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Lawyer: USAG Attempted to Silence Maroney on Nassar Abuse
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USA Gymnastics discreetly settled a lawsuit with world and Olympic champion McKayla Maroney but required she not come forward to reveal she was sexually abused by former team doctor Larry Nassar, according to Maroney's lawyer, who filed a new suit on her behalf Wednesday.

One year ago, USA Gymnastics discreetly settled a lawsuit with world and Olympic champion McKayla Maroney under the stipulation that she not publicly reveal she was sexually abused by former team doctor Larry Nassar, according to Maroney's lawyer, who filed a new suit on her behalf Wednesday against USAG, Nassar, Michigan State University and the United States Olympic Committee.

While represented by famed attorney Gloria Allred, Maroney reportedly received a settlement of $1.25 million in December 2016 from USA Gymnastics, which carried with it a penalty of $100,000 if either party discussed the abuse Maroney endured or the settlement she reached with USA Gymnastics. The confidentiality clause also applied to anyone closely associated with Maroney, such as her family. Maroney is now represented by attorney John Manly, who cited the California Code of Civil Procedure that does not permit confidentiality clauses in settlements in cases involving acts that may be prosecuted as a felony sex offense (see below); Wednesday's lawsuit seeks a declaratory judgment to nullify the provisions of the earlier settlement and liquidate the damages (releasing Maroney or her family from paying any penalty).

"Confidentiality agreements in child sex abuse cases are unlawful in the state of California and have been for years," Manly said in an interview Wednesday. "We're basically saying USAG and its lawyers violated the law by asking McKayla to agree to it and that she should be free to talk about her abuse to whomever she wants, whenever she wants."

The lawsuit also moved to sever the confidentiality clause that prohibits Maroney's parents from discussing Nassar's abuse of their daughter, under the same penalty of $100,000, even though they were not parties to the original lawsuit and did not sign any agreement. Manly called that portion of the settlement "illegal, unconscionable, against public policy, and unenforceable, as it directly violates the spirit and the letter of Code of Civil Procedure §1002 (both current and prior versions)."

In June, Maroney's parents, represented by both Allred and Manly and using pseudonyms, filed a separate lawsuit against USA Gymnastics and the United States Olympic Committee. The suit alleges intentional infliction of emotional distress, unfair business practices, negligent infliction of emotional distress, negligence, breach of fiduciary duty and constructive fraud. A petition of coordination was filed in September and approved on December 12, combining active lawsuits against USA Gymnastics in California (three in Los Angeles County, two in Orange County and one in Sacramento County) to be heard together in the same court.

According to court documents, Maroney was abused up to 100 times by Nassar during her years on the U.S. national team. Last month, Nassar pleaded guilty in two Michigan courts to sexually abusing young girls under the guise of treatment, which he initially claimed to be a valid osteopathic procedure for back, hip and pelvic injuries, but which he now admits was for his own sexual gratification. He faces sentencing in January on those charges. In July, he pleaded guilty to federal charges of possession of child pornography and on December 7 was sentenced to 60 years in prison, a term he will begin serving only after his state sentence is complete.

The lawsuit alleges that Nassar's sexual abuse of Maroney contributed to the gymnast's retirement in 2015 at age 19, and caused her to fear and mistrust doctors, which led to her not receiving proper care for injuries, causing further suffering. It also destroyed her love of the sport she took up at age 2, which she now associates with trauma and pain, her lawyer asserted, severely damaging her earning potential. The lawsuit also states that Nassar "would continuously, obsessively and compulsively photograph" Maroney, that she believes explicit photographs were taken of Nassar sexually abusing her, and that she has been informed that Nassar shared photos of her with other pedophiles.

The abuse McKayla Maroney endured from a doctor who was supposed to help her has continued to take its toll on Maroney in every possible way, harming her physical, emotional, social and financial well-being, according to the lawsuit.

"Maroney has suffered and continues to suffer great pain of mind and body, shock, emotional distress, physical manifestations of emotional distress including embarrassment, loss of self-esteem, disgrace, humiliations, and loss of enjoyment of life; has suffered and continues to suffer and was prevented and will continue to be prevented from performing daily activities and obtaining the full enjoyment of life; will sustain loss of earnings and earning capacity, and/or has incurred and will continue to incur expenses for medical and psychological treatment, therapy, and counseling," according to the lawsuit filed in Los Angeles County Superior Court.

Maroney, who turned 22 on December 9, was a member of the gold medal-winning U.S. teams at the 2011 Worlds in Tokyo and the 2012 Olympics in London, and won world titles on vault in 2011 and 2013. She is considered one of the greatest vaulters of all time, and her "Not Impressed" facial expression following her silver on vault at the Olympics spawned an unforgettable meme that she even recreated with President Barack Obama during a visit to the White House. Offers and opportunities poured in following the 2012 Olympics — she signed a sponsorship deal with adidas, acted in three television series and in the music video for the song "Up In The Air" by the band Thirty Seconds To Mars, fronted by Jared Leto. In the fall of 2013, after recovering from a broken fracture, the California native became the only American to win back-to-back world titles on vault.

