More on Jaqua: Deeper Legal Analysis of the Complaint Filed Against the Seattle Sounders’ Forward

xboxBased on some requests that we have received, we thought we would dig a bit deeper into the recently filed civil allegations against Nate Jaqua of the Seattle Sounders. The primary cause of action against Jaqua sounds in “battery”.  Under Oregon law, a battery is simply described as a “voluntary act that is intended to cause the resulting harmful or offensive contact”.

We touched briefly yesterday on the vicarious liability portion of the complaint (i.e. the allegations against MLS and the various teams).  In part, such a cause of action requires a showing that the primary actor performed the alleged battery in the scope of his employment.  In a recent juvenile sexual assault case, the Oregon Court of Appeals found that a priest who had been alleged to committ certain sexual acts during the course of working with a youth did not commit those acts within the confines of his employment.  The Court found that simply assisting the claimant with a knee injury was not sufficient to rise to the pastoral duties required under the priest’s job description.

While the facts in the Jaqua matter are still emerging, it is difficult to see how the complaint sets forth sufficient facts to show that he was acting in the scope of his employment.  Using the analysis from the Archdiocese case above, it seems that plaintiff faces a difficult hurdle in relating the alleged battery to Jaqua’s soccer career.

One interesting procedural issue may arise because of the potential jurisdictional issues raised in the Complaint.  The plaintiff resides in Canada, MLS is located in New York, the Galaxy in California and Houston in Texas.  The defendants may seek to “remove” this case to Federal Court because of this diverse citizenship, thereby taking the matter from Oregon State Courts.  As a practical matter, this would likely have the impact of moving the case more efficiently, as Federal Courts tend to move faster than their state counterparts.  Perhaps more importantly, Federal Court judges (who have a lifetime appointment), are usually far more receptive to motions aimed dimissing the complaint prior to trial.  Such a tactic may especially benefit the teams and the league, because the of the difficulty in proving the vicarious liability portion of this case.

We will hopefully return to the world of soccer and business tomorrow, but will certainly keep our eye on this case.

Soccer Business Bits: Legal Analysis of the Jaqua Situation, July Fourth Round-up and More

soundersFor the second time since the season started, a Seattle Sounders forward has had his name linked with sexual assault allegations.  The first instance involved Freddy Montero, and those charges were quickly dropped.  Over the weekend, a civil complaint was filed against Montero’s strike partner, Nate Jaqua.  The claim primarily sounds in battery, but includes graphic descriptions of alleged sexual conduct between Jaqua and the female plaintiff.  The plaintiff is a former college soccer player.  Other defendants include the Los Angeles Galaxy, MLS and the Houston Dynamo.  We will reluctantly put on our lawyer hat for a moment and discuss these allegations.

Importantly, this is a civil case, which means that while Jaqua does not face potential criminal penalties (e.g. jail), he does face potential financial damages.  In addition, the standard of proof is typically lower in civil court, where fact finders are asked to use a “more likely than not” or 51% standard.  Because this is a civil action, the plaintiff’s identity has been made public.  Moreover, this is an action that is being pursued by her and not the State of Oregon.  Reports indicate that the police have never investigated these charges.

The inclusion of multiple co-defendants smacks of significant over-reaching by the plaintiff.  While this certainly adds deep pockets  to the case (and can help settlement),  the claims against the defendants other than Jaqua sound in “vicarious liability”.  Put differently, the plaintiff is alleging that these defendants are responsible because Jaqua was acting on their behalf in perpetuating the assault of the plaintiff.  However, under the traditional framework of vicarious liability utilized in Oregon, a plaintiff must prove the following three elements to make out a prima facie case of vicaroius liability:   (1) the conduct must have occurred substantially within the time and space limits authorized by the employment; (2) the employee must have been motivated, at least partially, by a purpose to serve the employer; and (3) the act must have been of a kind that the employee was hired to perform. It is hard to see how any of those elements exist in this case.   A copy of the complaint is here.

We will of course monitor this case as it moves forward.  Suffice to say, Jaqua has forefully denied the allegations.

Independence Day has come and gone, and with it, another week of MLS, WPS and Gold Cup Action.  In Colorado, just under 20k enjoyed the annual July 4th festivities, as the Rapids came up short against Chicago.  In RSL, a dissappointing crowd of 17,400 watched RSL escape with a tie, while 20k were in Los Angeles to see the Galaxy hold off New England.  Red Bull road woes continued, as more than 14k watched New York come up short against Dallas, while a packed house saw Kansas City fall short to Houston at Community America Ballpark.  As always, we recommend that you go here for a detailed look at MLS attendance.

In WPS action, just over 4k were in Chicago for a mid-week game against DC.  A distrubingly low crowd of 1,800 were in New Jersey for a July 4th match between New Jersey and Boston. An apparent crowd of about 5k was in DC for their Sunday evening tilt with Las Angeles.

In Gold Cup play, a small crowd of just over 15k saw the United States beat Grenada and Honduras beat Hati in Seattle.  The July 3 doubleheader in Los Angeles, featuring Costa Rica, El Salvador, Jamaica and Canada brought a 27k sellout.  Games will move to Foxboro, Dallas, Philadelphia for the next rounds with the semi finals in Chicago and finals in New Jersey.