Apilado et al v. North American Gay Amateur Athletic Alliance

Filing 22

ANSWER to 1 Complaint, by The North American Gay Amateur Athletic Alliance.(Leishman, Roger)

The Honorable John C. Coughenour

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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STEVEN APILADO, LARON CHARLES,
AND JON RUSS,

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Plaintiffs,
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v.
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THE NORTH AMERICAN GAY AMATEUR
ATHLETIC ALLIANCE,
Defendant.

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No. C10-00682 JCC
DEFENDANT NAGAAA S
ANSWER TO PLAINTIFFS
COMPLAINT AND
AFFIRMATIVE DEFENSES

Defendant The North American Gay Amateur Athletic Alliance ( NAGAAA or
Defendant ), hereby answers and responds to the Complaint of plaintiffs Steven Apilado,

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LaRon Charles, and Jon Russ as follows, following the paragraph numbering in plaintiffs

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Complaint.

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INTRODUCTION
NAGAAA is a nonprofit organization that seeks to create a safe environment where

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members of the lesbian, gay, bisexual, and transgender ( LGBT or GLBT ) community

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can associate with pride and without fear of humiliation or persecution. NAGAAA hosts

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the Gay Softball World Series each year to give LGBT athletes and their supporters,
ANSWER TO PLAINTIFFS COMPLAINT AND
AFFIRMATIVE DEFENSES
(C10-00682 JCC)
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families, and friends an opportunity to gather, compete, and work toward common goals

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for their community. NAGAAA s members are local sports leagues from across North

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America who serve their local LGBT community. Local leagues run their regular seasons

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and adopt eligibility requirements for the regular seasons independently of NAGAAA.

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Each local league also selects teams to send to the Gay Softball World Series, and agrees

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that the teams it sends meet the eligibility requirements specified in the NAGAAA Gay

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Softball World Series Code ( NAGAAA s Softball Code ). NAGAAA conducts the Gay

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Softball World Series. Because NAGAAA s purpose includes promoting the participation

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of the LGBT community, it has adopted rules that ensure LGBT representation on all

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teams playing in the Gay Softball World Series.

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I.
1.

RESPONSE TO PRELIMINARY STATEMENT

NAGAAA admits that plaintiffs were part of the D2 softball team in the San

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Francisco Gay Softball League, that the San Francisco Gay Softball League is a member of

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NAGAAA, and that plaintiffs bring this action. NAGAAA denies the remaining

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allegations in this paragraph.

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2.

NAGAAA admits that the allegations in this paragraph quote from a portion

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of its mission statement, but denies that the allegations in this paragraph correctly state

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NAGAAA s mission, which also includes a special emphasis on the participation of

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members of the gay, lesbian, bisexual and transgender community.

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3.

NAGAAA admits that plaintiffs bring this action. To the extent that this

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paragraph makes any factual allegation, NAGAAA denies the remaining allegations in this

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paragraph.

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ANSWER TO PLAINTIFFS COMPLAINT AND
AFFIRMATIVE DEFENSES
(C10-00682 JCC)
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4.

NAGAAA admits that plaintiffs were on a team that advanced through the

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Gay Softball World Series tournament in 2008 to the championship game, and that D2

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ultimately lost. NAGAAA denies that another team filed a protest against D2. NAGAAA

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admits that the game stopped temporarily after the Commissioner from the Atlanta league

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filed a protest, and that the protest alleged that the D2 team violated Rule 7.05 of the

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Softball Code. NAGAAA admits that Rule 7.05 of NAGAAA s Softball Code provides

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that teams competing in the Gay Softball World Series may not have more than two

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heterosexual players per team. NAGAAA admits that after the game, the NAGAAA

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Protest Committee held a hearing pursuant to NAGAAA s Softball Code. NAGAAA

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denies that twenty-five people were present in the room during the hearing. NAGAAA

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admits that the Protest Committee found that D2 had violated Rule 7.05 of NAGAAA s

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Softball Code, and that D2 s second-place title was revoked. NAGAAA denies the

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remaining allegations in this paragraph.

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5.

To the extent that this paragraph contains any factual allegation rather than

legal conclusions, NAGAAA denies the allegations in this paragraph.

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II.
6.

JURISDICTION AND VENUE

NAGAAA lacks sufficient information to respond the allegations in this

paragraph and therefore denies them.

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7.

NAGAAA admits the allegations in this paragraph.

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8.

