By Christopher R. Deubert, Senior Writer
In March 2022, the National Women’s Soccer League (NWSL) hired Jessica Berman, a long-time sports lawyer and executive, as its Commissioner. At the time, the league – through its outside counsel – was engaged in an extensive investigation into allegations of abusive conduct by NWSL coaches and executives. In an introductory news appearance, Berman discussed the importance of creating a league “that every player feels proud to play in.” In January 2023, when the league announced discipline arising out of that investigation, Berman referenced the need for “structural reform” and “the continual commitment to enhancing league standards to build a safe and positive environment for our players, staff, fans and partners.” The league’s commitment to those standards, however, has come with additional scrutiny and litigation.
The Investigatory Background
A September 30, 2021 article in the Athletic detailed allegations of sexual misconduct by Paul Riley, then head coach of the North Carolina Courage. Three days later, the NWSL announced that it had retained prominent law firm Covington & Burling LLP 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 NWSL Players Association (NWSLPA) retained the law firm of Weil, Gotshal & Manges LLP 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 and Discipline
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 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.
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), and banned two others until 2025, Craig Harrington (Utah Royals FC), and, executive Alyse LaHue (NJ/NY Gotham FC).
Additionally, in 2022, prior to the release of the reports, the league implemented an extensive new Policy to Prevent and Eliminate Workplace Discrimination, Harassment, and Bullying. That policy declares that the NWSL “is committed to creating and maintaining a safe, inclusive, and respectful work environment and culture that is free from all forms of discrimination, harassment (including sexual harassment), bullying, retaliation, and other misconduct.” The policy further states that “[w]hile some provisions in this Policy outline legal standards and requirements, NWSL requires a higher standard of conduct than merely refraining from committing legal infractions.” Indeed, “[t]he intent of th[e] Policy is to provide greater protection from harassment, discrimination, sexual misconduct, emotional misconduct, physical misconduct, bullying, hazing, and retaliation than provided under the law.” In order to impose discipline, the NWSL or its outside counsel need only “determine[]” that a violation of the Policy occurred.
Coach Clarkson’s Claims
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 NWSLPA, the law firms, and individual attorneys at those law firms. 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.
In a single-page May 23, 2024 Order, the District Court of Harris County, Texas denied the defendants’ motion to dismiss the case without explanation. The defendants have since filed notices of appeal.
Ellis and Alvarado
According to an ESPN report of a recent legal filing, in February 2024, Brittany Alvarado, then a videographer for the NWSL’s San Diego Wave, filed a complaint with the NWSL alleging that Wave President Jill Ellis had created a toxic work environment in violation of NWSL policies. Ellis is best known as the former head coach of the U.S. Women’s National Team (USWNT), which she led to two World Cup titles. Alvarado subsequently made her accusations known on X. Former USWNT player Sydney Leroux expressed agreement with Alvarado’s accusations and Alex Morgan, both a USWNT and Wave player, said she was disappointed to hear of them.
The NWSL retained a law firm to investigate Alvarado’s accusations. That investigation concluded in April 2024 and found no violation of league policy.
Alvarado nevertheless did not let the matter go. She left the club in June 2024 and then in July posted new statements to X accusing Ellis of having “foster[ed] an environment where abusive behaviors among her subordinates are allowed to flourish.” Alvarado additionally criticized the NWSL’s investigation and accused it of “turn[ing] a blind eye to a patter of profoundly damaging behaviors.”
On July 29, 2024, Ellis responded by suing Alvarado for defamation in a California state court. In addition to the above-described complaints and statements, Ellis accused Alvarado of sending fake emails purporting to be a Wave executive to Commissioner Berman complaining about Ellis. Ellis further alleges that Alvarado used a “burner phone” to send false and damaging statements to a Wave player.
A Wave of Litigation
The NWSL’s workplace policy is not unique in its goals or operation. It is a robust policy which provides the employer broad discretion to investigate and discipline wrongful conduct, even if such conduct does not rise to a violation of the law.
What perhaps is somewhat unique is the fervor with which the league has pursued change and the prevention of further incidents. Since taking the Commissioner position, Berman has recognized the importance of doing so in a league where the players – by virtue of their success on the USWNT – are so crucial to the league’s popularity and success. Relatedly or not, the NWSL is enjoying a substantial boom in attendance and revenue.
Yet, the league’s promotion of high standards of conduct appears to come with risks. Clarkson believes he was unfairly driven out of the league. Alvarado, seemingly relying on the league’s professed standards, has created a legal and public relations headache. Moreover, her accusations seem to have been presumed meritorious at least in part by two of the league’s biggest stars, even though an investigation found otherwise.
The NWSL’s efforts on these issues is befitting its status as a leading women’s sports organization. While less publicly-facing employers might be able to take a more cautious approach in its investigations and discipline, such efforts by the NWSL would likely be criticized. Indeed, in many respects, that is how the league ended up in the situation in which it was before Berman’s arrival. So while the NWSL should be applauded for its high standards, applying them is likely to anger someone.
Deubert is Senior Counsel at Constangy, Brooks, Smith & Prophete LLP
