Internal Investigation Best Practices and Lessons Learned from the Sally Yates Report on Allegations of Abuse in Women's Professional Soccer

In light of the explosive internal investigations report authored by Sally Yates on behalf of the US Soccer Federation, covering allegations of abuse in women’s professional soccer, this article will examine important lessons learned for companies in the context of workplace culture internal investigations. Topics include the risks for companies of letting internal complaints languish and what happens when complainants take their case to the media; handling allegations of misconduct and sexual abuse in the era of #MeToo; and the pros and cons related to a company’s decision to release a full report to the public. In order to place the Yates report in the context of other publicly known and recent sports, #MeToo, or workplace culture investigations, we present a comparator chart that illustrates some of the key characteristics and differences between such investigations. We will also examine best practices relating to the investigative methods used by the Yates investigation and challenges posed by this type of investigation, such as difficulties in obtaining materials from third parties, problems posed by unwilling witnesses, and the difficulties in collecting evidence in the context of a multiyear look-back period.

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Background on NWSL Scandal

On September 30, 2021, reporter Meg Linehan of the sports publication The Athletic broke a story on sexual abuse in women’s professional soccer in the United States. Meg Linehan, “This Guy Has a Pattern”: Amid Institutional Failure, Former NWSL Players Accuse Prominent Coach of Sexual Coercion, The Athletic (Sept. 30, 2021). This detailed piece of investigative journalism by a long-time women’s soccer reporter rocked the world of women’s soccer—and sport in general in the United States. From an internal investigations standpoint, it was notable that the complaining witnesses (several former pro players) had taken their story to the news media after multiple unsuccessful attempts to resolve their grievances inside the National Women’s Soccer League (NWSL). The fallout from the article was immediate. Within days, the North Carolina Courage team terminated head coach Paul Riley, the main subject of The Athletic’s reporting. Pro games for the weekend were cancelled. And the NWSL’s commissioner and general counsel resigned under pressure. Following on the heels of the USA Gymnastic abuse scandal involving team doctor Larry Nassar, the NWSL story was another example of alleged systemic abuse by male coaches in women’s sports.

Scope of Yates Report and Methodology

Within days of The Athletic’s story, on October 2, 2021, the US Soccer Federation, which managed the NWSL from 2013 until 2020, hired Sally Q. Yates, the former Deputy Attorney General, to perform an internal investigation into the allegations of abusive behavior and sexual misconduct in US women’s pro soccer. Anne M. Peterson, US Soccer’s Relationship with NWSL Changing, Seattle Times (Jan. 12, 2021). US Soccer is a 501(c)(3) nonprofit and the official governing body of soccer in the United States.

At the same time, the NWSL and its players association hired separate outside counsel to conduct its own parallel investigation. These two investigations had different scopes, and different authority in terms of making requests for witness interviews and documents. The investigations shared information but were separate and were completed on different time frames. As noted below, the Yates report was released on October 3, 2022, and the NWSL report was released later that year.

The Yates investigation’s methodology was fairly standard and entailed a review of documents within its client’s possession, witness interviews of current and former employees, and requests for documents and interviews of third parties. The investigation permitted witnesses to remain anonymous in the report and established several confidential and anonymous email and telephone hotlines.

On October 3, 2022, the Yates report was released to the public in its entirety. US Soccer, Sally Q. Yates Report, (last visited Jan. 16, 2023). It spanned 234 pages of content, provided direct quotes from witness interviews, and attached dozens of pages of supporting documents, including two prior internal investigation reports, emails, and text messages. Among other findings, it concluded that abuse of players by coaches in the NWSL was “systemic;” US Soccer failed to adequately address reports and evidence of coach misconduct; abusive coaches were moved from team to team; and a culture of “abuse, silence, and fear of retaliation perpetuated the misconduct.” The report detailed allegations that three male head coaches had sexually assaulted, coerced, harassed, and/or engaged in sexual misconduct with multiple female players over a multiyear period. In the case of coach Paul Riley, the Yates report concluded that although “allegations of sexual misconduct against Riley were brought to the attention of leadership at the league every year from 2015 to 2021, much of Riley’s misconduct remained under wraps until The Athletic article was published.”