Plaintiffs complaint speaks for itself. To the extent that this paragraph

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contains any factual allegations rather than legal conclusions, NAGAAA denies the

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allegations in this paragraph.

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ANSWER TO PLAINTIFFS COMPLAINT AND
AFFIRMATIVE DEFENSES
(C10-00682 JCC)
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9.

Plaintiffs complaint speaks for itself. To the extent that this paragraph

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contains any factual allegations rather than legal conclusions, NAGAAA denies the

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allegations in this paragraph.

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10.

Plaintiffs complaint speaks for itself. To the extent that this paragraph

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contains any factual allegations rather than legal conclusions, NAGAAA denies the

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allegations in this paragraph.

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This paragraph states legal conclusions to which no answer is required.

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12.

NAGAAA admits that venue is proper in this Court, and denies all

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remaining allegations in this paragraph.

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III.

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13.

PARTIES

NAGAAA lacks sufficient information to respond to the allegation that

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plaintiffs are residents of California, and therefore denies this allegation. NAGAAA

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denies the remaining allegations in this paragraph.

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14.

NAGAAA admits that it is a 501(c)(3) non-profit organization incorporated

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in Wisconsin. NAGAAA admits that it organizes the Gay Softball World Series, held

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annually in a North American host city. NAGAAA admits that the 2008 Gay Softball

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World Series was held in King County, Washington, and that some of the games occurred

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at rented softball fields in Kent, Washington. NAGAAA denies the remaining allegations

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in this paragraph.

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15.

NAGAAA admits that its membership consists of local leagues who

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organize their own teams under their own regular season rules, and that local leagues pay

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fees to NAGAAA. NAGAAA denies that plaintiffs and/or any other individual who is a

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member of a local league is a member of NAGAAA. NAGAAA admits that it maintains a
ANSWER TO PLAINTIFFS COMPLAINT AND
AFFIRMATIVE DEFENSES
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website at http://nagaaasoftball.org. NAGAAA denies the remaining allegations in this

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paragraph.

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16.

NAGAAA admits the allegations in this paragraph.

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17.

NAGAAA admits that it plans, promotes, and carries out activities intended

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to serve the LGBT community. NAGAAA denies the remaining allegations in this

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paragraph.

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18.

NAGAAA denies the allegations in this paragraph.

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19.

NAGAAA denies the allegations in this paragraph.

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20.

NAGAAA admits that it rents facilities for the annual Gay Softball World

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Series, and that it did so for the 2008 Seattle World Series. NAGAAA denies the

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remaining allegations in this paragraph.

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21.

NAGAAA admits that its Softball Code provides that local leagues must

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send at least one team to the Gay Softball World Series, and that the Gay Softball World

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Series is governed by NAGAAA s Softball Code. NAGAAA denies the remaining

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allegations in this paragraph.

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IV.
22.

FACTS

NAGAAA admits that the opening ceremonies for the Gay Softball World

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Series were held on August 25, 2008, and the Series ended on August 30, 2008.

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NAGAAA lacks sufficient information to respond to the remaining allegations in this

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paragraph, and therefore denies those allegations.

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NAGAAA denies that almost 180 teams came to play in the Seattle Gay

Softball World Series. NAGAAA admits the remaining allegations of this paragraph.

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ANSWER TO PLAINTIFFS COMPLAINT AND
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(C10-00682 JCC)
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24.

NAGAAA denies that the Atlanta Mudcats filed a protest against D2.

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NAGAAA admits that the game temporarily stopped when the Atlanta Commissioner filed

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a protest. NAGAAA admits the remaining allegations in this paragraph.

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NAGAAA admits that it rented softball fields in Kent, Washington, for the

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2008 Gay Softball World Series. NAGAAA denies the remaining allegations in this

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paragraph.

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26.

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NAGAAA denies that NAGAAA s Softball Code purports to be a reverse

quota. NAGAAA admits the remaining allegations in this paragraph.
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NAGAAA denies that the definitions of gay and heterosexual are found

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in sections 1.15 and 1.18 of the NAGAAA Code. NAGAAA admits that the text quoted in

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the Complaint is found in sections 1.13 and 1.16 of the 2008 Code, and the same

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definitions are found in sections 1.14 and 1.17 of the current Code.

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28.

To the extent that this paragraph contains any factual allegation rather than

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legal conclusions to which no response is necessary, NAGAAA denies the allegations in

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this paragraph.

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29.

NAGAAA denies that the Atlanta Mudcats filed the protest at issue.

