(UPDATE: The two sides reached a settlement Friday, interrupting the proceeding for several hours to come to terms after the judge refused to insist Bouchard’s financial information remain undiscussed outside the courtroom).
The first part of the Genie Bouchard vs. USTA court case – the least suspenseful part, really – is over.
On Thursday at a federal courthouse in Brooklyn, NY, a jury deliberated less than an hour before it found the U.S. Tennis Association negligent in connection to the accident the 23-year-old Canadian suffered in the women’s locker room at the US Open nearly 2 1/2 years ago.
The seven men and women determined the USTA bore 75 per cent of the fault for the incident, with Bouchard assuming the other 25 per cent.
That part was not really a surprise.
Bouchard slipped on a training-room floor at about 11 p.m. on the night of Sept. 4, 2017, trying to pass through the dark room on her way to the ice bath room after a long and victorious day on the courts.
Believing that no other players would need to be in the area that night, the cleaning crew applied a caustic cleaning agent called Oasis 299, which made the floor slick. Add to that the relative darkness of the room and Bouchard’s unfamiliarity with the facilities (she tried to find a light switch, but fell backwards and suffered a concussion before she could do so). It was always going to be more the USTA’s fault than her own.
Bouchard on the witness stand
Bouchard testified on Wednesday. The only witness Thursday for the defense was former WTA Tour trainer Kristie Stahr, whom the USTA positioned as the only employee Bouchard informed that she would be returning to the locker room after her press conference.
(Bouchard’s lawyer, Benedict Morelli, posited that it was evident Bouchard would be returning, as she had left her belongings strewn around the area near her locker).
So Bouchard and her attorneys won the short program.
The more significant and complicated long program begins Friday.
The real question in this whole case, which has taken forever with the parties unable to come to a financial settlement before the trial began despite numerous attempts, will be how much the jury might award Bouchard in damages.
Whatever that final number is, it will be reduced by 25 per cent because of the share of the fault attributed to her. Which is something the jury members will factor in, assuming they find her case compelling and her personality sympathetic.
Bouchard’s lawyers dropped the “punitive damages” component of the lawsuit last summer. So the claim for damages, as indicated in the documents put forth earlier this month by the plaintiff, will be as follows:
1. Past pain and suffering
a) Physical
b) Psychological/emotional
2. Future pain and suffering
a) Physical
b) Psychological/emotional
3. Past lost income/earnings capacity
a) This element of damages includes lost prize money, lost appearance fees, lost potential endorsement deals, lost seeding, lost ranking, lost bonus points, and lost end-of-year ranking bonuses.
4. Future lost income/earnings capacity
a) This element of damages includes lost prize money, lost potential endorsement deals, lost seeding, lost ranking, lost bonus points, and lost end-of-year bonuses.
5. Past medical expenses
6. Future medical expenses
Claims “speculative”, defense says
Per the joint pre-trial order filed last December, the USTA will claim that Bouchard “failed to mitigate her damages”.
Some excerpts:
“To the extent that Plaintiff alleges that she would have won prize money allotted to the winner of the women’s singles bracket and/or other competitions at the stated tournaments in Japan and China and/or other tennis tournaments in the future, or to the extent that Plaintiff alleges that she has lost, or will lose, commercial endorsements, but for the incident of September 4, 2015 complained of, Defendants state that such claims would be entirely speculative and Defendants will hold the Plaintiff to strict proof thereof. Moreover, Plaintiff was able to secured additional commercial endorsements since the incident of September 4, 2015. There is no competent evidence that Plaintiff lost income and endorsements as a result of the hiatus in her competing due to the alleged incident at issue herein.
“Plaintiff refused offers of medical attention and assistance made to her after she complained to attendants in the women’s locker room of having fallen. Instead, she left the premises.
“Lastly, to the extent that Plaintiff claims on-going and permanent physical injuries and sequelae to date, such a claim is inconsistent with Plaintiff’s own admissions in various forms of social media and public commentary. An injured party is under a duty to make a reasonable effort to minimize the consequential damages, and if such reasonable effort is not made, he or she will be barred from recovering those damages which result from such failure.”
The USTA will point out that since the accident, Bouchard secured a new sponsorship deal with Colgate.
Sponsorship plate already full
In her particular situation, it will be challenging to prove that the incident cost her additional sponsorship avenues, since we’re told she already had filled the six “sponsorship categories” player agents usually refer to when looking to market a player.
There weren’t a lot of openings to begin with. And since the incident, Bouchard renewed with her biggest sponsor, Nike, on a five-year deal and added Colgate toothpaste as a sponsor
How much will she get?
Morelli told the New York Times that he “did not yet have an exact figure in mind for how much he will request in damages for Bouchard.”
But, of course, the 2 1/2 years of preliminaries for this case have all been about that dollar amount.
We’re told that the original figure from Morelli was around $50 million US. That was before the part of the claim involving punitive damages was removed last fall, so the number will come down significantly.
Still, that high number as a starting point likely didn’t help the two sides come to settlement terms.
But it doesn’t much matter what Morelli will ask. What matters is what the jury decides Bouchard deserves.
Even before, Bouchard struggling
The quest to prove that the Canadian’s tennis career and endorsement potential were irreparably harmed to the tune of multiple millions of dollars is made more difficult by the fact that it wasn’t as though she were a top-10 player, posting great results, only go to into a spiral after the incident.
