James Clarkson, the former Head Coach and General Manager of the Houston Dash women’s professional soccer team, sued the National Women’s Soccer League (the “League”), the National Women’s Soccer League Players Association (“Players Association), and their respective law firms, Covington & Burling, LLP (“Covington”) and Weil, Gotshal & Manges, LLP (“Weil”), and individual attorneys for defamation, tortious interference with a prospective contract, and conspiracy following a League-wide investigation and the publication of an investigative report (“Joint Report”) involving alleged misconduct by coaches, general managers, and league personnel, including Clarkson. Defendants filed a motion to dismiss under the Texas Citizens Participation Act (“TCPA”), Texas’ anti-SLAPP statute. The motion to dismiss was denied by the trial court. Under Texas law, the denial of a TCPA motion to dismiss grants the right to an interlocutory appeal.
Following the execution of a collective bargaining agreement, the Players Association and the League reached an agreement to undertake a League-wide independent investigation into all reports of inappropriate conduct directed towards players and member clubs since the League’s inception in 2012. In their joint investigation, the League, represented by the Covington, and the Players Association, represented by Weil, reviewed current and historic complaints of discrimination, harassment, and abuse. In April 2022, Clarkson was suspended pending the conclusion of the investigation.
In December 2022, the joint investigative team issued a 125-page Joint Report. In that report, Clarkson is mentioned in nine (9) pages. Clarkson filed suit alleging, among other things, that the Joint Report “falsely characterized him as just another serial abuser who was ‘racially insensitive’, ‘abusive’, ‘insensitive toward mental health’,” and accused him of having “engaged in ‘emotional misconduct’,” and failing to “show appropriate regard for players’ wellbeing.”
In response to Clarkson’s claims, Defendants filed a motion to dismiss arguing 1) Clarkson’s claims were based on or in response to their exercise of free speech and association rights about matters of public concern; 2) Clarkson was a public figure; and 3) Clarkson cannot establish by clear and specific evidence a prima facie case for each essential element of his claims.
The First Court of Appeals in Houston, Texas (“COA”) reviewing the circumstances at issue concluded that player mistreatment in the League is a matter of public concern and Clarkson is a limited public figure for the purposes of the controversy and, therefore, concluded that Clarkson’s claims constitute a legal action based on or in response to Defendants’ exercise of rights listed in Section 27.005(b) of the Act, i.e., right of free speech and right of association. Under the TCPA, commercial speech is an exception to the application of the TCPA. Clarkson argued the law firms published the press releases on their websites marketing the firms’ capabilities and, thus, the commercial speech exception applied. Turning to the commercial speech exception, COA found that the commercial speech exception does not apply for two reasons: 1) Clarkson does not allege that any statement in either law firm’s press release defamed him; and 2) because the law firms provided the legal services pro bono and published the Joint Report at their clients’ request, the statements in the press releases did not arise out of the sale of legal services or the law firms’ status as sellers of legal services.
Ultimately, COA concluded that Clarkson did not establish a prima facie case for each element of his claims asserted against Defendants. Therefore, COA reversed the trial court’s denial of the motion to dismiss and remanded the case for dismissal and determination of attorneys’ fees consistent with the TCPA.
For any questions, feel free to contact Christian Dennie at cdennie@denniefirm.com.
