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Walker v. USA Swimming, Inc.

United States District Court, M.D. Tennessee, Nashville Division

January 12, 2018

PHILIP MARK WALKER, Petitioner/Plaintiff,
USA SWIMMING, INC., a foreign corporation, Respondent/Defendant.



         I. Introduction

         Petitioner 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.

         USA 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 jurisdiction.” Id.

         As to 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.

         USA Swimming opposes the petition to vacate the arbitration award. The Court heard oral argument on the matter on November 28, 2017.

         For the reasons outlined below, Petitioner's Amended Petition and Complaint to Vacate Arbitration Award is DENIED and the Complaint for Damages, Dkt. 14, is DISMISSED.

         II. Background

         The Ted 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).

         The 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.

         A. USA Swimming's Investigation Relating to Walker

         At the 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 4896.

         On 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.

         USA 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.

         Based 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. Id.

         B. Walker's First National Board of Review Hearing

         The 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).

         Victim 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).

         During 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.

         On May 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. Id.

         C. Walker's Appeal to the Board of Directors, Supple- mental NBR Hearing, and Subsequent Appeal

         As 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.

         The NBR 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.

         D. Proceedings before the American Arbitration Association

         The 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.

         Walker 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 ...

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