Filing # 45996273 E-Filed 09/01/2016 05:00:39 PM

IN THE CIRCUIT COURT OF THE NINTH JUDICIAL DISTRICT

IN AND FOR ORANGE COUNTY, FLORIDA

SARAH POWERS-BARNHARD, )
)
Plaintiff, ) CIVIL DIVISION
v. )
) CASE NO. 2016-CA-005539-O
AMATEUR ATHLETIC UNION OF )
THE UNITED STATES, INC., )
)
Defendant. )

DEFENDANT AMATEUR ATHLETIC UNION OF THE UNITED STATES, INC.S

LEGAL MEMORANDUM IN SUPPORT OF ITS MOTION TO DISMISS PLAINTIFFS
COMPLAINT OR, IN THE ALTERNATIVE, TO COMPEL ARBITRATION AND TO
STAY LITIGATION PENDING ARBITRATION

COMES NOW, Defendant Amateur Athletic Union of the United States, Inc. (AAU or

Defendant), by and through counsel and pursuant to Fla. R. Civ. P. 1.140(b)(6), 9 U.S.C. 2,

and Chapter 682, Florida Statutes, and hereby files its Legal Memorandum in Support of its

Motion to Dismiss Plaintiffs Complaint or, in the Alternative, to Compel Arbitration and to Stay

Litigation Pending Arbitration, respectfully showing the Court as follows:

I. INTRODUCTION

This action arises from alleged child sexual abuse that occurred more than 30 years ago.

Plaintiff Sarah Powers-Barnhard (the Plaintiff) has not named as a defendant her alleged

sexual abuser, but has instead filed this suit against AAUthe sports organization that sponsored

some of the events in which the Plaintiff participated as a minor and in which Plaintiff remains a

non-athlete member, or coach, to this day. Though the Plaintiff frames the action as claims for

negligence [Count II] and of Violation of the Florida Deceptive and Unfair Trade Practices Act

(FDUTPA) [Count I], she is essentially attempting to recover for the time-barred abuse claims:

she alleges both that AAU breached its duty to protect her from abuse as a youth member and

1
that AAU has breached its duty to protect her, as an adult coach, from continuing contact with

her former abuser.1

The Plaintiffs Complaint should be dismissed in its entirety because it fails to state a

claim under Florida law under either Count I or Count II.

The Plaintiff has failed to allege a viable claim for negligence. First, to the extent the

negligence claim arises from alleged child sexual abuse and any duty purportedly owed to the

Plaintiff as a minor (more than 30 years ago), the claim is time-barred as a matter of law.

Second, to the extent any allegation of negligence is not time-barred, the Plaintiff has failed to,

and cannot, allege any duty owed by AAU to protect her from contact with her abuser either as a

minor or as an adult. Third, as an adult, the Plaintiff assumed any risk of contact with her

abuser, by joining AAU membership and becoming a coach with full knowledge that her former

abuser also held AAU membership and acted as an AAU coach at that time.

The Plaintiffs claim under the FDUTPA likewise fails as a matter of law. The Plaintiff

has failed to allege that AAUs alleged unfair and deceptive practices caused her any damage.

Indeed, the Plaintiff acknowledges that she was aware of her former abusers sexual misconduct

before her membership as an AAU coach, so that it could not have been those AAU Codebook

statements that induced, or caused, her to join AAU. Rather, the Plaintiff chose to join AAU in

spite of her belief of AAUs allegedly deceptive statements.

Because the Plaintiffs claims fail as a matter of law, this Court should dismiss with

prejudice the Complaint. There are no facts under which the Plaintiff could prevail; moreover,

the Plaintiffs own fact allegations reveal the fatal flaws in the Complaint.

1
As this is a Motion to Dismiss, all allegations of Plaintiff's Complaint will be treated as true for purposes of this
motion; however, AAU disputes many of the allegations.

2
 Further, even if any claim survives dismissal, the AAU documents, on which the Plaintiff

relies, require that any civil dispute between AAU and its members be submitted to binding

arbitration. The Plaintiff relies on this same document to claim that AAUs statements

deceptively solicited memberships. This Court has previously held that the AAUs arbitration

provision presents a valid, enforceable agreement between AAU and its members. Because the

Plaintiff agreed to arbitrate disputes with AAU during and regarding her membership, AAU

respectfully requests that this Court enforce the arbitration provision and stay this litigation, in

the event that any substantive claim survives dismissal.

II. RELEVANT BACKGROUND

A. Allegations of the Complaint

On June 23, 2016, the Plaintiff filed her Complaint, asserting two counts against AAU:

(1) violation of the Florida Deceptive and Unfair Trade Practices Act (FDUTPA) and (2)

negligence. (See generally Compl. 34-51).

The Plaintiff identifies herself as a star volleyball player in high school, college, [and] at

the Junior Olympics and currently as director and a coach at Powers Volleyball Club in

Florida. (Compl. 2). The Plaintiff alleges that, over thirty years ago (from 1982 to 1984),

volleyball coach Rick Butler (Butler) sexually abused her while she was a player and he was a

coach on the Sports Performance Volleyball Club teams. (Compl. 5). The Plaintiff maintains

that this abuse occurred during practices for and participation in volleyball competitions

sponsored and sanctioned by AAU. (Compl. 5). The Complaint pinpoints one specific

instance of alleged abuse occurring during the 1983 Volleyball Junior Olympics, which was

purportedly sponsored by AAU. (Compl. 29-33).

3
 The Plaintiff states that she was asked to testify at a hearing about Butlers alleged

sexual misconduct in 1995. (Compl. 10). According to the Complaint, Butler was banned

from coaching or participating in events sponsored by USA Volleyball, a separate non-profit

organization, in 1995 due to reports of alleged sexual abuse. (Compl. 7). USA Volleyball

readmitted Butler in 2000. (Compl. 7).