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NAGAAA admits that the protest filed by the Atlanta Commissioner alleged that the D2

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team had violated Rule 7.05 of the Code. NAGAAA admits that the protest identified

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Plaintiffs and three other players as the individuals whose presence on the D2 roster caused

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the team to be ineligible. NAGAAA denies the remaining allegations of this paragraph.

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30.

NAGAAA denies the allegations in this paragraph.

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31.

NAGAAA admits the allegations in this paragraph.

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ANSWER TO PLAINTIFFS COMPLAINT AND
AFFIRMATIVE DEFENSES
(C10-00682 JCC)
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Suite 2200 1201 Third Avenue
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32.

NAGAAA admits that a protest hearing occurred after the championship

game. NAGAAA denies the remaining allegations in this paragraph.
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NAGAAA admits that the Protest Committee consisted of five members as

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required by the Code. NAGAAA admits that at times other individuals affiliated with

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NAGAAA or its member leagues were in the hearing room, and that the San Francisco

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Commissioner and some members of plaintiffs team were present at times. NAGAAA

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denies the remaining allegations in this paragraph.

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34.

NAGAAA denies the allegations in this paragraph.

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35.

NAGAAA admits that the Protest Committee asked plaintiffs questions

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individually. NAGAAA denies the remaining allegations in this paragraph.
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NAGAAA admits plaintiffs were asked whether they identified their sexual

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orientation to be heterosexual as defined in NAGAAA s Softball Code. NAGAAA

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denies the remaining allegations in this paragraph.

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37.

NAGAAA denies the allegations in this paragraph.

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38.

NAGAAA denies the allegations in this paragraph.

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39.

NAGAAA denies the allegations in this paragraph.

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40.

NAGAAA denies the allegations in this paragraph.

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41.

NAGAAA denies the allegations in this paragraph.

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42.

NAGAAA admits that the protested team, D2, the Commissioner of the San

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Francisco Gay Softball League, and the team members present at the hearing were

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informed of the Protest Committee s conclusion that D2 was not in compliance with Rule

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7.05 of NAGAAA s Softball Code, and of the Protest Committee s identification of

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individuals whose presence on the D2 roster caused the team to be ineligible. NAGAAA
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denies that it publicized, published, republished, or blogged information regarding those

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individuals. NAGAAA admits that the National Center for Lesbian Rights issued press

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releases and that public discussion and blogging subsequently occurred. NAGAAA denies

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the remaining allegations in this paragraph.

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43.

NAGAAA admits that the Protest Committee disqualified D2 from the

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Seattle Gay Softball World Series and ordered forfeiture of D2 s victories as provided by

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NAGAAA s Softball Code. NAGAAA denies that any action was taken against Plaintiffs,

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and denies the remaining allegations in this paragraph.

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44.

NAGAAA admits that it held its annual meeting in Milwaukee, Wisconsin,

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in January 2009, and that that the organization determined not to change the provisions of

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Rule 7.05. NAGAAA admits that the San Francisco Gay Softball League was placed on

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probation for violations of the eligibility provisions of NAGAAA s Softball Code,

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including but not limited to Rule 7.05, and that the San Francisco Gay Softball League

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could be penalized as provided by NAGAAA s Softball Code. NAGAAA denies the

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remaining allegations in this paragraph.

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NAGAAA denies that it made any determination that plaintiffs violated

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NAGAAA s rules, or that they were ineligible to compete in the Seattle Gay Softball

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World Series. NAGAAA admits that it determined the team D2 had violated the

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NAGAAA rules, and that NAGAAA did not change this determination upon appeal.

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NAGAAA admits that the National Center for Lesbian Rights has represented Plaintiffs.

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NAGAAA admits that it has not subsequently changed Rule 7.05. NAGAAA denies the

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remaining allegations in this paragraph.

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ANSWER TO PLAINTIFFS COMPLAINT AND
AFFIRMATIVE DEFENSES
(C10-00682 JCC)
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46.

NAGAAA admits that Rule 7.05 continues to be part of NAGAAA s

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Softball Code, and that a protest occurred during the 2009 Gay Softball World Series.

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NAGAAA denies the remaining allegations in this paragraph.

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47.

NAGAAA admits that it did not change Rule 7.05 at the January 2010

meeting. NAGAAA denies the remaining allegations in this paragraph.
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NAGAAA denies the allegations in this paragraph.

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V.

