EDITOR'S NOTE: A version of this post was previously published as an article in Hackney Publications’ Sports Litigation Alert.

In January 2023, the National Women’s Soccer League permanently or temporarily banned seven former coaches and executives. The league’s actions followed the issuance of a 125-page report by the law firms of Covington & Burling LLP and Weil, Gotshal & Manges LLP that detailed a history of misconduct by coaches and executives.

James Clarkson, a former head coach of the Houston Dash, was not among those banned. However, Mr. Clarkson’s actions were discussed in numerous places in the report, which found that he “communicated with players in a manner that created anxiety and fear for multiple players.” After being suspended for the 2022 season, his contract was not renewed. On December 8, 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.

Background

Although investigative reports are not new to the sports industry, the manner in which the NWSL’s report was produced was. As explained in the report, its genesis was 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 after publication of that article, the NWSL announced that it had retained Covington to conduct an investigation and recommend reforms. Covington is longtime outside counsel to professional sports leagues and teams on a range of matters. On the same day as the NWSL announcement, U.S. Soccer, the sport’s national governing body, announced that it had retained former Deputy Attorney General Sally Q. Yates of King & Spalding LLP to conduct an investigation. U.S. Soccer has long played a role in the league’s funding and management.

Despite the two already initiated investigations, the Players Association retained Weil Gotshal for the same purpose. Weil Gotshal has represented players and players associations for decades. The Players Association’s decision to conduct its own investigation was driven by skepticism of the league’s willingness or ability to conduct a thorough and fair investigation as well as the Players Association’s desire to be more assertive. The Players Association had only recently hired its first ever full-time Executive Director, former-player-turned-attorney Meghann Burke, and was in the process of negotiating the first collective bargaining agreement between the league and the Players Association.

The league and the Players Association ultimately agreed to combine their investigatory efforts, teaming up law firms that have been on opposite sides of countless cases over the years. The day after the Athletic article was published, both NWSL Commissioner Lisa Baird and NWSL General Counsel Lisa Levine resigned.

The reports

The U.S. Soccer investigative report was released on October 3, 2022, and the league-Players Association joint investigative report was released on December 14, 2022.  Both reports identified numerous instances of sexual, racial, and other inappropriate comments and misbehavior directed at NWSL players:

The Joint Investigative Team found, for example, that club staff in positions of power made inappropriate sexual remarks to players, mocked players’ bodies, pressured players to lose unhealthy amounts of weight, crossed professional boundaries with players, and created volatile and manipulative working conditions. They used derogatory and insulting language towards players, displayed insensitivity towards players’ mental health, and engaged in retaliation against players who attempted to report or did report concerns. Misconduct against players has occurred at the vast majority of NWSL clubs at various times, from the earliest years of the League to the present.

The joint report included numerous recommendations, including strengthening anti-harassment policies, developing and enforcing guidelines addressing appropriate interactions between club staff and players, developing and implementing trainings that reflect and address player and staff experiences, coordinating with clubs and U.S. soccer to improve and centralize hiring practices, enhancing reporting and investigation procedures, and prioritizing diversity, equity, and inclusion initiatives.

The aftermath

While the investigations were ongoing, the NWSL hired Jessica Berman as its Commissioner.  Ms. Berman had previously been an attorney and executive at the National Lacrosse League and the National Hockey League and is well regarded in the sports industry. Notably, Ms. Burke of the Players Association was part of the search committee for the Commissioner position.

Ms. Berman, who began her career at Proskauer Rose LLP representing leagues and teams, was well-versed in league discipline. Additionally, there was considerable public pressure for a strong response.  On January 9, 2023, the league announced that it had permanently banned five coaches from the league: Paul Riley (formerly of the Portland Thorns and North Carolina Courage), Christy Holly (Sky Blue FC and Racing Louisville), Rory Dames (Chicago Red Stars), Richie Burke (Washington Spirit), and Kris Ward (Washington Spirit). The league also banned two others until 2025: Craig Harrington (Utah Royals FC) and executive Alyse LaHue (NJ/NY Gotham FC).

Coach Clarkson’s claims

Although Mr. 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 conduct 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.

Mr. Clarkson’s lawsuit alleges that the report is defamatory and that the defendants tortiously interfered with his prospective contract with the Dash or another professional soccer organization.  Among others, Mr. Clarkson has sued the attorneys principally responsible for the report: Amanda Kramer, Mona Patel, and Jason Criss of Covington; and Arianna Scavetti of Weil Gotshal.

Mr. Clarkson now appears to be coaching youth soccer as well as the AHFC Royals, an amateur team competing in the lower level of the United Soccer League.                                

The challenges

Mr. Clarkson’s claims evoke similar cases in sports but also face substantial legal hurdles. First, it is well-settled that opinions are not defamatory. The overarching theme of Mr. Clarkson’s complaint is that the joint report mischaracterized his actions or described them without additional context. Moreover, it is clear that Mr. Clarkson generally disagrees with the joint report’s opinion of his conduct. That does not mean that the joint report was defamatory.

The lawsuit is similar in respects to one brought by former National Football League linebacker Jonathan Vilma against NFL Commissioner Roger Goodell in 2013 (note: I was part of Mr. Vilma’s legal team).  Commissioner Goodell had suspended Mr. Vilma for an entire season for allegedly leading a scheme whereby New Orleans Saints players were paid “bounties” for injuring opponents. Most notably, Commissioner Goodell had stated in a press release that Mr. Vilma had offered $10,000 to anyone who knocked Minnesota Vikings quarter Brett Favre out of the 2010 NFC Championship. Although a lengthy arbitration process ultimately resulted in the vacatur of all discipline against Mr. Vilma and other Saints players,[2] Mr. Vilma pursued a defamation case against Commissioner Goodell in the U.S. District Court for the Eastern District of Louisiana.  The court dismissed,[3] finding that the claims were preempted by the collective bargaining agreement and also were not valid legal claims. As a public figure, Mr. Vilma had the burden to show that Commissioner Goodell’s statements were made with “actual malice,” meaning that the statements were made with knowledge that they were false or with reckless disregard as to whether they were true or false. The Court found “actual malice” to be lacking because the statements “were based on an extensive investigation.”

Suing league investigators is also not without precedent. In a 2008 case, Minnesota Vikings players Kevin Williams and Pat Williams sued the NFL after they had been disciplined for failing a performance-enhancing drug test (note: I later joined the Williams legal team). But they also sued NFL lawyer Adolpho Birch because, as a Minnesota court later found, Mr. Birch knew that a supplement that players were taking contained an undisclosed banned substance but he made a conscious choice not to tell players.[4] Nevertheless, the Williamses eventually agreed to dismiss Mr. Birch from the case on the eve of trial, probably due to the fact that any liability that would have been directed toward Mr. Birch would have been covered by the NFL. Either way, league lawyers thought that the decision to sue Mr. Birch personally was unnecessary and inappropriate. 

The NWSL, NWSLPA, and their law firms no doubt would make the same argument in Mr. Clarkson’s case. They are also likely to claim that the report is entitled to immunity under the attorney immunity or litigation privilege doctrines, but the application of those doctrines to the facts of this case is uncertain.

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Coach Clarkson’s lawsuit faces an uphill climb. Yet, he seemingly thinks he has nothing to lose and that it is better to go down fighting. His case presents interesting issues that may influence similar investigations in the future.