At the time of the filing of the Complaint, both Butler and the Plaintiff remained AAU

members and were sponsoring and/or coaching teams planning to compete at the 43rd AAU

Girls Junior National Volleyball Championships in June 2016. (Compl. 8-9). The Plaintiff

contends that she is unable to shepherd her team to a national title without having to see and/or

be in contact with Butler. (Compl. 9). She argues that AAU had a duty to remove Butler as a

coach, as long ago as 1995, but failed to do so. (Compl. 13, 47).

In claiming a violation of the FDUTPA, the Plaintiff relies on AAU membership

documents, most notably the AAU Codebook. In particular, the Complaint cites the provisions

of the AAU Codebook, stating that [i]t is the policy of the AAU to deny participation in the

AAU to any individual for whom there is reasonable cause to believe that they have engaged in

sexual misconduct. (Compl. 35).2 The Plaintiff argues, though, that this is a false and

deceptive statement that AAU uses to solicit membership fees. (Compl. 38-40). The Plaintiff

also contends that AAUs apparent failure to follow these provisions amounts to an

unconscionable act or practice under the FDUTPA. (Compl. 40). The Plaintiff therefore seeks

a declaratory judgment finding false and deceptive statements and entry of an injunction

precluding AAU from distributing any such false and deceptive statements, as well as

compensatory damages and attorneys fees. (Compl. 41, Prayer for Relief).

2
The Complaint also notes the provision of the AAU Codebook defining reasonable cause and a provision of the
AAU Youth Protection Handbook that defines sexual misconduct. (Compl. 36-37).

4
 In alleging negligence, the Plaintiff contends that AAU had a duty to protect the Plaintiff

from foreseeable harm as a minor participating in volleyball events and also a duty to protect the

Plaintiff as an adult and coach from having direct contact with her known sexual abuser.

(Compl. 42). The Complaint alleges that AAU owed the Plaintiff a special duty as a child

entrusted to its care, that AAU knew or should have known of Butlers dangerous and

exploitive proclivities, and that AAU breached that duty and caused the Plaintiff harm by

allowing Butler to have unsupervised contact with her. (Compl. 43, 47, 49, 50, 51). The

Complaint further alleges that forced contact with Butler makes it extremely stressful for the

Plaintiff to act as a volleyball coach and that AAU has now again breached their duty of care to

Plaintiff as an adult and coach. (Compl. 43, 49). The Plaintiff therefore seeks

compensatory damages and interest. (Compl. 51, Prayer for Relief).

B. The AAU Codebook

The Plaintiff relies on the AAU Codebook as the basis of her claim under the FDUTPA,

acknowledging that the Plaintiff considers the Codebook to be an agreement between AAU and

each of its members. (See Compl. 35-40).

Along with the provisions cited in the Complaint and noted above, the AAU Codebook

also requires that AAU members submit all civil dispute(s) arising out of or during the term of

membership to binding arbitration. Specifically, the arbitration provision provides:

B. BINDING ARBITRATION.

1. BY APPLYING FOR AAU MEMBERSHIP (OR HAVING A THIRD

PARTY SUBMIT AN APPLICATION FOR MEMBERSHIP IN THE AAU
ON BEHALF OF THE APPLICANT), OR UPON ENTERING ANY AAU
EVENT, THE APPLICANT/MEMBER/ENTRANT AND THE AAU
AGREE TO SUBMIT ALL CIVIL DISPUTE(S) ARISING OUT OF OR
DURING THE TERM OF MEMBERSHIP TO BINDING ARBITRATION.
THE ARBITRATION HEARING SHALL BE HELD IN THE COUNTY OF
THE LOCALE OF THE AAU NATIONAL OFFICE UNLESS

5
 OTHERWISE SO SET BY THE AMERICAN ARBITRATION
ASSOCIATION (AAA). THE PARTIES FURTHER AGREE TO
SUBMIT THE MATTER TO ONE (1) ARBITRATOR PURSUANT TO
THE RULES SET OUT BY THE AAA, INCLUDING THE FEDERAL
ARBITRATION ACT AND TO THE ARBITRATION CODE OF THE
NATIONAL OFFICES RESIDENT STATE, WHICH IS CURRENTLY
FLORIDA. DUE TO THE EXPEDITED NATURE OF ARBITRATION
DEPOSITION(S), REQUESTS FOR ADMISSIONS, AND REQUESTS FOR
PRODUCTION OF DOCUMENTS ARE STRICTLY DISCOURAGED
AND WILL NOT BE ALLOWED WITHOUT AN ORDER FROM AAA;
AND, TO AID IN EXPEDITING ANY SUCH ARBITRATION, IN ORDER
TO BE CONSIDERED, A REQUEST FOR ANY SUCH ORDER, IF ANY,
SHALL ACCOMPANY THE FILING OF THE APPLICABLE PARTYS
FIRST SUBMISSION TO AAA OR SUCH REQUEST SHALL BE
WAIVED AND/OR DENIED. A LIST OF WITNESSES AND ALL
EXHIBITS TO BE INTRODUCED AT THE HEARING WILL BE
EXCHANGED AT LEAST TWENTY (20) DAYS PRIOR TO THE
HEARING. THE PARTIES AGREE THAT THE BINDING
ARBITRATION SHALL BE IN LIEU OF ANY LITIGATION BY AND
BETWEEN ALL OF THE PARTIES RELATED TO THE DISPUTE. IF
ANY PORTION OF THE ARBITRATION AGREEMENT SHALL BE
DECLARED INVALID OR UNENFORCEABLE, THE REST OF THE
AGREEMENT (TO SO ARBITRATE) SHALL REMAIN IN FULL FORCE
AND EFFECT.

