steve w. berman (pro hac vice - hbsslaw.com · steve w. berman (pro hac vice) craig r. spiegel (sbn...

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Steve W. Berman (Pro Hac Vice) Craig R. Spiegel (SBN 122000) HAGENS BERMAN SOBOL SHAPIRO LLP 1918 Eighth Avenue, Suite 3300 Seattle, WA 98101 Telephone: (206) 623-7292 Facsimile: (206) 623-0594 [email protected] Jon T. King (205073) HAGENS BERMAN SOBOL SHAPIRO LLP 715 Hearst Avenue, Suite 202 Berkeley, CA 94710 Telephone: (510) 725-3000 Facsimile: (510) 725-3001 [email protected] Counsel for Plaintiffs [Additional Counsel Listed on Sig. Page]

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

OAKLAND DIVISION

RACHEL MEHR, et al., Plaintiffs, v. FÉDÉRATION INTERNATIONALE DE FOOTBALL ASSOCIATION, et al., Defendants.

No. 4:14-cv-03879-PJH PLAINTIFFS’ OPPOSITION TO DEFENDANT FÉDÉRATION INTERNATIONALE DE FOOTBALL ASSOCIATION’S MOTION TO DISMISS COMPLAINT

Case4:14-cv-03879-PJH Document62 Filed03/20/15 Page1 of 31

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28 PLS.’ OPP’N TO FIFA’S MOT. TO DISMISS COMPLAINT - Case No. 14-cv-03879-PJH

TABLE OF CONTENTS

Page

I. STATEMENT OF ISSUES TO BE DECIDED ...................................................................... 1

II. INTRODUCTION ................................................................................................................... 1

III. STATEMENT OF RELEVANT FACTS ................................................................................ 2

IV. ARGUMENT .......................................................................................................................... 5

A. FIFA is subject to personal jurisdiction based on its extensive soccer-related contacts with California. ...................................................................... 5

1. The Court has specific jurisdiction over FIFA. ............................................... 6

2. FIFA directly influences concussion management in California. ................... 7

3. FIFA has agents in California. ......................................................................... 9

4. FIFA’s additional activities in California. ..................................................... 10

5. The Court has general jurisdiction over FIFA. .............................................. 13

B. IFAB is not a required party under Fed. R. Civ. P. 19. ............................................. 14

C. Plaintiffs adequately allege standing. ........................................................................ 19

D. Plaintiffs sufficiently allege claims against FIFA ..................................................... 21

V. CONCLUSION ..................................................................................................................... 24


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TABLE OF AUTHORITIES Page(s)

CASES

Allen v. Wright, 468 U.S. 737 (1984) ...................................................................................................................... 21

Artiglio v. Corning Inc., 18 Cal. 4th 604 (1998) ................................................................................................................... 22

Baker v. City of Los Angeles, 188 Cal. App. 3d 902 (1986) ......................................................................................................... 22

Behagen v. Amateur Basketball Ass’n, 744 F.2d 731 (10th Cir. 1984) ................................................................................................. 13, 14

Blair v. Shanahan, 38 F.3d 1514 (9th Cir. 1994) ......................................................................................................... 21

Cachil Dehe Band of Wintun Indians v. California, 536 F.3d 1034 (9th Cir. 2008) ................................................................................................. 14, 15

City of Santee v. County of San Diego, 211 Cal. App. 3d 1006 (1989) ....................................................................................................... 23

Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138 (2013) .................................................................................................................. 22

Dawavendewa v. Salt River Project Agric. Improvement & Power Dist., 276 F.3d 1150 (9th Cir. 2002) ....................................................................................................... 19

Delgado v. Trax Bar & Grill, 36 Cal. 4th 224 (2005) ................................................................................................................... 22

Disabled Rights Action Comm. v. Las Vegas Events, Inc., 375 F.3d 861 (9th Cir. 2004) ......................................................................................................... 18

Dowdy v. Coleman Co., 2012 U.S. Dist. LEXIS 169788 (D. Utah Nov. 28, 2012) ............................................................. 15

Duffin v. Exelon Corp., 2006 U.S. Dist. LEXIS 44908 (N.D. Ill. June 16, 2006) ............................................................... 24

Evanston Ins. Co. v. Honso USA, Inc., 2011 U.S. Dist. LEXIS 39148 (N.D. Cal. Apr. 11, 2011) ............................................................. 15

Friends of Amador County v. Salazar, 2011 U.S. Dist. LEXIS 114423 (E.D. Cal. Sept. 29, 2011) .......................................................... 18


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Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167 (2000) ...................................................................................................................... 20

Frye v. L’Oreal USA, Inc., 583 F. Supp. 2d 954 (N.D. Ill. 2008) ............................................................................................. 24

FW/PBS, Inc. v. City of Dallas, 493 U.S. 215 (1990) ...................................................................................................................... 21

Harris Rutsky & Co. Ins. Servs. v. Bell & Clements Ltd., 328 F.3d 1122 (9th Cir. 2003) ......................................................................................................... 5

L.H. v. Schwarzenegger, 2007 U.S. Dist. LEXIS 18728 (E.D. Cal. Feb. 28, 2007) ....................................................... 20, 21

Los Angeles v. Lyons, 461 U.S. 95 (1983) ........................................................................................................................ 21

Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) ...................................................................................................................... 21

MasterCard Int’l Inc. v. FIFA, 2007 U.S. Dist. LEXIS 14208 (S.D.N.Y. Feb. 28, 2007) ............................................................. 12

Paiute-Shoshone Indians of the Bishop Cmty. v. City of Los Angeles, 637 F.3d 993 (9th Cir. 2011) ......................................................................................................... 18

Potter v. Firestone Tire & Rubber Co., 6 Cal. 4th 965 (1993) ..................................................................................................................... 24

San Diego Cnty. Gun Rights Comm. v. Reno, 98 F.3d 1121 (9th Cir. 1996) ......................................................................................................... 21

Satsky v. Paramount Commc’ns, Inc., No. CIV.A. 90-S-1561, 1996 WL 1062376 (D. Colo. Mar. 13, 1996) ......................................... 23

In re Toyota Motor Corp. Unintended Acceleration Mktg., Sales Practices, & Prods. Liab. Litig., 826 F. Supp. 2d 1180 (C.D. Cal. 2011) ......................................................................................... 18

In re W. States Wholesale Natural Gas Antitrust Litig., 715 F.3d 716 (9th Cir. 2013) ................................................................................................. 5, 6, 12

Walden v. Fiore, 134 S. Ct. 1115 (2014) .................................................................................................................... 7

Williams v. State of California, 34 Cal. 3d 18 (1983) ...................................................................................................................... 23


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OTHER AUTHORITIES

Alan Tomlinson, FIFA (Fédération Internationale de Football Association): The Men, the Myths, and the Money (2014) ......................................................................................... 17


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I. STATEMENT OF ISSUES TO BE DECIDED

1. Has FIFA proved that this case should be dismissed against it at the pleading stage for

lack of personal jurisdiction despite FIFA’s extensive contacts with California including contacts that

give rise to the claims in this case?

2. Must the Complaint be dismissed because the International Football Association

Board (“IFAB”) is not a party?

3. Do Plaintiffs have standing?

4. Has FIFA demonstrated that there is any other basis for dismissal?

II. INTRODUCTION

There is no basis to dismiss Plaintiffs’ claims against FIFA, which acknowledges that “the

issues raised by Plaintiffs are important – seeking to address concussions and how to best protect

young soccer players.”1 Nonetheless, FIFA argues that the Court should dismiss this case because

plaintiffs would “remain free – as they already are – to start their own soccer clubs with a set of rules

they think is more appropriate (or to refrain from playing or allowing their minor children to play

soccer).”2 This response is emblematic of the defective approach of FIFA and all Defendants to the

critical health and safety issues of youth concussions.

