Over the last few years, more and more athletes and administrators are coming forward with allegations claiming mistreatment by coaches, sexual harassment and misconduct, Title IX violations, bullying, racial discrimination, and a host of other allegations that put a stain on the reputation of the team, college or university, or national governing body. In many cases, the team, college or university, or national governing body rightly turns to external investigators to conduct an independent investigation. Like most things in life, teams, colleges or universities, or national governing bodies will turn to their networks to recommend an investigator with the requisite skills and experience to conduct the investigation. Many times, however, the investigator hired has little practical experience in sport, does not have a good feel for the culture inside a locker room, and is more of a fan than an investigator. Conducting an investigation in sports is a “cool” item to list on a resume and, thus, few investigators will turn down the opportunity to interview high profile coaches and athletes and review confidential documents that pull back the curtain of an athletic culture that is foreign to most outsiders.
When selecting an investigator in the sports industry, I suggest that teams, colleges or universities, or national governing bodies apply the following criteria prior to hiring an investigator: 1) history of conducting investigations; 2) subject matter expertise; 3) understanding the culture of sports; and 4) whether the investigator is thorough.
History of Conducting Investigations
Conducting an investigation is not the same as deposing a witness in a civil proceeding or questioning a witness on the witness stand in a criminal proceeding. A strong investigator has developed techniques through practice and experience that develops a rapport with a witness and learns and develops information through the use of open-ended questions. It is not an investigator’s job to obtain a desired result, but to focus on gathering the truth. Far too often, I have observed investigators attempt to sway the evidence with questions directed towards a certain goal. Sometimes, it is difficult for lawyers to put aside advocacy-based training focused on zealously representing a client. The investigator is not an advocate. He/she is a “truth seeker”.
During my career, I have conducted numerous investigations in a variety of areas including, but not limited to, sexual misconduct, sexual harassment, player treatment issues, bullying, fatalities, embezzlement and fraud, employee disciplinary matters, and a host of other investigations. I have also represented individuals involved in investigations and have served an arbitrator in disciplinary matters in sports. When I am serving as an arbitrator, it does not take long to determine whether the investigator truly set out to find the truth or is searching for a desired result. Too many times investigators formulate a decision before obtaining and considering all the evidence. An experienced investigator is less likely to make mistakes that are critical to an investigation like rushing to judgment or seeking a desired result.
Subject Matter Expertise
Far too many people believe they are sports subject matter experts, because they are fans and love their college or university or professional team. Watching ESPN or reading USA Today does not make a fan a subject matter expert. It is important in sports for the investigator to have an understanding of what a locker room is like and the dynamics of relationships in sports including coach-athlete relationship, athlete-athlete relationship, administrator-athlete relationship, and administrator-administrator relationship, and coach-administrator relationship. The sports world is a unique sub-culture that is often learned through experience.
An investigator who is an expert in the business of sport and/or the playing of sport is someone who approaches an investigation with knowledge that is not easily replicated and has a leg up on someone outside of sports. Often times, however, investigators attempt to pretend they are subject matter experts rather than learning and growing their experience in a certain sport. I once represented a coach in a regional Olympic sport that was being investigated as a part of a disciplinary matter. The investigator was open that he did not know much about the sport, but was adamant he had no need to learn about the sport. As a result, the investigation developed flawed opinions and he pursued his opinions rather than learning about the sport and making a determination of what is relevant and irrelevant in an investigation. Failing to be able to eliminate irrelevance ultimately makes an investigation spiral out of control costing the team, college or university, or national governing body more money and time. Having an investigator who is a subject matter expert (or at the very least someone who will learn) saves time, effort, and money.
Understanding the Culture of Sports
There is certainly a unique culture in sports. The things athletes and coaches say and do within the bubble of sports are not things a conscientious person would want to say or do publicly. Coaches and athletes can throw together swear words in patterns that make little sense, but are well understood by their colleagues. “Locker room talk” is real. In this day and age, culture is a very important. When investigating sexual harassment, sexual misconduct, bullying, discrimination, and other similar areas, one of the first questions is often “what is the culture of the program?” As someone who has represented leagues/conferences, teams, coaches, athletes, and administrators and has served as an arbitrator in numerous sports disciplinary matters, understanding the culture of sport is important. I have seen numerous investigations where the investigator is clearly persuaded by the charisma of a coach or administrator and, ultimately, concludes their investigation in a way that does not adequately address the purpose of the investigation. Also, it is important to know the difference between “hard coaching” and demeaning a person. Investigators who are fans and have little or no real experience in sport will often misunderstand and misinterpret the culture to the detriment of the investigation.
Whether the Investigator is Thorough
The first tenet of investigation is the need for independence to conduct a thorough investigation (lack of independence will result in a field day for attorneys in litigation). A thorough investigator must ask the witness who, what, when, where, why, and how. Asking questions and gathering information is more about listening than talking. We have all seen investigators who are paralyzed when required to leave a script. I recall representing three athletes in an investigation who were interviewed back to back to back. The investigator used the exact same script for all three athletes and was unable to adjust and listen. As a result, he overlooked and missed important information.
It is also very important that the investigator interview all of the witnesses with knowledge of the circumstances. With social media, text, and phone calls, it is hard to say a potential witness is hard to find. A witness may choose not to respond to an interview request, but it falls in the lap of the investigator to locate and contact witnesses. In a recent investigation that received national attention, the report indicated over one hundred witnesses were interviewed. After the report was released, I received calls from several individuals who were never contacted by the investigator. These individuals made public statements and were interviewed by mainstream media. It is hard to say with a straight face that the investigation was thorough when important witnesses were never contacted. Often times, the media reports that the team, college or university, or national governing body paid $100,000.00 or $1,000,000.00 in fees to the investigator. The cost of the investigation does not mean the investigation was thorough. It simply means the investigation was expensive.
I once handled a player abuse investigation where I was initially told there were only five witnesses who I needed to interview. Like any thorough investigator, I asked each witness the names of other individuals who were present or had knowledge of the circumstances at issue. I also asked if there were any recordings or other memorialization of the circumstances at issue. These questions led to the production of documents, videos, and names of other witnesses. I interviewed every witness that was provided to me. An investigation is not thorough when key witnesses are excluded.
My experience investigating a plethora of different matters in the sports industry has given me the breadth and knowledge of how to properly investigate a matter and seek the truth. I have represented leagues/conferences, teams, athletes, coaches, and administrators, was a Division I student-athlete, and have served as an arbitrator in numerous disciplinary matters in the sports industry. These experiences have given me the skill set necessary to investigate matters in the sports industry. If you need a thorough investigator or have any questions about investigations, feel free to reach out.