2. THE PARTIES DECLARE THAT IT IS THEIR CLEAR AND

UNMISTABLE INTENT FOR THE ARBITRATOR TO DETERMINE
ANY AND ALL QUESTIONS OF ARBITRABILITY, IF ANY. ANY
OBJECTION TO THE ARBITRATORS JURISDICTION, INCLUDING
ANY OBJECTIONS WITH NATIONAL POLICIES 42 RESPECT TO THE
EXISTENCE, SCOPE OR VALIDITY OF THE ARBITRATION
AGREEMENT SHALL BE DECIDED BY THE ARBITRATOR. IF,
HOWEVER, FOR ANY REASON, (SUCH) ARBITRATION IS
DECLARED INVALID BY ANY COURT, IN THE ALTERNATIVE TO
ARBITRATION, THE PARTIES AGREE TO WAIVE A JURY AND
AGREE THAT ANY LEGAL ACTION BETWEEN THE PARTIES SHALL
BE COMMENCED EXCLUSIVELY IN THE CIRCUIT COURT OF THE
NINTH JUDICIAL DISTRICT FOR ORANGE COUNTY, FLORIDA, OR
TO ANY OTHER COURT SITTING IN THAT COUNTY HAVING
SUBJECT MATTER JURISDICTION, PURSUANT TO THIS FORUM
SELECTION CLAUSE, WHICH IS AGREED TO BY THE PARTIES.
[Rev. 3/09]

6
 3. THE TIME LIMIT (STATUTE OF LIMITATIONS) FOR BRINGING ANY
ACTION SHALL BE ONE (1) YEAR.

4. DAMAGES. THE SUCCESSFUL PARTY IN ANY SUCH ARBITRATION

AND/OR LITIGATION SHALL BE ENTITLED TO BE REIMBURSED
FOR ITS ACTUAL AND CONSEQUENTIAL DAMAGES (BUT NOT
PUNITIVE OR EXEMPLARY DAMAGES, IT BEING THE INTENT OF
THE PARTIES TO HEREBY WAIVE ANY RIGHT TO SEEK AND THE
PARTIES HEREBY COVENANT NOT TO SEEK, ANY PUNITIVE OR
EXEMPLARY DAMAGES AND FURTHER AGREE THAT NO CLASS
ACTION MATTERS SHALL BE BROUGHT). [Rev. 10/06, 3/09]

III. ARGUMENT AND CITATION TO AUTHORITY

A. This Court Should Dismiss All Claims in the Complaint.

AAU respectfully requests that this Court dismiss the Plaintiffs Complaint with

prejudice, given the Plaintiffs failure to state a cause of action under Florida law.

1. Standard of review

A motion to dismiss tests whether the plaintiff has stated a cause of action. . . . When

determining the merits of a motion to dismiss, a court may not go beyond the four corners of the

complaint and must accept the facts alleged therein and exhibits attached as true, with all

reasonable inferences drawn in favor of the pleader. Regis Ins. Co. v. Miami Mgmt., Inc., 902

So. 2d 966, 968 (Fla. Dist. Ct. App. 2005) (citations omitted).

2. The AAU Codebook

Exhibits to a pleading are also considered in a motion to dismiss. See Se. Med. Prods.,

Inc. v. Williams, 718 So.2d 306, 307 (Fla. 2d Dist. Ct. App. 1998). Florida law requires that

[a]ll bonds, notes, bills of exchange, contracts, accounts, or documents upon which action may

be brought or defense made, or a copy thereof or a copy of the portions thereof material to the

pleadings, . . . be incorporated in or attached to the pleading. Fla. R. Civ. P. 1.130(a). In fact,

[w]here a complaint is based on a written instrument, the complaint does not state a cause of

action until the instrument or an adequate portion thereof is attached to or incorporated in the

7
complaint. Samuels v. King Motor Co. of Fort Lauderdale, 782 So.2d 489 (Fla. 4th Dist. Ct.

App. 2001) (citing Safeco Ins. Co. v. Ware, 401 So.2d 1129, 1130 (Fla. 4th Dist. Ct. App.

1981)).

Here, because the Plaintiff failed to attach the AAU Codebook to the Complaint, her

claims cannot stand as a matter of law. The Codebook is the foundation of the claims in this

litigation. The Plaintiffs failure to attach the Codebook to the Complaint alone warrants

dismissal.

3. This Court Should Dismiss the Plaintiffs Claim for Negligence.

To assert a potential claim for negligence, the plaintiff must allege that the defendant

owed a recognized legal duty to the plaintiff to conform to a certain standard of conduct; that the

defendant breached that duty; and that the defendants breach proximately caused injury to the

plaintiff. See Williams v. Davis, 974 So.2d 1052, 1056 (Fla. 2007). Under Florida law, a claim

for negligence must be brought within four years of any alleged injury. See Fla. Stat.

95.11(3)(a).

a. Any allegations related to alleged child sexual abuse are time-

barred under Florida law.

The Plaintiff has failed to, and cannot, state a valid claim for negligence against AAU

because the statute of limitations bars any claim arising from alleged child sexual abuse that

occurred decades ago.

Though the Plaintiff does not directly allege a claim for child sexual abuse, AAUs

alleged duty to protect the Plaintiff from sexual abuse is the foundation of the negligence claim.

However, a claim for negligence is subject to a four-year statute of limitations, beginning to run

when the last element of claim (damages) occurs. See Fla. Stat. 95.11(3)(a); Med. Data Sys.,

Inc. v. Coastal Ins. Grp., Inc., 139 So.3d 394, 396 (Fla. 4th Dist. Ct. App. 2014) (noting that

8
negligence action accrues for limitations purposes when damage occurs). Where the facts

alleged in a complaint indicate the expiration of the applicable statute of limitations, the claim at

issue is subject to dismissal. See City of Riviera Beach v. Reed, 987 So.2d 168, 170 (Fla. 4th

Dist. Ct. App. 2008).

The Plaintiff claims that AAU owed a duty to use ordinary care to protect Plaintiff from

foreseeable harm while Plaintiff was a minor participating in volleyball events and practices

and that this duty extended to a duty to protect Plaintiff as an adult and coach from having

direct contact with her known sexual abuser. Compl. 42. The Plaintiffs negligence claim

stands on sexual abuse occurring over 30 years ago, allegedly from 1982 to 1984. Compl. 5.