That would be open and shut. But it wasn’t the case.
A year before the Sept. 4, 2015 fall, Bouchard reached the Wimbledon singles final and was on her way to (briefly) being the No. 5-ranked player in the world.
But she lost early, in dramatic fashion, at home in Canada a few weeks later. She then lost her first match the following week in Cincinnati. And after a fourth-round effort at the US Open in 2014 where she was overcome by heat and nerves in losing to Ekaterina Makarova, the descent began.
Bouchard reached the final at her next event in Wuhan, China. But then, she was notorious no-show at a new event in Hong Kong which had featured her prominently in its pre-tournament advertising. Then, she lost her first-round match in Beijing. And, after sealing a spot at the WTA year-end championships in Singapore for the first time, she did travel to her next tournament in Luxembourg, but withdrew after her first match.
The Tour finals were a disaster. Bouchard was routed in her three round-robin matches to end the season.
Her relationship with longtime coach Nick Saviano unraveled. And she began a carousel of coaching changes, support personnel changes, agent changes and a long stretch of losing on court.
A year later, a promising sign of recovery
The 2015 season began with promise (although without a new coach in place) as she reached the quarterfinals in Australia. But then, Bouchard struggled to win a match. Her won-loss record between Melbourne and that year’s US Open was five wins, 16 losses.
Her ranking having dropped to No. 25, Bouchard was having a renaissance in New York – notably in her three-set victory over Dominika Cibulkova on the day of the incident.
But while she was in good form, her next singles match at the US Open was to be against the Italian Roberta Vinci.
Vinci, a veteran with a less-than-straightforward game to face, had just beaten Bouchard 6-1 6-0 the previous week at a tuneup event in New Haven, Connecticut, and ended up reaching the US Open singles final after defeating Serena Williams.
Bouchard played just one more match the rest of the year, and was forced to retire when she began feeling the after-effects of the concussion on court. She returned a couple of months later to start the 2016 season and reached the final of two smaller tournaments in the first two months of the season. But she never won more than two matches in a row the rest of the year.
The struggles have continued to this day.
None of that, though, seemed to have affected Bouchard’s public marketability, although given her struggle to win tennis matches, she’s not nearly as ubiquitous on the tennis scene as she was. But the Canadian has continued to receive wild cards into tournaments despite her falling ranking, which currently stands at No. 116.
No Challenger for Bouchard next week
As it happens, Bouchard had entered a lower-level event next week at Indian Wells, California, a $125,000 Challenger for which she had not even earned entry into the main draw based on her current ranking. That ranking also would not allow her to play a WTA Tour event she has enjoyed in the past, in Acapulco.
She would, in theory, be playing the qualifying rounds at that event over the weekend. But now with the trial ongoing, that won’t be possible.
Bouchard’s 24th birthday is on Sunday.
That will mean that she’s headed into the next big WTA Tour event at Indian Wells, a Premier 5-level tournament, with no match play at all since a small event the week after the Australian Open in early February. And again, because of her current ranking, Bouchard would have to play the qualifying there for the first time since her first appearance in the desert, five years ago.
In an ironic sort of way, the actual trial for the damage suffered back in 2015 is affecting her current prospects more than the injury itself.
Lost future income to be determined
The challenge for the Canadian’s lawyers will be to prove that the locker-room incident, the concussion she suffered, were game-changers in a career that had undoubtedly been headed into the stratosphere of the multiple millions of dollars she’ll claim in damages and potential lost wages.
Among other issues, the defense no doubt will point to the new Sports Illustrated Swimsuit Issue was just released last week, and the fact that Bouchard appeared in it for the second consecutive year – both years after the incident. According to court documents, the defense also plans to use a “Bouchard Timeline of Activities and Competition from Social Media, Public Media and Press”, and her many and myriad posting on social media.
That is, unless a motion filed a few weeks ago by the plaintiffs to bar any mention of her social media in court is granted by the judge.
Among the witnesses listed on the defense’s side is former top-10 player Alicia Molik, currently the captain of the Australian Fed Cup team.
Alicia Molik for the defense
It’s unknown if Molik will actually be testifying in person. She already has sworn a deposition.
From the court documents:
“Ms. Molik is expected to testify about Plaintiff’s play during the year before the accident, including recurring injuries, change of coach, pressure of success and decline in confidence, Plaintiff’s probable performance and results at the 2015 US Open had she not withdrawn, and Plaintiffs probable results at the post-2015 US Open Asia tournaments, as well as other areas and topics identified and discussed in her report.”
In the end, the jurors will have to choose one side or the other.
Will they opt for the the huge, rather unsympathetic, money-making entity that is the USTA?
Or will they choose Bouchard, who clearly was done wrong in that locker room, but whose public prominence in many quarters (even if all the jurors said they’d never heard of her) seems to have gone on, undeterred, in the intervening years.
They will have to establish that Bouchard’s career was without question headed back on an upward trajectory based on not much more than a couple of singles victories that week in New York. And that she could be even more well-known (and well-compensated) than she already appears to be, were it not for that.
Actually, they don’t have to establish it. They just have to get the jurors to buy it.
They well might. While it’s impossible to prove the incident changed the course of Bouchard’s career, it’s equally impossible to say it didn’t.
Even if she does get a multimillion-dollar settlement, even Bouchard will never really know for sure.
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