I agree, but that is life, and most of us learned pretty young that this would likely be the outcome.
It’s also life that if you mess with some people, they will sue you into oblivion. The defendants are learning that tough lesson now.
If the upperclassmen pressured the underclassmen into touching, it is not with consent any more than if you pressured two junior coworkers to do something similar while encouraging them to infer their jobs are on the line.
It is very clear in the workplace that you do not ever threaten someone’s position, however obliquely, in order to touch, see, or whatever - even by proxy - someone else’s personal areas. I’m having terrible difficulty getting this point across for some reason.
The difference between it happening on a swim team and a fraternity is real, IMO. One is a voluntary organization. The other … it was implied strongly that failure to comply would result in the loss of scholarship and thus education. Call it a cool 120,000 right off the bat.
Whether the implication was strong enough to warrant that or other damages is the court’s problem.
50N40W,
You are very clear. I like your posts.
That logic is a real stretch for me. That a reasonable person would believe that if he didn’t consent to being touched on his privates he would loose his scholarship. I can’t seem to get there for some reason.
Is it a fact that there was consent?
It isn’t a fact that there was touching, so no.
Well, There can be consent without touching, no?
I find the defintion of consent at UVA interesting…
http://www.virginia.edu/sexualviolence/sexualassault/
Since we are speculating…If the accused are going to try and say the accuser said ok…that may not be consent.
Did he allege sexual assault? I thought it was simple assault and battery but I can’t remember at this point.
I don’t remember either. 
See if this helps clear up something:
- If the upperclassmen encouraged the freshman to believe that the touchy game was necessary to be a real team player,
- If the freshman was told that without the cutesy game there would be social penalties associated with the team … 3) if the freshman was made to understand that getting along with the team would be necessary in order to maintain his scholarship.
Again, the threat of a job loss or negative performance appraisal, even if only implied, is enough at everywhere I’ve worked since the 80’s to get you in real trouble.
Then we’re left wondering what the value of the scholarship was. Ballparking 30k/year (what’s tuition at UVA?) times 4 years is 120,000. Start there.
AS reported by his attorney, the five are being sued by Marcantonio on counts of assault, battery, false imprisonment, hazing, tortuous interference with a contract, intentional infliction of emotional distress, negligence and two counts of conspiracy to commit those acts so I don’t see sexual assault listed.
Marcantonio is also seeking punitive damages from the defendants.
50N40W, I would think that an adult would know that none of this was tied to maintaining his scholarship. I presume he’s more competent at reading agreements than that to be accepted to UVa. Also I would guess that some, not all, swimmers at that caliber have been involved enough in team sports growing up to know what goes on behind the scenes but clearly for Marcantonio this went beyond his tolerance or because he was such a good swimmer he never had to deal with anything like this.
[QUOTE=""]
know what goes on behind the scenes
That is language right out of the bad guy dialog from corporate training, “c’mon, you knew this, everybody does it.” It’s so close, in fact, that at first I thought it was meant ironically.
[/QUOTE]
But it isn’t.
[expletive].
I’d like to think that adults in their 20’s through their 60’s wouldn’t need reminded about what constitutes actionable behavior every couple of years, but every couple of years everybody (at the places I’ve worked) gets refresher training. Are we really expecting freshman to be more aware than college graduates, some with advanced degrees?
The point isn’t to line up the allegations of what went on with the items in the suit. The point is that at least since the 1980’s it just doesn’t work to nod and wink and say “how precocious” at that sort of behavior including stealing and (effectively) forced alcohol consumption.
As far as we know, he didn’t get kicked off the team, he chose to transfer. I understand the argument that he felt he had no choice, and that is fine, but it is not simple to prove. He has stated it, but he has to prove it with testimony from other people, or some tangible evidence. The offending teammates were suspended after all, so I’m assuming they were gone from all competitions, and perhaps the pool, but I don’t know that.
Once he decided to enroll at NWU, he mitigated his damages. If he got a full-ride or ride equivalent to his costs at UVA from Northwestern, then he may or may not have much in the way of out-of-pocket damages. Additional travel expenses, maybe. Or maybe he didn’t get any money from NWU, so then he does have significant money damages. We don’t know. But you have to be able to prove monetary damages in order to get compensation for them.
He is asking for punitive damages, and I did a quick search of VA law and found this http://law.lis.virginia.gov/vacode/8.01-38.1/ Punitive damages against all defendants is limited to $350,000 total.
I’ll be more clear. If one implies, or allows a junior employee to infer, that said junior employee’s refusal to participate in a social activity he or she considers to be immoral, illegal, or degrading will result in ANY repercussions - even social, one will be looking for a new job.
That is the standard I have seen for the last 25 years. Since money is at stake here in the form of scholarship dollars, that is the standard I think anyone has an ABSOLUTE right to expect.
This is about what consent means in the workplace, and specifically about what it does not mean.
The merit of the case and the dollar amount, if any, is a slightly different point and at any rate is the court’s problem.
The other young men aren’t entirely off the hook until the statute of limitations expires. In the example of the famous bicyclist, he wasn’t looking at any criminal charges until sworn testimony from a civil case was given to the prosecutor. More complicated than that, but that’s the gist.
The defendants were not the plaintiff’s employer or workplace superior, so your analogy in inapt. If it was a coach or someone from the university administration who put him through those paces, then I think you’d have an argument. His teammates have zero authority to affect his NCAA contract.
Also true that he didn’t get kicked off the team. As I read it earlier (possibly incorrectly) his teammates made life difficult because he complained about being coerced. That’s one of the things you specifically cannot do to a coworker, again, according to those nutty HR training sessions. Will happily retract if I got that part in error.
Perhaps a way to think of it is, that each swimmer is an independent contractor with the university/athletic department. No swimmer can change the terms of any other swimmer’s contract, they are not a party to it, they have no authority over it whatsoever. What they can do, and what the plaintiff is alleging, is that the other swimmers intentionally interfered with his ability to execute the contract he had with the university. He says they did this by making it impossible for him to attend practice and thus perform under his contract. If he can’t swim, then he cannot perform his end of the contract, and he will be cut. But he has to prove that what the other swimmers did was interference, and that it was intentional, and that it was tortious.
I agree with your thinking Bay. In a suit like this I would think the lawyers would throw everything but the kitchen sink into the complaint hoping one or more “stick”. We already know the district court refused to prosecute on the hazing charge so that will be a tougher one of the complaints to secure. I also agree that given the suspensions the contractual issue is also not clear. But 50N40W they actually DO have to line up the evidence and arguments with the complaint. Virginia must not have a law about providing alcohol to minors (Michigan does) or it seems the police, if they knew who purchased the alcohol, could have charged that. It is not an easy case and it may not even make it to trial but it will be interesting if it does.
I’m sorry but I cannot get out of my mind, the vision of a 6’4" or whatever athletic man, up on the stand complaining about how he was “forced” to chew a goldfish. How is that going to come across?