Employment & Labor Insider

In December 2022, two law firms issued a 125-page report detailing a history of misconduct by club coaches and executives in the National Women’s Soccer League. 

As a result of the allegations against him, James Clarkson, then head coach of the Houston Dash, was suspended for the 2022 season. His contract was not renewed for the following season. 

In December 2023, he filed a lawsuit against the NWSL, the National Women’s Soccer League Players Association, the law firms, and individual attorneys at those law firms, alleging defamation and other causes of action. In May 2024, a Texas trial court denied without explanation the defendants’ motion to dismiss. 

But last month, a Texas Court of Appeals reversed, providing relief to lawyer-investigators everywhere.

The investigatory background

While investigative reports are not new to the sports industry, the manner in which the NWSL’s report was produced was unique.

The investigation was spurred by a September 30, 2021, article in the Athletic detailing allegations of sexual misconduct by Paul Riley, head coach of the North Carolina Courage. Three days later, the NWSL announced that it had retained Covington & Burling, LLP, to conduct an investigation and recommend reforms.

The Players Association then retained Weil, Gotshal & Manges, LLP, for the same purpose. The decision of the Players Association to conduct its own investigation was driven by skepticism about the league’s willingness or ability to conduct a thorough and fair investigation, as well as the union’s desire to be more assertive. 

The league and union ultimately agreed to combine their efforts, teaming up law firms that have been on opposite sides of countless cases over the years. Of note, and as discussed further below, both law firms apparently provided their services free of charge.

The firms’ report identified numerous instances of sexual, racial, and other inappropriate comments and misbehavior directed at NWSL players and made a variety of recommendations for reform. As a result, the league announced that it had banned five coaches from the league permanently and banned two others until 2025.

Claims of James Clarkson

Although Coach Clarkson was not banned by the league, the damage had been done. In April 2022, based on preliminary results of the investigation, the Dash suspended Mr. Clarkson. When the joint report was released, the Dash announced that his contract would not be renewed. 

The joint report noted that Mr. Clarkson had advocated for the development of a mental health program for the Dash but faulted his conduct in several instances. Specifically, Mr. Clarkson was alleged to have been insensitive to a Black player’s concerns about racial profiling by stadium security, to have heaped “excessive and unjustified criticism” on players, to have had an “unpredictable mood [that] contributed to a culture of anxiety,” to have unfairly accused players of unprofessional behavior during a road trip in Mexico City, and to have criticized an injured player. Mr. Clarkson was interviewed by the joint investigative team, which found that he “exhibited a lack of candor” in his denials of misconduct.

In his lawsuit, Mr. Clarkson alleges that the report was defamatory and that the defendants tortiously interfered with his prospective contract with the Dash or another professional soccer organization. Interestingly, and as noted above, Mr. Clarkson also sued the attorneys principally responsible for the report.

Appeals court: Lawsuit should be dismissed

The Texas Citizens Participation Act is intended “to encourage and safeguard the constitutional rights of persons to petition, speak freely, associate freely, and otherwise participate in government to the maximum extent permitted by law and, at the same time, protect the rights of a person to file meritorious lawsuits for demonstrable injury.” It is akin to what is known in other states as an anti-SLAPP statute (strategic lawsuit against public participation).

Under the TCPA, “[i]f a legal action is based on or is in response to a party’s exercise of the right of free speech, right to petition, or right of association… that party may file a motion to dismiss the legal action.” Notably for purposes of the Clarkson lawsuit, the “[e]xercise of the right of free speech” “means a communication made in connection with a matter of public concern.”

Further, a “[m]atter of public concern” “means a statement or activity regarding” any of the following:

• A public official, public figure, or other person who has drawn substantial public attention due to the person's official acts, fame, notoriety, or celebrity.
• A matter of political, social, or other interest to the community.
• A subject of concern to the public.

The defendants argued that Mr. Clarkson’s suit should have been dismissed because it was, as described by the Court of Appeals, based on “the exercise of their right to free speech and associational rights in connection with a matter of public concern.”

The Court of Appeals agreed. The Court found that “[t]he press coverage and the League-wide involvement demonstrate that the controversy about the players’ terms and conditions of their employment, including their treatment by coaches and League management, was a public one.”

Further, given Mr. Clarkson’s duties as coach of the Dash, and that he had made comments to the press about the investigation, he was “a limited public figure for purposes” of the statute.

In an attempt to avoid total dismissal, Mr. Clarkson had asserted that the actions of the law firms were not protected by the TCPA because they were commercial speech. More specifically, he argued that the commercial speech exemption applied “because the law firms published press releases about the Joint Report on their websites that marketed the firms’ capabilities.” 

The Court of Appeals disagreed: “The press releases here do not expressly offer legal services and mainly provide information that we have already determined to be of public concern.” Further, the Court noted that the allegations of commercial speech were also meritless “[b]ecause the law firms provided the legal services described in the press releases pro bono.”

The Court of Appeals also found that Mr. Clarkson otherwise failed to state a claim for defamation.  In particular, he “did not adduce any evidence” that the individuals who made accusations against him in the report “did not make those statements about him or that the appellants reported those statements inaccurately in the Joint Report.” Although Mr. Clarkson faulted the investigators for not interviewing players who might have defended him, “[t]he fact that others may have disagreed with the reported statements does not render the Joint Report’s statements false or reckless.”

A sigh of relief

The Court of Appeals’ decision is undoubtedly welcome news to law firms who conduct investigations for leagues – as well as law firms who conduct any employment-related investigations. Public-facing organizations such as sports leagues know that to maintain credibility and goodwill with their stakeholders (for example, fans), they need to enact and enforce appropriate standards of conduct. Their outside counsel are integral to those goals. 

Good-faith efforts in furtherance of those principles should not, as the Texas Court of Appeals recognized, subject the investigators to legal scrutiny.