Free Speech

University of Louisville Students Can't Sue Escort for Exposing Prostitution in the Louisville Basketball Program

"University of Louisville [current and former] students ... asserted a claim that the publication of Katina Powell's book Breaking Cardinal Rules: Basketball and the Escort Queen resulted in a tortious diminution in the value of their University of Louisville education."

|The Volokh Conspiracy |

[UPDATE, 9:46 am, 10/15/2019: I originally inadvertently omitted "students" from the headline; my apologies. (The subhead was correct all along.) The lawsuit, of course, is by some current and past University of Louisville students, not the University itself; I knew that, but as I was editing the headline I somehow dropped that word. Sorry about that, and many thanks to Ben Llaneta for the correction.]

From Hornback v. Powell, decided Friday by the Kentucky Court of Appeals:

[Plaintiffs] alleged that Appellee Katina Powell claimed that she and her daughters engaged in or agreed to engage in sexual conduct with University of Louisville men's basketball players and recruits from 2010 to 2014 in exchange for a fee of $10,000 paid by a University of Louisville employee. This claim was memorialized in a book called Breaking Cardinal Rules: Basketball and the Escort Queen…. According to the record, Powell's claims resulted in the University of Louisville self-imposing a postseason ban on its men's basketball program for the 2015-16 season….

[1. Plaintiffs] first assert that KRS Chapter 529 and KRS 446.070 may be applied in unison to sustain a cause of action against [Defendants (Powell, her coauthors, and her publisher)]. KRS Chapter 529 addresses prostitution offenses, and [Plaintiffs] direct our attention to case law holding that one of the purposes of prostitution statutes is to protect the public health and welfare. KRS 446.070 states that a "person injured by the violation of any statute may recover from the offender such damages as he sustained by reason of the violation[.]" [Plaintiffs] argue that they are "within the class intended to be protected by the statute" (meaning KRS chapter 529), that prostitution and profiting therefrom is unlawful, and that KRS 446.070 may be applied to allow their recovery from [Defendants] for damages sustained by reason of the violation….

[But Plaintiffs] have not demonstrated that Powell or others were charged with or convicted of KRS Chapter 529 violations. Even if [Plaintiffs] had provided such proof, [Plaintiffs] are at best remote and unconnected third parties who cannot reasonably be characterized as being injured or damaged by Powell's alleged unlawful conduct….

[2. Plaintiffs also cite the Kentucky "Son of Sam" law,] which states: "Every person contracting with any person or the representative or assignee of any person accused or convicted of a crime in this state, with respect to the reenactment of such crime, by way of a movie, book, magazine article, radio, or television presentation, live entertainment of any kind, or from the expression of such person's thoughts, feelings, opinions, or emotions regarding such crime, shall pay over to the Kentucky Claims Commission any moneys which would otherwise, by terms of such contract, be owing to the person so accused or convicted or his representatives."

[Plaintiffs] argue that Powell [and other defendants] conspired to profit from prostitution via the book Breaking Cardinal Rules and assert that the [Plaintiffs] are victims for purposes of this statutory provision…. [But Plaintiffs again] provide no citation to the record demonstrating that Powell was "accused or convicted of a crime in this state …." Further, KRS Chapter 346 and the plain language of KRS 49.450(1) allows for the recovery of proceeds by the Kentucky Claims Commission, not by purported victims. And finally, [Plaintiffs] cannot demonstrate that they are "victims" of [Defendants'] conduct in any meaningful sense….

[3. Plaintiffs] go on to argue … that they may prosecute a claim against [Defendants] for "tortious interference with a prospective business advantage."  …. [Plaintiffs] contend that they were prepared to offer evidence of the diminution in value of their University of Louisville degrees resulting from [Defendants'] actions, as well as the testimony of a psychologist who was expected to state that [Plaintiffs] suffered depression, anxiety, stress, and ridicule.

[Plaintiffs] allege that when wearing University of Louisville logos and attire in public places, they are approached by strangers who make rude and hateful remarks because of the events chronicled in the book…. [But] they cannot demonstrate that [Defendants] committed an intentional act of interference with respect to that business relationship, nor that [Defendants'] actions caused damages. In order to sustain a claim of tortious interference with a prospective business advantage, [Plaintiffs] must offer "evidence of a motive or intent … to interfere" with the business relationship. [Plaintiffs] cannot demonstrate that Powell's alleged sexual contact with University of Louisville basketball players and recruits was motivated by an intent to interfere with a business relationship between remote third-party students and the University. Rather, the only motivator cited by [Plaintiffs] was Powell's desire to be financially compensated. [Plaintiffs'] claim on this issue must fail as a matter of law, and we find no error.

[4. Plaintiffs also argue that Defendants'] actions constituted intentional infliction of emotional distress sufficient to sustain a claim for damages…. [But w]hile [Plaintiffs] contend that strangers ridicule them when they are wearing University of Louisville logos on their clothing, they do not allege the degree of severe emotional distress necessary to sustain the cause of action. Further, this tort "requires conduct intended to cause emotional distress in the victim."  No allegation has been forwarded, nor could it be demonstrated under the facts before us, that [Defendants] intended to cause severe emotional distress in the [Plaintiffs]….