The Complaint acknowledges, though, that the Plaintiff realized damages from any alleged child

sexual abuse at least by 1995, or 21 years ago, when she testified against Butler at a hearing

about sexual misconduct. Compl. 10.

The Plaintiff has failed to present any allegation of child sexual abuse within the statute

of limitations. In Cisko v. Diocese of Steubenville, 123 So.3d 83 (Fla. Dist. Ct. App. 2013), the

court faced a similar issue and affirmed summary judgment to the diocese on limitations

grounds, where alleged victims brought negligence claims against the diocese based on sexual

abuse that they allegedly suffered at the hands of two priests under the dioceses supervision.

There, the alleged abuse occurred in 1966 and 1967; the victims allegedly remembered the

events in 2005; and the negligence suit was filed in 2009. Id. at 84. The court rejected the

application of the delayed discovery doctrine, refusing to extend the doctrine to claims of

negligence arising from abuse, rather than to just direct claims of abuse. Id.

Similarly, here, the Plaintiff alleges that AAU caused her damage by breaching its duty of

care to protect her from Butler as a minor. The Plaintiff does not allege that she forgot the abuse

9
and, in any event, admits that she was aware of the abuse and its effects at least by 1995. The

Plaintiff has tried to contravene the statute of limitations by also claiming that AAU must protect

her from contact with Butler even as an adultthough she alleges no continuing abuse. These

allegations also still rise from the alleged child sexual abuse in the 1980s and should likewise be

time-barred.

Because any and all negligence allegations in the Complaint arise from AAUs purported

duty to protect the Plaintiff from child sexual abuse in the 1980s or the effects of that abuse

realized in the 1990s, this Court should dismiss the Plaintiffs negligence claim based on the

statute of limitations. At the very least, the Plaintiff should be foreclosed from relying on the

child sexual abuse, and any purported special duty owed to her as a child, as grounds for her

claim for negligence or any other claim for recovery in this action.

b. As for any child sexual abuse, AAU cannot be liable for

Butlers actions.

Assuming, for arguments sake, that any claim of negligence related to child sexual abuse

survives the statute of limitations, AAU owed no duty to the Plaintiff given the allegations of

Butlers intentional conduct between 1982 and 1984. Even if Butler was acting as an agent of

AAU (which AAU disputes but which is alleged in the Complaint), Butler was not acting within

the scope of that agency during any alleged incidents of child sexual abuse.

Sexual assaults committed by agents or employees are generally outside the scope of any

agency authority and therefore do not warrant imposing any liability on the principal. See, e.g.,

Special Olympics Fla., Inc. v. Showalter, 6 So.3d 662, 665-66 (Fla. 5th Dist. Ct. App. 2009);

Nazareth v. Herndon Ambulance Serv., Inc., 467 So.2d 1076, 1078 (Fla. 5th Dist. Ct. App.

1985). Unless it can be established that the abuse occurred in furtherance of the principals

efforts, sexual abuse is not the type of conduct that falls within the scope of agency. See Special

10
Olympics Fla., Inc., 6 So.3d at 665-66 (finding that principal had no liability for volunteer who

allegedly molested Special Olympics athletes); Agriturf Mgmt., Inc. v. Roe, 656 So.2d 954 (Fla.

2d Dist. Ct. App. 1995) (finding abuse occurring on Agriturfs property during time perpetrator

closing business not within scope of employment because sexual abuse not in furtherance of

employers business objectives); Mason v. Fla. Sheriffs Self-Ins. Fund, 699 So.2d 268 (Fla. 5th

Dist. Ct. App. 1997) (holding that sexual assault by officer was not within scope of employment,

even though officer was on duty, in uniform, and serving warrant on woman he raped).

The Plaintiff has not alleged, and cannot show, that any alleged sexual abuse by Butler

somehow furthered AAUs objectives. Therefore, any claim for negligence related to the child

sexual abuse fails as a matter of law.

c. AAU owed, and owes, no duty to protect the Plaintiff from

Butler as an adult and coach.

Any claim for negligence under Florida law requires a showing that the defendant owed a

particular duty of care to the plaintiff. See City of Miami Beach v. Dickerman Overseas

Contracting Co., U.S.A., 659 So.2d 1106 (Fla. 3d Dist. Ct. App. 1995). [D]uty exists as a

matter of law and is not a factual question for the jury to decide: Duty is the standard of conduct

given to the jury for gauging the defendants factual conduct. McCain v. Florida Power Corp.,

593 So.2d 500, 503 (Fla. 1992). Where there is no duty, there can be no cause of action for

negligence. See Jenkins v. W.L. Roberts, Inc., 851 So.2d 781, 783 (Fla. 1st Dist. Ct. App. 2003).

Here, the Plaintiff alleges two duties owed by AAU: one to protect her from Butlers alleged

sexual abuse as a minor and another to protect her from contact with Butler as an adult.

A legal duty may arise from (1) legislative enactments, (2) judicial interpretations of

legislation, (3) other judicial precedents, and (4) the general facts of the case. See McCain, 593

So.2d at 503 n.2 (citing Restatement (Second) of Torts 285 (1965)). In the instance of general

11
facts, Florida law recognizes that a legal duty arises whenever a human endeavor creates a

generalized and foreseeable risk of harming others. Id. at 503 (emphasis added). A legal duty

does not exist merely because the harm in question was foreseeable; it must have been that the

defendants conduct created the risk. See Aguila v. Hilton, Inc., 878 So.2d 392 (Fla. 1st Dist. Ct.

App. 2004).

