Dealing with Allegations of Felonies, Sexual Assaults and Other Serious Crimes

Transcription

1 Dealing with Allegations of Felonies, Sexual Assaults and Other Serious Crimes Dan W. Goldfine, Snell & Wilmer :: :: :: Cory L. Braddock, Snell & Wilmer :: :: :: Panel Members Jason Vanacour Former US National Player Former president of a state association Former General Counsel US Youth Soccer Lori Howell Vice President of Admin., Arizona Youth Soccer Ass n Chairman of Protest, Appeal, and Discipline Committee Cory Braddock Dan Goldfine Snell & Wilmer, litigator Former High School soccer coach Snell & Wilmer, Chair of Government and Internal Investigations group Former federal prosecutor 2 1

2 Overview Associations and clubs have to deal with allegations of felonies, sexual assaults and other serious crimes Media and communication strategies: Message Discipline Interfacing with and notifying law enforcement Compliance with all by-laws and code of conduct issues Internal Investigations: when, who, what, how and why? Preparation for law suits by alleged victims and alleged wrongdoers Stand-still agreements Conducting the disciplinary hearing 3 (web version) 4 2

3 First Issue: Message Discipline No one can PR away allegations of felonies, sexual assaults and other serious crimes - Lots of smart Board members, coaches, parents - Less is more or, at least, better There is only one message: player safety - Don t be on the wrong side of history - Dateline test Risk of defamation lawsuit is palpable Risk of victims suing is palpable 5 First Issue: Message Discipline Herding cats All media, Associations, parents, coaches, players, etc.: Simple and repeatable message Don t overpromise Impose the message Set the message early, disseminate it, and stick to it Later some examples 6 3

4 Interfacing with and notifying law enforcement There is no justification for not immediately informing law enforcement of an allegation, if true, involving player safety Informing law enforcement of an allegation, even if not true, involving player safety is protected conduct No risk of liability Other statements may pose a risk 7 Interfacing with and notifying law enforcement How an Association or a Club (or a parent, coach or player) informs law enforcement is a different issue: Message control and discipline is important Focusing the investigation Impacting on who investigates can be important Developing a quid pro quo so that you can stay ahead of the investigation as best as possible Controlling the flow of information 8 4

5 What Immediate Steps Should be Taken with the Alleged Wrongdoer? Do not conduct an interview immediately Power to suspend immediately under the bylaws Attempt to negotiate a stand-still agreement 9 What is a Stand-Still Still Agreement? Agreed-upon temporary suspension For the length of any investigation Avoids an internal investigation and the collection of evidence that might be turned over to authorities Avoids a formal suspension and a hearing Question: If there is an agreed-upon temporary suspension, does an Association have to report that suspension? Question: Does an agreed-upon temporary suspension that is not reported address player safety? Question: Does the lack of internal investigation mean that player safety is adequately addressed? (dynamic) 10 5

6 Bylaws: The General Framework State Associations must comply with: State Association Bylaws US Youth Soccer Bylaws - Each State Association is an Organizational Member of US Youth Soccer US Soccer Bylaws - Each State Association is subject to US Soccer Bylaws because they are Organizational Members of US Youth Soccer which is an Organizational Member of US Soccer - Each State Association is also a direct Organizational Member of US Soccer 11 Bylaws: Player Safety US Soccer Federation Bylaw 213 (8): The Organization Member shall adopt policies prohibiting sexual and physical abuse that meet certain minimum criteria established by Federation (subject to any contrary requirements contained in any federal, state or local law applicable to the Organization Member). 12 6

7 Bylaw: Allegations of Misconduct relating to Player Safety US Youth Soccer Bylaw 252: Any person participating in a USYSA program, or in a program of a State Association or a program of a member of a State Association, who becomes a defendant in litigation detrimental to the welfare of youth players or litigation based on activities detrimental to the welfare of youth players, shall be suspended from all soccer-related activities. Suspensions under this bylaw shall be determined by the appropriate State Association or the Board of Directors. Matters detrimental to the welfare of youth players shall include crimes of moral turpitude and felonies. The person has a right to appeal the suspension only over whether the matter which is the substance of the accusation, if true, is detrimental to the welfare of youth players. 13 USYSA Bylaw 252: Simplified Allegations of serious misconduct relating to player safety warrant a suspension from all soccer-related activity 14 7