FIFA erroneously argues that: (1) this Court lacks personal jurisdiction over FIFA; (2) the

Complaint should be dismissed because nonparty IFAB is an indispensable party; (3) Plaintiffs lack

standing; and (4) the Complaint does not state any valid claim. FIFA is wrong on all counts. As to

jurisdiction, FIFA has engaged in myriad intentional soccer-related contacts with California, and

Plaintiffs’ claims arise from the failure of FIFA and the other Defendants to take steps to reduce

players’ injuries, including concussions. As to IFAB, FIFA’s “Statutes” expressly give IFAB any

power that it may appear to have. And Plaintiffs have amply alleged factual material supporting

every element of their causes of action and their standing to maintain those claims.

For the reasons stated herein, Plaintiffs respectfully request that the Court deny FIFA’s

motion.

1 FIFA’s Motion to Dismiss the Complaint, ECF No. 44 (“FIFA Br.”) at 2. 2 Id. at 15.


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III. STATEMENT OF RELEVANT FACTS

Plaintiffs allege that there is “an epidemic of concussion injuries in soccer at all levels around

the world, including in the United States, from youth to professionals, from elite players to children

playing for the first time, women and men, girls and boys.”3 And this case “arises from the failure of

soccer’s governing authorities to take steps to reduce injuries.”4 Defendants “have failed to protect

soccer players by their failure to enact and enforce best practices for concussion management.”5 The

Complaint details that “[p]ersistent post-concussion symptoms can be devastating,” disrupting “daily

living and participation in school and activities,” causing children to miss weeks or even months out

of the school year, causing attention and memory deficits, causing children to become “clumsy and

accident prone,” and causing them to become “socially withdrawn to cope with headaches and mood

changes.”6 Moreover, there is “substantial evidence that young people may be more susceptible to

damage resulting from repetitive concussive and sub-concussive brain trauma,”7 because “[y]ounger

athletes typically have weaker necks, which could put an athlete at higher risk for concussion”8 and

typically “are not provided professional medical supervision, either during practices or at matches.”9

The Complaint defines the putative class as all “current or former soccer players who from

2002 to the present competed for a team governed by [Defendants].”10 Contrary to FIFA’s assertion,

Plaintiffs don’t “seek to represent a class of tens of millions of soccer players around the world….”11

Plaintiffs clarify here that they limit their proposed class to residents of the United States. Plaintiffs

set forth claims for negligence,12 breach of voluntary undertaking,13 and medical monitoring.14

3 Class Action Complaint, Aug. 27, 2014, ECF No. 1 (“Complaint”), ¶ 16. All citations to “¶”

are to the Complaint unless otherwise noted. 4 ¶ 2. 5 Id. 6 ¶ 6. 7 Id. 8 ¶ 9. 9 ¶ 10. 10 ¶ 415. 11 FIFA Br. at 2. 12 ¶¶ 423-433.


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The Complaint sets forth a litany of FIFA’s jurisdictional contacts with California,15 and the

accompanying King Declaration identifies numerous additional jurisdictional contacts. Plaintiffs

allege that “FIFA engages in a broad swath of commercial activities in the U.S. and in California,

strategically reinforcing its ‘brand’ and its primacy in the world of soccer and entrenching its influ-

ence.”16 The Complaint quotes FIFA materials regarding FIFA establishing a “FIFA Medical Centre

of Excellence” in California in 2007.17

Further, FIFA has authorized agents in California, including in this District, to operate as

FIFA’s “match agents” that have the authority to arrange for matches between FIFA-sanctioned

teams including in this District.18 As discussed herein, Plaintiffs now know that FIFA specifically

extracts fees related to these California matches in exchange for sanctioning them. The Complaint

also quotes numerous documents in which FIFA repeatedly emphasizes its worldwide role and

influence, including on youth issues and medical issues.19 Plaintiffs further detail FIFA’s power to

influence individuals and entities in the United States, including children and parents in California,

and including on concussion-related issues.20

In regards to non-party IFAB, IFAB’s “Statutes” explain that “[a]ccording to the FIFA

Statutes, only The IFAB may lay down and alter the LoG [Laws of the Game] and each member of

FIFA shall play association football in compliance with the LoG issued by The IFAB.”21 FIFA’s

“Statutes” mandate that “[e]ach Member of FIFA shall play Association Football in compliance with

the Laws of the Game issued by The IFAB. Only The IFAB may lay down and alter the Laws of the

13 ¶¶ 434-444. 14 ¶¶ 445-451. 15 ¶¶ 56-71. 16 ¶ 56. 17 ¶ 60. 18 ¶ 71. 19 See ¶¶ 16, 17, 67, 195, 198, 199, 201, 202, 207-213, 218. 20 ¶¶ 219-228. 21 Declaration of Jérôme Valcke in Support of Fédération Internationale de Football Associa-

tion’s Motion to Dismiss the Complaint or, in the Alternative, Motion to Compel Arbitration, ECF No. 46 (“Valcke Decl.”), Ex. B, “Statutes of The International Football Association Board (IFAB),” Version 1, 13 January 2014, Article 2, ECF No. 46-2 at 1.


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Game.” 22 FIFA further submitted a declaration reiterating that “[t]he articles of the FIFA Statutes

establish IFAB’s primacy with respect to the Laws of the Game.”23

As to FIFA’s duty of care, the Complaint alleges that FIFA “had a duty toward Plaintiffs and

the Class to supervise, regulate, monitor, and provide reasonable and appropriate rules to minimize

the risk of injury to the players.”24 Plaintiffs also allege that FIFA “voluntarily assumed” that duty.25

Plaintiffs explain that “FIFA has directly taken on the duty to protect players’ safety in regards to

concussion issues,”26 as well as protecting them generally,27 and in regards to medical issues.28

As to FIFA’s breach of duty, the Complaint details facts regarding FIFA’s failure to provide

adequate concussion management, including its knowledge of consensus best practices,29 its failure

to adopt the consensus guidelines promulgated by the international conferences on concussion in

sport,30 its failure to require a stepwise return to play protocol which prohibits same day return to

play,31 its failure to require formal baseline and/or post-injury neurocognitive testing of players,32 its

failure to require that players’ concussions be managed onsite by medical personnel with specific

expertise in concussion diagnosis, treatment, and management,33 its failure to adopt proper rules for

protecting players under 17 from head injuries.34 The Complaint further alleges additional specifics

on FIFA’s breaches of duty.35

22 Valcke Decl., Ex. A, Article 6.1, ECF No. 46-1 at 10 of 84 (“FIFA Statutes,” Aug. 2014

edition). 23 Valcke Decl., ¶ 10. 24 ¶ 424. 25 ¶ 435. 26 ¶ 17. 27 ¶¶ 207-212 28 ¶¶ 216-218. 29 ¶¶ 229-234. 30 ¶¶ 235-240. 31 ¶¶ 241-249. 32 ¶¶ 250-254. 33 ¶¶ 255-260. 34 ¶¶ 375-382. 35 ¶¶ 425-426, 428-429, 436-437, 439-440.


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IV. ARGUMENT

A. FIFA is subject to personal jurisdiction based on its extensive soccer-related contacts with California.

FIFA is subject to both specific and general jurisdiction in this District. The Ninth Circuit

has held that a plaintiff “must make ‘only a prima facie showing of jurisdictional facts to withstand

the motion to dismiss.’”36 The Court explained that for the “purposes of deciding whether a prima

facie showing has been made, ‘the court resolves all disputed facts in favor of the plaintiff.’”37 FIFA

challenges numerous of Plaintiffs’ pleaded jurisdictional facts and has submitted a short declaration.