AAU owed no duty to protect the Plaintiff from contact with Butler as an adult. The

Plaintiff does not allege that Butler committed some tortious conduct against her as an adult; it is

just his mere presence for which she alleges wrongdoing. The Complaint relies on Butlers past

wrongful acts, all of which are subject to the statute of limitations. Butlers only purported

wrongdoing to the Plaintiff as an adult is being another AAU coach with whom the Plaintiff

claims she must interact. However, AAU did not create any foreseeable zone of risk for the

Plaintiff potentially having contact with Butler as an adult. In fact, the Plaintiff voluntarily chose

to become a non-athlete AAU member with knowledge that Butler was also a non-athlete AAU

member at all relevant times. Compl. 21.

Because the Plaintiffs allegation of a duty owed to her as an adult fails as a matter of

law, this Court should dismiss the Complaints count for negligence.

d. The Plaintiff should be barred from all recovery because she

assumed any risk of alleged damage as an adult, given her
knowledge of Butlers alleged wrongdoing prior to her non-
athlete AAU membership.

The Plaintiff knew of the existence of the danger complained of in the Complaint (contact

with Butler as an AAU coach); realized and appreciated the possibility of injury as a result of the

danger (the stress of having contact with Butler as an adult); and having a reasonable opportunity

to avoid it, voluntarily exposed herself to the danger (Butler was already an AAU coach when

the Plaintiff became an AAU coach).

12
 [O]ne who expressly assumes a risk may be completely barred from any right of

recovery. McGraw v. R & R Inv., Ltd., 877 So.2d 886 (Fla. 4th Dist. Ct. App. 2004). Though

implied assumption of risk is considered a principle of comparative negligence, express

assumption of risk bars a negligence claim where it is clear that, either by contract or by

voluntary participation in an activity, . . . the plaintiff understood that she was assuming the

particular conduct by the defendants which caused her injury. Van Tuyn v. Zurich Am. Ins. Co.,

447 So.2d 318 (Fla. 4th Dist. Ct. App. 1984).

Here, the Plaintiff voluntarily chose to apply for and to be a part of AAU membership

with knowledge, as she alleges, that Butler was also an AAU coach at all relevant times. See

Compl. 21. Further, the Plaintiff acknowledges that she was aware that Butler would have a

team present at the 43rd AAU Girls Junior National Volleyball Championships, yet still chose

to attend. Compl. 8-9. The Complaint also alleges that AAU should have removed Butler

from membership in 1995. See Compl. 47. By her own allegations then, the Plaintiff knew

that AAU membership could lead to contact with Butler; the Plaintiff remembered the past

sexual abuse and was aware of alleged damage that it had caused her; and the Plaintiff still chose

to pursue AAU membership and participate in AAU events. The Plaintiff could continue to be a

volleyball coach without AAU membership.

Given the Plaintiffs express assumption of the risk of contact with Butler through her

AAU membership, this Court should dismiss the Plaintiffs negligence claim.

4. This Court Should Dismiss the Plaintiffs Claim under the Florida
Deceptive and Unfair Trade Practices Act.

To maintain a claim under the FDUTPA, the plaintiff must show a deceptive act or unfair

trade practice; causation; and actual damages. KC Leisure, Inc. v. Haber, 972 So.2d 1069, 1073

(Fla. 5th Dist. Ct. App. 2008).

13
 a. The Plaintiff has failed to allege the causation necessary to
maintain a claim under the FDUTPA.

Here, the Plaintiff has failed to allege any causation, and the Complaint on its face

negates that essential element of any FDUTPA claim. The Plaintiff alleges that AAU presented

a false and deceptive statement in the AAU Codebook, by assur[ing] its members that upon a

reasonable showing any individual who was believed to have engaged in sexual misconduct was

to be denied participation in the AAU. Compl. 38 (emphasis in original). Still, the Plaintiff

must then show that the allegedly false, deceptive statement caused her loss or damage.

[T]o be actionable an unfair or deceptive trade practice must be the cause of loss or

damage to a consumer. Gen. Motors Acceptance Corp. v. Laesser, 718 So.2d 276, 277 (Fla. 4th

Dist. Ct. App. 1998). Therefore, for her claim to stand, the Plaintiff must have alleged that but

for AAUs false, deceptive statement, she would not have paid membership fees to the AAU.

See, e.g., Hetrick v. Ideal Image Dev. Corp., 758 F. Supp. 2d 1220, 1230 (M.D. Fla. 2010)

(finding causation only where plaintiffs proved they would not have invested but for the

defendants deceptive statements).

Here, according to the Plaintiffs own allegations, the allegedly false and deceptive

statements of the AAU Codebook did not cause the Plaintiff to join, and to pay for, AAU

membership. Though the Complaint generally alleges that AAU solicits membership fees based

on its false statement, the Plaintiff does not, and in fact cannot, say that AAU solicits or has

solicited membership fees from her because of this statement. Assuming the Plaintiffs

allegations are true (as required on a motion to dismiss), the Plaintiff suffered sexual abuse at the

hands of Butler between 1982 and 1984, Butler remained a member of the AAU at all relevant

times, and the Plaintiff still chose to become an AAU member thereafter. The Plaintiff cannot

14
also claim then that the statements in the AAU Codebook, about denying AAU participation to

any individual for whom there is a reasonable cause to believe that they have engaged in sexual

misconduct, led her to become an AAU member as an adult.

In fact, by the Plaintiffs own contentions, she became an AAU coach, not but for, but in

spite of her belief that AAU was not complying with the statements in the AAU Codebook (and

that AAU should have removed Butler from membership in 1995, Compl. 47). Even assuming

some false or deceptive trade practice, a claim is not actionable whereas herethere is no

allegation, and can be no showing, that the defendants alleged FDUTPA violations caused the

plaintiff any actual damages. Consequently, Count I of the Complaint fails as a matter of law

and this Court should dismiss it in its entirety.

b. The Plaintiff is estopped from bringing a claim under the

FDUTPA where she could not have reasonably relied on
AAUs alleged deceptive statements.