8 USYSA Bylaw 252: Simplified Moral turpitude and felonies are detrimental to the welfare of youth players (and its not even close) No proof of wrongdoing is required before issuing a suspension Only need to be a defendant (no finding of liability or criminal conviction is required) Ask if true then would the conduct be detrimental Appeals are limited 15 Bylaws: Post Suspension Now What? Reporting Requirements US Soccer Federation Bylaw 241(4) Suspensions by Members of the Federation are recognized by the Federation and all Federation members - Notification of Suspension - Determination of Hearing and Procedural Due Process USYSA Bylaw Suspensions and other disciplinary actions imposed by members of USYSA shall be recognized by USYSA and all other USYSA members on proper notification to USYSA. Timely report suspensions to USYSA using the Disciplinary Action and Risk Management Report Form 16 8

9 Bylaws: Post Suspension Now What? Consequences of not reporting: Potential for other players to be harmed Public relations are damaged Increased likelihood of your organization becoming a defendant in a lawsuit brought by someone subsequently harmed. 17 Association Conundrum Both alleged victims and alleged wrongdoers may point the litigation finger at the State Association Alleged Victim Association did not take steps Association cast a blind eye Failed to adequately investigate background of the wrongdoer Alleged Wrongdoer Association did not permit participation Defamation Failed to adequately investigate meritless claims before suspension 18 9

10 Reducing Exposure Pre-Litigation Before you act Consult with Counsel Review Bylaws Review Insurance Policy - Determine when, what, and how of notifying your carrier Take steps to preserve evidence Take steps to maintain integrity of the process 19 Internal Investigations of allegations of serious wrongful conduct When should an association or a club conduct an internal investigation? What are the objectives of such an internal investigation? Who should conduct the internal investigation and who does the investigator report to? How should documents and interviews be handled, reviewed and synthesized? How should disclosure to the soccer community, authorities and media be handled? 20 10

11 When should an association or a club conduct an internal investigation? General Rules for Associations or Clubs: - whenever information suggests that there may have been serious wrongdoing by officers, employees or agents or - Whenever the failure to disclose the wrongdoing to constituencies puts the long-term viability of the entity at risk - Interplay with law enforcement and/or stand-still agreements An association or club is legally liable for acts of its agents within the scope of their employment and intended in part to benefit the association or club - Is practical liability broader than legal liability? The Dateline Rule :: Now, the Internet rule 21 When should an association or a club conduct an internal investigation? Risks: an internal investigation might prompt government investigation, uncover damaging information, or embarrassing disclosures - Current culture generally rewards remedial action and forgives candid apologies It s usually better to know than not to know The failure to investigate becomes the damaging disclosure USA Swimming The fact that there is an ongoing investigation acts both as a shield and a sword The fact of an investigation shortens the half-life of scandal 22 11

12 What are the objectives of such an internal investigation? Player safety, player safety, player safety Protecting Board members from liability Knowing the scope of wrongdoing Controlling the flow of information Providing a shield 23 Who should conduct the internal investigation? No surprise: attorneys and investigators under the attorneys supervision Good at it, and appear independent and impartial Only way to meet the objective of controlling the information The attorney-client privilege shields the results from the investigation from disclosure and, in turn, permits the association and club to disclose the results in a manner favorable to the association or club Prevents individual Board members from making unwanted disclosures May be the only way to meet the objective of protecting the Board from liability 24 12

13 Who should the attorneys who conduct the investigation report to? Must be and perhaps more important appear independent (i.e., have no direct or indirect participation with the persons or clubs that are the subject of or are impacted by the investigation should the worse case scenario occur) Start with Board members who are independent and respected and can make hard decisions If necessary, use persons who are outside the geographic territory or even soccer but who are independent and respected and can make hard decisions Address indemnity issues if not Board members 25 How should data, documents and interviews be handled, reviewed and synthesized? Electronic data including s - Forensic copy of all in possession, custody or control - Do not destroy memo to employees, agents, officers, and directors (former?) - Develop an effective and cost-effective way to review and synthesize in working chronology only Hard copy documents - Custodian, attorney and paralegal physically collect any potentially-relevant documents - Review and synthesize in working chronology only Witness interviews - Attorney plus witness only - Maintain the attorney-client privilege - Synthesize in working chronology No interview or other summary memos except for working chronology 26 13