If the Court is not inclined to deny FIFA’s motion outright, jurisdictional discovery is appropriate.38

FIFA’s motion primarily rests on its statement that a “California federal court recently held

that FIFA is not subject to personal jurisdiction in California,”39 but the jurisdictional facts presented

to that court are far different than those presented by Plaintiffs in this matter. In that case,

Worldwide Subsidy Group, LLC dba Independent Producers Group v. FIFA, the plaintiff only

offered facts “which concern activity in which FIFA was engaged more than ten years ago” and

which “do not demonstrate that such activity is ongoing now or that is [sic] has been ongoing in the

interim period.”40 The court noted the evidence offered by the plaintiff as to marketing and

advertising for the 2003 Women’s World Cup held partly in California was insufficient to prove that

FIFA was consistently doing business in California.41 As to specific jurisdiction, the court held that

the plaintiff’s cause of action for breach of contract relating to broadcast royalties collection did not

arise out of or relate to FIFA’s activities in California. In contrast, as shown below, Plaintiffs

36 In re W. States Wholesale Natural Gas Antitrust Litig., 715 F.3d 716, 741 (9th Cir. 2013). 37 Id. 38 See Harris Rutsky & Co. Ins. Servs. v. Bell & Clements Ltd., 328 F.3d 1122, 1135 (9th Cir.

2003) (“We must conclude, therefore, that the district court abused its discretion in denying ASR's motion for jurisdictional discovery, and that a remand will be necessary to allow ASR the opportunity to develop the record and make a prima facie showing of jurisdictional facts …”).

39 FIFA Br. at 8. 40 Declaration of H. Christopher Boehning in Support of Fédération Internationale De Football

Association’s Motion to Dismiss the Complaint or, in the Alternative, Motion to Compel Arbitration (“Boehning Decl.”), Ex. A, ECF No. 45-1 at 15 (“Order Granting Defendant’s Motion to Dismiss Pursuant to Federal Rule of Civil Procedure 12(b)(2) and 12(b)(6)”).

41 Id.


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specifically allege far more detailed jurisdictional contacts with California that are continuous and

systematic, and that form the basis of their claims.

FIFA also cites a decision by a New York state court that declined to exercise jurisdiction

over FIFA, where the plaintiff claimed that FIFA misappropriated his idea for development of a

children’s television show involving past World Cup mascots.42 In a brief opinion, the court dis-

missed the case on statute of limitations grounds, as well as for various other deficiencies. The court

also stated that it did not have jurisdiction over FIFA because it did not “have sufficient contacts

with New York that bear a ‘substantial relationship’ to the instant action.”43 The present case,

involving important public health and safety issues, bears no resemblance to that intellectual property

misappropriation case, of which the court clearly was very skeptical. Thus, the two cases that FIFA

cites in which it obtained a dismissal are not relevant here.

1. The Court has specific jurisdiction over FIFA.

The Ninth Circuit “uses [a] three-part test to analyze whether a party’s ‘minimum contacts’

meet the due process standard for the exercise of specific personal jurisdiction.”44 Specific jurisdic-

tion is established by a three-part test: “(1) The non-resident defendant must purposefully direct his

activities or consummate some transaction with the forum or resident thereof; or perform some act

by which he purposefully avails himself of the privilege of conducting activities in the forum, there-

by invoking the benefits and protections of its laws; (2) the claim must be one which arises out of or

relates to the defendant’s forum-related activities; and (3) the exercise of jurisdiction must comport

with fair play and substantial justice.”45 Plaintiffs meet all three requirements.

The contacts by FIFA’s agents are relevant to the jurisdictional inquiry. As the Supreme

Court noted in 2014, “physical entry into the State – either by the defendant in person or through an

agent, goods, mail, or some other means – is certainly a relevant contact” for personal jurisdictional

42 Boehning Decl., Ex. B, ECF No. 45-2, at 2. 43 Id. at 5. 44 In re W. States Wholesale Natural Gas Antitrust Litig., 715 F.3d at 741. 45 Id. at 741-742.


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purposes.46 As explained below, FIFA’s website identifies individuals that it calls its “agents” who

reside in California, and FIFA has medical, research, and promotion personnel in Santa Monica,

California, who are acting as its agents.

a. FIFA has performed numerous acts by which it purposefully availed itself of the privilege of conducting activities in California, thereby invoking the benefits and protections of its laws.

Fifteen paragraphs of the Complaint set forth many of FIFA’s relevant jurisdictional contacts

with California,47 and the accompanying King Declaration identifies numerous additional contacts.

FIFA requires its members, such as USSF, to follow FIFA’s rules and the Laws of the Game, and

FIFA further requires its members to require their members, including those in California, to follow

those rules and Laws. Moreover, “Northern California is home to the largest concentration of youth

soccer players in the country. For example, Defendant USYS on its website provides a state-by-state

breakdown of members in each state ‘as of the 2011/2012 seasonal year.’ California is split into two

regions – Northern and Southern. Northern California is listed as having more members – 171,267 –

than any other State or region in the country.”48 And the “largest state youth soccer association is

headquartered in this District in Pleasanton, California.”49

2. FIFA directly influences concussion management in California.

The Complaint quotes numerous documents in which FIFA emphasizes its worldwide role

and influence, including on youth issues and medical issues.50 The Complaint further details FIFA’s

power to influence individuals and entities in California and throughout the United States, including

consciously acting as a major influence on children on matters such as concussion-related issues.51

In particular, Plaintiffs quote from FIFA materials regarding FIFA’s establishment of a “FIFA

Medical Centre of Excellence” in California in 2007.52 Materials located on FIFA’s website indicate

46 Walden v. Fiore, 134 S. Ct. 1115, 1122 (2014). 47 ¶¶ 56-71. 48 ¶ 36. 49 ¶ 37. 50 ¶¶ 16, 17, 67, 195, 198, 199, 201, 202, 207-213, 218. 51 ¶¶ 219-228. 52 ¶ 60.


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more about this entity. In an article titled “California group joins FIFA fold,” FIFA states that it

set up this center “to ensure that players have access to high quality football medicine.”53 FIFA

added that the “vision behind creating a network of medical centres across the world is to ensure that

players on all continents know where to go for expert care in football medicine, such as the

prevention of injuries.”54 FIFA then quotes Jiri Dvorak, FIFA’s Chief Medical Officer, as stating

that “FIFA Medical Centres of Excellence like the Santa Monica Orthopaedic and Sports Medicine

Group ensure this. In addition, they educate and train the next generation of clinical specialists and

scientists committed to football medicine.”55 FIFA currently has an entire separate page on its

website devoted to this group, titled “Santa Monica Orthopaedic and Sports Medicine Group,”

stating at the end, “Your contact at the FIFA Medical Centre of Excellence at Santa Monica:

[listing personnel with Santa Monica, CA address].”56 Another FIFA website page regarding this

and other “FIFA Medical Centres of Excellence,” states that “FIFA wants every player to know

where to turn to when it comes to health.”57 FIFA continues that “[a]ll centres have to undergo a

strict selection process,” and “[a]ccreditation is granted for a period of five years during which all

centres report annually on their activities.”58

Another FIFA document, titled “Football For Health All Over the World,” details the FIFA

center in Santa Monica as being just one of FIFA’s ten similar centers around the world, and in fact

the only one in North, Central, or South America.59 This FIFA document makes numerous relevant

statements for jurisdiction and FIFA’s assumption of duties, including statements co-authored by

FIFA’s President and Chief Medical Director that “today, we can say [soccer] is a healthy and safe

leisure activity for everyone,” and “[t]he FIFA Medical Assessment and Research Centre (F-MARC)

53 Declaration of Jon T. King in Support of Plaintiffs’ Opposition to FIFA’s Motion to Dismiss

Complaint (“King Decl.”), Ex. D. 54 Id. 55 Id. 56 Id., Ex E. 57 Id., Ex. G. 58 Id. 59 Id., Ex. H at 19.


