United States District Court, M.D. Tennessee, Nashville Division
OPINION AND ORDER DENYING AMENDED PETITION TO VACATE
ARBITRATION AWARD AND DISMISSING COMPLAINT FOR DAMAGES (DKT.
TERRENCE G. BERG UNITED STATES DISTRICT JUDGE.
Philip Mark Walker (“Petitioner” or
“Walker”) is a former swim coach with Respondent,
USA Swimming, Inc. (“USA Swimming”). Walker was
permanently suspended from membership in USA Swimming after
it conducted an investigation of allegations that Walker
sexually abused two minor-aged swimmers between 1986 and
1991. Having exhausted USA Swimming's internal
disciplinary process, Walker commenced an arbitration
proceeding-conducted by the American Arbitration Association
(“AAA”)- which affirmed Walker's lifetime
suspension. Walker now challenges the disciplinary
proceedings and the arbitration award, alleging the
proceedings were infected with rules violations, and asks the
Court to vacate the award and reinstate Petitioner's
membership with USA Swimming.
Swimming previously moved to dismiss Walker's complaint
for lack of subject matter jurisdiction pursuant to 12(b)(1)
of the Federal Rules of Civil Procedure. Dkt. 35. Walker
responded that the Court had subject matter jurisdiction
through diversity jurisdiction and separately through federal
question jurisdiction pursuant to the Federal Arbitration Act
and the Sports Act. Id. at 42-43. The Court found
that Walker failed to meet the amount in controversy
requirement for diversity jurisdiction. Dkt. 55, Pg. ID
4877-78. Regarding subject matter jurisdiction under the FAA,
the Court explained that it “does not create any
independent federal-question jurisdiction, ” Dkt. 55,
Pg. ID 4879 (internal citations omitted), and that Mr. Walker
needed “an independent basis for federal question
potential federal question jurisdiction under the Sports Act,
the Court also found that it does not create a private right
of action. Dkt. 55, Pg. ID 4879 (citing 36 U.S.C.A §
220505(b)(9)). But the Court noted that “at least one
small exception . . . has been recognized: ‘ensuring
that the organization follows its rules in determining
eligibility.'” Dkt. 55, Pg. ID 4880 (citing
Slaney v. The Int'l Amateur Athletic Fed'n,
224 F.3d 580, 595 (7th Cir. 2001)). Accordingly, the Court
found federal question jurisdiction on the “discrete
issue of whether USA Swimming and the arbitrator properly
implemented USA Swimming's own rules and regulations in
imposing the lifetime ban upon Walker[.]” Dkt. 55, Pg.
ID 4881. Thus, Walker has an independent basis for federal
jurisdiction in this Court for the Court to address his
claims brought under the Federal Arbitration Act.
Swimming opposes the petition to vacate the arbitration
award. The Court heard oral argument on the matter on
November 28, 2017.
reasons outlined below, Petitioner's Amended Petition and
Complaint to Vacate Arbitration Award is
DENIED and the Complaint for Damages, Dkt.
14, is DISMISSED.
Stevens Olympic and Amateur Sports Act (“Sports
Act”) created the United States Olympic Committee
(“USOC”), which is tasked with regulating amateur
athletics and amateur sports organizations in the United
States. For each Olympic sport, the Sports Act allows the
USOC to recognize one national governing body
(“NGB”). 36 U.S.C. § 220521(a). The USOC has
recognized Respondent, USA Swimming, as the NGB for the sport
of swimming in the United States. Dkt. 14, Pg. ID 42; Dkt.
61, Pg. ID 4920. Accordingly, as the NGB for swimming, USA
Swimming establishes eligibility requirements for
participation in amateur and Olympic swimming throughout the
United States. 36 U.S.C. § 220523(a).
National Board of Review ("NBR") is the internal
judicial forum for USA Swimming; it is composed of volunteer
members. Dkt 61, Pg. ID 4920 (internal citations omitted).
When a complaint is brought against a USA Swimming coach, the
NBR issues a notification of hearing and then conducts a
hearing on the allegations. Id. At the hearing, both
sides present evidence and testimony in order for the panel
to determine whether a violation occurred. Id. The
NBR then issues a written decision of its finding. USA
Swimming's Rules provide for an appeal of NBR decisions
to a panel of USA Swimming's Board of Directors and,
thereafter, to an arbitrator with the AAA. Id.
USA Swimming's Investigation Relating to Walker
time of his suspension, Petitioner Philip Mark Walker had
been a coach for USA Swimming for over 30 years. Dkt. 60, Pg.
IDs 4894-95. Walker is also the former coach of Excel
Aquatics (“XCEL”), a USA Swimming team with over
500 registered members as of January 2014. Dkt. 60, Pg. ID
September 23, 2013, a former XCEL athlete (“Victim
A”) reported to USA Swimming that Walker sexually
abused him from 1988 to 1991 while Walker was his swim coach.
Dkt. 51-1, Pg. ID 4263. Victim A described a pattern of
behavior in which Walker would massage Victim A and then
proceed to engage in the alleged sexual abuse, which occurred
during the time Victim A was 12 to 15 years old. Dkt. 61, Pg.