[N]o Florida Deceptive and Unfair Trade Practices Act claim lies where the plaintiff

could not have reasonably relied on the misrepresentations. Trilogy Props. LLC v. SB Hotel

Assocs. LLC, No. 0921406CIV, 2010 WL 7411912, at *16 (S.D. Fla. Dec. 23, 2010) (citing

Dorestin v. Hollywood Imps., 45 So.3d 819, 825 (Fla. Dist. Ct. App. 2010)). Therefore, in

situations where a contract contradicts previous representations or where a plaintiff is

otherwise aware of the misrepresentation, the plaintiff cannot state a cause of action under the

FDUTPA. See id.

Here, based on her own allegations, the Plaintiff had no reasonable reliance on the AAU

Codebook. The Plaintiff acknowledges that the alleged sexual abuse occurred between 1982 and

1984, that Butler remained an AAU member, and that she became a coach and adult member of

AAU thereafter. The Plaintiff cannot also claim then that she reasonably relied on the statements

in the AAU Codebook when she became an AAU member. Instead, the Plaintiff believed that
15
Butler should have been removed from membership in 1995 and that AAU was violating its

policies against sexual misconduct at that time. Still, the Plaintiff pursued non-athlete AAU

membership in 2008 and thereafter.

Because, based on her own allegations, the Plaintiff had no reasonable grounds to rely on

AAUs allegedly deceptive statements, this Court should dismiss the FDUTPA claim.

B. If Any Claim Survives Dismissal, This Court Should Compel Arbitration and
Stay This Litigation Pending Arbitration.

In the alternative, if the Court does not dismiss all claims, AAU respectfully requests that

this Court compel arbitration and stay the current litigation, pending the arbitration required

under the AAU Codebook. Generally, courts are required to indulge every reasonable

presumption in favor of arbitration, recognizing it as a favored means of dispute resolution. See

Moses H Cone Meml Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24-25 (1983); see also Roe

v. Amica Mut. Ins. Co., 533 So.2d 279, 281 (Fla. 1988); K.P. Meiring Constr., Inc. v. Northbay I

& E, Inc., 761 So.2d 1221, 1223 (Fla. 2d Dist. Ct. App. 2000).

1. Standard of review

When considering a motion to compel arbitration, a court must determine (1) whether a

valid written agreement exists containing an arbitration clause, (2) whether an arbitrable issue

exists, and (3) whether the right to arbitrate was waived. Seifert v. U.S. Home Corp., 750 So.2d

633, 636 (Fla. 1999); Gale Grp., Inc. v. Westinghouse Elec. Corp., 683 So.2d 661, 662-63 (Fla.

5th Dist. Ct. App. 1996); see Miller & Solomon Gen. Contractors, Inc. v. Brennans Glass Co.,

Inc., 824 So.2d 288, 290 (Fla. 4th Dist. Ct. App. 2002); Piercy v. Sch. Bd. of Wash. Cnty., Fla.,

576 So.2d 806, 807 (Fla. 1st Dist. Ct. App. 1991). Indeed, the courts inquiry is limited to these

three factors and does not involve an analysis of the merits of the underlying claim. See Piercy,

576 So.2d at 807-808 (The trial court should not . . . delve into the merits of the grievance,

16
because [a]n order for arbitration shall not be refused on the ground that the claim in issue lacks

merit or bona fides.) (quoting Fla. Stat. 682.03(5) (1987)). Therefore, [a] court

must compel arbitration where an arbitration agreement and an arbitrable issue exists, and the

right to arbitrate has not been waived. Miller & Solomon Gen. Contractors, Inc., 824 So.2d at

290 (quoting Gale Grp., Inc., 683 So.2d at 663) (internal quotation marks omitted); Raymond

James Fin. Servs., Inc. v. Saldukas, 896 So.2d 707, 711 (Fla. 2005) (citing Seifert, 750 So.2d at

636).

All three criteria are met in this case. Based on the Plaintiffs own allegations, the AAU

Codebook constitutes a valid written agreement, including an agreement to arbitrate any dispute

with AAU members. Further, this Court, and courts across the country, have held that the AAU

Codebooks arbitration provision is valid and enforceable under the law. See Order on

Defendants Motion to Stay These Proceedings and Compel Arbitration, Puig v. Amateur

Athletic Union, Case No. 2012-CA-011791-O (Cir. Ct., Orange Cnty., Fla. July 24, 2013)

(attached hereto as Exhibit A for the Courts convenience); see, e.g., Siebert v. Amateur Athletic

Union of U.S., Inc., 422 F. Supp. 2d 1033, 1044 (D. Minn. 2006) (enforcing AAU arbitration

provision). Also, there are arbitrable issues, and arbitration has not been waived. This Court

should therefore find that arbitration is required.

The Florida Arbitration Code requires a stay of litigation for those claims subject to

arbitration, providing, in relevant part:

(6) If a party makes a motion to the court to order arbitration, the court on
just terms shall stay any judicial proceeding that involves a claim alleged
to be subject to the arbitration until the court renders a final decision under
this section.

(7) If the court orders arbitration, the court on just terms shall stay any
judicial proceeding that involves a claim subject to the arbitration. If a
claim subject to the arbitration is severable, the court may limit the stay to
that claim.
17
Fla. Stat. 682.03(6), (7). Therefore, because all claims here are arbitrable, this Court should

stay the lawsuit in its entirety, in the event that any claims survive dismissal.

2. Both federal and state law require that these claims be arbitrated.

Both the FAA and the Florida Code require that the Plaintiffs claims be submitted to

separate binding arbitrations, consistent with the arbitration provision in the AAU Codebook. It

is well established that Florida law strongly favors the resolution of disputes by way of

arbitration. Boston Bank of Commerce v. Morejon, 786 So.2d 1245, 1247 (Fla. 3d Dist. Ct.

App. 2001); see Roe, 533 So.2d at 281 ([A]rbitration is a favored means of dispute resolution

and courts indulge every reasonable presumption to uphold proceedings resulting in an

award.); Steritech Grp., Inc. v. MacKenzie, 970 So.2d 895, 899 (Fla. 5th Dist. Ct. App. 2007)

(Florida courts construe the scope of arbitration provisions in favor of arbitrability); EMSA Ltd.

