Part 3: Can You Be Liable for Not Doing a Background Check?

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We’ve been exploring the importance of background checks in this three-part series. While background checks can be important for organizations of all types, they are particularly key when the organization works with vulnerable populations, like children. A recent case from California¹ cautions about child sexual abuse, background checks, and liability. Because the organization didn’t perform a criminal background check, a court held that the national youth soccer organization could be subject to a lawsuit after a child was sexually abused by her local soccer coach. While we don’t practice in California, the trend of holding national organizations liable for these incidents moves upward, and this case is an example.

Doe v. U.S. Youth Soccer Association: The Background

Over the course of a year, the plaintiff, a 12-year-old girl, became the victim of child sexual abuse perpetrated by her soccer coach. In hindsight, there were several red flags:

• As a coach, he violated several safety guidelines of the national organization. Among other things: “he held practices for which he was the only coach present . . . .; he made excessive and disproportionate physical contact with plaintiff; he drove plaintiff to and from practices and games alone; he helped her put away equipment after practice as the other players were leaving or had left and they could not be seen from the field; he singled out plaintiff for training sessions involving one or two players.”²

• The coach also groomed the player, becoming friendly with her family, visiting their home, and being helpful to them by offering to pick up and drop off the player from practice and games. The parents trusted him.

• Eventually, the coach was suspended, but parents and players weren’t given a reason why.

When the coach applied for a job with the local soccer league, he was required to fill out an application that asked him to disclose previous criminal history and agree to submit to a criminal background check. He lied on the form, but he granted permission for the background check. The soccer league never conducted the check. The coach eventually pleaded “no contest” to criminal charges and was sentenced to 15 years in prison.

And then, as often occurs after a high-profile child sexual abuse scandal, the lawsuits began.

The player filed a lawsuit against the national, state, and local youth soccer associations, alleging negligence and willful misconduct. The soccer leagues had successfully argued to the trial court that they shouldn’t be liable because they didn’t have a duty to protect the player from the criminal conduct of a third party. A California appellate court reversed.

Doe v. U.S. Youth Soccer Association: The Court’s Decision

Failure to conduct background checks can come back to haunt an organization. The Court ruled that the defendants, which included a national organization, had a duty to conduct criminal background checks of all adults who would have contact with children involved in their programs. Before, this duty wasn’t clearly established in California. Here are the things that made a difference in the case:

• A special relationship existed between the soccer league and the players. The Court remarked: “Generally, a greater degree of care is owed to children because of their lack of capacity to appreciate risks and avoid danger. Consequently, California courts have frequently recognized special relationships between children and their adult caregivers that give rise to a duty to prevent harms caused by the intentional or criminal conduct of third parties.”³

• This relationship extended to the national organization because the player was a member of the national organization, and played on a team that was a local affiliate. Plus, the local affiliates were required to comply with the national policies and rules of the organization. These rules included the conditions under which coaches were hired—the individuals who would have access to and supervision of children in the programs.

• It was foreseeable that the abuse would occur. The national organization acknowledged that children playing soccer were at risk for sexual abuse. The national organization was generally aware of sexual abuse of soccer players by coaches, and it had developed a program/materials to address this issue.

• The burden of complying with the background check requirement would not have been significant.

• The Court discussed the availability of sexual misconduct riders for insurance purposes, but did not specifically use this as a ground for finding duty.

Because the Court found that the organization had a duty to run the criminal background check, the player could go forward with her negligence claim. The Court reached a different conclusion on the player’s related claim: that the organization had a duty to warn her about the risk of sexual abuse. The Court noted that soccer clubs are there for sports, not to develop moral character. This would be too much of a burden. In other words, while the organization has a duty to conduct the background checks, it did not have a duty to warn or educate the children in its programs about the risks of sexual abuse. The Court relied on the nature of the sports organization to reach this conclusion. The outcome might have been different had the organization served the purpose of educating children, or forming moral character, for example. One wonders if the Court was leaving a loophole to be harder on religious organizations in future than on athletic organizations.

Doe v. U.S. Youth Soccer Association: Three Lessons

This case shows the sad reality of child sexual abuse, and the duties courts are imposing on organizations to take steps to prevent it. While this case only applies in California, we see some universal take-aways:

Understand Your (Legal) Duties.

This case was really about whether the national soccer league had a duty to the victim. This kind of “duty” is not necessarily a moral duty, but a legal question—who will the justice system hold responsible when harm occurs? After someone is harmed by an employee or volunteer, the question in a lawsuit is often whether the organization or employer had a duty to prevent the harm from occurring. The answer to this question varies greatly by jurisdiction and case. But don’t wait until you are faced with a lawsuit to understand what duties could be placed upon the organization. Be proactive about preventing harm as part of the organization’s risk management process.

Take Employee and Volunteer Screening Seriously.

In this case, improper screening may have led to a child being abused. Screening is key for any good child safety policy. Background checks, references, and interviews should work together to put the right people in the right positions. This is important for organizations that work with children.

But it is also important for a business. While a small business might not run a great risk of a child being victimized, hiring the wrong person for the job, especially someone with ethical issues, can be an expensive mistake. Not only is employee turnover expensive, but the business itself can be the victim of employee misconduct.

Follow Policy!

In this case, the organizations had a policy to run background checks on certain employees/volunteers. That policy was not followed, and a child was victimized. A policy that is not followed is often worse than not having a policy at all. This is because courts, like in this case, may see the policy as a standard of care to which the organization has committed. When that policy is ignored, it reinforces the argument that a duty was breached. If the policy is good, follow it (and if not, change it).

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¹Doe v. United States Youth Soccer Assn., 214 Cal. Rptr. 3d. 552 (2017).

²Id. at 560.

³Id. at 565.