ID 4921. On October 11, 2013, USA Swimming informed Walker
that he was the subject of a complaint alleging a Code of
Conduct Violation. See Dkt. 60, Pg. ID 4896.
Swimming initiated an investigation into Victim A's
allegations, at which time a second individual, Victim B,
independently alleged that Walker abused him while his swim
coach at XCEL. Id. (citing Dkt. 51-1, Pg. ID 4263).
Victim B stated that Walker would begin by massaging him,
which would sometimes lead to the same act of abuse described
by Victim A. Victim B described sexual abuse that occurred
during the time he was 13 to 15 years old. Id.
on its investigation, including interviews of Victim A and
Victim B, USA Swimming filed a petition against Walker with
the NBR on January 16, 2014. Dkt 51, Pg. ID 4263-64. The
Petition alleged violations of Article 401.1 of USA
Swimming's 1986-1991 Rulebooks and Article 304.4.8(A) and
304.3.19 of USA Swimming's 2014 Code of Conduct.
Walker's First National Board of Review Hearing
first NBR hearing was held in May 2014. See, e.g.,
Dkt. 41-1, Pg. ID 2692. Victim B testified that Walker
inappropriately touched him between 1986 and 1988 while
Victim B was 13 to 15 years old. Dkt. 41-1, Pg. ID 2699.
According to Victim B, these incidents occurred at Victim
B's home, Walker's home, and in hotel rooms at swim
meets. Id. at 2699-70. Victim B testified that he
reported the abuse to his wife in 2010, and in 2013 he
reported the abuse to the Tennessee Department of
Children's Services. Dkt. 61, Pg. ID 4922 (citing Dkt.
41-1, Pg. IDs 2710-11).
A also testified at the hearing. Dkt. 41-1, Pg. IDs
2714-2729. Victim A stated that from 1988 to 1999, when he
was 12 to 15 years old, Walker would perform rubdowns on him
that would lead to sexual acts. Dkt. 61, Pg. IDs 4922-23
(internal citations omitted).
the initial NBR hearing, Petitioner's counsel
cross-examined each of USA Swimming's witnesses,
presented his own direct testimony, and introduced numerous
exhibits. See, e.g., Dkt. 41-1, Pg. IDs 2721, 2731,
2735. Walker also submitted written evidence, including his
own 23-page narrative statement and affidavits from eight
additional witnesses. Dkt. 41-2, Pg. IDs 2753-2801.
19, 2014 the NBR Panel issued its decision. Dkt. 51-2, Pg.
IDs 4444-58. The NBR Panel unanimously found that Walker had
violated USA Swimming's Rules and Regulations and its
Code of Conduct. Id. As a result, the NBR
permanently suspended Walker from membership in USA Swimming.
Walker's Appeal to the Board of Directors,
Supple- mental NBR Hearing, and Subsequent
allowed by USA Swimming's Rules and Regulations, Walker
appealed the NBR's decision to USA Swimming's Board
of Directors. Dkt. 51-2, Pg. ID 4444-58. On appeal, Walker
argued that he had not received sufficient time to present
his defense to the NBR Panel. Finding for Walker on this
issue, the Board of Directors remanded the matter to the NBR
with the recommendation that each side be allowed an
additional sixty minutes. Id. at 4464, 4519-21.
Panel conducted a supplemental hearing in accordance with the
Board of Directors' order. Walker presented additional
direct testimony and called his former wife as an additional
witness. See Dkt. 46-1, 3307-11. Having received
Walker's additional evidence, the NBR Panel again
concluded he had violated USA Swimming's Rules and
Regulations and banned him from membership in USA Swimming.
Dkt. 51-2, Pg. IDs 4543-50. Walker appealed the NBR's
second decision to USA Swimming's Board of Directors.
Dkt. 51-4, Pg. IDs 4627-32. The parties submitted written
briefs and counsel for both parties presented oral argument.
Dkt. 61, Pg. ID 4924. The Board of Directors affirmed the NBR
decision and ordered that Walker be permanently suspended.
Dkt. 51-4, Pg. ID 4742-44.
Proceedings before the American Arbitration
Sports Act requires that USA Swimming “agree to submit
to binding arbitration in any controversy involving . . . the
opportunity of any [coach] to participate in amateur athletic
competition, upon demand of the [USOC] or any aggrieved
[coach], conducted in accordance with the Commercial Rules of
the American Arbitration Association.” 36 U.S.C.A.
§ 220522(a)(4)(B). Walker filed a demand for arbitration
with the AAA, pursuant to this section, after the Board of
Directors affirmed the NBR's permanent suspension of
Walker. Dkt. 47-1, Pg. IDs 3544-60, 3642-47.
alleged that USA Swimming had violated its own constitution
and bylaws and that the NBR and Board of Directors'
proceedings lacked fundamental fairness. See, e.g.,
Dkt. 47-1, Pg. ID 3642-47. Walker requested a temporary
injunction on the publication of his name on the USA
Swimming's “banned” list, dismissal of USA