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was founded in 1994 to protect players’ health, prevent injury and maximise the health benefits of

the game – at that time a unique initiative for a sport’s governing body. Today, with the number of

players around the world approaching 270 million, we can say our objectives have been fully

achieved.” 60 FIFA adds that “World football’s governing body FIFA attaches particular importance

to players’ health…. The objective was for F-MARC to develop the scientific basis to protect the

health of all players and promote football as a healthy leisure activity.” 61 FIFA continues that “FIFA

Medical Centres of Excellence will promote prevention, physical and mental health and the

well-being of footballers in line with FIFA’s philosophy” and that the “FIFA Medical Centres of

Excellence will generally be open to everyone and will offer a football-specific service.”62 And the

internet website of the FIFA Santa Monica group states on its home page, “Trusted with the care of

the best,” followed by the official FIFA logo among other logos.63

FIFA now asserts that “the sole obligation of these Centres is to provide FIFA with soccer-

related research.”64 That assertion raises more questions than it answers, but at minimum it

acknowledges that FIFA is soliciting and receiving “research” about soccer players in California.

Moreover, FIFA’s effort to minimize its California Center is belied by the materials cited above. If

this Court deems it necessary, discovery would provide a better understanding of FIFA’s relationship

with its California medical treatment, research, and promotion center.

3. FIFA has agents in California.

In addition, FIFA has authorized agents in California, including in this District, to operate as

FIFA’s “match agents” with the authority to arrange matches between FIFA-sanctioned teams in this

District and elsewhere.65 In addition to the two match agents identified in the Complaint, internet

research has located another match agent listed on prior versions of FIFA’s website, Peter Qun Chen

60 Id. at 4. 61 Id. at 5. 62 Id. at 18. 63 Id., Ex. F. 64 Valcke Decl., ¶ 19. 65 ¶ 71.


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of San Dimas, California.66 If this Court deems it necessary, additional discovery would reveal the

full extent of how many match agents FIFA has had in California, as it is not presently known

whether the published lists are complete. It also is presently unknown whether the numerous FIFA

match agents located in other states have promoted FIFA matches in California, and discovery will

reveal that information.

4. FIFA’s additional activities in California.

FIFA has repeatedly conducted events in California, enjoying the benefits and privileges of

doing so. For example, in 2011, FIFA sponsored the finals in California of its “FIFA Interactive

World Cup 2011,” a worldwide videogame competition that FIFA extensively promotes, including

on its website.67 FIFA stated in a 2011 press release that “[t]his year’s Grand Final takes place from

7-9 June in Los Angeles.”68 Governing documents show that FIFA’s yearly events, such as that one

in Los Angeles, are events “organised under the auspices of the Federation Internationale de Football

Association … in association with Electronic Arts, Inc., 209 Redwood Shores Parkway, Redwood

City, CA 94065 … and Sony Computer Entertainment Inc.”69 And FIFA has staged qualifying

tournaments in California for its video-game championship, such as in 2009 in Santa Monica and in

2008 in Universal City.70 FIFA’s World Cup Trophy Tour (as described in the Complaint as to

2014) has also come to California on at least one other occasion, in 2006.71 Further, “FIFA engages

in a broad swath of commercial activities in the U.S. and in California, strategically reinforcing its

66 All three match agents are listed on FIFA’s website as of October 11, 2007, and February 14,

2009, and January 15, 2011. King Decl., Exs. A-C. 67 ¶ 59; King Decl., Ex. M. 68 Id. 69 King Decl., Ex. L (Terms and Conditions for 2015 FIFA Interactive World Cup); Ex. K

(Terms and Conditions for 2012 FIFA Interactive World Cup). 70 King Decl., Exs. I and J. 71 Id., Ex. N (“The Coca-Cola Company and FIFA today announced a renewed, elite sponsorship

agreement and unveiled details of the first global ‘FIFA World Cup(TM) Trophy Tour by Coca-Cola,’ which will include a visit to Los Angeles, California on February 20, 2006…. The itinerary for the three-month, 31-city Trophy Tour … was disclosed by Joseph S. Blatter, president of FIFA…. Specific details about the Trophy Tour’s visit to Los Angeles will be announced in early January, including how consumers can get tickets to take in a piece of football history and share their passion for the world’s most popular sport.”).


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‘brand’ and its primacy in the world of soccer and entrenching its influence.”72 Indeed, the “FIFA

franchise is the best-selling sports video game franchise ever, and one of the bestselling video game

franchises in the world, including in California.”73

a. Plaintiffs’ claims arise out of or relate to FIFA’s California-related activities.

Plaintiffs’ claims arise directly out of and relate to FIFA’s deliberate contacts with California.

FIFA requires its members, such as USSF, to follow FIFA’s rules and the Laws of the Game, and

FIFA also requires its members to require their members to follow those rules and Laws.74 Plaintiffs

quote numerous FIFA documents in which FIFA repeatedly emphasizes its world-wide role and

influence, including on youth issues and medical issues.75 The Complaint further details FIFA’s

power to influence individuals and entities in the United States, such as California children and

parents, and including on concussion-related issues.76 It is precisely FIFA’s control over the rules

and Laws by which soccer games are played in California that provides the basis for Plaintiffs’

claims. For example, defendant American Youth Soccer Organization is headquartered in Torrance,

California,77 and is bound to follow FIFA’s rules. And FIFA has chosen its medical care, research,

and promotion center in Santa Monica as the first of its kind in North, Central, or South America.78

As explained above, FIFA urges California players at every level to go to its California center for

treatment and education. In addition, FIFA identifies on its website its “Medical Committee” which

“shall deal with all medical aspects of football.”79 There are sixteen members, and one of them, Bert

Mandelbaum, is located in Santa Monica, California.80

72 ¶ 56. 73 ¶ 57. 74 ¶¶ 26, 202, 205. 75 ¶¶ 16, 17, 67, 195, 198, 199, 201, 202, 207-213, 218. 76 ¶¶ 219-228. 77 ¶ 82. 78 FIFA appears to have subsequently established additional of its centers in North Carolina and

New York, further demonstrating its conscious, active influence on soccer-related medical issues in this country. See King Decl., Exs. E and FF.

79 King Decl., Ex. P. 80 Id., Ex. Q.


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Moreover, subsequent to Plaintiffs’ filing of the Complaint, FIFA continued to expand its

specific connections with California youth soccer. In a press release dated September 23, 2014, and

posted on its website, FIFA stated that its “FIFA Development Committee” approved various youth

soccer development projects including providing funds to USSF to build soccer facilities “[a]t the

U.S. Soccer National Training Center in Carson [California].”81

Thus, Plaintiffs meet the second standard for the exercise of specific personal jurisdiction.

b. The exercise of jurisdiction over FIFA comports with fair play and substantial justice.

The Ninth Circuit recently stated that “[o]nce the Plaintiffs have shown that the exercise of

personal jurisdiction satisfies the first two prongs of the personal jurisdiction test, the burden shifts to

the defendant to make a ‘compelling case’ that the exercise of jurisdiction would be unreasonable.”82

The Court applies a seven-factor test that a defendant must satisfy to make the required “compelling

case.”83 FIFA dedicates exactly one sentence in its brief to this – “given FIFA’s lack of contacts

with California, the Court’s jurisdiction would not be reasonable.”84 The Court can and should find

against FIFA for failing to meet its burden here.