The fallout was swift, with owners of several of the clubs (Portland Thorns and Chicago Red Stars) announcing they would step away from women’s soccer operations and the Portland Thorns firing several high-level managers.

Lessons Learned for Companies

The Yates report illustrates many lessons for companies faced with internal complaints.

First, the report illustrates the risks for companies of letting internal complaints languish and the explosive effect that can occur when complainants take their case to the media. The US Soccer investigation illustrates the possible consequences to a company of not adequately responding to internal complaints, leaving employees with limited options for redress aside from going to the press. As detailed in the Yates report, the relevant organizations (USSF and NWSL) lacked internal reporting mechanisms (such as a hotline). They also lacked internal policies on harassment and retaliation that clearly defined acceptable and unacceptable workplace behavior. Companies should have an internally publicized reporting channel for employees and clear policies and procedures so employees and supervisors know the “rules of the road.” Companies also benefit from having investigative protocols in place before an issue hits the radar screen, so they are not caught flat-footed when a crisis arises.

Second, the Yates report illuminates the complexities of investigating allegations of misconduct and sexual abuse in the era of #MeToo. For “bet the company”-type investigations, such as the Yates investigation, some companies will hire independent outside counsel—meaning a firm that does not advise the company on a day-to-day basis or have a history of interaction with the company’s workforce. In some cases, there is a benefit to having an outside investigative team come in “fresh,” without pre-established relationships, history, or “baggage” with the company. This approach can also garner increased credibility with the government, especially if the investigation is or becomes government-facing. The flip side of that dynamic is that the employee-witnesses will have no level of familiarity with the law firm or the investigative team and can understandably be wary of trusting them. Thus, an outside investigative firm/team must build the trust of the witnesses one by one. As outsiders, and usually out-of-towners from other cities, that is not easy to do, especially with the sensitivity of #MeToo allegations and the understandable unwillingness or unease of victims to share painful details. An added challenge once the investigation begins is for the investigative team to assuage the concerns and fears of witnesses such that the witnesses open up to the investigators—as opposed to telling their story to the press or broadcasting details on social media.

Here, Yates used an all-female team, including former college athletes and one former collegiate soccer player. According to the report, all victims were women, and most of the alleged perpetrators were men. It is possible that having at least one man on the investigation team might have been useful to provide a different perspective with a view towards eliciting responses from the alleged perpetrators. Similarly, given that some conduct at issue by the coaches related to targeting players of color with racially inappropriate statements and names, as well as singling out players for harassment given their sexual orientation, successful investigative teams should be diverse and tailored to the allegations that are expected to be uncovered. For example, although the diversity of the Yates team may not reflect equal representation of the various backgrounds of the victims, there was diversity within the investigative team. And there is good reason for diversity—more diverse legal teams perform at higher levels than their less diverse counterparts. For example, a 2016 study by Acritas found that more diverse legal teams have higher rates of overall client satisfaction and higher recommendation rates. Acritas Rsch. Ltd, Acritas Diversity Report: Uncovering the Positive Impacts of a Fully Diverse Legal Team (2016).

Another concern is that investigators must be tuned into generational differences regarding what constitutes acceptable workplace behavior. This is especially true in a workplace such as the NWSL in which most players are under 30 years old, and most of an experienced investigative team (law firm lawyers) will tend to be older, sometimes by a generation or more. Generational gaps bring different implicit biases and also inform what workplace behaviors are appropriate or inappropriate. The Yates team spawned multiple generations, with some team members practicing law for 30 years or more, while others were first-year associates and law clerks. Investigators must have cultural sensitivity and generational awareness and be clued into racial, gender, and sexual orientation issues. These are all key in building trust and giving witnesses a safe space where any re-victimization is minimized.

Third, the Yates report demonstrates the pros and cons related to a company’s decision to release a full report to the public. According to the president of US Soccer, Yates gave the report to US Soccer at the same time as it was released publicly. Eden Laase, Sally Yates Discusses Most “Troubling” Findings of NWSL Investigation, Just Women’s Sports (Oct. 3, 2022). Although it is unknown if the Yates team shared drafts along the way, the simultaneous release of the report to the public and the client likely means that US Soccer was not given the chance to review and comment on the final report before it was released, which is unusual. Given the level of detail and length of the report, we can fairly assume that there was not a lot withheld from the public. This approach can have advantages, as well as disadvantages.

