansing State Journal (Mar. 17, 2017), https://www.lansingstatejournal.com/story/news/local/2017/03/17/msu-doctor-resigned-after-removing-nassar-patient-files/99316854.

[22] Chavez, supra note 13.

[23] Lavigne & Noren, supra note 18.

[24] Id.

[25] Id.

[26] Nicole Auerbach, NCAA President Mark Emmert was Alerted to Michigan State Sexual Assault Reports in 2010, The Athletic (Jan. 27, 2018), https://theathletic.com/223555/2018/01/26/ncaa-president-mark-emmert-was-alerted-to-michigan-state-sexual-assault-reports-in-2010.

[27] Id.

[28] Emmert Letter to NCAA Board, Washington Post (Jan. 27, 2018), https://www.washingtonpost.com/sports/colleges/emmert-letter-to-ncaa-board/2018/01/27/91a08298-03bb-11e8-86b9-8908743c79dd_story.html?utm_term=.4daa0d922687.

[29] Michael McCann, The NCAA’s Own History in MSU’s Sexual Assault Scandal Could Impede Any Potential Punishment, Sports Illustrated (Jan. 28, 2018), https://www.si.com/college-football/2018/01/28/mark-emmert-ncaa-michigan-state-investigation-larry-nassar.

[30] Id.