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CAUSES OF ACTION

FIRST CAUSE OF ACTION:
VIOLATION OF RCW 49.60.030 AND 49.60.215

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49.

NAGAAA incorporates by reference its responses to paragraphs 1 through

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48 above, in response to the reallegations in this paragraph.
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50.

To the extent that this paragraph contains any factual allegation rather than

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legal conclusions, NAGAAA denies the allegations in this paragraph.
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51.

To the extent that this paragraph contains any factual allegation rather than

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legal conclusions, NAGAAA denies the allegations in this paragraph.
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52.

To the extent that this paragraph contains any factual allegation rather than

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legal conclusions, NAGAAA lacks sufficient information to respond to the allegations in
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this paragraph, and therefore denies the allegations in this paragraph.
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53.

To the extent that this paragraph contains any factual allegation rather than

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legal conclusions, NAGAAA denies the allegations in this paragraph.
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54.

NAGAAA denies the allegations in this paragraph.

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AFFIRMATIVE DEFENSES
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55.

NAGAAA lacks sufficient information to admit or deny the race or national

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origin of the plaintiffs or any other individual referred to in this paragraph. NAGAAA

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denies the remaining allegations in this paragraph.

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56.

NAGAAA denies the allegations in this paragraph.

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57.

NAGAAA denies the allegations in this paragraph.

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58.

NAGAAA denies the allegations in this paragraph.

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59.

NAGAAA denies the allegations in this paragraph.

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SECOND CAUSE OF ACTION:
AIDING VIOLATION OF RCW 49.60

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60.

NAGAAA incorporates by reference its responses to paragraphs 1 through

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59 above, in response to the reallegations in this paragraph.
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61.

To the extent that this paragraph contains any factual allegation rather than

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legal conclusions, NAGAAA denies the allegations in this paragraph.
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62.

To the extent that this paragraph contains any factual allegation rather than

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legal conclusions, NAGAAA denies the allegations in this paragraph.
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63.

NAGAAA denies the allegations in this paragraph.

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NAGAAA denies the allegations in this paragraph.

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THIRD CAUSE OF ACTION:
VIOLATION OF RCW 19.86

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65.

NAGAAA incorporates by reference its responses to paragraphs 1 through

64 above, in response to the reallegations in this paragraph.

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66.

NAGAAA denies the allegations in this paragraph.

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67.

NAGAAA denies the allegations in this paragraph.

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68.

NAGAAA denies the allegations in this paragraph.

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FOURTH CAUSE OF ACTION:
BREACH OF IMPLIED OR EXPRESS CONTRACT AND
COVENANT OF GOOD FAITH AND FAIR DEALING

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69.

NAGAAA incorporates by reference its responses to paragraphs 1 through

68 above, in response to the reallegations in this paragraph.

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70.

NAGAAA denies the allegations in this paragraph.

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71.

NAGAAA denies the allegations in this paragraph.

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72.

NAGAAA denies the allegations in this paragraph.

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73.

NAGAAA denies the allegations in this paragraph.

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FIFTH CAUSE OF ACTION:
INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
(TORT OF OUTRAGE)

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74.

NAGAAA incorporates by reference its responses to paragraphs 1 through

73 above, in response to the reallegations in this paragraph.
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To the extent that this paragraph contains any factual allegation rather than

legal conclusions, NAGAAA denies the allegations in this paragraph.

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76.

NAGAAA denies the allegations in this paragraph.

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77.

NAGAAA denies the allegations in this paragraph.

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78.

NAGAAA denies the allegations in this paragraph.

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SIXTH CAUSE OF ACTION:
NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS

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79.

NAGAAA incorporates by reference its responses to paragraphs 1 through

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78 above, in response to the reallegations in this paragraph.
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80.

To the extent that this paragraph contains any factual allegation rather than

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legal conclusions, NAGAAA denies the allegations in this paragraph.
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81.

NAGAAA denies the allegations in this paragraph.

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82.

NAGAAA denies the allegations in this paragraph.

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83.

NAGAAA denies the allegations in this paragraph.

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84.

NAGAAA denies the allegations in this paragraph.

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85.

NAGAAA denies the allegations in this paragraph.

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86.

NAGAAA denies the allegations in this paragraph.

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SEVENTH CAUSE OF ACTION:
PUBLIC DISCLOSURE OF PRIVATE FACTS

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87.

NAGAAA incorporates by reference its responses to paragraphs 1 through

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86 above, in response to the reallegations in this paragraph.
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88.