The advantages to such a transparent approach include forging a pathway to regaining the public’s trust and restoring the image of the company. This is especially important for companies that are public-facing or publicly traded or have a public mission or charter, such as US Soccer. It also permits a clear pathway to remediation and rehabilitation of the company’s public image in the context of consequences to culpable employees—but only if the company takes such remedial action and the public can see it.

On the other hand, there both risks and disadvantages to releasing a full report to the public, including the following:

• Companies considering releasing a full report must consider the possibility that doing so may “over share” and provide more information to the public than is needed to accomplish the company’s objectives. This is especially true when the company is already involved in litigation on the topic. Companies should consider the risk that a full report that provides detail that is not already in the public domain (whether already reported on by the media or placed on social media by employees/former employees) could give rise to would-be plaintiffs. Worse, it could lead to follow-on government inquiries. Companies must be aware that a high-minded desire to provide full detail to the public in the pages of a report can be damning evidence in the hands of an aggressive prosecutor. It could lead to the company exposing itself to legal jeopardy for its own role in the acts the report covers and provide a road map for corporate exposure.
• Companies releasing a full report should be mindful of possible collateral consequences for witnesses. Although the Yates report gave some witnesses the option of remaining anonymous, many witnesses allowed the report to use their real names. When the report cites to witness interviews, the report’s 1,400+ footnotes identify each witness by name or by “Witness 1, 2, 3.” For readers familiar with the sport, even for some witnesses who are technically anonymized in the report, it is clear who the witness is. Such precise sourcing and attribution raise the risk that individuals disgruntled by what such witnesses said about them could lead to witness harassment, retaliation (if the witness is still employed at the company), or civil claims (such as defamation) against the witnesses themselves.
• To the extent that a parallel investigation is ongoing at the time a report is released (or the company anticipates doing a follow-up investigation or report), releasing a detailed report could have a chilling effect on such future investigations. Specifically, it could chill the willingness of alleged perpetrators and complaining witnesses to interact with any follow-on investigations. But individuals or teams in the midst of their interaction with the separate NWSL investigative team could react negatively to what they may perceive as over-disclosure in the Yates report or view the Yates report as too detailed to adequately protect their privacy (even with anonymous attribution).
• Although many internal investigative reports released to the public open the door to arguments regarding waiver of attorney-client privilege from would-be plaintiffs (or the government), it’s hard to avoid the conclusion that the Yates report likely fully waived privilege over certain topics. For example, attached as appendices to the Yates report are prior internal investigative reports. One such report was prepared by the Portland Thorns’ HR department and given to US Soccer; another was prepared by outside counsel to US Soccer related to the Chicago Red Stars. As part of the decision to release a full report, companies are well-advised to consider possible privilege waiver arguments.

Chart of Comparator Internal Investigations

In order to place the Yates report in the context of other publicly known and recent sports, #MeToo, or workplace culture investigations, the following nonexhaustive comparator chart illustrates some of the key characteristics, similarities, and differences between and among such investigations. We selected comparators with an emphasis on recent internal investigations (all but one were within the past five years) and with a view towards presenting investigations with the same general subject matter as the Yates report: sports investigations, #MeToo and/or workplace culture investigations. We selected comparators with an emphasis on investigations in which a full report or a moderate amount of information was released to the public so that meaningful comparisons could be drawn.

Of course, not every report was “cut from the same cloth,” which allowed us to illustrate the wide variety of methods that have been utilized by investigative teams. We note that there is no one-size-fits-all approach, methodology, or technique for internal investigations, or any reports that a company chooses to release after an internal investigation. Each investigation is unique and should be tailored to the specific needs of the client and the circumstances.

The chart on pages 58 to 61 presents an overview of comparator investigations.

