The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
[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.)