U.S. Tennis Association try to persuade judge to prohibit key evidence in sexual abuse lawsuit

U.S. Tennis Association try to persuade judge to prohibit key evidence in sexual abuse lawsuit

As a lawsuit from a young player who was found to have been sexually assaulted while training at the United States Tennis Association’s Florida headquarters steams toward a likely trial this spring, the organization is making a last-ditch attempt to convince the judge to prohibit key evidence and testimony at the heart of the player’s case.

The efforts include trying to keep off the witness stand one of the top personalities in American tennis, Pam Shriver, the 21-time Grand Slam doubles champion and a well-known tennis commentator.

Shriver, a survivor of sexual abuse, testified in a deposition last year that one of the top lawyers for the USTA walked her to her car following a fundraising dinner in 2022 and told her to “be careful” about her public statements on sexual abuse in tennis and in her dealings with a lawyer, Robert Allard, who is involved in a case against the organization. Allard is representing Kylie McKenzie, a player who has sued the USTA for not protecting her from one of its coaches.

Shriver has said she interpreted the message of that conversation with Staciellen Mischel, the USTA’s deputy chief legal officer and the top lawyer for the USTA Foundation, to be to not “say too much”. The USTA has said that Mischel was privately warning Shriver to keep her distance from Allard, a top lawyer for plaintiffs in cases of sexual abuse in sports, whom Mischel described as not “a nice person.”

In a filing this week, lawyers for the USTA insisted that the conversation was “not relevant or admissible” because Shriver had no direct knowledge of the McKenzie case, and since she had served as a volunteer officer with the foundation that conversations with Mischel should be considered privileged.

Allard and Amy Judkins, another lawyer representing the player, said those claims were absurd.

“Here is what happened,” Judkins wrote in a response to the USTA’s attempts to keep Shriver off the witness stand. “Mischel cautioned Shriver against speaking out about her personal experience of sexual abuse as a young tennis player, including ‘warning’ Shriver against speaking with Ms. McKenzie’s counsel in this case.

“Mischel issued that warning soon after Shriver came forward publicly about the sexual misconduct she experienced as a young tennis star, and soon after Shriver and Ms. McKenzie became acquainted over their shared experiences of abuse. Shriver testified that she interpreted this conversation as a warning from USTA: ‘don’t say too much.’”

Judkins wrote: “Evidence that defendants attempted to silence victims can be interpreted by a jury as evidence of gross negligence.”

The efforts to keep Shriver out of the case, as well as evidence from a previous investigation into the incident involving McKenzie and a USTA coach and communications between the USTA and the United States Olympic Committee, follow a stinging pre-trial defeat for the USTA. Two weeks ago, Paul Byron, the judge in the case, denied a series of requests from USTA lawyers to prevent the McKenzie case from going to a jury trial in U.S. District Court in Orlando this spring. 

Pam Shriver (Roy Rochlin/Getty Images for the International Tennis Hall of Fame)

In a statement on Thursday, the USTA said: “We are heartbroken by what the plaintiff has endured and, importantly, we do not — and have never — disputed her allegations against her coach. The USTA also has never suggested that anybody but her coach is at fault for his misconduct. The USTA acted quickly and appropriately and is not liable for his conduct. For these reasons, we disagree with significant portions of the judge’s ruling, and plan to present our case in court.”

Shriver is among the most high-profile witnesses in a case that has shined yet another spotlight on coaches who try to establish sexual relationships with players that can be at best inappropriate and at worst criminal, according to advocates for abuse victims. In recent years, nearly every sport has faced a slew of complaints leading to investigations and litigation regarding how it does and does not protect young athletes from coaches, forcing sports to re-examine their approach to what is known as “safeguarding.” The USTA is going through an independent review of its policies as McKenzie’s case works its way through the legal system. 

