NHL commissioner Gary Bettman asserted Monday that the investigation into allegations of sexual assault of two former Blackhawks players by the team’s video coach — an investigation commissioned by the club itself — is both “independent” and “appropriate.”
Not everyone is so certain.
“The statement that they will not agree to release the result of the investigation at this time makes me conclude that it is not independent. If it were independent I believe they would provide the assignment … and make public all of the information they plan to provide, such as all of their files … to the investigator and none of that has been done, so the answer is no, I do not think it is ‘independent,’” Susan Loggans, the plaintiffs’ attorney for two different lawsuits against the Blackhawks in the matter said when reached for comment via email Monday night.
Loggans is representing one of the former Chicago Blackhawks players who said he was sexually assaulted by former team video coach Brad Aldrich in 2010 and that the team failed to investigate his claims. Loggans is also representing a former high school hockey player, named in his lawsuit as John Doe 2, who was sexually assaulted by Aldrich in 2013 when Aldrich was a volunteer assistant coach for his high school team. Aldrich was convicted of fourth-degree criminal sexual conduct for the offense and spent nine months in jail. John Doe 2’s lawsuit claims that the Blackhawks, even after being made aware of the allegations against Aldrich, provided him “positive references” that allowed him to secure other positions in hockey after leaving the Blackhawks.
According to multiple reports, including one in The Athletic, former Blackhawks skills coach Paul Vincent, a former law enforcement officer, brought the sexual assault allegations to Blackhawks upper management during the team’s postseason run in 2010 and that leadership group, which included president John McDonough, senior director of hockey operations Al MacIsaac, general manager Stan Bowman and mental skills coach Jim Gary. Vincent said the group refused to file a police report with the sex crimes division of the Chicago police after Vincent advised them to do so. Multiple players with the team during that time confirmed knowledge of the allegations, and one said the incident was talked about so much that “every single guy on the team knew.”
Vincent, when reached by The Athletic, said in a message that he would participate in the recently launched investigation.
The Blackhawks, in retaining Reid Schar of Jenner & Block to conduct the investigation, are presumably footing the bill. And while that may prompt questions about the true independence of the investigation, Helen “Nellie” Drew, a sports law expert who teaches at the University of Buffalo, said “realistically, someone always has to pay for an investigation, so unless a third party or a governmental entity is going to foot the bill, no investigation is truly ‘independent’ in that sense.”
“It always looks better if the entity under investigation commissions a party (typically a law firm with expertise in the area) that it has never done business with in the past,” Drew wrote to The Athletic in an email. “That tends to give a sense of objectivity that might not otherwise be there if, for example, the investigation team consisted of attorneys who customarily consulted with the Blackhawks and knew the people involved.”
Bettman said that Jenner & Block does not have ties to the league or the Blackhawks. Jenner & Block has ample experience representing large corporate entities in complex litigation; the firm represented USA Gymnastics in bankruptcy proceedings in the wake of the Larry Nassar scandal and touts its 400-person litigation department as a “powerhouse.” Reid Schar, the former prosecutor hired by the prosecutor, is a co-chair of the firm’s litigation department and, according to his firm bio, “counsels boards and board committees of public and private companies on a variety of sensitive and complicated matters, and conducts board and management-driven investigations involving various subjects domestically and internationally.”
Rep. Mike Quigley (D., Ill.), a hockey-playing former criminal defense attorney whose district includes much of the north side of Chicago and some of the northwest suburbs, is one of the Blackhawks’ highest-profile fans. He told The Athletic the allegations were “very disturbing,” but said he agreed with Bettman that the Blackhawks “did the right thing” by hiring Jenner & Block. Quigley said the proper thing to do is let the investigation take its course, and he dismissed the idea that the fact the Blackhawks commissioned the investigation undermines its credibility.
“Look, they didn’t hire Dewey, Cheatem and Howe,” Quigley said, citing a “Three Stooges” bit. “You hire a firm of that level and that reputation — they’re not going to chance their reputation. So the answer is yes. They didn’t pick a nobody here. It’s a very significant firm and a former federal prosecutor gives them the wherewithal, the ability and the credibility to do this the right way.”
Quigley said he hopes the Blackhawks and NHL are committed to transparency in this process.
“I would encourage that they make whatever’s brought out, to the extent possible, public,” he said.
During his annual press conference Monday before Game 1 of the Stanley Cup Final, Bettman was asked whether the report will be made public. “Let us see what the investigation reveals, and then we can figure out what comes next,” he said. “I think everybody’s jumping too far and too fast. This is going to be handled appropriately and professionally and done right.”
There is precedent for making a substantive investigation involving a major sports organization available for public consumption. The NFL released to the public the Wells Report following the Deflategate scandal involving the New England Patriots. Major universities that have dealt with sexual abuse scandals have made investigative reports public, such as Ohio State’s probe into Dr. Richard Strauss, though that is a public university. Private entities are under no obligation to make any such investigation public, Drew said, but “it would certainly be under significant public pressure to at least disclose the outcome of the investigation, if not the entire report. “
NHL agent Allan Walsh said the league should be asked to provide a specific timeline for when the investigation is expected to be completed and be transparent with the results.
“If you’re not committed to making the reports public, all you’re doing is managing a PR nightmare/crisis without actually doing anything meaningful,” Walsh said.
There is also the question of work product doctrine, which unlike the attorney-client privilege is not a privilege but a “judicially created doctrine under federal and state rules of civil procedure that is designed to limit what one side can get from the other in discovery,” according to law professor David E. Bland, an attorney with Robins Kaplan and adjunct professor at Mitchell Hamline School of Law who has written extensively on the subject.
Bland said that the true nature of why the investigation is being performed may dictate whether the information produced will be subject to discovery:
“What is its goal? What is its mission? Is (the investigation) connected to the litigation or separate? If it’s connected to litigation, it will be viewed as work product. Even if it’s being prepared in anticipation of litigation (it will be viewed as work product).”
However, the NHL’s involvement in the matter could add an interesting wrinkle to this legal principle:
“If (the Blackhawks) send it to the NHL, I think there’s a really good argument they’ve waived any protection there, because they’ve made it available to non-parties even if (the non-parties) have some interest,” Bland said.
“Unless it turns out to be something that they’re happy with, my guess is they will assert attorney-client privilege even though they don’t have to,” Loggans said.
Whether the league could have any potential exposure on the legal claims remains to be seen. Bettman, when asked when the league became aware of the allegations said the league learned of them “relatively recently.” When Bettman was asked a follow-up question about when specifically he learned of the allegations, he deferred to deputy commissioner Bill Daly, who also said he could not pinpoint a date but said it was “relatively recently.” Daly said the league was informed of the allegations from the Blackhawks general counsel.
Bettman repeatedly preached patience, but said “all options are available” regarding future punishment of individuals or the club itself, pending the results of the investigation and litigation.
“Whenever you hear allegations like that, (they) are concerning,” he said. “But my first reaction is, tell me the facts. And once we know what the facts are, we’re in a better position to evaluate what may or may not need to be done.”
Marie Sutera, Blackhawks vice president of human resources, when contacted by a law enforcement officer in 2013 regarding an investigation into alleged criminal sexual conduct by Aldrich in Houghton, Mich., requested a search warrant or subpoena to provide information about why Aldrich left the team, according to a police report obtained by The Athletic.
“We will subpoena any documents (that) the NHL has concerning this occurrence,” Loggans wrote via email. “If they provide something relevant to the case the court will then allow us to ask for other documents, which we intend to do.”
(Photo: Warren Wimmer / Icon SMI / Corbis / Icon Sportswire via Getty Images)
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