And despite the impression that FIFA creates in its moving papers, FIFA is no stranger to the

courts in this country or to doing business in this country, including in regards to medical issues. For

example, FIFA has invoked the power of courts in California,85 Oregon,86 and Florida,87 and has

litigated extensively in federal court in New York in recent years, in which a federal court stated that

“FIFA’s latest actions demonstrate that it still does not govern itself by its slogan, ‘fair play.’”88

81 King Decl., Ex. O. 82 In re W. States Wholesale Natural Gas Antitrust Litig., 715 F.3d at 745 (9th Cir. 2013) (citing

Burger King Corp. v. Rudzewicz, 471 U.S. 462, 476-77 (1985)). 83 Id. 84 FIFA Br. at 11. 85 ¶ 62. 86 Id. 87 King Decl., Ex. V. 88 MasterCard Int’l Inc. v. FIFA, 2007 U.S. Dist. LEXIS 14208, at *1 (S.D.N.Y. Feb. 28, 2007).


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FIFA has twice co-sponsored and hosted a medical conference in Seattle, in 2012 and earlier this

year.89 And FIFA maintains a business office in Florida.90

5. The Court has general jurisdiction over FIFA.

The Complaint outlines a bevy of contacts by FIFA with California relevant to the assertion

of specific jurisdiction. All of those contacts also are relevant to a general jurisdiction analysis.

There also appear to be numerous other FIFA contacts with California that are relevant to a general

jurisdiction analysis (and perhaps to specific jurisdiction analysis as well). As FIFA noted in a

declaration in another case, “FIFA is party to a number of agreements with California entities.”91

FIFA’s declaration in this case entirely omits that important detail. Plaintiffs are presently in the

dark as to, for example: How many agreements? For what purpose? For what goods or services?

Where were they negotiated? Where are they to be performed? Only discovery can shed light on

this important jurisdictional information.

In Behagen v. Amateur Basketball Ass’n,92 the plaintiff basketball player sued the Fédération

Internationale de Basketball Amateur (FIBA), the Amateur Basketball Association of the United

States of America (ABA/USA), and ABA/USA’s executive director for refusing to reinstate him to

amateur status. As the Tenth Circuit explained, “FIBA is the international association governing

amateur basketball in its member countries, and ABA/USA is the American member of FIBA.”93

The district court dismissed FIBA for lack of personal jurisdiction, but the Tenth Circuit reversed

that ruling. The Court ruled that FIBA might be subject to general jurisdiction even though FIBA

had no direct contacts with Colorado, where the suit was filed, and even though the plaintiff claimed

that he was denied the right to play in Italy, not Colorado. The Court held that the plaintiff had made

a prima facie showing of general jurisdiction based on ABA/USA’s activities as a member of FIBA.

89 King Decl., Exs. W and X. 90 Id., Ex. Y. 91 Id., Ex. R. 92 744 F.2d 731 (10th Cir. 1984). 93 Id. at 732.


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After setting forth the plaintiff’s evidence of those activities of ABA/USA under FIBA’s auspices,

the Court stated:

The above evidence constitutes a prima facie showing that FIBA maintains continuous and substantial activity in Colorado through the actions taken on its behalf by its constituent, ABA/USA. Viewed most favorably to [Plaintiff], the record reflects that FIBA is its members, and that it governs internationally related amateur basketball through its member organization in each country.[94]

The Court then further explained why FIBA could be subject to jurisdiction in Colorado:

[Plaintiff] has presented facts tending to show that FIBA consists of its members, that FIBA operates through committees made up of members, that the members promulgate the governing rules as a congress, and that FIBA governs internationally related basketball in each country through its member organization there. We conclude that it would not offend due process to require FIBA to defend a lawsuit wherever members conduct FIBA activities if FIBA in fact consists of its members and acts only through them.[95]

Similarly here, Plaintiffs present a prima facie case that FIFA is subject to general jurisdiction in

California based on the activities of U.S. Soccer (and its member organizations) here. Indeed, unlike

in Behagen, where FIBA did not have any contacts of its own directly with Colorado, Plaintiffs here

present substantial evidence of FIFA’s own contacts with California.

B. IFAB is not a required party under Fed. R. Civ. P. 19.

FIFA erroneously argues that this action must be dismissed under Fed. R. Civ. P. 19 because

Plaintiffs have not added IFAB as a defendant. The first question is whether IFAB is a “Required

Party” within the meaning of 19(a)(1).96 If IFAB is not a “Required Party,” then FIFA’s motion

must be denied. But if IFAB is a “Required Party,” then 19(b) requires the Court to “determine

whether, in equity and good conscience, the action should proceed among the existing parties or

94 Id. at 734. 95 Id. at 735. 96 See Cachil Dehe Band of Wintun Indians v. California, 536 F.3d 1034, 1040 (9th Cir. 2008)

(“In addressing the State’s Rule 19 motion to dismiss Colusa’s claims for failure to join required parties, ‘the proper approach is first to decide whether the tribes are … “[required]” parties who should normally be joined under the standards of Rule 19(a).’”) (citation omitted).


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should be dismissed.”97 Under Rule 19, a “court’s inquiry should be both fact-specific and

practical,” and the “inquiry is designed to avoid the harsh results of rigid application.”98

FIFA’s motion should be denied, because IFAB is not a “Required Party.” The Ninth Circuit

has explained that in deciding whether an absent person or organization is a required party, a “cru-

cial premise of mandatory joinder, then, is that the absent [organizations] possess an interest in the

pending litigation that is ‘legally protected.’”99 It is only FIFA’s decision to abide by IFAB’s rules

that make those rules applicable. So IFAB has no legally protected interest in having those rules

apply to FIFA games. Indeed, as shown by the materials that FIFA provided to this Court, FIFA

gives IFAB any “power” that IFAB may have over the rules of the game in FIFA matches. FIFA

could decide that its members must follow IFAB’s rules in certain respects but not in others, or that

IFAB rules don’t apply at all. Or FIFA could decide that FIFA’s members must follow IFAB’s

rules and must follow additional rules established by FIFA.100

Materials submitted by FIFA with its motion demonstrate that it chooses to follow IFAB’s

rules, and that IFAB has no legally protected interest in having its rules apply. IFAB’s “Statutes”

explain that “[a]ccording to the FIFA Statutes, only The IFAB may lay down and alter the LoG

[Laws of the Game] and each member of FIFA shall play association football in compliance with the

LoG issued by The IFAB.”101 And FIFA’s “Statutes” state that “[e]ach Member of FIFA shall play

97 Id. (“If, as the district court concluded in this case, the tribes are required parties, ‘the court

must determine whether, in equity and good conscience, the action should proceed among the existing parties or should be dismissed.’ Fed. R. Civ. P. 19(b).”) (footnote omitted).

98 Evanston Ins. Co. v. Honso USA, Inc., 2011 U.S. Dist. LEXIS 39148, at *4 (N.D. Cal. Apr. 11, 2011) (citing Eldredge v. Carpenters 46 N. Cal. Cntys. Joint Apprenticeship & Training Comm., 662 F.2d 534, 537 (9th Cir. 1981)).

99 Cachil, 536 F.3d at 1041. 100 Moreover, a party’s voluntary adherence to foreign non-legal rules does not excuse compli-

ance with U.S. legal standards, such as tort law standards protecting California as well as all other United States citizens. The foreign standard-setter cannot be a “necessary party.” For example, in Dowdy v. Coleman Co., 2012 U.S. Dist. LEXIS 169788, at *12-13 (D. Utah Nov. 28, 2012), the plaintiff sought “to exclude any evidence of a purported certification of the propane heater in question by the Canadian Gas Association (‘CGA’)” and the court observed that the “documents on their face make it clear that they are not governmental standards.” The court stated, “Although there may be some limited relevance of a CGA certification to an industry-wide standard, [Defendant] has not demonstrated how a Canadian association’s standards are relevant when there are American standards that are directly applicable.” Id. at *15.