Maroney, pictured in 2009, has stated that Nassar first assaulted her during a national team camp at the Karolyi ranch when she was 13.

Maroney underwent knee surgery in March 2014, but planned to return to competition in 2015. In February 2016, she confirmed she was done with competition. But changes to her appearances drew attention on social media and on tabloid websites as she was accused of undergoing plastic surgery and cosmetic procedures. Maroney, who announced she was planning on starting a music career, said she was merely finding it hard to adjust and was experiencing an "identity crisis" since her retirement. In April 2016, when USA Gymnastics released the self-produced, self-promotional documentary series Made in America — which it billed as "an unprecedented look at the success of the women of Team USA" — Maroney was conspicuously absent among the gymnasts interviewed. Additional posts on social media resulted in more tabloid fodder, and caused concern among her fans and worry within the gymnastics community.

When Maroney came forward in October 2017, she was the highest-profile gymnast to confirm Nassar's abuse. Since Maroney went public, two of her teammates on the 2012 Olympic team, Aly Raisman and Gabby Douglas, have also acknowledged they were abused by Nassar.

Manly is representing multiple women in lawsuits against Nassar, USA Gymnastics and Nassar's employer, Michigan State University, where he worked for 20 years treating university athletes and as a faculty member at the university's medical school. It has been alleged that MSU ignored repeated complaints against Nassar by his female patients as far back as 1997. The lawsuit alleges that Nassar, who was stripped of his medical license in April 2017, was a "known sexual predator" to MSU officials, who nevertheless allowed and encouraged him to travel nationally and internationally with minors, allegedly because of the prestige he brought to the faculty and athletic department. According to Maroney's lawsuit, in April she became aware that MSU's terms of employment included his work as a "volunteer" with USAG and the USOC. On June 1, Maroney filed a notice of intent with the Michigan Court of Claims, under a Jane Doe pseudonym, of this forthcoming lawsuit against MSU.

Maroney, who is suing the United States Olympic Committee for negligence, asserts that the USOC also had knowledge of the allegations against Nassar but took no action in violation of its own guidelines and federal law. Her suit further alleges that the USOC was very aware of the dangers of sexual abuse posed to young athletes training in Olympic sports, yet never attempted to verify that USAG was upholding its own bylaws — created to conform to and comply with USOC regulations — in order to "confirm that these policies were effective and being implemented properly, adequately and in conformance with the standard of care." Specifically, the lawsuit alleges that both the USOC and USAG failed to provide proper medical care and supervision during national and international competitions — including the Olympic Games — and during frequent training camps at the U.S. women's national training center near Houston, also known as the Karolyi ranch, which is sanctioned as an official U.S. Olympic Training Center. According to the lawsuit, USOC and USAG also allowed Nassar to practice clinical medicine at the ranch despite not having a medical license in Texas, a violation of the state's Health and Safety Code. (The Texas Medical Board, which provides a public database of all active, inactive, suspended and revoked licenses, has no record of Nassar.) In Texas, inflicting harm on someone while practicing medicine without the appropriate license is a felony in itself, for each instance.

"Despite having the power, authority, and mandate to do so, the defendants USOC and MSU never intervened to discipline Nassar, ensure that USAG and Nassar were following USOC rules and mandates, never called law enforcement for allegations made against Nassar, and through the express disregard for the safety of minors, allowed Nassar to continue in his position of trust, power and access to McKayla Maroney, as well as numerous other elite minor athletes," Manley wrote. "Nassar was only finally removed from his position years later, after the cessation of McKayla Maroney's abuse."

According to Manly, Maroney willingly signed the confidentiality agreement with USAG last year, but she was emotionally traumatized at the time, as revelations emerged that the once highly respected doctor had sexually abused more than 100 gymnasts while working with USAG, MSU and private clubs in his home state of Michigan.

"In light of her worsening condition, and desperate need for psychological intervention, the plaintiff McKayla Maroney entered into this settlement agreement to obtain funds necessary to pay for lifesaving psychological treatment and care," Manly wrote. "It was under this coercion and pressure that McKayla Maroney was forced in to agreeing with this confidentiality provision and complying with this illegal provision."

In an interview on Wednesday, Manly said Maroney was crippled by depression when she agreed to the settlement.

"I want people to understand that this kid had no choice," he said. "She couldn't function. She couldn't work. They (USAG) were willing to sacrifice the health and well-being of one of the most famous gymnasts in the world because they didn't want the world to know they were protecting a pedophile doctor."

