By Christopher R. Deubert, Senior Writer
In December 2022, the law firms of Covington & Burling LLP and Weil, Gotshal & Manges LLP issued a 125-page report detailing a history of misconduct by NWSL club coaches and executives. As a result of the allegations against him, James Clarkson, the then-head coach of the Houston Dash was suspended for the 2022 season and had his contract not renewed for the next season.
In December 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, alleging defamation and other causes of action. In a single page May 2024 Order, a Texas trial court denied the defendants’ motion to dismiss without explanation. In a June 30, 2026 Opinion, 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. 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 investigate 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 investigate. 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, and as discussed further below, the law firms apparently provided their services free of charge.
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, replacing Lisa Baird who had resigned in the wake of the controversy. 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.
Denied by Texas law
The Texas Citizens Participation Act (TCPA) 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 as an anti-SLAPP (strategic lawsuit against public participation) statute in other states.
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 Clark’s action, 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”:
(A) 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;
(B) a matter of political, social, or other interest to the community; or
(C) a subject of concern to the public.
The defendants here argued that Clarkson’s action 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. As a threshold matter, 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 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, Clarkson asserted that the actions of the law firms were not protected by the TCPA because they were commercial speech. More specifically, “Clarkson 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 Court held that “[t]he 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 Clarkson otherwise failed to state a claim for defamation. In particular, “Clarkson 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.” Further, although 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 the law firms who conduct investigations for leagues – as well as law firms that conduct employment-related investigations more broadly. Public-facing organizations such as sports leagues know that to maintain credibility and goodwill with their stakeholders (e.g., fans), they need to enact and enforce appropriate standards of conduct. Their outside counsel is integral to those goals. Good faith efforts in furtherance of those principles should not, as the Texas Court of Appeals recognized, come with spurious legal scrutiny.
Deubert is Senior Counsel at Constangy, Brooks, Smith & Prophete LLP
