NWSL says it has ‘no duty of care' for women suing San Diego Wave over assault claims

The Guardian

2 days ago

In a filing last month, the National Women's Soccer League denied all allegations contained in a lawsuit brought by former San Diego Wave employees and called for the suit to be 'dismissed in its entirety,' claiming that the league has 'no duty of care' to the six women suing the club and the league.
The 2024 suit contains allegations of sexual assault of an employee by a co-worker while both employed at the club, along with claims of sexual harassment, racial discrimination, disability discrimination, failure to investigate and prevent harassment and discrimination.
In the answer to the allegations filed on 8 July to the Superior Court of California in San Diego, the NWSL's legal representatives, Los Angeles firm Arentfox Schiff, deny that the six former Wave employees were 'damaged or harmed' because of any act of the league.
The NWSL's lawyers claim 'the doctrine of consent,' inferring that the sexual assault and harassment claims were based on consensual encounters, and also that certain allegations are beyond California's statute of limitations. The NWSL's defense also claims it had no duty of care to San Diego Wave employees as any incidents that occurred were between the individuals and the club – not the league.
According to legal experts interviewed by the Guardian, the NWSL's response to the lawsuit is a catch-all answer that aims to cover all possible angles of defense.
'The defendant has simply listed every affirmative defense that could apply to any of the claims,' said Professor David Oppenheimer, clinical professor of law at the University of California, Berkeley School of Law. 'The common term for such an answer is 'boilerplate.' The purpose is to preserve any conceivable defense.'
An NWSL spokesperson said the league could not comment on pending litigation. Arentfox Schiff did not respond to requests for comment and clarification.
The six women who filed the lawsuit include one who claims she was sexually assaulted by a San Diego Wave co-worker, another who claims she was sexually harassed by the same co-worker, and Brittany Alvarado, a former videographer for the Wave, claiming workplace-related violations. Three other women are named in the suit for similar alleged violations. Alvarado brought attention to the workplace environment at San Diego Wave after she posted on social media in 2024 that the 'NWSL must take immediate action to remove Jill Ellis from both the San Diego Wave and the league entirely.'
Ellis, the former USWNT head coach, was Wave president at the time of the events alleged in the lawsuit and had a hands-on role in managing the club. Ellis has since departed San Diego to take a senior role at Fifa as its chief football officer. Ellis is not a defendant in the lawsuit but is named within it, described as having 'set an abusive and toxic workplace culture' and 'once asking random men in Kansas City about their penises'. (Ellis has filed a separate defamation suit against Alvarado based on her social media post.)
The Guardian previously revealed that a 2024 investigation by the NWSL into San Diego Wave management found that the club's front office 'could have done more' to address a sexual assault allegation but found no specific issue with how the claim was handled because the alleged victim did not use the term 'sexual' when describing her experience. The San Diego Wave is a co-defendant in the case with the NWSL.
As reported by the Guardian, Jane Doe 1 alleges that a night out in San Diego with a co-worker led to 'inappropriate activities including a game of 'Sexy Jenga' that led to him pressuring her into non-consensual sexual acts'. Jane Doe 1 alleges that later at her apartment, while she was drunk, she was pressured into 'sexual activity that she explicitly stated she did not consent to'.
The NWSL's defense argues that consent was given. Under California law, consent requires an individual to freely give agreement to engage in sexual activity 'and voluntarily and have knowledge of the nature of the act or transaction involved.'
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Another woman, 'Jane Doe 2', alleged in the lawsuit she was sexually harassed by the same San Diego Wave employee who this time sent her non-work related messages and images via Snapchat that became increasingly sexual in nature. Jane Doe 2 claims she was terminated by the club after she did not work the minimum number of shifts in her non-full-time role – shifts that were assigned by the alleged harasser.
'In a negligence case, consent is a potential defense when the plaintiff has agreed to participate in an activity knowing that there are significant risks of harm, and willing to subject themselves to them,' Oppenheimer said. 'The best examples come from sports, but for the athletes … In this case, for the statutory claims under the civil rights laws, there is no defense of consent.'
Oppenheimer offered a hypothetical scenario for the NWSL to launch a successful defense:
'[The] defendant proves that as each employee was hired they were warned, 'You need to know that this is a toxic workplace. We permit emotional and sexual harassment, we retaliate against people who complain, and we fire people in bad faith. If you don't want to subject yourself to this, don't work here.' That might be enough to defend themselves on the negligent hiring and management claim, but it would subject them to liability on the statutory discrimination claims.'
The defense also claims the case should be dismissed because the plaintiffs delayed bringing the lawsuit and that a two-year statute of limitations under California law should be enforced. The earliest claims made in the case took place in mid-2022. The suit was filed in October of 2024. The NWSL's lawyers cite a section of California code of civil procedure stipulating that there is a two-year statute of limitations to sue for 'An action for assault, battery, or injury to, or for the death of, an individual caused by the wrongful act or neglect of another.' California law stipulates elsewhere that there is a 10-year statute of limitations for criminal sexual assault claims (the NWSL case in question is civil).
The NWSL claims it cannot be held accountable for events described in the lawsuit because they fall outside the relationship between the league and the Wave. The league claims it did not know the incidents occurred nor should it have known.
The former San Diego Wave employees have requested a trial by jury.