101 Valcke Decl., Ex. B, ECF No. 46-2, at 1.


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Association Football in compliance with the Laws of the Game issued by The IFAB. Only The

IFAB may lay down and alter the Laws of the Game.”102 Further, IFAB’s Statutes explain that

“[a]ccording to the FIFA Statutes, decisions passed by the AGM [Annual General Meeting] with

respect to changes to the LoG [Laws of the Game] are binding on FIFA confederations and member

associations and come into force on 1 July following the AGM, unless agreed otherwise.”103 None

of that evidence demonstrates that IFAB has a legally protected interest in having its rules apply, but

only that FIFA has chosen to apply those rules.

Moreover, evidentiary materials also demonstrate FIFA’s historical and present-day control

over IFAB to have it make changes to its rules if so ordered by this Court. In early 2014, IFAB

underwent a structural change. In January 2014, FIFA President Sepp Blatter was quoted as stating,

“It’s a historic day because this January 13, 2014, we have given a new status to the International

Football Association Board.”104 Blatter continued that “[i]t’s historic because until now IFAB was

an organisation that was floating in the air between the British Federations and FIFA, and now … it

has been decided that the International Football Association Board should become an autonomous

organization.”105

And FIFA has dominant power under IFAB’s Statutes. According to the IFAB Statutes, the

“four British associations shall each have one vote,” “FIFA shall have four votes (as the representa-

tive of the other 205 FIFA member associations), which may be exercised en bloc,” and “[d]ecisions

passed at the [Annual General Meeting] require a majority of three-quarters of the votes cast.”106

IFAB’s Statutes are signed by, among others, FIFA’s President Joseph S. Blatter, who is identified

102 Id., Ex. A, ECF No. 46-1, at 10 of 84. 103 Id., Ex. B, Article 13, ECF No. 46-2, at 6. 104 <http://www.thelocal.ch/20140113/swiss-based-football-rules-body-set-up> (last visited

January 6, 2015), King Decl., Ex. Z. 105 Id. The putative class period in this case goes back to 2002. Clearly, FIFA’s odd description

of FIFA for the years prior to 2014 will need to be a subject for discovery if FIFA renews its arguments about IFAB later in the case.

106 Valcke Decl., Ex. B, Article 7, ECF No. 46-2, at 2-3.


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as IFAB’s “Founding chairman.” 107 IFAB, through FIFA, will be well able to protect any interests

here if needed.

Other materials demonstrate FIFA’s control and influence over IFAB. For example, a FIFA

press release dated March 2, 2013, and titled “IFAB agree to broaden consultation process,” states

that “[f]ollowing the IFAB being asked to ‘self-reform’ as part of FIFA’s governance reform propo-

sals at the FIFA Congress 2011, a lengthy and detailed review has taken place, involving the four

British Associations, and FIFA.”108 FIFA stated that “[w]hilst the IFAB composition will remain

unchanged, it was agreed that greater levels of consultation with the game are required to inform

and improve decision-making, and provide greater transparency.”109

In a 2014 book, Alan Tomlinson wrote the following regarding the relationship between

FIFA and IFAB, again showing FIFA’s power over IFAB: “you can only wonder how IFAB-FIFA

cooperation has survived so long. You have to look at the rituals and protocol of the board. [FIFA

President Sepp] Blatter sits amid generally silent and acquiescent football administrators from the

British associations, and guests and partners are well catered for…. [IFAB’s] a pseudo-independent

body that operates essentially as Blatter and FIFA’s lapdog, but allows Blatter to control access to it

from within FIFA…. The FIFA president flatters the UK associations and their historical legacy,

bankrolls the IFAB and does, for the most part, exactly what he wants.”110 Indeed, various IFAB

documents indicate that its website address is theifab.com.111 But that address goes directly to

FIFA’s website.112 And website ownership records indicate that the domain name ifab.com is

owned by FIFA.113

107 Id. at 8. 108 http://www.fifa.com/aboutfifa/organisation/ifab/media/news/newsid=2023480/ (last visited

January 6, 2015), King Decl., Ex. AA. 109 Id. 110 Alan Tomlinson, FIFA (Fédération Internationale de Football Association): The Men, the

Myths, and the Money (2014), King Decl., Ex. BB. 111 King Decl., Ex. CC. 112 Id. at ¶ 32. 113 Id. at Ex. DD.


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Indeed, FIFA recognizes is power to “convince” IFAB to changes its rules. On November 2,

2012, FIFA issued a press release titled “Sports experts meet at FIFA to discuss concussion” in

which FIFA stated that the “three previous concussion conferences stimulated us to perform research

studies which allowed us to convince the International Football Association Board to adapt the Laws

of the Game to punish incidents which cause concussion such as an elbow to the head with a red

card.”114 If ordered by this Court to impose new rules, FIFA could “convince” IFAB or could take

all necessary steps to impose its own rules of the game, either in place of IFAB rules or in addition to

IFAB rules.

Finally, FIFA cites a Ninth Circuit case that undermines its argument. In Disabled Rights

Action Comm. v. Las Vegas Events, Inc., the Ninth Circuit reversed a district court’s finding that a

university system needed to be joined as a party.115 The Court stated that the district court “failed to

consider whether remedies not requiring [the nonparty’s] cooperation would provide meaningful

relief.”116 The Court explained that “[m]eaningful relief could thus be granted by enjoining [Defend-

ants] from making certain kinds of operational decisions regarding conditions over which they have

control” and that such “forms of relief, which are neither hollow nor meaningless, would be available

with or without University System’s participation.”117 Similarly here, there are ample remedies

available that do not require IFAB’s cooperation, starting with FIFA’s adopting and mandating for

its members an adequate concussion management protocol, and that FIFA’s members adopt such a

protocol.118

114 http://www.fifa.com/aboutfifa/footballdevelopment/medical/news/newsid=1816858/ (last

visited January 8, 2015), King Decl., Ex. EE. 115 375 F.3d 861 (9th Cir. 2004). 116 Id. at 879. 117 Id. at 880. 118 FIFA cites a handful of other inapplicable cases that bear no factual resemblance to the

relationship between FIFA and IFAB. See Paiute-Shoshone Indians of the Bishop Cmty. v. City of Los Angeles, 637 F.3d 993 (9th Cir. 2011) (plaintiff sought to void property transfer that, if successful, would have resulted in transfer to non-party United States, not to plaintiff); In re Toyota Motor Corp. Unintended Acceleration Mktg., Sales Practices, & Prods. Liab. Litig., 826 F. Supp. 2d 1180, 1197 (C.D. Cal. 2011) (owners of foreign cars seeking to sue U.S. manufacturers, in U.S. court, regarding defects in cars not made by the U.S. manufacturers, but made by foreign manufacturers, where foreign manufacturers not subject to jurisdiction); Friends of Amador County v. Salazar, 2011 U.S. Dist. LEXIS 114423, at *11 (E.D. Cal. Sept. 29, 2011) (noting that


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For these reasons, FIFA’s motion to dismiss under Rule 19 should be denied.119

C. Plaintiffs adequately allege standing.

The Complaint adequately alleges Plaintiffs’ standing to maintain claims against FIFA. Each

Plaintiff has played soccer on teams subject to FIFA’s (and the other Defendants’) rules and con-

trol.120 All Plaintiffs “have been damaged by the actions and inactions of each of the Defendants.”121