To draw some broad conclusions from the chart, we first note the variety in how complainants articulated concerns. Of this comparator set, roughly half of the complainants appeared to go outside the company (e.g., filing a lawsuit, going to the media) in the first instance to air their grievances. In some instances, the reports were spawned by investigative journalism. As noted, the US Soccer investigation revealed that complainants attempted unsuccessfully, over a multiyear period, to seek internal redress and remediation. When those efforts failed, they went to the media. Most companies actively seek to build trust with their workforce and encourage internal reporting. And as concluded by one study of almost two million internal reports related to discrimination, sexual harassment, and other misconduct, increased internal reporting is associated with improved outcomes related to government fines and litigation. Stephen Stubben & Kyle Welch, Evidence on the Use and Efficacy of Internal Whistleblowing Systems (Feb. 29, 2020). But when a complainant goes to the media, the company loses control of the narrative and the investigative timeline, and it can create a much more complex investigative environment. For example, the investigative team is then tasked with conducting a privileged investigation at the same time as the media is reporting on it. Issues of privilege waiver become significant, with the company having limited control over leaks to the media, social media posts by witnesses, and even situations where a witness interviewed by the investigative team later waives privilege by speaking to the media or posting on social media.

The level of detail in which companies chose to release information is also worth noting. Although the majority of companies reviewed made the decision to release “full reports” to the public, others only addressed the investigation in a truncated fashion through press releases or social media messaging. Those companies that did not release a full report often cited to privacy concerns as the reason for the lack of transparency. For public-facing companies, publishing a single report may not be enough to quell concerns about individual or company misconduct. Follow-up “reports” that demonstrate how seriously the company took the allegations and whether remedial recommendations were implemented can have the potential to further improve (or impair) a company’s image.

Although there was variability, anonymity concerns were a common thread. Regardless of the type of investigation, the focus of these investigations is on sensitive and personal topics. As such, almost every report reviewed anonymized names when requested. Many reports used generic terms such as “Witness” or “Survivor.” Other reports used unique but anonymous identifiers, e.g., “Black Ace 1” or “Former Graduate Student 3.” But for certain individuals, the reports did not extend anonymity. Specifically, alleged perpetrators, C-Suite executives, and those who made public statements either to the media or in lawsuits often had their full names and titles used.

Unlike the Yates investigation, not every investigation reviewed established a reporting hotline. In some cases, the relatively small size of the company or the limited scope of the investigation potentially obviated the need for a hotline. We observed several scenarios in which investigations did not set up a hotline: (1) the company already had a reporting line in place and did not see a need for a separate one for the investigation; (2) the company used an alternative reporting mechanism to gather information from possible witnesses, such as sending out mass emails or creating media advertisements; or (3) a hotline was set up at the conclusion of the investigation as a remedial step for the possible reporting of future misconduct. However, as a best practice, investigations typically can benefit from a dedicated email address or other hotline as a way to ensure that individuals who may be unknown to investigators have a way to come forward and as a catch-all fact-gathering mechanism.

Third-party interview and document collection practices varied. But none of the comparator reports detailed the same level of third-party interference/noncompliance as did the Yates report. Some investigations interviewed third parties, who were typically people in whom complainants had confided, and the report used communications with the confidants to corroborate timelines.

The scope of document reviews also varied greatly. Part of the variability could be attributed to the differing look-back periods (e.g., the time period of the conduct at issue). Some companies analyzed millions of documents, including emails, policies, and procedures. Others reviewed limited universes of several thousand documents. Some companies went one step further and analyzed cell phone records, although only a few claimed to review text messaging, and all of those who looked at cell phones noted they were work-issued devices.

The biggest unknown is what collateral legal consequences, if any, will flow from any given report. For many reports, it is presently unknown whether there will be any specific legal consequences. For those that are more “newsworthy” (e.g., Larry Nassar), there have been criminal prosecutions, congressional investigations, a US Department of Justice OIG investigation, and more than 150 private lawsuits. But for most comparators examined, it remains to be seen what implications these reports will have on the companies that have released them to the public. Regarding the Yates report, at this writing, there do not appear to be any criminal charges filed, although some of the conduct detailed in the report could rise to the level of assault, battery, and related state sex crimes.

Most companies in the chart engaged in some remediation activity as a result of the reports. For most, it was a reevaluation of policies and procedures. Some companies developed new reporting mechanisms and created oversight processes. Some restructured their C-Suite to create new positions that focused on diversity and inclusion. Others terminated personnel and created victim funds to financially assist those impacted by the alleged abuse or misconduct.