14 How should disclosure to the soccer community, authorities and media be handled? Before the internal investigation commences, if necessary: One-note Johnny Our only goal is player safety, and the will do whatever is necessary to ensure player safety. As a result, we have hired the independent law firm of to conduct a complete and thorough investigation and report to a committee of speciallyselected and independent Board members. There are absolutely no limits such as time or scope on this investigation. The anticipates that, when the investigation is completed and all necessary remedial steps are taken to further ensure player safety, it will have more information. But now, the will say absolutely nothing else about the investigation. 27 First Issue: Message Discipline No one can PR away allegations of felonies, sexual assaults and other serious crimes - Lots of smart Board members, coaches, parents - Less is more or, at least, better There is only one message: player safety - Don t be on the wrong side of history - Dateline test Risk of defamation lawsuit is palpable Risk of victims suing is palpable 28 14

15 First Issue: Message Discipline Herding cats All media, Associations, parents, coaches, players, etc.: Simple and repeatable message Don t overpromise Impose the message Set the message early, disseminate it, and stick to it 29 How should disclosure to the soccer community, authorities and media be handled? After the internal investigation is completed: Depends on results and context Ask is any disclosure necessary Disclosure to authorities depends on what is received in return and not because of legal obligation Disclosure to victims, witnesses, subjects or targets depends on results, whether reports to authorities are made, or disciplinary action is taken Legal exposure from disclosure 30 15

16 Conducting the Disciplinary Hearing: Before the Hearing Begins Review all applicable bylaws State Association Bylaw Hearing Procedures. USYSA Bylaw Hearing Procedures (fallback procedures drafted in general terms). US Soccer Federation Bylaws - Apply to any Hearings brought under Federation Bylaws US Soccer Federation Policy Manual Minimum rights that apply to all Hearings*** 31 Conducting the Disciplinary Hearing The Disciplinary Hearing Steps Notice Specific charges in writing Possible consequences if true Reasonable time (30 days) Reasonable hearing location Disinterested and impartial fact finders 32 16

17 Conducting the Disciplinary Hearing The Disciplinary Hearing Steps (Cont.) Right to assistance (See Rule 701-1) Right to call witnesses and present oral and written evidence and argument Right to confront witnesses (including advanced notice of witnesses) Right to have a hearing record 33 Conducting the Disciplinary Hearing The Disciplinary Hearing Steps (Cont.) Written decision Reasons for the decision Issued timely Notice of substantive and material action of the hearing panel during proceeding No ex parte communication 34 17

18 Conducting the Disciplinary Hearing: Avoiding the Appeal Adhere to the Bylaws Notice requirements Permit representation Impartial Hearing Panel Know the applicable standard Get agreement from the party that they had notice, right to be represented, and ability to present evidence during the hearing 35 Conducting the Disciplinary Hearing: Avoiding the Appeal Prepare the written decision with an eye towards an appeal Phraseology of the opinion is key Having considered the testimony of the parties and the evidence submitted, it is this Panel s opinion that 36 18

19 Consider Revising Rules to Add Arbitration Current rules do not provide for arbitration Rather, they provide for court action only after exhaustion of remedies What s the difference? - Under current rules, the court may have the right to retry the dispute - Under arbitration, the court must enforce the decision 37 Concluding thoughts: Player safety is foremost - Sword and shield No easy way out - The victim and alleged wrongdoer could turn into plaintiffs Review your bylaws Report to your carrier Do not interfere with law enforcement or obstruct justice Consider how to avoid the need for hearing or investigation: stand-still agreements Use attorneys - Put the onus on the Association s attorney Control the gathering and dissemination of information Message discipline 38 19

20 Concluding thoughts: If there is a hearing, abide by the bylaws no exceptions Abide by the sanction and report the sanction but nothing more Review current procedures to ensure that all participants Association Board members, Club members, coaches, referees, players and parents (of minors) have actually agreed to all applicable rules and bylaws Consider turning the current procedure into an arbitration procedure that still complies with the USSF Rules and Bylaws 39 20