And all Plaintiffs “play soccer and are at risk due to Defendants’ breaches [of duty].”122 As a result

of the actions and inactions of all Defendants, including FIFA, all Plaintiffs “have an improper risk

of injury caused by the misconduct of the Defendants.”123 And each Plaintiff “is at increased risk of

latent brain injuries caused by repeated head impacts as well as the accumulation of concussive and

subconcussive hits, particularly as minors, in their soccer careers and therefore is in need of medical

monitoring.”124 The Complaint provides an example of specific, additional details of harm in regards

to Plaintiff L.L.M., who “suffered a concussion in 2013 during a soccer game while she played for

the club, Boulder Force.” It continues that she “missed school, experiencing headaches, dizziness,

and mental fuzziness” and “experienced daily headaches for six months.”125

To establish standing, “a plaintiff must show (1) it has suffered an ‘injury in fact’ that is (a)

concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury

is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely “[i]mpairment may be minimized if the absent party is adequately represented in the suit” but finding that the party and nonparty had a conflict because the party had not moved to dismiss); Dawaven-dewa v. Salt River Project Agric. Improvement & Power Dist., 276 F.3d 1150, 1156 (9th Cir. 2002) (“if the federal court granted Dawavendewa’s requested injunctive relief, SRP would be between the proverbial rock and a hard place -- comply with the injunction prohibiting the hiring preference policy or comply with the lease requiring it”).

119 If the Court is not inclined to outright deny FIFA’s motion in regards to its argument about IFAB, Plaintiffs respectfully request that they be allowed discovery so as to present to this Court a better-developed record about the relationship between the two entities.

120 See ¶¶ 38-39 (Mehr); ¶¶ 41-42 (Ivanauskiene, as parent of minor R.K.I.); ¶¶ 44-45 (Aranda, as parent of minors B.A., D.A., and I.A.); ¶¶ 47-48 (Akka-Seidel); ¶¶ 51-52 (O’Donoghue, as parent of minor L.L.M.).

121 ¶ 54. 122 ¶¶ 430, 441. 123 ¶¶ 431, 442. 124 ¶ 46. See also ¶¶ 40, 43, 49, 52. 125 ¶ 52.


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speculative, that the injury will be redressed by a favorable decision.”126 A plaintiff who seeks

prospective injunctive relief “must also demonstrate ‘that he is realistically threatened by a repetition

of [the violation].’”127 A plaintiff may demonstrate “that the harm is capable of realistic repetition

when the harm is part of a ‘pattern of officially sanctioned ... behavior, violative of the plaintiffs’ [ ]

rights.’”128

Plaintiffs amply plead both actual and prospective harm. FIFA primarily contends that Plain-

tiffs do not adequately allege the likelihood of future harm. FIFA posits that “it is possible that these

Plaintiffs never headed a ball and unclear whether any will continue their soccer careers such that

they are exposed to any risk whatsoever.”129

The notion that all of the Plaintiffs never headed a ball strains plausibility to put it mildly and

ignores the allegations.130 The notion that Plaintiff Seidel, a premier and college player, did not head

the ball is non surgical to anyone who has watched the game.

And FIFA seeks to hold Plaintiffs to a heightened pleading standard rejected by the Supreme

Court, as well as at odds with Rule 8(a). “At the pleading stage, general factual allegations of injury

resulting from the defendant’s conduct may suffice, for on a motion to dismiss we ‘presum[e] that

general allegations embrace those specific facts that are necessary to support the claim.’”131 It is an

entirely reasonable and plausible inference from the Complaint that numerous Plaintiffs will continue

their participation in soccer, because they are ages 7, 8, 10, 11, and 17, or that they will have to give

up organized soccer because of Defendants’ failure to adopt and enforce adequate concussion proto-

126 Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-81 (2000). 127 L.H. v. Schwarzenegger, 2007 U.S. Dist. LEXIS 18728, at *15 (E.D. Cal. Feb. 28, 2007)

(quoting Los Angeles v. Lyons, 461 U.S. 95, 109 (1983)). 128 Id. at *16 (quoting LaDuke v. Nelson, 762 F.2d 1318, 1323 (9th Cir. 1985)). 129 FIFA Br. at 17. 130 See, e.g., ¶ 52 describing heading after a head injury. 131 Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). See also L.H. v. Schwarzenegger,

2007 U.S. Dist. LEXIS 18728, at *13 (“plaintiff need not necessarily plead a particular fact if that fact is a reasonable inference from facts properly alleged.”). See also Fed. R. Civ. P. 8(a) (“A plead-ing that states a claim for relief must contain: (1) a short and plain statement of the grounds for the court’s jurisdiction … (2) a short and plain statement of the claim showing that the pleader is entitled to relief.”).


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cols.132 Courts have found similar inferences reasonable for pleading purposes.133 The Complaint

even alleges that Plaintiff R.K.I. “is playing and has played soccer in [a particular league]….”134

FIFA’s unreasonable interpretation of the Complaint is not persuasive. Finally, nearly all of FIFA’s

cited cases were at more advanced procedural stages than the pleading stage, further illustrating the

inappropriateness of its analysis.135 And the allegations in the two cases that address motions to

dismiss136 are far afield from Plaintiffs’ allegations.

D. Plaintiffs sufficiently allege claims against FIFA

Plaintiffs sufficiently allege all the requisite factual and legal elements of their claims. FIFA

cites many of the same cases cited by AYSO in its brief, so Plaintiffs will rely on their opposition to

AYSO’s brief and will not needlessly duplicate efforts here. But its bears noting that FIFA repeated-

ly strays from the dominant theme of the Complaint, which is that Defendants have failed to enact

and enforce best practices for concussion management. This is an issue about what happens after a

concussion or likely concussion occurs. FIFA misses the point when it cites inapposite cases solely

132 See ¶¶ 38, 41-43, 47-48, 52. 133 See, e.g., L.H. v. Schwarzenegger, 2007 U.S. Dist. LEXIS 18728, at *17-18 (“As in Valdivia,

qualitative indicators are one factor the court considers in its analysis of the likelihood of future injury. See Valdivia Order at 8. See also Armstrong, 275 F.3d at 861 (court may look at harm asserted by class as a whole). Plaintiffs allege that juvenile parolees in California have an extremely high recidivism rate. Approximately 70% of juvenile parolees are arrested within 36 months of release.”).

134 ¶ 41. 135 FW/PBS, Inc. v. City of Dallas, 493 U.S. 215 (1990) (summary judgment); Lujan v. Defenders

of Wildlife, 504 U.S. 555 (1992) (summary judgment); Los Angeles v. Lyons, 461 U.S. 95 (1983) (summary judgment); Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138 (2013) (summary judgment); Blair v. Shanahan, 38 F.3d 1514 (9th Cir. 1994) (after district court finding statute to be unconstitutional).

136 See Allen v. Wright, 468 U.S. 737, 739-40 (1984) (“Parents of black public school children allege in this nationwide class action that the Internal Revenue Service (IRS) has not adopted sufficient standards and procedures to fulfill its obligation to deny tax-exempt status to racially discriminatory private schools. They assert that the IRS thereby harms them directly and interferes with the ability of their children to receive an education in desegregated public schools.”); San Diego Cnty. Gun Rights Comm. v. Reno, 98 F.3d 1121, 1127 (9th Cir. 1996) (“The acts necessary to make plaintiffs’ injury – prosecution under the challenged statute – materialize are almost entirely within plaintiffs’ own control. Plaintiffs have failed to show the high degree of immediacy that is necessary for standing under these circumstances.”).


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focusing on an activity itself, not medical care issues that occur after the activity.137 This is a

fundamental distinction that undermines all Defendants’ motions to dismiss.

