In March 2022, the National Women’s Soccer League 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, Commissioner 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, she 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 history

An article published September 30, 2021, 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 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 that the Covington announcement was made, U.S. Soccer – the sport’s national governing body – announced that it had retained former U.S. Deputy Attorney General Sally Yates of King & Spalding, LLP, to conduct an investigation. U.S. Soccer has long played a role in the funding and management of the NWSL.

Then, the NWSL Players Association retained the law firm of Weil, Gotshal & Manges, LLP, for the same purpose. Weil Gotshal has represented players and players associations for decades. The decision of the Players Association 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 its first collective bargaining agreement with the NWSL.

The NWSL 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. Commissioner Berman replaced Commissioner Baird.

The reports and discipline

In 2022, the NWSL 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.

The U.S. Soccer and NWSL-Players Association 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 NWSL-Players Association report included numerous recommendations, including strengthening anti-harassment policies, developing and enforcing guidelines addressing appropriate interactions between club staff and players, developing and implementing training that reflected and addressed 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 the 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

James Clarkson, a former head coach of the Houston Dash, was not among those banned.  However, Coach Clarkson’s actions were discussed 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 Players Association, the law firms, and individual attorneys at those law firms. His lawsuit alleged that the NWSL-Players Association report was defamatory and that the defendants tortiously interfered with his prospective contract with the Dash or another professional soccer organization. 

In a single-page Order issued May 23, 2024, a judge in the District Court of Harris County, Texas, denied without explanation the defendants’ motion to dismiss the lawsuit. The defendants have appealed. 

Brittany Alvarado claims, President Ellis strikes back

According to an ESPN report, in February 2024, Brittany Alvarado, then a videographer for the NWSL’s San Diego Wave, filed an internal complaint with the NWSL alleging that Wave President Jill Ellis had created a toxic work environment in violation of NWSL policies. Ms. Alvarado subsequently made her accusations known on X (formerly Twitter). President Ellis is best known as the former head coach of the U.S. Women’s National Team, which she led to two World Cup titles. Former player Sydney Leroux expressed agreement with Ms. Alvarado’s accusations. Alex Morgan, who is a player for the Women’s Team and for the Wave, said she was disappointed to hear of the allegations.

The NWSL retained a law firm to investigate Ms. Alvarado’s accusations. That investigation concluded in April 2024 and found no violation of league policy.

Ms. Alvarado did not let the matter go. She left the club in June 2024 and then last month posted new statements to X accusing President Ellis of having “foster[ed] an environment where abusive behaviors among her subordinates are allowed to flourish.” Ms. Alvarado additionally criticized the NWSL investigation and accused it of “turn[ing] a blind eye to a patter of profoundly damaging behaviors.”

Last week, President Ellis responded by suing Ms. Alvarado for defamation in a California state court. In addition to the above-described complaints and statements, President Ellis accused Ms. Alvarado of sending emails, in which she falsely purported to be an executive of the Wave, complaining about President Ellis to Commissioner Berman. President Ellis further alleges that Ms. Alvarado used a “burner phone” to send false and damaging statements about her to a Wave player.

No good deed goes unpunished

The NWSL’s workplace policy is not unique in its goals or operation. It is a robust policy that provides the employer broad discretion to investigate and discipline wrongful conduct, even if the conduct does not violate the law.

What may be unique is the fervor with which the league has pursued change and the prevention of further incidents. Since taking the Commissioner position, Ms. Berman has recognized the importance of doing so where the players – by virtue of their success on the Women’s Team – are so crucial to the NWSL’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. Coach Clarkson believes he was unfairly driven out of the league. Ms. Alvarado, seemingly relying on the league’s professed standards, has created a legal and public relations headache, not to mention a counter lawsuit filed by the President of her former team. Moreover, Ms. Alvarado’s accusations seem to have received at least partial support from two of the league’s biggest stars, even though the league’s investigation found otherwise.

The NWSL’s efforts on these issues befit its status as a leading sports organization. Lower profile employers might be able to take a more cautious approach to investigations and discipline, but similar efforts by the NWSL are likely to be criticized. Indeed, in many respects, that is how the league ended up in the situation it was in before the arrival of Commissioner Berman. Although the NWSL should be applauded for its high standards, applying them has resulted in a backlash.