I haven't followed the underlying controversy, but here's an excerpt from the NCAA report:

A member of the men's basketball staff arranged on-campus striptease dances and acts of prostitution for enrolled student-athletes and prospective student-athletes (prospects), some of whom were minors, on their campus visits. The conduct occurred in an institutional dormitory predominantly occupied by the men's basketball team and others affiliated with the program. For approximately three and one-half years, the former director of men's basketball operations arranged with a local escort to bring female strippers and prostitutes to Minardi Hall on nights prospects were staying there. The women performed striptease dances for the prospects and, occasionally, enrolled student-athletes. On 10 occasions, one or more of the prostitutes performed sex acts on and/or with prospects, an enrolled studentathlete and a prospect's friend. At leastseven of the prospects who engaged in sex acts were minors under age 18 at the time. On two occasions, the former director of men's basketball operations arranged, through the escort, for prostitutes to have sex at local hotels with the nonscholastic basketball coaches of two prospects being recruited by the institution.

But was the fix in? One of the judges on the panel has two degrees from Kentucky, another has one, and none have any from Louisville. Coincidence?

(Well, OK, the trial judge did go to Louisville for law school, and he ruled the same way as the appellate judges did.)

NEXT: Today in Supreme Court History: October 15, 1883

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  1. Should other Louisville graduates and students have a case against Plaintiffs for diminution of the value of their Louisville degrees?

    Because, of the two alleged harmers of Louisville-degree-valuation, I think they’re the worse offenders.

  2. I don’t think the plaintiffs suffered near the ridicule from the tangential prostitution connection that they are about to suffer from this frivolous lawsuit making the news. I’m guessing that their entirely predictable loss is also going to result in depression, anxiety and stress. Probably also some shame and loss of employment prospects (at least, among any employer smart enough to run a background check). So who do they get to sue for that? Maybe the lawyers that let them file this loser?

  3. Should sue because of implied confidentiality in the hooker-John agreement. No one would go to a prostitute knowing the prostitute will talk.

    1. It’s the problem of the third-party payer though.
      University contracted with hookers. Simultaneously university contracts with the players. Guess who the monkey in the middle is.

    2. Lawyers, Doctors, Priests, and …… hookers ?!?

      I didn’t know. Is there a prostitute equivalent to the Hippocratic Oath?

      1. I don’t know about that last question, but at first it sounded like you were setting up a walking-into-a-bar joke.

  4. The judges’ logic protects the boosters, staffers and coaches who made these events happen from similar liability (and they committed offenses of soliciting, etc.). So the Kentucky judges were helping out both the Louisville and the Kentucky programs.

  5. “KRS Chapter 529”

    Wow, we’ve sure come a long way since KRS-One:

    (NSFW)

    https://www.youtube.com/watch?v=9ZrAYxWPN6c

  6. How come we never hear of a university doing this for its engineering department?

    1. The parallel isn’t complete. Graduated engineering students are employable as engineers, who make plenty of money. Whereas most graduates with basketball degrees aren’t employable as basketball players, and go back to playing on the playgrounds for free.

  7. None of this would have been an issue in the 1st place if it wasn’t for the NCAA placing restrictions on student-athletes getting paid what the free market would pay them. Ergo, coaches find workarounds to “pay” the players in other ways. Two blackmarket economic activities at once.

    As for the lawsuits, the “value” of any university can go up or down for the silliest of things, your team does too well or too poorly and theyre now known as the losers, or the irresponsible party school that doesn’t care about academics. What if an off campus frat house gets caught in a dumb scandal making the university look bad while they broke some laws. Is that reason for a lawsuit?

    1. Maybe they could require that the athletes only screw amateurs.

  8. Wait; the Kentucky law can apply to people who have been accused but **not**convicted??? How does that possibly pass constitutional muster?

    1. People who make money off of crimes fall under the “Son of Sam” laws. That falls under the general police power.
      You don’t have to be convicted of creating contraband to have your ability to profit by distributing the contraband limited/regulated by the state.

    2. Same as asset forfeiture.
      If the government wants it more than you want it, they take it from you.

  9. I think that, generally speaking, First Amendment considerations should lead to construing laws inhibiting free speech narrowly, and judges should avoid stretching them to cover parties and circumstances that the legislature did not clearly intend to cover.

    For this reason, while I agree that the statutes involved might arguably be stretched to cover this conduct, a narrow construction is appropriate and judges should not be eager to make communications actionable.

    There are good policy reasons for not covering it. If anytime someone involved in a crime wrote about it anyone in the world even indirectly affected by it could sue, debate about importantly issues would be completely stifled.

    I have repeatedly written that I think the constitution leaves states free to pass laws against sexual conduct if it wants. But in tandem with the idea that public debate and legislation is the right way to address most social issues, the constitution provides robust speech protection, and leaves people who engage in that conduct free to try to persuade legislatures that (for example) they should be left alone. If those who engaged in such conduct were so stripped of First Amendment rights that every time such conduct was discussed, anyone and everyone even remotely affected by it could sue, debate on the subject would be stifled.

    1. The goal of the legislation is to prevent people from profiting from crime. They can talk about it, but any money that results is contraband. So your criticism is a bit off-line. As the decision notes, the contraband is the property of the state, not of anyone who can invent a theory of victimhood. So, even with the law in place, it isn’t creating a motive to invent theories of victimhood and sue.

      It does reduce the incentive to “tell all”, which potentially impedes efforts to discover the methods and practices of the crime, and thus, impedes efforts to prevent recurrence. All of which (hopefully) goes into the legislative stew when they draft legislation of this nature.

  10. Sounds like they are not challenging the truth of the allegations.

    Have the rules changed? When I was younger everyone knew that accepting this type of payment would jeopardize amateur status! Once you turn pro there is no going back.

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