Nassar quietly left USA Gymnastics in 2015 but continued to work with gymnasts and at MSU until September 2016, when the first accusations against him were made public. Rachael Denhollander, who stated that Nassar abused her five times in 2000 while she was a 15-year-old club gymnast in Michigan, was the first person to publicly accuse Nassar. 2000 Olympian Jamie Dantzscher initially filed a Jane Doe lawsuit in California but has since spoken openly. More than 130 people have now filed lawsuits related to assaults that Nassar claimed were legitimate medical treatment.

This past October — more than a year after revelations about Nassar shocked the gymnastics community and as thousands of women shared survival stories under the #MeToo hashtag — Maroney decided to end her silence.

"Silence has given the wrong people power for too long, and it's time to take our power back," she wrote October 18 in a message posted on Twitter that has since been deleted.

The abuse Nassar inflicted on Maroney (pictured as a young gymnast with future Olympic teammate Kyla Ross) destroyed her love of the sport she took up at age 2, according to the lawsuit filed Wednesday.

In her statement on Twitter, Maroney revealed details of the horror that she had endured en route to Olympic glory. Nassar targeted her at every opportunity, said Maroney, who stated that he drugged her with a sleeping pill en route to Japan for the 2011 World Championships. She woke up alone in his Tokyo hotel room with Nassar on top of her, she wrote.

"Dr. Nassar told me that I was receiving 'medically necessary treatment' that he had been performing on patients for over 30 years," Maroney wrote. "It started when I was 13 years old, at one of my first National Team training camps, in Texas, and it didn't end until I left the sport. It seemed whenever and wherever this man could find the chance, I was 'treated.'"

In response to Maroney's Tweet, USA Gymnastics issued a statement praising Maroney for her courage in coming forward, an act which Manly called "hypocritical" and "repugnant" considering the terms of her settlement required her to never speak of her ordeal.

Manly accused USA Gymnastics of attempting a cover-up through its confidentiality agreement to silence Maroney. By the time Maroney signed the settlement, Nassar was already in jail and had been fired from MSU, and dozens of other women had come forward to file complaints against him. Manly asserts that the non-disclosure agreement in the settlement was designed to protect USA Gymnastics' public image by preventing an Olympic champion from going public.

"They were willing to engage in a systematic cover-up of the entire matter," Manly said Wednesday. "People need to understand the courage it took to put out that Twitter post. She not only was exposing her humiliating story, but she was also putting herself at legal risk."

Manly, who also represents several other women suing Nassar and USAG, specializes in litigating sexual abuse civil cases. He has repeatedly sued Roman Catholic archdioceses, schools and individuals on behalf of victims of sexual abuse by teachers and clergy. According to the profile on his firm's website, he has recovered more than $1 billion in settlements for his clients.

The new lawsuit filed by Manly on Wednesday accuses USA Gymnastics of violating the law by including the confidentiality clause as part of the settlement. The statute was amended January 1, 2017 to include potential disciplinary action for any attorney who demands a confidentiality clause in a case related to sexual abuse of a minor, meaning that Allred and USA Gymnastics' attorneys would not face any sanctions for involvement in the settlement in December 2016.

It is unknown whether USA Gymnastics also negotiated other settlements requiring confidentiality agreements. In a deposition this past spring, USA Gymnastics Chairman Paul Parilla, an attorney himself, refused to answer questions asking if USAG had settled any lawsuits in California over Nassar. According to the transcript of the deposition obtained by The Orange County Register, USA Gymnastics' attorney repeatedly objected to questions about the subject from lawyers representing former gymnasts. Parilla was asked specifically if he understood that any confidential settlements were illegal. According to the transcript, an attorney for a former gymnast asked, "Mr. Parilla, do you understand it is unlawful in California to settle a child sex abuse case confidentially?" at which point USA Gymnastics' attorney objected again to prevent him from answering.

Parilla, who turned 69 in October, was an active member of the California Bar Association until March of this year, when his license expired. At the same deposition, he was accused of laughing and not taking the subject matter seriously, and called Manly a four-syllable expletive before storming out of the room, The Orange County Register reported.

Earlier this month, Maroney and Raisman submitted victim impact statements to the federal judge overseeing Nassar's sentencing in the case involving child pornography. The judge ruled that victims' statements could not be read aloud in court as the charges of sexual assault were not related to the federal case; however, the judge read all the statements privately, and the statements from Maroney and Raisman were shared online. (In the criminal case against Nassar for sexual assault in Michigan, the judge has reserved four days next month to allow his victims to address the court before he is sentenced.)

Erin Maroney, McKayla's mother, also provided a victim impact statement, in which she described her daughter as so emotionally devastated that the Maroney family feared for McKayla's life.

