By Christopher R. Deubert, Senior Writer
In January 2023, the National Women’s Soccer League (NWSL) permanently or temporarily banned seven former coaches and executives. The league’s actions followed the issuance of a 125-page report[1] by the law firms of Covington & Burling LLP and Weil, Gotshal & Manges LLP which 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, 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 (NWSLPA), the law firms, and individual attorneys at those law firms.
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. 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 later, the NWSL announced that it had retained Covington to conduct an investigation and recommend reforms. Covington is long-time outside counsel to professional sports leagues and teams on a range of matters. The same day, 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 NWSLPA retained Weil Gotshal for the same purpose. Weil Gotshal has represented players and players associations for decades. The NWSLPA’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 PA’s desire to be more assertive. The NWSLPA 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 ever collective bargaining agreement between the league and players association.
The NWSL and NWSLPA ultimately agreed to combine their investigatory efforts, teaming up law firms that have been on opposite sides of countless cases over the years. Of note, the day after the Athletic article, both NWSL Commissioner Lisa Baird and NWSL General Counsel Lisa Levine resigned.
The Reports
About a year after the stories first broke, the U.S. Soccer and NWSL-NWSLPA joint investigative reports were released, on October 3, 2022, and December 14, 2022, respectively. 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. 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, Burke of the NWSLPA was part of the search committee that resulted in Berman’s hiring.
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. Consequently, on January 9, 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), and banned two others until 2025, Craig Harrington (Utah Royals FC), and, executive Alyse LaHue (NJ/NY Gotham FC).
Clarkson’s Claims
Although 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 Clarkson. When the joint report was released, the Dash announced that his contract would not be renewed.
The joint report noted that Clarkson had advocated for the development of a mental health program for the Dash but faulted his conduct in several instances. Specifically, 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 during a road trip in Mexico City, and to have criticized an injured player. Clarkson was interviewed by the joint investigative team, which found that he “exhibited a lack of candor” in his denials of misconduct.
Clarkson’s lawsuit alleges the report is defamatory and that the defendants tortiously interfered with his prospective contract with the Dash or another professional soccer organization. Interestingly, Clarkson included among the defendants the attorneys principally responsible for the report: Amanda Kramer, Mona Patel, and Jason Criss of Covington; and Arianna Scavetti of Weil Gotshal.
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
Clarkson’s claims evoke similar cases in sports but also face substantial legal challenges. First and foremost, it is well-settled that opinions are not defamatory. The overarching theme of Clarkson’s complaint is that the joint report mischaracterized his actions or described them without additional context. Moreover, it is clear that 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 NFL linebacker Jonathan Vilma against NFL Commissioner Roger Goodell in 2013 (note: I was part of Vilma’s legal team). Goodell had suspended Vilma for an entire season for allegedly leading a scheme whereby New Orleans Saints players were paid “bounties” for injury opponents. Most notably, Goodell had stated in a press release that Vilma had offered $10,000 to anyone who knocked Minnesota Vikings quarter Brett Favre out of the 2010 NFC Championship. While a lengthy arbitration process ultimately resulted in the vacatur of all discipline against Vilma and other Saints players,[2] Vilma pursued a defamation case against Goodell in the United States District Court for the Eastern District of Louisiana. The court dismissed,[3] finding that the claims were preempted by the collective bargaining agreement but also because they were insufficient to state a claim. As a public figure, Vilma had the burden to show that Goodell’s statements were made with “actual malice.” However, the Court found any indication of such malice to be lacking where “they 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, Birch knew that a supplement that players were taking contained an undisclosed banned substance but that he made a conscious choice not to tell players.[4] Nevertheless, the Williamses eventually agreed to dismiss Birch from the case on the eve of trial, likely due to the fact that any liability that would have been directed toward Birch would have been covered by the NFL. Either way, league lawyers thought that the decision to sue Birch personally was unnecessary and inappropriate. The NWSL, NWSLPA and their law firms likely think the same in Clarkson’s case. Moreover, they are 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.
Missed Shot?
In the January-February 2023 issue of the Sports Litigation Alert, I analyzed the legal basis for the league’s banishment of the coaches.[5] Specifically, there is a colorable argument that the teams collectively agreeing not to hire these coaches could constitute a violation of antitrust law. Nevertheless, courts have historically been deferential to sports leagues and organizations in making such disciplinary decisions. While Clarkson has not formally been banned by the league, his prospects for ever working in the NWSL again seem slim. Consequently, given the punitive nature of antitrust laws, Clarkson may have had some legal leverage if he were able to assert that the league and clubs had actually or effectively agreed not to hire him again.
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Clarkson’s lawsuit faces an uphill climb. Yet, he seemingly thought he had nothing to lose and that it was better to go down fighting to, in his mind, clear his name. Either way, the case presents interesting issues which may influence similar investigations in the future.
[1] https://www.cov.com/-/media/files/corporate/publications/file_repository/report-of-the-nwsl-and-nwslpa-joint-investigative-team.pdf
[2] See Christopher R. Deubert, A Summary of the NFL’s Investigation Into the New Orleans Saints Alleged Bounty Program and Related Proceedings, 9 DePaul J. Sports L. & Contemp. Probs. 123 (2013).
[3] Vilma v. Goodell, 917 F. Supp. 2d 591 (E.D. La. 2013).
[4] Williams v. Nat’l Football League, 2010 WL 1793130 (Dist. Ct. Minn. May 6, 2010).
[5] Christopher R. Deubert, Analyzing the Legal Basis for the NWSL’s Recent Banishment of Five Coaches, Sports Lit. Alert (Jan.-Feb. 2023).