Best Practices for Internal Investigations—and Challenges Faced

The detailed nature of the Yates report, which includes a five-page section on the methodology used, allows insight into some best practices. It also permits examination of challenges faced by the Yates investigation, and similar investigations.

Among the best practices employed by Yates were:

• The use of multiple anonymous reporting channels—both email and phone. This allowed the investigative team to collect information from witnesses they may not have been aware of, such as former employees. It also allows contact with known witnesses who may be reluctant to come forward via conventional channels (such as a formal request for an interview). It allows the investigative team to slowly build trust with witnesses who wish to come forward anonymously at first.
• Allowing certain witnesses to remain anonymous in the report. Given the sensitivity of the subject matter and allegations, the relatively youthful age of the victims, and the possibility for retaliation that exists in any workplace, allowing certain witnesses to remain anonymous in the report protects the integrity of the investigation, encourages reluctant witnesses to come forward, and allows the investigative team to take a flexible approach with various witnesses.
• Bringing a wide-ranging investigation to a timely close. Yates wrapped up her investigation and report one year and one day from when US Soccer announced her hiring. Although the report details that numerous third parties had not made complete (voluntary) document productions and certain key witnesses had not fully engaged with the investigative team and/or had not agreed to be interviewed, Yates ended her investigation to give her client closure and a pathway towards remediation. As Yates stated at a press conference announcing the release of her report, “in order for there to be both transparency and accountability, and to be able to put in place the changes that need to happen, this investigation needed to end.” Eden Laase, Sally Yates Discusses Most “Troubling” Findings of NWSL Investigation, Just Women’s Sports (Oct. 3. 2022). There will always be loose ends in any investigation, and not all questions will be answered. Sometimes, a timely close to an inquiry is more valuable for a company than extending the life of an investigation.
• Detailing in the report any significant process/procedural issues encountered in the investigation. Of course, not every witness can be interviewed and not all documents can be reviewed. But acknowledging more significant hindrances directly in the report aids in transparency, and also puts companies in a position to argue that they attempted to conduct a thorough investigation but faced outside limitations.

The challenges faced by many internal investigations, and highlighted by the Yates investigation, include:

• Although very few internal investigations enjoy subpoena power (an underlying lawsuit would have to be on-going to permit discovery), as is typical, Yates had very limited ability to obtain documents from unwilling third parties. As noted in the report, Yates requested documents from third parties but had no compulsive process to enforce such requests. But an interesting feature of the Yates report was that it publicly called out by name certain persons/entities who did not produce documents or sit for interviews despite being high-ranking former employees or executives. Although it is unknown if Yates telegraphed this public shaming to the reluctant witnesses beforehand, it may be one of very few “sticks” an investigation has to potentially enforce or press such voluntary requests.
• A common challenge faced by Yates and others is that some witnesses will inevitably be unwilling or reluctant to engage with the investigation. This can be for many reasons—fear of retaliation, a desire for privacy, or the lack of being a “stakeholder” if the witness is no longer an employee or involved in the industry at issue. The reality is that the most willing witnesses are typically those who still work for the organization and, in some cases, are required to cooperate with an investigation as a condition of their employment. Former employees are generally less likely to cooperate fully. We note that some investigations may choose, for a variety of reasons (including risks of possible privilege waiver by the former employee), to refrain from interviewing former employees.
• Another common issue faced by Yates is effectively investigating conduct that is years old. The US Soccer investigation had a look-back period to around 2015. Although this may not seem to be an insurmountable time period to examine, the reality is that many companies do not preserve emails or other data for long periods of time unless required by law, and often purge files and emails of departing employees. A look-back period of seven or so years usually means that text messages and other private messages are likely lost, not preserved, or unavailable. However, the Yates report did obtain some text messages from witnesses, but these appear to have been voluntary productions by complaining witnesses who had intentionally preserved such messages, as opposed to text messages obtained via collection of company-owned phones.

Conclusion

Although no two internal investigations are the same, common themes run through many workplace culture investigations. Given the near-full disclosure provided by the 200-plus-page Yates report, this report allows the professional community a deeper look into methods, techniques, and outcomes, and allows a comparison with other recent internal investigative reports in the public domain.

Note: This article reflects developments as of December 1, 2022.