To the extent that this paragraph contains any factual allegation rather than

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legal conclusions, NAGAAA denies the allegations in this paragraph.
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89.

NAGAAA denies the allegations in this paragraph.

90.

NAGAAA denies the allegations in this paragraph.

91.

NAGAAA denies the allegations in this paragraph.

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NAGAAA denies the allegations in this paragraph.

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EIGHTH CAUSE OF ACTION:
INTRUSION ON SECLUSION OF PRIVACY

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93.

NAGAAA incorporates by reference its responses to paragraphs 1 through

92 above, in response to the reallegations in this paragraph.
94.

To the extent that this paragraph contains any factual allegation rather than

legal conclusions, NAGAAA denies the allegations in this paragraph.

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95.

NAGAAA denies the allegations in this paragraph.

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96.

NAGAAA denies the allegations in this paragraph.

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(C10-00682 JCC)
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97.

NAGAAA denies the allegations in this paragraph.

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98.

NAGAAA denies the allegations in this paragraph.

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V.

PRAYER FOR RELIEF

NAGAAA denies all allegations contained in plaintiffs Prayer for Relief, and

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further denies that plaintiffs are entitled to any damages from NAGAAA or any injunctive

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relief against NAGAAA.

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AFFIRMATIVE DEFENSES

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As further answer to the allegations of the Complaint, NAGAAA alleges the

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following affirmative defenses:
1.

Plaintiffs Complaint fails to state facts claims upon which relief may be

granted against NAGAAA.
2.

Any damages allegedly sustained by plaintiffs were the proximate result of,

and caused by, the conduct or failure to act by persons or parties other than NAGAAA.
3.

Plaintiffs causes of action are barred by the doctrines of unclean hands,

consent, contributory negligence, estoppel, waiver, justification, and/or privilege.
4.

Plaintiffs claims are barred for failure to mitigate damages. Plaintiffs may

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have knowingly and voluntarily assumed the risk of some or all of the injuries or damages

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they allege in the Complaint.

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NAGAAA reserves the right to assert additional affirmative defenses as may be
appropriate as discovery and investigation proceed.
DEFENDANT S REQUEST FOR RELIEF
Having fully answered the allegations in plaintiffs Complaint, NAGAAA requests
that the Court grant the following relief:
ANSWER TO PLAINTIFFS COMPLAINT AND
AFFIRMATIVE DEFENSES
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A.

Dismissal of plaintiffs Complaint, and all related claims, with prejudice;

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B.

Entry of judgment in favor of defendant on all claims;

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C.

An award of NAGAAA s costs and reasonable attorneys fees incurred in

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the defense of the claims as permitted by law and in such amount as the Court shall

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determine;

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D.

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Other and further relief as the Court may deem equitable and just under the

circumstances.
DATED this 5th day of August, 2010.

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Davis Wright Tremaine LLP
Attorneys for Defendant
NORTH AMERICAN GAY AMATEUR
ATHLETIC ALLIANCE

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By

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/s/ Roger A. Leishman
Michael Reiss, WSBA #10707
Roger Leishman, WSBA #19971
Rebecca Francis, WSBA #41196
1201 Third Avenue, Suite 2200
Seattle, Washington 98101-3045
Telephone: [phone]
Fax: [phone]
E-mail: [e-mail]
E-mail: [e-mail]
E-mail: [e-mail]

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CERTIFICATE OF SERVICE
I hereby certify that on August 5, 2010, I electronically filed NAGAAA s Answer

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with the Clerk of the Court using the CM/ECF system which will send notification of such

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filing to the following:

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Amy K. Todd-Gher, attorney for plaintiffs, at [e-mail]
Melanie S. Rowen, attorney for plaintiffs, at [e-mail]
Suzanne J. Thomas, attorney for plaintiffs, at [e-mail]
Cristin J. Kent, attorney for plaintiffs, at [e-mail]

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Beth A. Allen, attorney for defendant, at [e-mail]
Michael Reiss, attorney for defendant, at [e-mail]

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Roger A. Leishman, attorney for defendant, at [e-mail]

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Rebecca J. Francis, attorney for defendant, at [e-mail]

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There are no non-CM/ECF participants.
DATED this 5th day of August, 2010.

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/s/ Roger A. Leishman
Roger Leishman, WSBA #19971

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ANSWER TO PLAINTIFFS COMPLAINT AND
AFFIRMATIVE DEFENSES
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