Pship v. Mason, 677 So.2d 105, 107 (Fla. 4th Dist. Ct. App. 1996).

The AAU Codebook states that any AAU member and the AAU agree to submit all

civil dispute(s) arising out of or during the term of membership to binding arbitration. The

Codebook further provides that the matter will be submitted to arbitration pursuant to the rules of

the American Arbitration Association, including the FAA and the Florida Arbitration Code.

The FAA provides that an arbitration agreement evidencing a transaction involving

[interstate] commerce . . . shall be valid, irrevocable, and enforceable. 9 U.S.C. 2. The

purpose of the FAA is to give arbitration agreements the same force and effect as other

contracts. Caley v. Gulfstream Aerospace Corp., 428 F.3d 1359, 1367-68 (11th Cir. 2005).

The requirement that the transaction involv[e] commerce signals the broadest permissible

exercise of Congress Commerce Clause power. Id. at 1370 (internal quotation marks and

citation omitted). The phrase involving commerce is the functional equivalent of merely

affecting interstate commerce in some regard. E. Funding, L.L.C. v. Roman, 882 So.2d 1059,
18
1060 (Fla. 4th Dist. Ct. App. 2004) (citing Allied-Bruce Terminix Co. v. Dobson, 513 U.S. 265,

273-74 (1995)).

The AAU and its members are nationwide, meaning that the arbitration agreement in the

Codebook spans the entire country. The commercial activity involved in AAU memberships

certainly involves and/or affects interstate commerce. Consequently, the arbitration provision

falls squarely within the ambit of the FAA and is enforceable under federal law.

The Florida Code, like the FAA, provides that an agreement to arbitrate shall be

valid, enforceable, and irrevocable. Fla. Stat. 682.02(1). Florida public policy favors

resolving disputes through arbitration when the parties have agreed to arbitrate. Murphy v.

Courtesy Ford, L.L.C., 944 So.2d 1131, 1133 (Fla. 3d Dist. Ct. App. 2006) (affirming the lower

courts ruling that the arbitration agreement was enforceable); Richmond Healthcare, Inc. v.

Digati, 878 So.2d 388, 390 (Fla. 4th Dist. Ct. App. 2004) (noting that arbitration agreements are

now favored and will be enforced whenever possible).

Under both the FAA and the Florida Code, courts interpret arbitration provisions liberally

in favor of arbitration. Moses, 460 U.S. at 24-25 ([A]ny doubts concerning the scope of

arbitrable issues should be resolved in favor of arbitration. . . .); Jensen v. Rice, 809 So.2d 895,

899 (Fla. 3d Dist. Ct. App. 2002) (same); Ocwen Fin. Corp. v. Holman, 769 So.2d 481, 483 (Fla.

4th Dist. Ct. App. 2000) (Arbitration clauses are to be given the broadest possible interpretation

in order to accomplish the purpose of resolving controversies outside of the courts.).

a. The agreement containing the arbitration provision is valid

and enforceable.

A valid contract exists when the parties assent is manifested through written or

spoken words, or inferred in whole or in part from the parties conduct. L & H Constr. Co.,

Inc. v. Circle Redmont, Inc., 55 So.3d 630, 634 (Fla. 5th Dist. Ct. App. 2011) (quoting

19
Commerce Pship 8098 Ltd. Pship v. Equity Contracting Co., 695 So.2d 383, 385 (Fla. 4th Dist.

Ct. App. 1997)). Here, the Codebook is an express written document that contains the parties

clear assent to terms of the AAU membership. Indeed, in asserting its claims, the Plaintiff relies

on other allegedly binding provisions of the Codebook, as an agreement between the AAU and

all of its members. Although the Plaintiffs Complaint does not directly reference the arbitration

provision, the Plaintiffs claims would not exist but for the terms and provisions of the same

Codebook document. It would be nonsensical then for the Plaintiff to dispute that the

Codebook constitutes a valid and enforceable agreement between the parties.

Even more telling, this Court has previously enforced AAUs arbitration provision. See

Order on Defendants Motion to Stay These Proceedings and Compel Arbitration, Puig v.

Amateur Athletic Union, Case No. 2012-CA-011791-O (Cir. Ct., Orange Cnty., Fla. July 24,

2013) (attached hereto as Exhibit A for the Courts convenience). In Puig, this Court held that

the AAUs arbitration provision was a valid agreement to arbitrate all civil disputes. Exhibit

A, Conclusions of Law 2. Where [t]he subject incident occurred during the Plaintiffs

participation as a coach in the AAU, [t]he entirety of the Plaintiffs claims . . . f[ell] within the

scope of the AAU arbitration provision and National Policies as set forth in the AAU Code

Book. Exhibit A, Findings of Fact 6; Exhibit A, Conclusions of Law 4. Those same

principles apply here: all of the Plaintiffs claims stem from her AAU membership and are

therefore subject to the AAU Codebooks arbitration provision.

Courts across the country have followed this rationale, consistently upholding the AAUs

arbitration provision. Indeed, the United States District Court of Minnesota concluded that

[c]ourts which have previously considered the AAUs arbitration . . . clauses have uniformly

enforced them. Siebert, 422 F. Supp. 2d at 1044 (emphasis added) (citing several federal and

20
state decisions in D.C., Texas, and Florida, in support). In Siebert, the court reasoned that the

plaintiff had accepted the arbitration agreement as part of AAU membership and that the

arbitration provision was not a contract of adhesion and was not otherwise unconscionable. Id.

at 1039-41. Based on this reasoning, and consistent precedent, the court held the arbitration

provision to be valid and enforceable.

Because the Plaintiff acknowledged the AAU Codebook as a valid agreement between

AAU and its members, and because this Court (and others) has previously found AAUs

arbitration provision to be valid under Florida law, this Court should enforce that same

provision in this case and stay the current litigation.

b. The Complaint presents only arbitrable issues.