FIFA briefly references a smattering of other claimed bases for dismissal, but none have any

heft. FIFA invokes “California’s Good Samaritan law,”138 comparing itself to a “volunteer,” typi-

cally someone acting in an emergency situation.139 This is just a variant on Defendants’ “no duty”

contention which is belied by the complaint that alleges that FIFA, through its pacer to adopt and

enforce laws of the game, including laws on concussion management, assured a duty to all who play

by its laws.140 And FIFA’s cases are far off base, stemming for example from one-time emergency

situations that do not remotely resemble the facts alleged by Plaintiffs. For example, in Baker v. City

of Los Angeles,141 the court explained that “[w]hen he took the gun [from the plaintiff’s intoxicated

husband], Officer Winter voluntarily entered into a special relationship with respondent for the

limited purpose of protecting her from the potential harm that threatened her at the moment. He did

not become a guarantor of her future safety.” In contrast, Plaintiffs are not challenging a one-time,

emergency action by FIFA but instead its failure to adopt adequate safety rules to protect children,

which is directly related to its significant contacts with California. And in another case cited by

FIFA, Delgado v. Trax Bar & Grill,142 the court explained that when the bar owner had “notice of an

impending assault involving … plaintiff, its special-relationship-based duty included an obligation to

take reasonable, relatively simple, and minimally burdensome steps to attempt to avert that

danger.”143 Here, Plaintiffs are challenging ongoing threats to the health and safety of children.144

137 See FIFA Br. at 21 138 Id. at 22. 139 Id. at 23. 140 See ¶¶ 195-224. 141 188 Cal. App. 3d 902, 907-08 (1986). 142 36 Cal. 4th 224, 250 (2005). 143 FIFA’s other cases also are far afield of the circumstances here. In Artiglio v. Corning Inc.,

18 Cal. 4th 604, 608 (1998), the California Supreme Court explained that “when defendant The Dow Chemical Company (Dow Chemical) conducted and reported silicone toxicology research for Dow Corning Corporation (Dow Corning), any risk of physical harm to plaintiffs from negligent perform-ance of that undertaking was unforeseeable.” And the Court explained that “many years elapsed between Dow Chemical’s seminal toxicology research activities on behalf of Dow Corning and plaintiffs’ alleged injuries.” Id., at 617. The other cases cited by FIFA are similarly inapposite. See


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FIFA also misses the mark when it argues that the court should “abstain from accepting sub-

ject matter jurisdiction,” because FIFA is a “private voluntary association.”145 None of the cases

cited by FIFA dealt with health or safety issues related to children or personal injury-related matters.

FIFA supports its argument that the “abstention doctrine is particularly relevant in the sports context”

with only one case about a financial dispute in professional football.146 If accepted, FIFA’s proposi-

tion would entitle a voluntary association to an unprecedented immunity. That is a decision that only

a legislature should make.

FIFA’s arguments about Plaintiffs’ medical monitoring claim also deserve short shrift. FIFA

exclaims that because “[n]either the Illinois Supreme Court nor the Colorado Supreme Court has

addressed the issue,” Plaintiffs cannot possibly maintain their claims.147 But FIFA acknowledges

that several other courts recognize the medical-monitoring claim in those states.148 And there is no

rule that a cause of action can only be alleged when a state supreme court expressly says so. Further,

in addition to the Colorado federal court case cited by FIFA, at least one other federal court there

has, for summary judgment purposes, assumed that such a cause of action would exist.149 In addition

Williams v. State of California, 34 Cal. 3d 18, 21 (1983) (“The issue is whether the mere fact that a highway patrolman comes to the aid of an injured or stranded motorist creates an affirmative duty to secure information or preserve evidence for civil litigation between the motorist and third parties. We find that stopping to aid a motorist does not, in itself, create a special relationship which would give rise to such a duty.”); City of Santee v. County of San Diego, 211 Cal. App. 3d 1006, 1011 (1989) (rejecting plaintiff City’s argument “that, because one or two individual [defendant county] deputies had gratuitously reported light outages in the past, [the city] was entitled to (and did detrimentally) rely on all deputies to report future light outages, which gave rise to a special relationship imposing a duty on the sheriff’s department to inspect for and report light outages.”).

144 See, e.g., ¶¶ 1, 3, 16, 31, 36, 37, 56, 113-118; see also ¶¶ 40, 43, 46, 49, 53. 145 FIFA Br. at 18-20. 146 Id. at 19. 147 Id. at 24. 148 Fifa Br. at 24 n.11. 149 Satsky v. Paramount Commc’ns, Inc., No. CIV.A. 90-S-1561, 1996 WL 1062376, at *5 (D.

Colo. Mar. 13, 1996).


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to the Illinois cases cited by FIFA, other courts in Illinois have also assumed for analysis purposes

that the cause of action exists.150

And Plaintiffs agree that the California Supreme Court held that “a reasonably certain need

for medical monitoring is an item of damage for which compensation should be allowed. Recogni-

tion that a defendant’s conduct has created the need for future medical monitoring does not create a

new tort. It is simply a compensable item of damage when liability is established under traditional

tort theories of recovery.”151 This ultimately appears to be a distinction without a difference for

present purposes, at the pleading stage. FIFA worries that “Defendants could be exposed to creation

of a fund without a requirement that they were in breach of some standard of care.”152 This concern

is highly premature, but Plaintiffs agree that in California medical monitoring is an item of damage

and not a separate tort.

V. CONCLUSION

Plaintiffs respectfully request that the Court deny FIFA’s motion. If the Court is not inclined

to outright deny FIFA’s motion in regards to jurisdictional issues and/or issues regarding IFAB,

Plaintiffs respectfully request that the Court allow discovery on those issues so as to allow this Court

to make its determination based upon a well-developed record. If the Court is inclined to dismiss the

Complaint on any other basis, Plaintiffs respectfully request leave to file an amended complaint to

address any deficiencies identified by the Court.

150 Frye v. L’Oreal USA, Inc., 583 F. Supp. 2d 954, 958 (N.D. Ill. 2008). See also Duffin v. Exel-

on Corp., 2006 U.S. Dist. LEXIS 44908, at *8 (N.D. Ill. June 16, 2006) (referencing Carey’s holding without disagreeing).

151 Potter v. Firestone Tire & Rubber Co., 6 Cal. 4th 965, 1006-07 (1993). 152 FIFA Br. at 25.


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DATED: March 20, 2015 HAGENS BERMAN SOBOL SHAPIRO LLP

By: /s/ Steve W. Berman Steve W. Berman (Pro Hac Vice) Craig R. Spiegel (SBN 122000) HAGENS BERMAN SOBOL SHAPIRO LLP 1918 Eighth Avenue, Suite 3300 Seattle, WA 98101 Telephone: (206) 623-7292 Facsimile: (206) 623-0594 [email protected] [email protected] Jon T. King HAGENS BERMAN SOBOL SHAPIRO LLP 715 Hearst Avenue, Suite 202 Berkeley, CA 94710 Telephone: (510) 725-3000 Facsimile: (510) 725-3001 [email protected] Jack W. Lee, Cal. Bar No. 71626 Derek G. Howard, Cal. Bar No. 118082 Sean Tamura-Sato, Cal. Bar No. 254092 MINAMI TAMAKI, LLP 360 Post St., 8th Floor San Francisco, CA 94108 Telephone: (415) 788-9000 [email protected] [email protected] [email protected] Attorneys for Plaintiffs


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CERTIFICATE OF SERVICE

I hereby certify that on March 20, 2015, I electronically filed the foregoing document using

the CM/ECF system which will send notification of such filing to the e-mail addresses registered in

the CM/ECF system, as denoted on the Electronic Mail Notice List.

/s/ Steve W. Berman STEVE W. BERMAN


steve w. berman (pro hac vice - hbsslaw.com · steve w. berman (pro hac vice) craig r. spiegel (sbn...

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