McKenzie, a 24-year-old from Arizona who was once one of the most promising junior players in the country, sued the USTA in 2022, claiming the organization had failed to protect her from a coach who inappropriately touched her after a practice in 2018, when she was 19 and he was 34.

In ordering the case to move ahead, Byron refused to grant the USTA’s request to keep McKenzie’s allegation — that it retained the coach when it shouldn’t have, and failed to supervise him — from going in front of a jury.    

A key part of that allegation will likely be evidence from the investigation into the incident by the U.S. Center for SafeSport, which handles abuse complaints in sports in the U.S. The USTA wants to keep that away from the jury.

The USTA began supporting McKenzie’s development when she was 12 years old. She spent significant time at its training centers in California and Florida.

Within a few years she was homesick and burned out. Coaches kept her on the court for hours after training to talk about life and tennis, and one yelled at her while they attended a tournament at Indian Wells when he found out she had kissed a boy at 14.

McKenzie kept playing and after she won two top-level junior tournaments, officials with the USTA persuaded her to move to the training center in Florida. Anibal Aranda saw her training there and offered his services, telling McKenzie, “You’re a champion. I want to work with you,” according to McKenzie.

She has described an escalation of physical contact from Aranda, the coach she was working with in the fall of 2018, as making her uncomfortable. She initially attributed the excessive contact to Aranda growing up in a different culture in Paraguay. Then, on November 9, 2018, Aranda sat close to her on a bench after practice so that their legs were touching and then put his hand between her thighs, she said. 

She reported the event that evening. The USTA quickly moved to suspend and then terminate Aranda’s employment.

However, during the SafeSport investigation, a USTA employee said that Aranda had groped her and touched her vagina over her clothes at a New York dance club around 2015, making its inclusion in the case important to McKenzie’s attempt to establish that the USTA was negligent.

The employee, whose name has not been revealed to protect a victim of sexual abuse, did not disclose the incident to anyone at the time, when she held a low-level position at the organization and was not a mandatory reporter, especially of her own abuse. The employee told SafeSport that after she learned about McKenzie’s accusations, she regretted not reporting her interaction with Aranda. At that point she was in a position where she was considered someone with an obligation to report abuse, making her behavior important to establish whether the USTA failed in its duty of care for McKenzie. 

In what may be a signal to how he will rule on the USTA’s effort to keep the SafeSport investigation out of the trial, Byron wrote recently that “Coach Aranda’s behavior toward Jane Doe in a nightclub is not ‘a far cry’ from the behavior he exhibited toward McKenzie on a secluded tennis court. The difference in setting and the fact Jane Doe was not an athlete do not make Coach Aranda’s prior assault insufficient as a matter of law to serve as notice of a foreseeable risk.”

Aranda has denied the allegations.

Byron has also signaled that Shriver’s testimony and communications between the USTA and the USOC could play a significant role in McKenzie’s efforts to seek punitive damages, which juries are only supposed to award if, based on clear and convincing evidence, they “find that the defendant was personally guilty of intentional misconduct or gross negligence” because of intentional conduct. 

There is no doubt that Aranda’s behavior was intentional, Byron wrote. Also, communications between the U.S. Olympic & Paralympic Committee (USOPC) and the USTA show the tennis organization’s resistance to banning sexual relationships between its coaches and players, since many such relationships exist at the highest level, until it finally did ban such relationships for all employees in 2019. McKenzie’s lawyers have argued that banning those relationships earlier could have prevented Aranda from pursuing McKenzie.

As for the Shriver testimony, the judge wrote that Mischel’s “approach and message to Shriver certainly looks like an untoward attempt to intimidate her and may be construed by the jury as being aimed at silencing victims of abuse by coaches.”

McKenzie has been trying to resurrect her career on the ITF circuit, which is the sport’s minor leagues, with some success, winning more often than she lost in the final months of 2023. She will likely have to take a break from that this spring, when her case is expected to go to trial.

(Top photo: Al Bello/Getty Images)

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