"This experience has shattered McKayla," Erin Maroney wrote in her statement to the judge, which was also made public. "She has transformed from a bubbly, positive, loving, world class athlete into a young adult who was deeply depressed, at times suicidal. At times, I was unsure whether I would open her bedroom door and find her dead."

USA Gymnastics' Board of Directors has so far ignored calls for change of leadership at the organization. The board of directors stood firmly behind Steve Penny, who became Chief Executive Officer in 2005, despite pressure for him to resign. Penny finally resigned in March, only after the board of directors of the United States Olympic Committee voted to formally recommend his departure to USAG. He reportedly received approximately $1.5 million dollars in severance pay. Parilla served as acting CEO for more than six months until the appointment of Kerry Perry, who began her new post on December 1.

At least four major sponsors have severed ties with the organization over the past year. Procter & Gamble, Kellogg's and Hershey's did not renew their sponsorships of USA Gymnastics. Apparel maker Under Armour, which signed an eight-year contract with USAG in 2013, opted to back out of the contract that was supposed to go through the 2020 Olympic Games in Tokyo.

USA Gymnastics released a statement late Wednesday in which it confirmed the terms of the settlement included a "mutual non-disclosure clause and a mutual non-disparagement clause" with Maroney, and denied that such a confidential agreement was illegal in California in 2016, stating, "The settlement in 2016 was in accordance with state law, despite what has been alleged." However, this is contrary to the California Code of Civil Procedure for 2016 (see below). Allred declined comment on the case, but according to Manly — who called USAG's statement "misleading" — it was USA Gymnastics' attorney who wrote the terms of the settlement, not Allred.

In the same statement, USAG also stated it was "disappointed" in Maroney filing the lawsuit.

"Although USA Gymnastics is disappointed by today's filing, we applaud McKayla and others who speak up against abusive behavior — including the despicable acts of Larry Nassar," the statement reads. "We want to work together with McKayla and others to help encourage and empower athletes to speak up against abuse. USA Gymnastics new CEO Kerry Perry is eager to speak personally with McKayla to hear her ideas on how to move the sport forward and to discuss the many safe sport enhancements that have already been implemented at USA Gymnastics."

What is California Code of Civil Procedure § 1002?

The California Code of Civil Procedure is the state's legal code outlining the laws that courts and attorneys must follow when adjudicating civil lawsuits, as opposed to the California Penal Code, which relates to criminal law.

Chapter 3.5 covers Confidential Settlement Agreements, also known as non-disclosure agreements, and Section 1002 states that confidential settlement agreements are not allowed in civil lawsuits related to felony sex offenses:

Notwithstanding any other provision of law, a confidential settlement agreement is prohibited in any civil action the factual foundation for which establishes a cause of action for civil damages for an act that may be prosecuted as a felony sex offense. — 2016 California Code of Civil Procedure § 1002

Nassar's assaults on Maroney as described are felony sex acts in all 50 states; under California law, it meets the legal definition of multiple felonies, including aggravated sexual assault of a child (California Penal Code §269). Maroney's description of assaults at the Karolyi ranch meets the definition of aggravated sexual assault in Texas, where it is a first-degree felony (Texas Penal Code § 22.011). Section 1002 does not limit the felony sex offense to ones that occurred in the state of California.

Additionally, Nassar disguising the sexual assaults as legitimate medical procedures is specifically addressed in the California Penal Code as felony rape under a category that classifies a victim as "unconscious of the nature of the act" if the victim is incapable of resisting, including cases in which the victim is unconscious, mentally or physically disabled, or grossly deceived by a professional:

"Unconscious of the nature of the act" means incapable of resisting because the victim... was not aware, knowing, perceiving, or cognizant of the essential characteristics of the act due to the perpetrator's fraudulent representation that the sexual penetration served a professional purpose when it served no professional purpose. — California Penal Code § 261

Section 1002 only refers to confidentiality regarding the felony sex offense; confidentiality agreements that prohibit discussion of financial damages received in the settlement are legal. The Wall Street Journal reported that the settlement was for $1.25 million, but it did not name its source for that information.

According to Maroney's attorney, the confidential settlement agreement with USA Gymnastics prohibited Maroney from discussing acts of felony sex abuse committed by Larry Nassar, an agreement which would be in violation of the 2016 California Code of Civil Procedure.

However, if the terms of the confidential settlement only prohibited Maroney from discussing allegations of wrongdoing against USA Gymnastics (such as non-criminal negligence), but there were no restrictions preventing her from discussing the abuse she suffered from Nassar, then the agreement would appear to be valid.

Note: This article was updated to include the statement from USA Gymnastics, Manly's response to the statement and further explanation of California Code of Civil Procedure § 1002.

External Link: McKayla Maroney vs. Michigan State University, United States Olympic Committee, USA Gymnastics, Larry Nassar (PDF, 2.2 MB)

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