Where a contract provides for arbitration of claims arising out of or relating to the

contract, a claim is said to arise out of or relate to the contract if the dispute occurs as a fairly

direct result of the performance of contractual duties or the failure to perform the contract.

Telecom Italia, SpA v. Wholesale Telecom Corp., 248 F.3d 1109, 1116 (11th Cir. 2001).

Indeed, an agreement to arbitrate extends to all claims that arise out of or relate to the contract,

whether those claims sound in contract, tort, or otherwise. Id.; see also Anders v. Hometown

Mortg. Servs., Inc., 346 F.3d 1024, 1028 (11th Cir. 2003) (finding that [t]he agreement reaches

this dispute because the agreement reaches any and all disputes.). The language of the

particular arbitration provision is the best evidence of the parties intent. BallenIsles County

Club, Inc. v. Dexter Realty, 24 So.3d 649, 652 (Fla. 4th Dist. Ct. App. 2009).

According to the Complaint, the two claims against the AAUone for negligence and

one for violation of the Florida Deceptive and Unfair Trade Practices Actarise out of and are

directly related to the AAU Codebook and the Plaintiffs AAU membership. See Compl. at

34-51. Further, Florida courts have made clear that claims of negligence or of violation of the
21
FDUTPA may be properly submitted to arbitration. See, e.g., Consol. Resources Healthcare

Fund I, Ltd. v. Fenelus, 853 So.2d 500 (Fla. 4th Dist. Ct. App. 2003) (finding that negligence

claim, based on the same duties within contract, fell within arbitration agreement); Murphy, 944

So.2d at 1133 (Florida case law is clear that FDUTPA claims can properly be submitted to

arbitration.). The language of the AAU Codebook only further bolsters the broad application of

the arbitration provision: it plainly applies to all civil dispute(s). (Emphasis added).

c. AAU has not waived its right to arbitration.

A party waives the right to arbitrate by actually participating in a lawsuit or taking

action inconsistent with that right. Stok & Assocs., P.A. v. Citibank, NA., 58 So.3d 366, 368

(Fla. 3d Dist. Ct. App. 2011) (quoting Raymond James Fin. Servs., Inc., 896 So.2d at 711)

(internal quotation marks omitted). Here, the AAU has not taken any action in this case, other

than filing these preliminary motions, and therefore has not waived its right to arbitrate. Cf.

Burke v. Windjammer Barefoot Cruises, 972 So.2d 1108, 1112 (Fla. 3d Dist. Ct. App. 2008)

(finding that party waived right to compel arbitration by filing complaint and litigating claim

for over five months without making such a request); Winter v. Arvida Corp., 404 So.2d 829,

830 (Fla. 3d Dist. Ct. App. 1981) (finding that defendant waived right to compel arbitration by

filing answer, proceeding with discovery, and taking actions inconsistent with the right to

arbitrate before moving to dismiss for failure to arbitrate).

In short, the Codebook is an enforceable agreement and encompasses the Plaintiffs

two claims against AAU in this action. As a matter of federal and statutory state lawand in

light of the well-established state and federal policies that call for enforcement of parties

contracts, in general, and arbitration agreements, in particularthe Plaintiffs claims should be

submitted to arbitration.

22
 IV. CONCLUSION

The Plaintiff has failed to allege elements essential to her claims of negligence and

violation of the Florida Deceptive and Unfair Trade Practices Act. Whats more, the Complaint

provides facts negating essential elements of these claims, foreclosing them as a matter of law.

Even if any claim survives, the AAU Codebook, which the Plaintiff herself relies on as a valid

agreement, requires arbitration of any disputes between the AAU and an AAU member during

and/or regarding membership.

Therefore, this Court should dismiss all claims in the Complaint with prejudice pursuant

to Fla. R. Civ. P. 1.140(b)(6) or, at the very least, compel arbitration and stay this litigation

pending an arbitration decision.

Respectfully submitted, this 1st day of September, 2016.

DENTONS US LLP

/s/ Monica L. Irel, Esq.

Monica L. Irel
Florida Bar No. 142395
10700 N. Kendall Drive
Suite 303
Miami, Florida 33176
(305) 537-0008
monica.irel@dentons.com

J. Randolph Evans (pro hac vice pending)

Georgia Bar No. 252336
Anthony W. Morris (pro hac vice pending)
Georgia Bar No. 523495
303 Peachtree Street, Suite 5300
Atlanta, GA 30308
(404) 527-4000
randy.evans@dentons.com
anthony.morris@dentons.com

Attorneys for Defendant Amateur Athletic Union

of the United States, Inc.

23
 CERTIFICATE OF SERVICE

I hereby certify that on September 1, 2016 I electronically filed the foregoing with the

Clerk of the Court using the CM/ECF system. I further certify that the foregoing document is

being served this day on all counsel of record or pro se parties identified on the attached Service

List in the manner specified, either via transmission of Notices of Electronic Filing generated by

the CM/ECF system or in some other authorized manner for those counsel or parties who are not

authorized to electronically receive Notices of Electronic Filing.

/s/Monica L. Irel________________
Monica L. Irel, Esq.
Florida Bar No.: 0142395
email: Monica.Irel@dentons.com
DENTONS US LLP
Capital Plaza
10700 N. Kendall Drive, Suite # 303
Miami, Fl. 33176
Telephone: (305) 670-4843
Facsimile: (305) 670-4846

Attorneys for Defendant Amateur Athletic Union

of the United States, Inc.

24
 SERVICE LIST

Sarah Powers-Barnhard v. Amateur Athletic Union of The United States Inc.,

Case No.: 2016-CA-005539-0

Ronald P. Weil, Esq.

Michael D. Padula, Esq.
Weil Quaranta, P.A.
200 South Biscayne Boulevard
Southeast Financial Center, Suite 900
Miami, FL 33131

Attorneys for Plaintiff

100967465\V-5

25